[council] FW: Blog Piece on Unilateral Right to Amend

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

Given the conversation we had during the GNSO Council call, I thought you may 
find this blog post we drafted on the Unilateral Right to Amend:  
http://blog.neustar.biz/neustar-insights/clearing-up-the-logjam-time-for-icann-to-drop-request-for-a-unilateral-right-to-amend-the-agreements/

I have printed the full version below;





Clearing Up the Logjam: Time for ICANN to Drop Request for a Unilateral Right 
to Amend the Agreements
By: Jeff Neuman

A very rare thing happened in the GNSO Council meeting this week-the ICANN 
community spoke with one voice.  Registries, registrars, non-commercial 
interests, new TLD applicants, IP owners and businesses unanimously and 
unambiguously agreed that giving ICANN a "unilateral right to amend" the 
registry and registrar agreements is not compatible with ICANN's bottom-up 
processes and poses a fundamental threat to the multi-stakeholder model.  There 
is true consensus that this change should be rejected.

On February 5, 2013, ICANN surprised the community by re-introducing its demand 
for a unilateral right to amend the gTLD Registry Agreement.  ICANN made the 
same change in the Registrar Accreditation Agreements. (This was posted for 
public comment on March 7, 2013.  See: 
http://www.icann.org/en/news/public-comment/proposed-raa-07mar13-en.htm).

This move came without consultation, nearly five years after the new gTLD 
Program moved into the implementation phase, and three years after the 
community and ICANN, through a bottom-up process, rejected this approach and 
reached a compromise on similar language.

During the GNSO Council's monthly teleconference on March 14, 2013, while 
discussing the recent changes to the Registrar Accreditation Agreement, Council 
members raised the topic of ICANN's proposed unilateral right to amend the 
registry and registrar agreements.  ICANN staff present on the call explained 
its position, saying, "the amendment clause is actually intended to be last 
resort for when there is agreement that something needs to be done, but there 
is a logjam within the processes that we have that don't allow us to move 
forward."  Essentially, ICANN is asking, "what happens when everyone agrees 
that a particular change is needed, but the multi-stakeholder processes - or 
someone manipulating those processes - prevents the community from moving 
forward with what the community wants."

Taken in isolation and without any other context, this is a perfectly 
reasonable question.  If there truly were no mechanisms in the registry or 
registrar agreements to make necessary changes when the community demands 
action, then ICANN staff's concerns would be justified.  It would be a good 
question to ask if someone could use ICANN processes to block a change that 
everyone else supported.  The fact is, however, that there already are a number 
of mechanisms ICANN can take to implement community supported changes.

First, of course, contracted-parties can agree to make a change they support.  
Second, there is a bottom-up Consensus Policy mechanism for critical changes 
that ensures that any implementation is appropriately balanced across multiple 
constituencies and stakeholder groups.  Truly important and time-sensitive 
issues can be addressed via Temporary Policies that remain in place for up to a 
year and, during that year, can be adopted as Consensus Policies.  Finally, the 
new gTLD agreement contains a new mechanism that gives ICANN authority to make 
amendments supported by a specific percentage of the registry operators 
effective across the entire registry group.  This is the compromise that was 
developed through a bottom-up process in 2009-2010 when the community rejected 
the unilateral change provision.

ICANN agreed in 2010 that these three mechanisms gave it the necessary tools to 
amend the registry contract to implement changes demanded by the community.  
Apparently, it has had a change of heart and now wants the authority to 
unilaterally impose changes to the agreements.  To date, ICANN's explanation is 
that the introduction of new gTLDs will change things in ways that cannot be 
anticipated. ICANN has not responded to community requests for a concrete 
example of when this right would actually be needed.

Of course, the ICANN world is not unique - the future is inherently unknown, 
but parties enter into long-term contracts with high stakes all the time 
without introducing the kind of uncertainty that a unilateral amendment right 
would create. To borrow from the gTLD Registries comment made on February 26, 
2013:  "we are in the midst of dramatic change in the administration of the 
top-level domain name system.  All businesses - whether for profit or nonprofit 
- require a measure of predictability, stability and certainty of contracts.  
Public and multi-national company applicants are subject to regulatory regimes 
that cannot be reconciled with the expanded unilateral authority ICANN is 
seeking.  In deciding whether or not to utilize new gTLDs for their critical 
infrastructure assets, a key goal of the new gTLD program, registries cannot be 
subject to the whim of one private entity, even those acting under the guise of 
public interest, regardless of how well-intentioned that private entity 
purports to be."

ICANN's proposal for this new mechanism, however, has been met with opposition 
not only from the new gTLD Applicants and existing registries, but also the 
registrars, non-commercial interests, businesses and IP owners.  In fact, every 
single comment on ICANN's last minute changes to the new gTLD registry 
agreement called for its removal. EVERYONE is in agreement that this is a bad 
idea and should be withdrawn. The fact that the entire community has never been 
so aligned about a particular subject speaks volumes, but despite this clarity 
ICANN continues to insist on a unilateral right to amend the registry and 
registrar agreements,

Ironically, in this case ICANN itself is creating a logjam that is preventing 
forward movement.  By walking away from the version of the legal agreement 
contained in the final Applicant Guidebook, ICANN is preventing the new gTLD 
Program from going forward.  This same issue is also the logjam preventing the 
roll out of a new registrar accreditation agreement containing enormous changes 
that would benefit registrants, law enforcement, intellectual property owners 
and Internet users in general.

So in response to ICANN's question about clearing logjams, we think they are 
asking the wrong question.  ICANN should stop worrying about the theoretical 
logjams of the future.  It's time to take this request for extraordinary, 
unilateral power off the table in order to clear away today's very real logjam. 
 Once this request is withdrawn, the new gTLD program can move forward and the 
Registrar Accreditation Agreement can be finalized.






Jeffrey J. Neuman
Neustar, Inc. / Vice President, Business Affairs
46000 Center Oak Plaza, Sterling, VA 20166
Office: +1.571.434.5772  Mobile: +1.202.549.5079  Fax: +1.703.738.7965 / 
jeff.neuman@xxxxxxxxxxx<mailto:jeff.neuman@xxxxxxxxxxx>  / 
www.neustar.biz<http://www.neustar.biz/>