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Username: ehasbrouck
Date/Time: Mon, November 26, 2001 at 8:53 PM GMT (Mon, November 26, 2001 at 12:53 AM PST)
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Subject: .aero

Message:
 

        Why the draft .aero agreement deserves full and public
discussion (response to the ICANN General Counsel's analysis of the
draft .aero agreement)

=======================================================

Contents:

1. Errors in the General Counsel's analysis of the draft
.aero agreement

2. The scope of .aero in the draft agreement is
significantly different from the original proposal.

3. The General Counsel's analysis ignores the 'operate to
the maximum extent feasible' clause in the bylaws.

4. The draft .aero agreement involves substantial policy
issues.

=======================================================

1. ERRORS IN THE GENERAL COUNSEL'S ANALYSIS OF THE DRAFT
.AERO AGREEMENT

On 24 November 2001, ICANN's General Counsel, Mr. Louis
Touton, posted (and provided to me and to the ICANN Board of
Directors) his analysis of my criticisms of the draft
agreement between ICANN and SITA for SITA to sponsor a
".aero" global top-level domain.  (My previous comments on
.aero are at http://hasbrouck.org/icann. Mr. Touton's
analysis is at <http://www.icann.org/tlds/agreements/aero/
report-aero-tld-24nov01.htm>.)

There isn't time before the 27 November 2001 deadline for
action by members of the Board for me to respond to all of
Mr. Touton's arguments.  Once a member of the Board objects
to approval of the current draft of the .aero agreement
without discussion, it can be properly considered, without
undue haste.

I do, however, want to point out a few of Mr. Touton's most
important errors that relate to whether the issue deserves a
public forum and full discussion by the Board:

2. THE SCOPE OF .AERO IN THE DRAFT AGREEMENT IS
SIGNIFICANTLY DIFFERENT FROM THE ORIGINAL PROPOSAL.

.aero was proposed as "a Top Level Domain for the *entire*
Air Transport Community (ATC)... In this ... proposal, the
definition of ATC is: '*All* companies and organizations for
which the main activity is related to Air Transport."
[emphasis added; the proposal was originally for ".air" but
was selected by ICANN for the alternative ".aero".]

It was clear (at least to those of us in the air transport
community, but outside the industry, and to those on the
consumer side of the industry) that throughout the balance
of the proposal SITA used the terms "industry" and
"community" as though they were interchangeable.  And there
was little attention paid by SITA, as an industry
organization, to how non-industry stakeholders would be
represented.

But the term "community" as used throughout the proposal
would have to be interpreted in accordance with the
inclusive definition cited above, and any policies
ultimately adopted would have to be consistent with this
general policy and charter.  So we were entitled to conclude
that the TLD would include all members of the community, and
that all such members would be able to participate in
formulating policies for participation and for governance of
the TLD.

Mr. Touton lists several sections of the proposal mentioning
industry groups that would be included in .aero.  But the
proposal said that "The ATC includes airlines, aerospace
companies, airport authorities and governmental
organizations."  The proposal did *not* say, "The ATC
includes *only*" the listed categories of stakeholders.  The
lists appeared to be non-exclusive examples.  The
inclusiveness of the definition of the ATC, as a first
principle governing the interpretation of the rest of the
proposal, could not have been more explicit and unambiguous.

The inclusiveness of SITA's proposal, and the pledge that
all members of the community would be able to participate in
developing policies for the TLD, was a key reason the
proposal was accepted.

There were 2 TLD proposals from the airline industry: SITA
proposed ".air" and ".aero", and IATA proposed ".travel".
Airlines and travel agencies (among others) would have been
included in both. IATA is a trade association of airlines;
SITA is a cooperative owned by airlines.

The major difference between the SITA and IATA proposals was
the inclusiveness of SITA's proposal. Lack of inclusiveness
and representativeness of the broader community of
stakeholders in the relevant sector of activity was the
major objection to IATA's proposal.  Objections to IATA's
proposal for .travel for lack of representativeness were
raised by public comments and by ICANN's evaluation team.
IATA's lack of representativeness was cited both by ICANN's
Board and by the Committee of the Board on Reconsideration
as one of the major grounds for non-selection of IATA's
proposal for .travel.

If SITA's proposal for .aero had excluded all stakeholders
except service providers from registration and/or
participation in the TLD, I and others would have objected
on the same grounds of lack of representativeness as were
raised against IATA's proposal for .travel.  And it seems
likely that the Board would not have approved SITA's
proposal unless it included a commitment to inclusiveness in
eligibility for registration and participation.

