Comments of the Registry Constituency
The Registry Constituency voted today to file the following statement:
The Registry Constituency (RyC) of the Generic Names Support Organization (GSNO) submits these comments in response to the posting, on 8 March 2007, of the draft Final Report of the GNSO Council's Task Force on Policies for Contractual Conditions: Existing Registries (PDP Feb 06) and its draft Recommendations.
RyC has previously stated its position that the proceedings of this PDP are outside the legal powers of the GNSO, and can have no effect on the subject matter of contractual conditions for existing generic top level domains.
1. Procedural Issues
The Terms of Reference of this PDP are the result of a supermajority vote of the GNSO to initiate a PDP, despite the clear recommendation in an ICANN Staff Issues Report that concluded against recommending a dedicated PDP ?on this matter as framed by the GNSO Council.? As framed by the GNSO Council, the issue was ?the dot COM proposed agreement in relation to the various views that have been expressed by the constituencies.?
The Staff Issues Report further said, ?There are aspects identified by the GNSO Constituencies which could be used to inform policy development within the framework of the ongoing PDP regarding new gTLDs.? These aspects are, however, not the subject matter of the current PDP. Notwithstanding the explicit limitations expressed in the Staff Issues Report, the GNSO proceeded to launch this PDP on an entirely new and different subject ? ?contractual conditions for existing generic top level domains,? a subject that is clearly not ?within the framework of the ongoing PDP regarding new gTLDs?, as suggested by the Staff Issues Report.
This PDP is not only unauthorized and out of scope, it is without legal foundation. It purports to impose possible conclusions of a PDP on subject matter that is exclusively within the responsibility of the Board of Directors of ICANN.
2. Substantive Issues
a. Registry Renewal Agreements
The Constituency believes that an attempt to set a policy guiding renewal is not properly within the scope of a GNSO PDP. In general, the overall goal of this PDP should be limited to a determination of what policies are (a) appropriate for the long term future of gTLDs - specifically within the context of ICANN's mission to preserve the stability and security of the DNS, and (b) relate to certain specific issues identified below.
In particular, the interests of the various constituencies that make up the GNSO are diverse and may well, from time to time, be in conflict with the goal of establishing a stable and effective contractual framework for agreements between registries and ICANN. If a policy concerning renewals is determined by the ICANN Board to be within the limitations specified above, then such policy can, legitimately, only be set by the ICANN Board.
b. Relationship between registry agreements and consensus policies
Consensus policy limitations are appropriate only to the extent that they may undermine the interoperability, security, and stability of the Internet and DNS. Any determination of the appropriateness of particular limitations should be limited to review of their impact on these three subjects. However, it would be legitimate to examine whether the diversity of sponsored TLD policy making poses a threat to the interoperability, security, and stability of the Internet and DNS, and, if so, under what circumstances changes should be applied.
c. Policy for price controls for registry services
Price controls are another example of a subject that is not properly within the scope of GNSO proceedings and this PDP. It is clearly improper for the various constituencies comprising the GNSO to be in the position of resolving their conflicting interests by setting price policies for another constituency. On the question whether there are objective measures for approving an application for a price increase when a price cap exists (if there are any such), the GNSO is not the appropriate body to determine them
d. ICANN fees.
On the question whether there should be a policy guiding ICANN?s setting of registry fees, the inappropriateness of the question can best be demonstrated by rephrasing it: ?Should there be a policy guiding [registrar] [ISP] [any other constituency] fees to ICANN?? Also, only the ICANN Board can determine how its budgeting process should relate to the negotiation of any fees charged to any constituency.
e. Uses of registry data
It must be recognized that laws governing the capture and use of data vary around the world. Any policy on this subject should be sensitive to the need for a registry to conform to the laws of the jurisdiction where it is located. Local law must also be considered in ensuring non-discriminatory access to registry data that is made available to third parties.
f. Investments in development and infrastructure
The question of a policy guiding such investments is closely related to the questions of price controls and the setting of ICANN fees. It is equally inappropriate for the various constituencies comprising the GNSO to be in the position of resolving their conflicting interests by setting investment policies for another constituency.