Re: [council] RE: [pdp-pcceg-feb06] FW: PDP Feb 06: Draft Agenda 10 August

[John Jeffrey <john.jeffrey@xxxxxxxxx>]

Marilyn, Councilors and TF Members,

Thanks for raising the important issues addressed in your email  
earlier today.  I have reviewed your comments regarding the  
relationship between the .BIZ, .INFO and .ORG agreements and the pdp  
feb 06 and just wanted to add some additional facts and points of  
consideration for additional consideration and clarity around these  
topics.

It is important to note that both the .BIZ, .INFO and .ORG  
discussions are scheduled to be in the stages proceeding their  
expiration (for .BIZ and .INFO next year), and that the posting of  
the agreements follow on from a process that started in mid-2005  
following the introduction of the revised registry agreement form in  
the sTLD discussions and following the introduction of the revised  
2005 version of the .NET Agreement.  These discussions started well  
in advance of the idea for the contractual conditions pdp launched  
during the revised .COM agreement public comment process.  It is also  
important to note that we have continued in negotiating and  
finalizing the sTLD agreements during this time, as well.

The proposed terms on the .BIZ, .INFO and .ORG agreements were posted  
for public information 5 weeks ago, so I am a bit surprised that we  
are only now hearing of your concern.  Additionally, the TF and the  
GNSO have been aware of the negotiations relating to these agreements  
for quite some time.  The expriation of these gTLD agreements (and  
the expiration of the .BIZ and .INFO agreements in particular) have  
been discussed in various forums and the terms of all gTLD agreements  
remain publicly available.

I am informed that there has been a long running discussion dating  
back to the beginning of ICANN and that there is a disparity of  
opinion regarding the relationship between the policy issues and  
specific contractual agreements.  It is also my understanding that  
the issues being discussed in the current pdp are unlikely to be  
resolved in a time frame that would permit such policies or advice as  
might arise from this pdp to impact a negotiation on these particular  
agreements.  In following the work of the task force it appears that  
it will be difficult to reach a consensus, and if such consensus were  
to emerge, the policy or advice must then be reviewed and approved by  
the board, and then implemented by staff.

I assume that there will continue to be pdp's in the GNSO that will  
impact the various gTLD agreements (like those that have been  
approved and those that have been pending for some time), and we  
cannot wait until all potential policy or advice from such pdp's is  
concluded on all possible issues before we negotiate agreements.

Based upon all of the above and the comments that I made at the onset  
of this pdp, it is my opinion that the scope of this pdp should not  
seek to place limitations on the negotiations of specific  
agreements.  Also, I would also caution, once again, against the use  
of a pdp process to impact specific agreements.  The appropriate  
process to raise concerns about the posted agreements is the current  
public comment process for those agreements.

best regards,
John Jeffrey
General Counsel &
Secretary
ICANN





On Aug 9, 2006, at 1:27 PM, Marilyn Cade wrote:

> I raised a topic on the Council call last week and believe it  
> should also be noted in the minutes of the TF meeting tomorrow as  
> an issue of concern. I’ll preview it here for the TF members, and  
> have copied Council, since not all Councilors are on the TF.
>
>
>
> IF the GNSO Council is responsible for developing policy for GTLDS,  
> then we really have to have an understanding that there will be  
> consultation between the GNSO Council and the ICANN staff when  
> there is urgent need for policy development. Several constituencies  
> raised the issue with ICANN senior management and the Board  
> regarding the .com situation that we expected to be advised by  
> ICANN if we need to fast track policy.
>
>
>
> I find myself disappointed, and concerned,  to see that we seem to  
> have an apparent disconnect between activities related to drafting  
> and proposing new versions of existing registry agreements as  
> posted by the ICANN General Council and the work of the TF PDP 06.  
> Since there is a policy development process underway, approved by  
> consensus vote of the GNSO Council, directly relevant to policies  
> in existing contracts with registries, I believe that registry  
> agreements should be redrafted only after the conclusion of the PDP  
> and following its recommendations.  I am concerned to see a posting  
> of three registry agreements, one of which does not lapse until  
> 2009, without any acknowledgement of the pending work of the GNSO  
> Council.
>
>
>
> I note that ICANN staff mentioned on the Council call that these  
> negotiations were undertaken at the request of the registry  
> operators, and I am sure that is the case. That isn’t the relevant  
> point. The relevant point is that there is policy development  
> underway that is directly applicable.
>
>
>
> I raised this concern on the GNSO Council call last week, and will  
> post further to Council regarding Council’s position on its role in  
> developing and determining GNSO policy which is then recommended to  
> the Board. Ignoring Council’s role essentially means that our work  
> and indeed our role is irrelevant to ICANN. I find it hard to  
> believe, as I review the strong endorsement given by ICANN’s senior  
> management to the importance of bottom up policy development, that  
> that would be intentional outcome of any activities presently  
> underway. However, it can be an unintentional, and harmful outcome.
>
>
>
>  I believe that Council must address the topic and raise the  
> concern to the Board and the Senior Staff, awareness of the direct  
> linkage of this policy development process to the recently posted  
> revised registry agreements.
>
>
>
> I support the Chair’s proposal that we need to commit to a  
> published timeline that achieves the needed, and detailed and  
> complex work in the time we have between now and San Paulo. I am  
> concerned to see the face to face meeting moved into October. If  
> that is the best we can do, then we need to accomplish work in the  
> meantime via conf. call working sessions.
>
>
>
> For the TF, we are going to have to meet more often, via conf.  
> call, and then face to face. Overall, we need to get this TF on a  
> regular working schedule. If we look at how frequently we have met,  
> we see broad gaps. That may signify that we need additional  
> resources, and so tomorrow, I suggest that we give consideration to  
> recommending retention of not only independent experts, but also  
> possibly additional consulting resources to augment existing staff  
> resources. That may be the most practical approach to ensuring that  
> this important policy area is completed by the end of ’06, as  
> originally conceptualized. We can then expect ICANN to advise us  
> quickly of resource availability to achieve the needed support to  
> the TF.
>
>
>
> Marilyn Cade
>
> BC TF member/GNSO Councilor
>
>
>
>
>
> P.S. I do have edits and suggestions for the draft report, but will  
> do those in marked up version for posting separately, after the call.
>
>
>
>
>
>
>
> From: owner-pdp-pcceg-feb06@xxxxxxxxx [mailto:owner-pdp-pcceg- 
> feb06@xxxxxxxxx] On Behalf Of Cubberley, Maureen (CHT)
> Sent: Tuesday, August 08, 2006 3:16 PM
> To: pdp-pcceg-feb06@xxxxxxxxxxxxxx
> Subject: [pdp-pcceg-feb06] FW: PDP Feb 06: Draft Agenda 10 August
>
>
>
> Hello All,
>
>
>
> Draft agenda for Thursday’s telecon is attached.
>
>
>
> Thanks to everyone for creating time for this teleconference.  I  
> realize that the timing is inconvenient for many of the task force  
> members, and I do appreciate your effort to participate.
>
>
>
> I look forward to our meeting on Thursday.
>
>
>
> Best regards,
>
>
>
>  Maureen.
>
>
>
> Maureen Cubberley, Director
>
> Public Library Services Branch
>
> Department of Culture Heritage and Tourism
>
> 204-726-6864
>
> mcubberley@xxxxxxxxx

John Jeffrey
john.jeffrey@xxxxxxxxx