3. THE GENERAL COUNSEL'S ANALYSIS IGNORES THE 'OPERATE TO
THE MAXIMUM EXTENT FEASIBLE' CLAUSE IN THE BYLAWS

Mr. Touton claims that "the openness and transparency
principles ... apply to ICANN's establishment of policies,
not the drafting of contracts."  This is wrong.

First, ICANN"s bylaws requires that "The Corporation and its
subsidiary bodies shall operate" openly and transparently.
This use of "operate" is much broader than if the bylaws
said ICANN must "set policy" openly and transparently, or if
the requirement were limited to actions of the ICANN Board.

Second, Mr. Touton ignores the clause, "to the maximum
extent feasible" in the transparency section of ICANN's
bylaws.  The only relevant question is whether a particular
aspect of openness, transparency, or procedural fairness is
"feasible", judged according to the "maximum extent" of
feasibility.  Whether it is inconvenient or detrimental to
anyone's commercial interest (as Mr. Touton claims) is,
under the bylaws, irrelevant.

Mr. Touton apparently confuses "drafting" with
"negotiation"; no reason has been given why it would not be
feasible to permit observers at negotiating sessions between
ICANN and prospective TLD sponsors.  If observers such as
myself had been permitted at SITA-ICANN negotiations, there
would be no dispute as to whether SITA wanted and intended
to include additional categories of participants in .aero,
or whether their exclusion was at the request of SITA or of
ICANN's staff.

Mr. Touton points out that there are some transparency
requirements in the draft .aero agreement, and that the
confidentiality restrictions are limited. These arguments
are, similarly, irrelevant to the standard set by ICANN's
bylaws: "the maximum extent feasible" of openness and
transparency in operation.

Mr Touton also claims that provisions for openness *within*
the (redefined) .aero TLD community satisfy the requirement
for openness in general.  But nothing in the transparency
clause of the bylaws contains, or authorizes, such a
limitation of the sphere of openness.  Any such limitation
would be contrary to the "maximum extent feasible" clause.

Even within the (redefined) .aero constituency, however,
SITA has not fulfilled its commitments to openness,
transparency, and ensuring fairness.  According to SITA's
proposal, "SITA is committed to establishing and maintaining
a high level policy group (the ANPG) to define the best
manner to ensure that the '.air' TLD is optimized for the
benefit of the Air Transport Community and the traveling
public. At the same time, this policy group will ensure that
this domain is ... accessible to all users within the Air
Transport Community. This group will be comprised of senior
representatives of the Air Transport Community and will meet
regularly." It was through this group that .aero policies --
such as those embodied in the agreement now before the ICANN
Board -- were supposed to be developed.

But this commitment in the proposal has disappeared entirely
from the draft .aero agreement. As a members of the air
transport media and the .aero consituency, I specifically
asked ICANN for information about participating in, and/or
observing meetings of, the ANPG.  But the only answer I got
from SITA was that information on .aero policies would be
provided only *after* those policies are adopted.  If an
"ANPG" or similar policy group has been formed, it has not
operated openly or transparently, even to people like me
within the community. And it has not been representative of
me or other members of the aviation media, the traveling
public, and other segments of the ATC, as SITA pledged it
would be.

4. THE DRAFT .AERO AGREEMENT INVOLVES SUBSTANTIAL POLICY
ISSUES.

Mr. Touton claims that the relevant sections of the .aero
agreement "do not themselves create any new 'policy';
instead they are intended to implement in legal language the
scope of the .aero TLD that was selected by the ICANN
Board."

Mr Touton refers extensively to the earlier discussions of
the standard sections of the sponsorship agreement.  But he
ignores that the relevant sections defining the .aero
charter, eligibility criteria, delegation of authority, and
confidentiality restrictions are not part of the standard
agreement.

As I've discussed above, the "scope" of the .aero TLD has
changed materially from the proposal selected by the Board.
There has been no public discussion whatsoever of that
change, and no opportunity for such discussion until the
change was revealed with the posting of the relevant
sections of the draft agreement in recent days.

It is unfortunate that SITA and ICANN's staff chose to
conduct their negotiating sessions in secret, and not to
release drafts of the agreement until they considered them
ready for approval. If they had operated openly, they would
have learned of objections like mine much sooner.  But I
brought this to their attention at the first opportunity,
within 7 days of the posting of each of the relevant
portions of the draft.

