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Registry Services Process must be identical for ALL gTLDs

  • To: <registry-services-report@xxxxxxxxx>
  • Subject: Registry Services Process must be identical for ALL gTLDs
  • From: "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>
  • Date: Wed, 10 Aug 2005 12:06:37 -0400

NeuLevel was an initial supporter of the process set out in the final
report now posted at 
http://gnso.icann.org/issues/registry-services/final-rpt-registry-approv
al-10july05.htm.  In fact, NeuLevel submitted the first draft of the
process that was used as a template by the GNSO in what now appears in
the final report.

 

However, circumstances have changed completely in the past month or so
with the signing of the .net Agreement with VeriSign, Inc.   As you all
know, the .net agreement sets out its own process for considering
requests for consent and related contractual amendments to allow changes
in the architecture operation of a gTLD registry.  Although there are
some similarities, there are also a number of significant differences.
Unfortunately, the public comment period on this subject within the GNSO
closed prior to the .net Agreement being signed.  

 

NeuLevel believes that any process other than a carbon copy of the
process set forth in the executed .net agreement with VeriSign is
unacceptable.  A policy as important as the one contained in the final
report that applies only to some registries and not the others (i.e.,
.net) is fundamentally unfair as well as anti-competitive. We believe
that adopting any process other than what is in the .net agreement,
would single out those other registries "for disparate treatment" in
violation of Section 2.1 of the unsponsored TLD Agreements as well as
ICANN's bylaws to promote competition.  Section 2.1 of the Unsponsored
Agreements provide:

"2.1. General Obligations of ICANN. With respect to all matters that
affect the rights, obligations, or role of Registry Operator, ICANN
shall during the Term of this Agreement:

2.1.1. exercise its responsibilities in an open and transparent manner;

2.1.2. not unreasonably restrain competition and, to the extent
feasible, promote and encourage robust competition;

2.1.3. not apply standards, policies, procedures or practices
arbitrarily, unjustifiably, or inequitably and not single out Registry
Operator for disparate treatment unless justified by substantial and
reasonable cause; and . . . ."

More specifically, although the .net agreement contains a provision
recognizing confidentiality, the GNSO final report does not contain such
a recognition.  In addition, the .net agreement contains a different
definition than what is currently in the .biz, .info. .org, .name, and
.pro agreements and therefore applying the GNSO policy to those
registries has a broader impact than applying it to the .net agreement.
Moreover, it is at least arguable that the reconsideration process
mentioned in the consensus policy is not applicable to the .net
agreement as the .net agreement does not make the same references to the
bylaws.  Thus, it is not clear as to whether one under the .net
agreement would have the right to seek a reconsideration of a decision
to allow a registry service to proceed under .net, where such
reconsideration would clearly be allowed under the consensus policy.
Once could make the legal argument that the third part beneficiary
language would exclude a reconsideration request made someone who was
not a party to the .net agreement.  More legal analysis would have to be
done. 

 

Some have tried to argue that the process laid out in the GNSO Final
Report is "similar" to the one in the .net agreement.  However, no
matter how similar the GNSO report is to the current .net agreement,
there are differences.  In addition, it remains to be seen exactly how
this report if approved by the Board will be "implemented".   Any
implementation that is different than the implementation set forth in
the .net Agreement would be unacceptable.  This is because even if the
implementation of the Final GNSO Report is considered a "Consensus
Policy", it would not be applicable to .NET even though it would be
applicable to other registries.  Please see Section 3.1.b (iv) of the
executed .net Agreement. 

 

We believe that the ICANN Board and staff seriously consider the
ramifications of approving this process for some registries and not
others, both from a legal contractual standpoint as well as from a
policy perspective.  

 

I would be happy to discuss this matter further with any or all of you.

 

 

Jeffrey J. Neuman, Esq. 
Director, Law & Policy 
NeuStar, Inc. 
Loudoun Tech Center 
46000 Center Oak Plaza 
Building X 
Sterling, VA 20166 



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Attachment: DVComparison_TEXT-net agreement.doc
Description: DVComparison_TEXT-net agreement.doc



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