Comments for ICANN Public Forum

["Edward Hasbrouck" <edward@xxxxxxxxxxxxx>]

The ICANN Public Forum in Rio de Janeiro on Wednesday, 26 March 2003, is 
scheduled to consider "Criteria to Be Used in the Selection of New 
Sponsored Top-Level Domains" and the "Report on Compliance by Sponsored 
gTLDs with the Registration Requirements of Their Charters."

According to the ICANN Web site at <http://www.icann.org/riodejaneiro/stld-
rfp-topic.htm>, "A study of that question has now been completed and shows 
general adherence to the sTLD charters."

Actually, the report prepared for ICANN by Summit Strategies 
International, LLC <http://www.icann.org/committees/ntepptf/stld-
compliance-report-25feb03.htm>, does not show this.  It would be a misuse 
and distortion of this report to use it as the basis for a conclusion that 
charters for sTLD's have been complied with.  They have not been.

According to the "Conclusion" section of the report, "This Report has 
evaluated the extent to which .aero, .coop and .museum may be operating 
inconsistently with their charters and admitting registrants that do not 
meet the defined criteria.... Interviews with officials from each sponsor 
suggest that they take their responsibilities under their respective 
charters seriously and that they have taken steps to maintain the 
integrity of their respective registries.... They view themselves as 
having the greatest stake in vigilantly enforcing the eligibility 
requirements. Surveys of key GNSO constituencies and Registrars directly 
involved in the process did not elicit any information indicating 
concerns."

This is *not* a comprehensive, nor an independent, study of compliance 
with sTLD charters, and should not be misrepresented as such. It is really 
only a survey of whether, as its conclusions state, sTLD sponsors are 
"admitting registrants that do not meet the defined criteria". No other 
issue of sTLD charter compliance was really investigated, or reported on.

It is important for the ICANN Board of Directors, and the Internet and 
sTLD communities, to understand what this study did *not* do, and what 
this report does *not* say:

(1) Whether potential registrants or domain names that should have been 
eligible were excluded from registration was *not* investigated.  The only 
issue of charter compliance investigated by the contractor for the study 
and the report was whether ineligible registrants or ineligible domain 
names had been registered.  (It's also important to note that the absence 
of requests for review of registration eligibility decisions does *not* 
indicate satisfaction by the sTLD constituency with the eligibility 
criteria or decision-making practices.  A lack of dispute resolution 
requests might indicate either that the criteria themselves, as specified 
by the sponsor, have excluded some constituencies, or that constituents do 
not have confidence in the dispute resolution procedures.)

(2) The report relied on self-reporting by sTLD sponsors, as quoted above, 
as the basis for its conclusions as to the manner in which sponsors had 
exercised their responsibilities.  As such, the report should be 
considered a summary of sTLD sponsors' self-reports on this issue, *not* 
an independent assessment of charter compliance by sTLD sponsors.

(3) The contractor preparing the report did *not* make any attempt to 
contact any would-be registrants whose registration application had been 
denied.  And the contractor did *not* solicit comments from those who had 
criticisms or complaints concerning charter compliance by sTLD sponsors -- 
even those, such as myself, who had brought criticisms and complaints of 
charter noncompliance by sTLD sponsors before ICANN in the past. 

(4) Interviews were limited to "key GNSO constituencies and Registrars".  
The contractor preparing the report made *no* attempt to contact, or to 
invite comments from, the sTLD constituencies themselves. The report gives 
no indication of what constituencies were considered "key" .  Without any 
evidence that these interviews were genuinely representative of the 
diversity of constituencies intended to be served by each sTLD, the report 
should *not* be taken as giving any meaningful indication of opinion 
within the sTLD constituencies of the sponsors' performance. 

(5) Perhaps most significantly, the consultant made *no* attempt to 
investigate, and the report does *not* mention at all, whether sTLD 
sponsors have complied with transparency, fairness, and constituency 
representation and participation requirements.  These requirements are 
imposed by sTLD charters, sTLD sponsorship agreements with ICANN, and the 
requirement that authority delegated by ICANN be exercised in accordance 
with ICANN's transparency and fairness bylaws.

