Statement concerning the Feb 06 PDP to establish Policies for Contractual Conditions for Existing Registries (April 27, 2006)

Introductory Statement

The following input is provided by the Registries Constituency as a contribution to the Call for Papers for the Policy Development Process (PDP) to establish Policies for Contractual Conditions for Existing Registries. The Terms of Reference can be found at (http://gnso.icann.org/issues/gtld-policies/tor-pdp-28feb06.html). This document follows Annex A of the ICANN Bylaws which guides the Policy Development Process.

The information is grouped as follows:
I. General Information about the Submitter
II. Background Information about the development of the Comments
III. Comments in response to the GNSO Terms of Reference for Policies for Contractual Conditions - Existing TLDs (PCC - eTLDs)

I. General Information about the Submitter

Name of organization:  GNSO gTLD Registries Constituency

Contact Person:  Marie Zitkova, Chair

Contact email address:  Marie.Zitkova@SITA.AERO

Number of official members of the organization:  13

Estimated number of potential eligible members of the organization:  13

Number of members that participated in developing this input: 

II. Background Information about the development of the comments

The Registry Constituency comments included in this document were developed and adopted by constituency members via participation in the constituency’s online mailing list and teleconference calls.  All members and potential members of the constituency were encouraged to participate.

Draft statements to the Terms of Reference were distributed via the constituency email list, which is open to all members and potential members. Participants were then asked to propose possible edits to each statement and to communicate whether or not they agree with the statement or edited statement.  In the end, only statements for which there was consensus support were included in this document.

The Constituency has greater knowledge about and familiarity with the subject matter of this PDP than any other Constituency. These comments should be read in conjunction with the Preface to the Constituency’s comments on the draft terms of reference for this PDP, as follows:

For the reasons stated herein, the [Constituency] (the “RyC”) submits that any further proceedings on this PDP are outside the legal powers of the GNSO, and can have no effect on the subject matter of contractual conditions for existing generic top level domains.

The draft ToR is the result of a supermajority vote of the GNSO to initiate a PDP despite the clear recommendation in an ICANN Staff Issues Report that concluded against recommending a dedicated PDP “on this matter as framed by the GNSO Council.” As framed by the GNSO Council, the issue was “the dot COM proposed agreement in relation to the various views that have been expressed by the constituencies.”

The report further said, “There are aspects identified by the GNSO Constituencies which could be used to inform policy development within the framework of the ongoing PDP regarding new gTLDs.” These aspects are, however, not the subject matter of the current PDP.  Notwithstanding the explicit limitations expressed in the Staff Issues Report, the GNSO has proceeded to launch a PDP on an entirely new and different subject – “contractual conditions for existing generic top level domains,” a subject that is clearly not “within the framework of the ongoing  PDP regarding new gTLDs”, as suggested by the Staff Issues Report.
           
This PDP is not only unauthorized and out of scope, it is without legal foundation. It purports to impose possible conclusions of a PDP on subject matter that is exclusively within the responsibility of the Board of Directors of ICANN.

The participation of RyC in commenting on the proposed text of the ToR should be viewed in the context of this preface. Any comments are without prejudice to the position of RyC that the proceedings are out of scope and without legal foundation.
Registry Constituency GNSO Council representatives are prepared to answer questions and/or discuss the comments provided in this document.  Also, questions can be sent to Marie Zitkova, Chair of the Constituency.

III. Response to Terms of Reference
Registry Constituency comments are provided in italic font after the restatement of each element of the terms of reference.

1. Registry agreement renewal

1a. Examine whether or not there should be a policy guiding renewal, and if so, what the elements of that policy should be.
The Constituency believes that an attempt to set a policy guiding renewal is not properly within the scope of a GNSO PDP.

In general, the overall goal of this PDP should be limited to a determination of what policies are (a) appropriate for the long term future of gTLDs - specifically within the context of ICANN's mission to preserve the stability and security of the DNS, and (b) relate to certain specific issues identified below.

In particular, the interests of the various constituencies that make up the GNSO are diverse and may well, from time to time. be in conflict with the goal of establishing a stable and effective contractual framework for agreements between registries and ICANN. If a policy concerning renewals is determined by the ICANN Board to be within the limitations specified above, then such policy can, legitimately, only be set by the ICANN Board.

1b. Recognizing that not all existing registry agreements share the same Rights of Renewal, use the findings from above to determine whether or not these conditions should be standardized across all future agreements.

For the reasons stated above, this is not a proper question for this PDP.

2. Relationship between registry agreements and consensus policies

2a. Examine whether consensus policy limitations in registry agreements are appropriate and how these limitations should be determined.

Consensus policy limitations are appropriate only to the extent that they may undermine the interoperability, security, and stability of the Internet and DNS. Any determination of the appropriateness of particular limitations should be limited to review of their impact on these three subjects.

2b. Examine whether the delegation of certain policy making responsibility to sponsored TLD operators is appropriate, and if so, what if any changes are needed.

It would be legitimate to examine whether the diversity of sponsored TLD policy making poses a threat to the interoperability, security, and stability of the Internet and DNS and if so, under what circumstances should changes be applied.

3. Policy for price controls for registry services

3a. Examine whether or not there should be a policy regarding price controls, and if so, what the elements of that policy should be. (note examples of price controls include price caps, and the same pricing for all registrars)

Price controls are another example of a subject that is not properly within the scope of GNSO proceedings and this PDP. It is clearly improper for the various constituencies comprising the GNSO to be in the position of resolving their conflicting interests by setting price policies for another constituency.

3b. Examine objective measures (cost calculation method, cost elements, reasonable profit margin) for approving an application for a price increase when a price cap exists.

If there are objective measures, the GNSO is not the appropriate body to determine them.

4. ICANN fees

4a. Examine whether or not there should be a policy guiding registry fees to ICANN, and if so, what the elements of that policy should be.

The inappropriateness of this question can best be demonstrated by rephrasing it: “Should there be a policy guiding [registrar] [ISP] [any other constituency] fees to ICANN?”

4b. Determine how ICANN's public budgeting process should relate to the negotiation of ICANN fees.

Only the ICANN Board can determine how its budgeting process should relate to the negotiation of any fees charged to any constituency.

5. Uses of registry data

Registry data is available to the registry as a consequence of registry operation. Examples of registry data could include information on domain name registrants, information in domain name records, and traffic data associated with providing the DNS resolution services associated with the registry.

5a Examine whether or not there should be a policy regarding the use of registry data for purposes other than for which it was collected, and if so, what the elements of that policy should be.

The answer to this question requires recognition that laws governing the capture and use of data vary around the world. Any policy on this subject should be sensitive to the need for a registry to conform to the laws of the jurisdiction where it is located.

5b. Determine whether any policy is necessary to ensure non-discriminatory access to registry data that is made available to third parties.

This is also an area where local law must be considered.

6. Investments in development and infrastructure

6a. Examine whether or not there should be a policy guiding investments in development and infrastructure, and if so, what the elements of that policy should be.

The question of a policy guiding such investments is closely related to the questions of price controls and the setting of ICANN fees. It is equally inappropriate for the various constituencies comprising the GNSO to be in the position of resolving their conflicting interests by setting investment policies for another constituency.