RE: [council] Role of council with respect to Agenda Item 4

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Hello Jeff,

>  However, I would like to 
> clarify that that the introduction of registry services is 
> not a policy matter within the scope of the GNSO.  Such a 
> policy (or even if you believe a lack of policy) is governed 
> by the contracts and not through the GNSO policy process.  

With reference to the GNSO Policy Development Process in Annex A of the
ICANN By-laws, 
any policy process would start with the creation of an issue report.

>From Section 2, part e, of Annex A:
"A recommendation from the Staff Manager as to whether the Council
should initiate the PDP for this issue (the "Staff Recommendation").
Each Staff Recommendation shall include the opinion of the ICANN General
Counsel regarding whether the issue proposed to initiate the PDP is
properly within the scope of the ICANN policy process and within the
scope of the GNSO. In determining whether the issue is properly within
the scope of the ICANN policy process, the General Counsel shall examine
whether such issue:

1. is within the scope of ICANN's mission statement;

2. is broadly applicable to multiple situations or organizations;

3. is likely to have lasting value or applicability, albeit with the
need for occasional updates;

4. will establish a guide or framework for future decision-making; or

5. implicates or affects an existing ICANN policy.
"

Thus the ICANN General Counsel would provide advice on whether an issue
is within the scope of the ICANN policy process.


I note from the unsponsored registry agreement:
http://www.icann.org/tlds/agreements/unsponsored/registry-agmt-11may01.h
tm
That there is provision in clause 4 as follows:

   "During the Term of this Agreement, Registry Operator shall comply, 
    in its provision of Registry Services, on the schedule provided 
    in Subsection 4.5, with

    4.1.1. new or revised specifications (including forms of agreement
to 
    which Registry Operator is a party) and policies established by
ICANN 
    as Consensus Policies in the manner described in Subsection 4.3,"

[start of personal comment]
I also note that while some changes to the registry agreement would need
to be made with mutual consent of ICANN and the registry operator, where
ICANN is required to provide consent to a change at the request of a
registry operator (e.g see clause 3.2 of the registry agreement), that
the GNSO could presumably assist ICANN by developing a procedure or
criteria that ICANN may use to provide its consent.  In that way, if the
ICANN Board approves a GNSO recommendation for a procedure, then that
Board decision would bind the ICANN staff in complying with the
procedure.   There would presumably be no contractual changes involved.
[end personal comment]

In any case these are good questions to ask the ICANN General Counsel
either before we commission an issues report, or as part of an issues
report.

Regards,
Bruce Tonkin