Omission (5) is particularly significant, since most of the complaints 
against sTLD sponsors or sponsorship applicants that have been brought to 
ICANN's attention have related to these issues of sponsor transparency and 
representativeness of the sponsored (or proposed) constituency.

In particular, the standard sTLD sponsorship agreement 
<http://www.icann.org/tlds/agreements/sponsored/sponsorship-agmt-
16oct01.htm> includes the following 

"3. SPONSOR'S OBLIGATIONS.
3.1. Obligation to Maintain Representative Characteristics Justifying 
Original Selection of Sponsor. During the Term of this Agreement, Sponsor 
(a) agrees to ensure it remains at least as representative of the 
Sponsored TLD Community as it was at the time of its selection, and (b) 
shall be responsible for developing policies for, and providing for the 
operation of, the Sponsored TLD in the interest of the Sponsored TLD 
Community in accordance with Subsections 3.2 through 3.16 and 4.2."

"4.2. General Obligations of Sponsor. During the Term of this Agreement, 
Sponsor shall, in developing or enforcing standards, policies, procedures, 
or practices within the scope of its delegated authority with respect to 
the Sponsored TLD: 

4.2.1. publish such standards, policies, procedures, and practices so they 
are available to members of the Sponsored TLD Community; 

4.2.2. conduct its policy-development activities in manner that reasonably 
provides opportunities for members of the Sponsored TLD Community to 
discuss and participate in the development of such standards, policies, 
procedures, or practices; 

4.2.3. maintain the representativeness of its policy-development and 
implementation process by establishing procedures that facilitate 
participation by a broad cross-section of the Sponsored TLD Community; 

4.2.4. ensure, through published procedures, adequate opportunities for 
members of the Sponsored TLD Community to submit their views on and 
objections to the establishment or revision of standards, policies, 
procedures, and practices or the manner in which standards, policies, 
procedures, and practices are enforced."

I call to the attention of the ICANN Board of Directors that SITA, as 
sponsor of the .aero sTLD, has not fulfilled any of its obligations under 
these cited sections of its sponsorship agreement with ICANN.

First, SITA itself represents, at most, only one segment of the aviation 
community and the .aero constituency.  SITA represents only the aviation 
industry, and has excluded from .aero policy formulation and registration 
eligibility other segments of the aviation community such as passenger 
associations, consumer organizations and advocates, and other aviation-
related NGO's.  (This issue is more fully discussed in my Reconsideration 
Request 01-7 to the ICANN Board of Directors, available at  
<http://hasbrouck.org/icann>.)  By narrowing the definition of the sTLD 
constituency from the definition in its sTLD proposal as accepted by 
ICANN, SITA has violated section 3.1 of its sponsorship agreement for 
.aero.

Second, SITA has *not* complied with any of the requirements in Section 
4.2 of its sponsorship agreement.

The <http://www.information.aero> Web site contains *no* information 
whatsoever as to the procedures and practices for .aero policy formulation 
and decision making, in violation of Section 4.2.1.  I have not found this 
information anywhere, and SITA has not responded to my requests for this 
information sent to the only e-mail address on the .aero Web site.

There is *no* reasonable opportunity for members of the .aero community to 
discuss and participate in .aero policy development, in violation of 
Section 4.2.2.

There is *no* procedure for ensuring representativeness or participation 
of a broad cross-section of the community in .aero policy formulation and 
implementation, in violation of Section 4.2.3.

There is *no* published procedure for the submission of opinions or  
objections concerning .aero policies, practices, or proposals.  (Such a 
procedure would have been useless anyway, since SITA has never published 
any of its proposed policies, procedures, rules, or practices.  Only final 
rules have been made public, after they were adopted by SITA.)  This is in 
violation of Section 4.2.4

All .aero decision are made exclusively by SITA itself.  None of these 
meetings has ever been open to the public or to members of the .aero 
community.  No information has ever been made public concerning the agenda 
for any of these meetings, or propsals to be considered.  The public and 
the .aero community learn of these meetings only after they are held, and 
all that is made public is what has been decided.  The only information 
available concerning these meetings, or the entire .aero policy 
development and decision making process, is the single file of past 
decisions at <http://www.information.aero/news/decisions.pdf>.

