[soac-newgtldapsup-wg] Re: questions from JAS WG to staff - please review and approve

[ebw@xxxxxxxxxxxxxxxxxxxx]

Karla,

As a matter of process it is not the co-chairs who review and approve, but
the working group, assuming that the Joint Working Group operates under the
process of one, or both, of the Supporting Organizations.

As an individual contributor I have asked legal staff, primarily Karen, but
also JJ, Amy, Francisco via the tdg-legal mailing list, a series of questions
on the continuity instrument. Please see also today's mail from Tijani on the
COI cost for 1 year.

As an individual contributor I would like to take the opportunity of the
additional staff time and attention, primarily Kurt and the new gTLD team,
and John and the legal team, will provide to the JAS during the general
meeting in Singapore to provide informative responses to the members of
the JAS and other interested parties who are physically present, and
possibly myself as a remote participant, on the issues of interest to the
needs-qualified applicants relating to the continuity instrument.

First, a question that was left unanswered in the tdg-legal discussion that
must be answered by Staff, or in the alternative, offered by the applicant
and accepted or rejected by Staff following a process meeting the Transparency
and Accountability (T&A) requirement, is what are the services to be continued?

An answer of the form "the following services are required of all applicants",
follwed by an enumerated list, would be a useful response.

An answer of the form "for applications of type standard, the following services
are required, (enumerated list here), for applications of type community-based,
the following services are required, (enumerated list here)", would be a useful
response.

Either of these forms of answers will allow the JAS to improve its estimates
of the actual cost to applicants to acquire a responsive continuity instrument
for an arbitrary period.

An answer of the form "applicants are responsible to provide responsive 
continuity
instrument for [a specific period], no further guidance from ICANN is 
available."
is also a useful response, if, and only if, in keeping with the T&A requirement,
above, applicants may know prior to any "final date", what risk, if any, the
continuity instrument of their election creates for their application as an
impediment to entering into a registry contract.


Second, a question that was asked in more than one form on the tdg-legal list,
that may have significant ramifications in other policy areas, is the underlying
continuity instrument (COI) requirement arbitrary, or is it conditional upon
circumstances within the applicant's control?

If the underlying continuity requirement is arbitrary, then the JAS may, as a
source of general advice (ALAC SO) or gtld policy (GNSO SO), include the cost
of the COI as defined in the DAG (and here I point out that I've not yet read
the relevant parts of the May 30th redline, so my question reflects my own
understanding of the language in DAGv5), as a cost for which some support is
recommended.

If the underlying continuity requirement is not arbitrary, but conditional
upon circumstances within the applicant's control, then in addition to the
response in the paragraph above, the JAS may also advise needs-qualified
applicants that responsive alternatives to the forms of the COI may be
developed by applicants, such as cooperative agreements, possibly with
existing ccTLD and/or gTLD registry operators, or amongst applicants.

An answer to the second question will clarify the cost to the applicant to
the JAS, which will inform the JAS as to the need for support other than for
the base application fee.


Third, a question that has been asked by members of the JAS (see Tijani's mail
of today), is what is the duration of the period for which the continuity
requirement is defined, if defined by Staff (see question #1, above), or 
offered,
if defined by the applicant (see question #1, above)?

Questions #1 and #2 attempt to provide time-independent answers to cost 
questions
for the JAS WG, and for applicants.  Here the question is time-dependent.

How long, how many fiscal quarters, is continuity funding, however defined
(question #1, above), and however influenced by choices of instrumentality
(question #2, above), required?

An answer of the form "for all applications N (some value of N) quarters of
COI coverage are required", would be a useful response.

An answer of the form "for applications of type standard, N (some value of N)
quarters of COI coverage are required, for applications of type 
community-based, 
N (some value of N) quarters of COI coverage are required", would be a useful
response.

Again, an answer to the third question will clarify the cost to the applicant
to the JAS, which will inform the JAS as to the need for support other than for
the base application fee.

To review, I pose three questions, the first relates to what is to be continued,
the second to how it is to be continued, and the third to how long it is to be
continued.


A fourth question, not relating to cost to the applicant, or support for the
applicant, but to the diversity interested expressed in Resolution 20 taken
by the Board at the Nairobi General Meeting in March 2009, is the disposition
of the registry, registry contract and associated instrumentalities upon the
initiation of "continuity".

The recommendations of the JAS WG do not yet address the dispostion of the
assets of a needs qualified applicant upon continuity. Does staff currently
have a proposal for disposition of needs qualified applicant assets which is
consistent with the diversity goal expressed in Resolution 20, and other goals,
and I assume there may be a "security and stability" goal offered generically,
which it is prepared to disclose to the JAS, if, and when, the JAS issues a
recommendation on the subject?

I repeat, that these are the questions of an individual contributor to the JAS
WG, not the questions of the working group, as I've no idea of the interest in
the subject, or the specific questions, exists, except to point to Tijani's
note of today, and minor comments to my status notes relating to the mail and
calls of the tdg-legal list participants and ICANN legal staff.

Thank you for your time and attention,
Eric