Comment ccNSOAG5:

["Stephan Welzel/Denic" <welzel@xxxxxxxx>]

On behalf of DENIC, the registry for .de, I submit the following comments on the ccSO Assistance Group's Preliminary Recommendation
on Membership in a future ccSO:

Above all, the Recommendation's notion that only ccTLDs will be members of the ccSO deserves high praise. At the same time, it is
obvious that the ccTLD community will anyhow - already in its own interest - continue to communicate with all other groups involved
in the Domain Name System, as ccTLDs individually cooperate with their respective Local Internet Communities. Since the ccSO's scope
will be very narrow, these Local Communities are the right fora to discuss the general issues that the ICANN community is often
interested in and to develop policies in this regard.

Besides, the Recommendation requires the following annotations in detail:

While the phrase "entitlement" in Section 1 clearly indicates that ccTLDs can join the ccSO voluntarily, the following sentence
seems to suggest that by definition every ccTLD simply is (considered) a member of the ccSO. To avoid misconception, the wording
should therefore be clarified, for example by inserting the words "Admitted to" after the colon.

Furthermore, the differentiation between "ccTLD registries" being envisaged to constitute the ccSO's members and "ccTLD registry
managers" being seen as representing the "registries" is incomprehensible. Unfortunately, also the definitions provided at the end
of the Recommendation do not enlighten this somewhat dark terminology. Applying it, as an example, to .de, the "registry manager"
would be DENIC but it remains unclear who or what would be regarded as the "registry". At most, the register of all .de domain names
could be fitted into the Recommendation's definition, but to take such a view would not make sense because a mere database could
hardly be a member of an organization. In fact, only legal entities or individuals can acquire such membership, and thus the
differentiation between registry and registry manager should get abolished.

The notion that the ccSO may establish a membership fee in section 2 appears self-evident. As obvious, however, is the need of a
well defined and broadly accepted process for this. Albeit the Recommendation on Membership is not the right place for defining such
a process it would be helpful if the Recommendation explicitely stated the necessity of doing so at a later state.

Section 3 does not make it clear whether the definition of policies that will be seen as binding upon ccSO members (Subsections a-c)
is just an attempt to summarize the Policy Developement Process (PDP) or aims at making only some of the policies resulting from the
PDP binding. The former would appear not just superfluous but even worrisome since the duality of an elaborated definition (in the
PDP) and a brief definition (in the Recommendation on Membership) of the same issue would abet misunderstandings or even open a path
to deliberate misinterpretations. The latter would instead pose the question why certain issues would be subject to the PDP although
the then developed policy would not be compulsive.

Irrespective of all of this, it cannot be emphasized enough that the scope of the ccSO needs to be carefully defined and with that
rather narrowly restricted to the core IANA function. Only after this, it will be possible to definitively decide to which extent
policies developed by the ccSO and adopted by the ICANN Board can be binding for ccTLDs. At the same time, the fact that ccTLDs will
be able to leave the ccSO whenever they do not want a policy to bind them makes a narrow restriction of the ccSO's scope even more
crucial for the ccSO to succeed.

Finally, the further notion in section 3 that a policy will in no case be binding if it conflicts with the law being applicable to a
concerned ccTLD is indeed imperative and therefore highly laudable.

Stephan Welzel
Attorney-at-Law
Head of Legal Department
DENIC eG