Registry Services Process must be identical for ALL gTLDs
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 The information contained in this e-mail message is intended only for the use of the recipient(s) named above and may contain confidential and/or privileged information. If you are not the intended recipient you have received this e-mail message in error and any review, dissemination, distribution, or copying of this message is strictly prohibited. If you have received this communication in error, please notify us immediately and delete the original message. Attachment:
DVComparison_TEXT-net agreement.doc |