If SITA and ICANN's staff didn't find out sooner that their
draft was objectionable to many of those who were defined in
the original .aero proposal as community members and
stakeholders, that is entirely their own fault. I hope this
will be a lesson to them for future sponsorship agreement
negotiations.

It's difficult to take seriously Mr. Touton's claim that
approval of the first, and admittedly precedent-setting,
agreement for a sponsored TLD for a specific sector of
economic activity, is not a policy decision.  I belive there
is a clear consensus in the Internet community that the
approval of new TLD's, particularly including the terms and
conditions for delegating authority over them, is one of
your most important policy responsibilities. If this isn't a
policy issue, I don't know what is.

At a minimum, your decision on the draft .aero agreement, as
currently presented, involves the following substantial
policy questions:

(A) Will there be TLD's for sectors of activity -- open to
all participants and stakeholders in those sectors -- or
will sector-specific TLD's be limited to industry entities,
to the exclusion of consumers, civil-society, and at-large
stakeholders in those sectors?

If ICANN is concerned about capture of at-large
representation by particular interest groups, you should be
equally concerned about capture of sector-specific TLD's by
specific interest group within those sectors, such as
industry.  This danger is most acute in sectors with large
commercial potential.  .aero is not a domain for a small or
non- commercial niche: SITA itself says, correctly, that air
transportation is the largest segment of e-commerce.  As
such, it is the economic sector where the danger of capture
of a sector-specific domain by industry or commercial
interests is greatest, and needs to be guarded against most
carefully.

(B) Will the requirement of ICANN's bylaws for openness,
transparency, and procedural fairness -- "to the maximum
extent feasible" -- be complied with in the delegation of
authority to sponsors of sTLD's?

As I've pointed out in my recommendations to the ALSC, most
ICANN decision-making is already delegated.  And this
question will continue to increase in importance as ICANN
delegates more and more authority to additional TLD sponsors
and other subsidiary bodies.

There has been no public forum or discussion by the Board of
either of these policy questions. The legal validity of any
action taken without a public forum would be in doubt under
the bylaws. This would make it difficult for either ICANN or
SITA to proceed on the basis of such a questioned
"agreement".  And it this could create a risk of liability
and expense for both SITA and ICANN. This could easily be
avoided by holding a public forum and discussion at a future
ICANN Board meeting, as required by the bylaws.

I supported the SITA proposal for .aero, as it was
originally made.  I remain willing, and reiterate my offer,
to work with SITA and ICANN's staff and Board, to the extent
my personal finances permit, to help revise the draft
agreement to represent the full diversity of the air
transport community (as originally defined) and include
provisions to ensure compliance with ICANN's mandate that
delegated subsidiary bodies like sTLD sponsors "operate, to
the maximum extent feasible, in an open and transparent
manner and consistent with procedures designed to ensure
fairness," particularly fairness between the interests of
service providers, consumers, and the public at large. I
believe other stakeholders would also join this consensus-
building process, were an open invitation extended.

These and other issues raised by .aero are unlikely to be
resolved by 27 November 2001, which is the deadline for
members of the ICANN Board to request that the draft .aero
agreement not be approved or signed without a public forum
and full opportunity for discussion at a future Board
meeting.  Fundamental policy question are not usually
resolved, and a consensus does not usually develop in a
global community, as quickly as the 7-day comment and
objection period.

Fortunately, the Board doesn't have to make a decision on
this issue so quickly.  The only issue to be decided right
now is whether the draft .aero agreement is a "polic[y] ...
being considered by the Board for adoption that
substantially affect[s] ... third parties."  If it is, then
the Board is required by ICANN's bylaws to "hold a public
forum at which the proposed policy would be discussed",
concerns such as those I have raised could be addressed, and
a consensus might emerge.

But in order to comply with that section of the bylaws, and
to afford the required opportunity for open discussion and
development of consensus, at least one member of the Board
must request, on or before 27 November 2001, that the draft
.aero agreement not be approved without a public forum.

Edward Hasbrouck
edward@hasbrouck.org
http://hasbrouck.org

Passenger air travel and travel e-commerce consumer
advocate, author, and FAQ-maintainer

Member-at-large of the Air Transport Community and the
".aero" gTLD constituency

     

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

"The Practical Nomad Guide to the Online Travel Marketplace"
"The Practical Nomad: How to Travel Around the World"

Link: More information and related links


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