. NET Council Subcommittee Minutes - April 15, 2004

ATTENDEES:
Commercial and Business Users constituency - Philip Sheppard - Chair
Intellectual Property Interests Constituency - Lucy Nichols
Internet Service Providers and connectivity providers Constituency - Tony Holmes
gTLD Registries constituency: - Cary Karp
Non Commercial Users constituency - Marc Schneiders
At-Large Advisory Committee (ALAC) liaison: Thomas Roessler

ICANN Vice President Business Operations: Kurt Pritz
ICANN Staff Manager: Barbara Roseman
GNSO Secretariat: Glen de Saint Géry

Absent with apologies
Registrars Constituency - Ross Rader
Vice President, Policy Development Support - Paul Verhoef

Nominations for subcommittee chair:

Cary Karp, seconded by Tony Holmes, proposed Philip Sheppard.
Philip Sheppard accepted the nomination. Cary Karp seconded by Lucy Nichols proposed closing the nominations.
It was unanimously agreed that Philip Sheppard chair the GNSO Council subcommittee tasked with the reassignment of .net .

It was suggested that the existing work on the reassignment of .org should be revisited, however there were two important differences:
- there should be no procedural errors, Verisign could call into renewed review the outcome of the subcommittee's finding at their discretion
-in the .org case, a new operator was foreseen, while with .net, there was no presumption of a new operator.

In the .net Registry agreement, Verisign had a particular right in terms of the redelegation:

5.2.2 Registry Operator or its assignee shall be eligible to serve as the successor Registry Operator and neither the procedure established in accordance with subsection 5.2.1 nor the fact that Registry Operator is the incumbent shall disadvantage Registry Operator in comparison to other entities seeking to serve as the successor Registry.

5.2.5 In the event that a party other than Registry Operator or its assignee is designated as the successor Registry Operator, Registry Operator shall have the right to challenge the reasonableness of ICANN's failure to designate Registry Operator or its assignee as the successor Registry Operator pursuant to Section 5.9 below. Any such challenge must be filed within 10 business days following any such designation, and shall be decided on a schedule that will produce a final decision no later than 60 days following any such challenge.

In the light of the above statements:
- The core issue appeared to be competition which could be connected to the concept of reasonableness.
- It should be agreed at the outset that the discussion should concentrate on a robust and viable framework of criterion and their evaluation rather than what would be regarded as a "reasonable outcome".

Kurt Pritz undertook to request ICANN General Counsel's interpretation of the statement.

Constituency discussions had not yet taken place.

Ideas that were expressed in structuring the work process:
- Articulation of an evaluative framework
- Necessity for a scrupulously objective external evaluator who could speak on the application of the evaluative framework
- Detail the nature of the criteria, technical competence for example, but not the details thereof.
- Factors relevant to the criteria that could be agreed to:

Policy compliance,
UDRP
WHOIS
Grandfathering - existing registrants in .net should be entitled to stay irrespective of whether the registry operator changes.
General principles in the .org report, easily applicable to the .net situation, should be carried over.

.net Registry agreement, mentioned factors to be taken into account in the selection of a new registry operator:
"5.2.4 ICANN shall select as the successor Registry Operator the eligible party that it reasonably determines is best qualified to perform the registry function under terms and conditions developed pursuant to Subsection 4.3 of this Agreement, taking into account all factors relevant to the stability of the Internet, promotion of competition, and maximization of consumer choice, including without limitation: functional capabilities and performance specifications proposed by the eligible party for its operation of the registry, the price at which registry services are proposed to be provided by the party, the relevant experience of the party, and the demonstrated ability of the party to manage domain name or similar databases at the required scale. "

Controversial criteria to be discussed:

1. Competition:
which could be seen as biasing and should be weighted.

2. Registry Services
What effects would removing services such as the Wait Listing Service and the Redemption Grace Period, have in terms of cost, technical and stability issues.
The proprietary nature of the current service level could be an intricate issue.
Possible criteria would be maintaining the service level to which .net nameholders have been accustomed, suggesting modifications in terms of innovation and demonstrating the technical capacity to carry these out.

3. Targeting of .net
Targeting or marketing to a particular constituency would be different
In terms of the way the TLDs were created, .net had a clearly defined constituency and was reserved for the network infrastructure.
Making it a sponsored community or like .com, targeted towards a community of new registrants. Some purpose to .net could be suggested. Questions such as, has the nameholder profile for .net been influenced by marketing?
It was cautioned that the focus should be on objective measurable criteria.
There is a wide spectrum of recommendations, from articulating every thing to encouraging innovation, imagination and leaving space for things that could be done.

Kurt Pritz felt the focus should be on a zero-based document, which would set out the criteria for how a registry should operate, and what the criteria would be for selecting a registry operator.

Philip Sheppard proposed drawing up a framework based on the issues discussed which could be used as a base for consulting with the constituencies.
Marc Schneiders requested ICANN General Counsel to comment on whether it was a fact that whatever was said in the subcommittee could be used later in the process by Verisign. Eventually it would be a board decision and not a GNSO Council decision.

Preparation for next call:

- Discuss framework with constituencies

- E-mail exchange on the net-com list was encouraged.

Philip Sheppard thanked everyone for their participation and ended the call at 17:55 CET

Next call: Tuesday 4 May 15:00 UTC. (5:00 Honolulu, 8:00 Los Angeles, 11:00 EST,16:00 London, 17:00 CET.)