DENIC's Comments

[Stephan Welzel/Denic <welzel@xxxxxxxx>]

On behalf of DENIC, the registry for .de, I submit the following comments 
on the ccNSO Recommendations for Proposed Bylaws Changes:


Recommendation 2

DENIC continues to hold the view outlined in the Collective Response of 
DENIC, Nominet (.uk), and UNINETTNorid (.no) to the ccNSO Issues Report of 
September 14, 2005 (cf. 
http://forum.icann.org/lists/ccnso-issues-comments2/pdfMMYtcipgju.pdf):

We support the principle that receipt of IANA services should in no way be 
contingent on ccNSO membership. However, the order of the suggested 
sentence must be reversed to give the meaning intended, i. e. should read:

"A ccTLD managerâs receipt of IANA services is entirely independent of any 
individual relationship the ccTLD manager has with ICANN or membership of 
the ccTLD manager in the ccNSO."


Recommendation 3

DENIC continues to hold the view outlined in the Collective Response of 
DENIC, Nominet (.uk), and UNINETTNorid (.no) to the ccNSO Issues Report of 
September 14, 2005:

While the principle outlined in the proposal would constitute an 
improvement, it would only state that changes to Article IX _can_ be 
achieved via the PDP and, within that framework, require the ccNSOâs 
consent. What is necessary, though, is to ensure that changes can _only_ 
be made with the consent of the ccNSO.

Since it is not necessary to use the ccPDP for amendments to the bylaws 
this could be achieved by amending Article XIX with the following 
sentence:

"In order to become effective, a decision of the board to alter, amend, or 
repeal Article IX of these bylaws needs to be ratified by the ccNSO with a 
two-thirds (2/3) majority of its members."

The advantage of this solution would also be that it makes clear that the 
board can act only with a two-thirds vote, whereas the PDP, even when 
being used to amend the bylaws, does not require such a supermajority in 
the boardâs vote.

Regardless of this, we reiterate our position that not only changes of 
Article IX, the ccNSOâs scope, and the ccPDP but changes of _all_ 
ccTLD/ccNSO-related parts of the ICANN bylaws should only be possible with 
the explicit consent of a supermajority of two thirds of the ccNSO 
members. Otherwise, the board could easily bypass the ccNSO by putting new 
rules on the ccNSO and its members, for example, into a new Article IXa 
instead of amending Article IX.

In this instance, it should be noted that for the Regional Internet 
Registries a rule exists that prevents unilateral changes in that their 
Memorandum of Understanding with ICANN can only be amended or supplemented 
consensually. We would suggest that the same rule should apply to the 
ccNSO.


Recommendation 4

DENIC continues to hold the view outlined in the Collective Response of 
DENIC, Nominet (.uk), and UNINETTNorid (.no) to the ccNSO Issues Report of 
September 14, 2005:

We support the notion that the ccNSO is best placed to determine whether 
or not an issue is within scope, but propose that the matter be resolved 
by a vote of the membership, not of the Council.

However, we believe that there is a way through on the issue of agreement 
as to whether or not an issue is within scope.

The fundamental purpose of the ccNSO is not to develop binding policy, but 
as a forum for information exchange and non-binding best practice.  To be 
clear, there should be no bar to discussion of any issue â the objection 
is that issues outside scope should not be made into  binding policies. 

We therefore suggest that if there is no agreement between the ccNSO 
membership and ICANNâs General Counsel that the issue at hand is within 
scope then it is considered to be outside the scope and no ccPDP can be 
initiated. Obviously, this would then only hinder the creation of a 
binding policy but not rule out the development of best practices for 
ccNSO members or a recommendation to ICANN on the issue.


Recommendation 5

DENIC continues to hold the view outlined in the Collective Response of 
DENIC, Nominet (.uk), and UNINETTNorid (.no) to the ccNSO Issues Report of 
September 14, 2005:

We remain convinced that there is an issue here as the bylaws do not rule 
out that the "other activities" the ccNSO can engage in may include the 
creation of binding policies outside the scope of the ccNSO and without 
using the ccPDP. Such policies could be called "ccNSO policies" and would 
be based on self-imposed membership rules of the ccNSO (which ccNSO 
members, according to Article IX Section 4.2, must adhere to).

Therefore, we believe that the bylaws should be amended to ensure that 
such "ccNSO policies" cannot be imposed on ccNSO members. This could be 
achieved by adding a clause in Article IX Section 1 that explicitely 
excludes the creation of binding policies from "other activities" of the 
ccNSO.


Besides, DENIC welcomes and supports Recommendations 1 and 6-8.


However, DENIC notes with regret that the ccNSO Recommendations for 
Proposed Bylaws Changes do not cover the existing concerns on the ccNSO's 
scope as also outlined in the Collective Response of DENIC, Nominet (.uk), 
and UNINETTNorid (.no) to the ccNSO Issues Report of September 14, 2005:

We believe that such a fundamental issue as the appropriate (re)definition 
of the ccNSOâs scope should not be deferred to a further PDP. Doing so 
means that registries considering ccNSO membership have no clear 
understanding and appreciation of the actual range of issues for which 
they may be bound by ccNSO-developed policies. Such uncertainty could 
constitute a serious hindrance for those registries to join the ccNSO. 

In light of this, we repeat our previous comment that the definition of 
the ccNSOâs scope should be clarified and limited to making policies for 
the IANA function as it relates to ccTLDs. This may comprise IANA 
procedures, including those related to IANA in the event of a registry 
change, and fees to IANA. We also feel that the scope should, as an 
introduction, state clearly the Principle of Subsidiarity; the fact that 
most ccTLD policies are local and should be set locally, unless it can be 
shown that the issue at hand can only be solved within an international 
framework.


Furthermore, DENIC reechoes further concerns as outlined in the Collective 
Response of DENIC, Nominet (.uk), and UNINETTNorid (.no) to the ccNSO 
Issues Report of September 14, 2005 and unfortunately not addressed in the 
ccNSO Recommendations for Proposed Bylaws Changes:

Our previous comment highlighted the issue of enforcement of duly adopted 
policies. We note that the Issues Report stated that there was no 
mechanism for enforcement. We also note that the Report refers to the 
views of the ICANN General Counsel as being that ccNSO membership 
constitutes no contract between the ccNSO members and ICANN. If this is 
the case, it becomes increasingly unclear why such an elaborate process of 
"binding" policy development is being set up.

Also, we reiterate our previous comment that the ccPDP process itself 
should be simplified. Whilst we agree that it would be desirable to obtain 
more experience of running a ccPDP before one tries to simplify the ccPDP 
process, we feel that the complexity of the current ccPDP  and the bylaws, 
may well be barriers to entry for many registries who have difficulties in 
 understanding exactly what they are binding themselves to.


Additionally, while understanding that ICANN wanted to give the GAC more 
time to consider this matter, DENIC notes with regret that the present 
Recommendations do not cover the issue of how to determine whether a ccNSO 
policy conflicts with a registry's national law. DENIC reserves the right 
to comment on a possible future recommendation in this instance.


Finally, DENIC highly regrets that not even a single comment given in the 
Collective Response of DENIC, Nominet (.uk), and UNINETTNorid (.no) to the 
ccNSO Issues Report of September 14, 2005 seems to have been taken into 
account in drafting the present ccNSO Recommendations for Proposed Bylaws 
Changes, even when they were merely editorial (as, for example, with 
respect to Recommendation 2). This is not an encouraging signal to ccTLD 
registries considering their joining the ccNSO. 


Stephan Welzel
General Counsel
DENIC eG