Re: [pdp-pcceg-feb06] Comments of the Registry Constituency

[Liz Williams <liz.williams@xxxxxxxxx>]

David

Thank you for the comments.  These will be incorporated into the main  
body of the report.

Liz
.....................................................

Liz Williams
Senior Policy Counselor
ICANN - Brussels
+32 2 234 7874 tel
+32 2 234 7848 fax
+32 497 07 4243 mob




On 27 Mar 2007, at 18:02, David W. Maher wrote:

> 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.