According to the  Summit Strategies International report on sTLD 
compliance, "SITA stated that... it seeks advice from members of the Dot 
Aero Council (DAC). The Council provides advice on all matters relating to 
eligibility and registration restrictions."  But the Dot Aero Council does 
not fulfill any of the requirements of Section 4.2 of the sTLD agreement.

The Dot Aero Council is composed of members of the "Representative Bodies" 
described under "Registrant Groups & Representative Bodies" at
<http://www.information.aero/policy/aerodmp.htm#_Toc23847290>.

But despite the name, "Representative Body", these groups are appointed by 
SITA.  Their supposed constituencies have no role whatsoever in their 
selection: "A Representative Body is appointed by SITA to represent each 
Registrant Group."  Moreover, SITA has appointed itself, SITA, as the 
"representative" of 12 of the 19 Registrant Groups.  So in consulting with 
"Representative Bodies", or their "representatives" on the Dot Aero 
Council, SITA is really consulting mostly with itself, and to a smaller 
extent with its own hand-picked designees.

I am a widely published air travel writer and airfare and air travel FAQ 
maintainer. As a member of the aviation media, I am eligible to register 
domain names in .aero, and I am a member of the .aero community.

SITA has designated itself to "represent" me and other members of the 
aviation media.  SITA is not a media organization.  SITA does not 
represent me, and has no competence to represent the aviation media.

I do not know who on SITA's staff claims to represent me on the Dot Aero 
Council, what they are doing in my name, or how to contact them to obtain 
any of this information or to submit any suggestions, requests, or 
comments concerning .aero policies or procedures.

In any case, the Dot Aero Council has no decision making power: its only 
role is advisory.  The Dot Aero Council has never held a public meeting.  
Indeed, there is no public evidence that it has ever met at all. No 
documents whatsoever pertaining to any aspect of the Dot Aero Council -- 
proposals, agendas, decisions, minutes -- have ever been made public.  And 
no such information has been provided to members of the .aero community. 

As a member of the Dot Aero Community, I have specifically requested this 
information thorough the only contact e-mail address, and through the 
form, provided on the .aero web site.  I have never received any reply.

The Dot Aero Council is thus a complete sham.  It offers no meaningful 
opportunity for community participation, input, or transparency, and it 
satisfies none of SITA's contractual obligations under sections 3.1 and 
4.2 of the sTLD Sponsorship Agreement between SITA and ICANN.

SITA's complete failure to comply with these fundamental conditions of 
sTLD sponsorship is a material breach of SITA's contract with ICANN.  It 
is now the responsibility of ICANN to enforce its contract, or to revoke 
it.  Given the extent of the breach of contract -- the complete absence of 
any published public or community participation procedures, more than a 
year after the commencement of .aero registrations -- I urge ICANN 
immediately to inform SITA that the .aero Sponsorship Agreement will be 
terminated for material breach of contract as soon as a suitable 
replacement sponsor can be found, and immediately to solicit proposals for 
a new sponsor for the .aero sTLD.

To date, as the example of .aero shows, ICANN's "proof of concept" has 
shown that sTLD sponsors have not, on their own initiative, complied with 
the requirements of their sponsorship agreements with ICANN.  Accordingly, 
I request that ICANN not begin the process of selecting and negotiating 
agreements with new sTLD sponsors until the problems already identified 
with existing "proof of concept" sTLD's have been resolved.  

Specifically, I request that ICANN revise both the sTLD Sponsorship 
Agreements and ICANN's oversight process (if there is one, which is not 
clear) for compliance with these agreements by sTLD sponsors.  Before new 
sTLD sponsors are selected, ICANN needs to be sure that effective 
mechanisms are in place that are actually ensuring meaningful community 
participation in sTLD policy formulation and implementation.

I request that these comments be entered in the record (and, if possible, 
read) at the ICANN Public Forum in Rio de Janeiro on Wednesday, 26 March 
2003, during consideration of "Criteria to Be Used in the Selection of New 
Sponsored Top-Level Domains" and the "Report on Compliance by Sponsored 
gTLDs with the Registration Requirements of Their Charters."

Sincerely,

Edward Hasbrouck




----------------
Edward Hasbrouck
<edward@hasbrouck.org>
<http://hasbrouck.org>