RE: [gtld-council] PDP05 - renewals

["Marilyn Cade" <marilynscade@xxxxxxxxxxx>]

This discussion in Council is obviously each of us posting as individual
councilors to try to advance understanding. I think this is an important
part of our responsibilities to have this kind of informed discussion on the
list, so, as an individual councilor, here are my thoughts:

Competitive rebid is a standard in adjacent industries. Complex
telecommunications networks, build via competitive bids to serve private
customers, or government customers, are rebid on a regular basis. While I'm
not the expert on this length of contract, people like Alistair and Tony
Holmes probably have direct experience. But routinely, bids to competitive
companies who outsource or buy VPNs or computer networks are for 5-7 years.
I've even seen three - four year awards.

Extension of a license is also a practice in some industries, however, in
those instances, the license terms are typically set by a rule or regulation
in a country, and the applicant comes into the application, versus a
negotiation. In certain merger situations, a government will add in
additional responsibilities and conditions, and will not grant the merger,
nor transfer the license, nor merge the license, absent those conditions.
Such conditions are typically driven by such interests as competition,
consumer protection, protection against monopoly power or dominance, etc. 

I do not support an automatic presumption of renewal. I don't think that
'renewal expectancy' in a competitive bid situation is the same as a
presumptive right of renewal. 

And to my mind, there are not sufficient safeguards in the current proposed
contracts that ICANN has put forward to provide sufficient safeguards for
the broader ICANN community.   

I understand the need for 'certainty' in the operation of a 'license to
operate a string as a registry', and the Council should also discuss what
'reasonable terms' are, in terms of years.  Personally, I think that an
initial term of 10 years for a brand new registry, with a mid term check,
and then a typical 5-7 year on next awards can make sense. 

However, I have a question to ask Bruce. Your post seems to suggest that we
are able to keep the discussions related to p0licies for PDP 06/existing
registries distinct from new gTLDs. Certainly, on initial award, that seems
reasonable on time frames. Should there be a 'standardization' of the time
frames on renewals for all subsequent renewals? 

And, is it not also important to look to the bylaws: Article 2, Section 3.
The issue we need to also discuss is how to address unique circumstances, if
they exist, such as dominance; or treating sponsored one way and non
sponsored another way. 

As I examine the history, ICNAN does have a sort of similar treatment of
sponsored and similar treatment of non sponsored, up until the staff started
to change, with the .net contract. And then the extension into the .com
agreement, when they tied settlement of litigation with contract
negotiation.  That doesn't make those decisions good decisions that should
not be reconsidered. 

Council's own process is progressing in PDP Feb 06 Task Force. I would like
some clarification whether we will have early access to the experts that the
President is now directed by the Board resolution to retain, or if we need
to continue to seek our own independent expert advice for the Council. 

However, I also am looking ahead to whether the expert advice at the Board
level is being achieved in a timely enough manner to affect the present
progression of the consideration of the proposed contracts.

I was initially heartened by the Board's resolution directing the retention
of expert advice in several relevant areas. I am now very concerned that the
staff have put forward revised versions of contracts that are not in any
significant way addressing the concerns of the community, nor my
constituency. I would urge that Council once again remind the Board, and the
President that we have made a request of the Board and that we urge that the
expert advice be obtained, be shared with the Council and the PDP Feb 06
Task Force, and that it be published in a transparent and accountable
manner. Most importantly, guidance of this nature has to become part of the
record, so that ICANN is able to defend the integrity of decisions to the
ICANN community, as well as contracted parties. 

At present, it appears that the staff could be intending to recommend a
decision on these revised contracts, after only a two week comment period,
in mid November. It seems unlikely that that allows time for obtaining and
sharing expert advice and considering it carefully. 

That concerns me.  I assume it concerns fellow councilors? 

Marilyn 

-----Original Message-----
From: owner-gtld-council@xxxxxxxxxxxxxx
[mailto:owner-gtld-council@xxxxxxxxxxxxxx] On Behalf Of Bruce Tonkin
Sent: Thursday, October 26, 2006 5:12 AM
To: gtld-council@xxxxxxxxxxxxxx
Subject: RE: [gtld-council] PDP05 - renewals

Hello Philip,

> 
> If so, then one question becomes key that relates to the 
> period of the award.
> At what point do NEW Consensus Policies apply ?

This is an excellent question.

Nominally the consensus polices at:

http://www.icann.org/general/consensus-policies.htm should be applied
immediately they are published (see "effective dates").

Registry agreements however do place constraints on which policies can
be applied during the term of the agreement.

The current list in recommendation 4.6 is (which were derived from the
jobs version of the constraints).

- (1) issues for which uniform or coordinated resolution is reasonably
necessary to facilitate interoperability, security and/or stability of
the Internet or DNS;

- (2) functional and performance specifications for the provision of
Registry Services (as defined in Section 3.1(d)(iii) below);

- (3) security and stability of the registry database for the TLD; 

- (4) registry policies reasonably necessary to implement Consensus
Policies relating to registry operations or registrars;

- or (5) resolution of disputes regarding the registration of domain
names (as opposed to the use of such domain names).


It is possible for a consensus policy to be created that is outside of
that list (e.g new gTLDs policy).

Regards,
Bruce Tonkin