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

["Nevett, Jonathon" <jnevett@xxxxxxxxxxxxxxxxxxxx>]

John:

 

A few clarifications and comments to your posting are in order:

1.      This is not a new concern.  Many weeks ago, I made the following
public comments as part of both the DOC's NOI process and the ICANN
Strategy Committee process.
http://www.ntia.doc.gov/ntiahome/domainname/dnstransition/comments/dnstr
ans_comment0609.htm

"GNSO Task Force on Contract Issues:  Another example of ICANN's
[bottom-up policy making] processes not working is its disregard to date
of the GNSO policy making process regarding contract issues.  The GNSO
has a Task Force on contract issues for registry renewals.  As noted,
ICANN recently has posted for public information proposed renewal
agreements for the .biz, .org and .info domain registries, all of which
contain automatic renewal provisions similar to those in the .com
agreement. Thus, instead of waiting for the outcome of the GNSO policy
recommendations, ICANN staff has moved forward to try to reach agreement
on the same issues being considered by the GNSO, thereby effectively
circumventing that process.  This raises particular concern with regard
to the .org Registry Agreement, which does not expire until 2009."

2.      The .biz and .info agreements do not expire until 2007 and .org
expires in 2009.  There is no need to rush into signing these agreements
when important policy issues are being considered by ICANN's policy arm.
This is especially true because according to the terms of the proposed
registry agreements, they cannot be altered by subsequent consensus
policies in most, if not all, of the issues being considered by the Task
Force.  So you are rushing to enter into essentially permanent contracts
that contain policy issues being considered by the Task Force that can't
be changed by Consensus Policy.  A highly questionable endeavor if you
believe in ICANN's core values.

3.      There are, indeed, policy issues being considered by the Task
Force.  Whether ICANN should enter into registry agreements with
automatic renewal provisions, for example, is a policy decision.
Whether a dominant registry operator should pay ICANN more, less, or the
same in a per-name fee than a non-dominant registry operator is a policy
decision.  Whether price caps are appropriate for registries without
market power is a policy decision.  Cognizant of the fact that ICANN's
policy arm is specifically looking at policy issues, why would you
recommend that ICANN enter into agreements with provisions that can't be
changed via Consensus Policy without waiting to see the results of the
process?  It's baffling.  

4.      How I wish you would put more time and effort into assisting the
PDP process by providing legal advice to the Task Force to facilitate
the process so it is completed in a timely manner, rather than working
on circumventing the process by pushing the premature execution of
permanent contracts and impeding the progress of the Task Force.  How
about recommending some independent experts or materials to provide
advice on antitrust and other issues?  How about providing information
to Task Force members in a timely manner when requested?  Cooperating
with the Task Force to help reach consensus would make ICANN a better,
stronger, and more capable organization.  Is that such a pipe dream?

Thanks.

Jon Nevett

 

 

________________________________

From: owner-pdp-pcceg-feb06@xxxxxxxxx
[mailto:owner-pdp-pcceg-feb06@xxxxxxxxx] On Behalf Of John Jeffrey
Sent: Wednesday, August 09, 2006 7:33 PM
To: Marilyn Cade; Cubberley, Maureen ((CHT));
pdp-pcceg-feb06@xxxxxxxxxxxxxx; Council GNSO
Cc: Denise Michel
Subject: Re: [council] RE: [pdp-pcceg-feb06] FW: PDP Feb 06: Draft
Agenda 10 August

 

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 <mailto:mcubberley@xxxxxxxxx> 

 

 

 

 

 

 





 

John Jeffrey

john.jeffrey@xxxxxxxxx