RE: [council] FWD: UNSPONSORED REGISTRIES STATEMENT - Regarding the Proposed Issues Report on Registry Services

["Cade,Marilyn S - LGCRP" <mcade@xxxxxxx>]

We need to ensure that legal advice to Council comes to the Council from the 
appropriate source -- ICANN General Counsel. 
 
 
202-255-7348c 
mcade@xxxxxxx 

-----Original Message-----
From: Ken Stubbs [mailto:kstubbs@xxxxxxxxxxx]
Sent: Friday, November 07, 2003 4:33 PM
To: names council
Subject: [council] FWD: UNSPONSORED REGISTRIES STATEMENT - Regarding the 
Proposed Issues Report on Registry Services


 Sent: Friday, November 07, 2003 3:55 PM
 Subject:      Unsponsored gTLD Registries Statement on Registry Services


 UNSPONSORED REGISTRIES STATEMENT

 Regarding the Proposed Issues Report on Registry Services

 The gTLD Registries Constituency of the Generic Names Supporting
 Organization is currently comprised of the three Sponsored and six
 Unsponsored Registry Operators, including Afilias, Ltd. (.info),
 DotCooperation, LLC (.coop), Global Name Registry (.name), Musedoma
 (.museum), NeuLevel, Inc. (.biz), Public Interest Registry (.org),
 RegistryPro (.pro), SITA (.aero) and VeriSign (.com & .net).

 On behalf of the six Unsponsored gTLD Registry Operators, we submit the
 following statement set forth below:

 BACKGROUND

 Each of the gTLD Registry Operators has entered an agreement with the
 Internet Corporation for Assigned Names and Numbers which governs the
 relationship between ICANN and the individual registry operator.  It
 should be noted that only the Unsponsored Registry Agreements have any
 provisions regarding "Registry Services."  In addition, the Unsponsored
 Registry contracts only provide that ICANN consent to the price of a new
 "Registry Service" so long as the operation as such service does not truly
 threaten the technical stability of the domain name system .  While this
 constituency recognizes the need for an ICANN procedure for prompt
 technical and security impact review of proposed "Registry Service", with
 a predictable, streamlined and appropriate market-based approach, the
 contracts themselves do not give ICANN or any third party, including any
 of the GNSO Constituencies, Supporting Organizations, Task Forces or
 Advisory Committees, the ability to consent to any other aspects of
 "Registry Services."  The applicable contracts do not provide a role for
 ICANN with respect to prices or specifications for services or products
 provided by registries that are not "Registry Services" as defined in such
 agreements.

  To the extent that ICANN wishes to increase its scope and/or powers with
 respect to "Registry Services", it may only do so in accordance with its
 agreements or with the express written consent of those with which it has
 contracts (namely, the Registry Operators and Accredited Registrars).  In
 addition, the meaning of such agreements will be governed according to
 applicable legal principles. It cannot be said that any interpretation by
 one party after having entered the agreement is binding on the other party
 or evidences ambiguity.  In addition, interpretations offered by third
 parties have no particular relevance in determining the meaning intended
 by the parties to the relevant agreements.   To the extent that there are
 any disputes over the meaning of any terms within ICANN's Agreements with
 the registries, there is a built in dispute resolution process in the
 contracts.  Such dispute resolution does not involve any of the GNSO
 Constituencies, Supporting Organizations, Task Forces or even Advisory
 Committees.

 SPECIFIC COMMENTS ON ISSUES REPORT

 The gTLD Registries Constituency is extremely concerned about the issues
 raised in the "Excerpt from Draft Version of Staff Manager's Issues Report
 for the Development of a Process for the Introduction of New or Modified
 Registry Services."  Not only are most of those issues irrelevant to the
 introduction of "Registry Services" as defined in the applicable contracts
 with gTLD Unsponsored Registries, but it also inappropriately suggests
 that parties other than ICANN and the gTLD Registry Operators might be
 entitled to prevent the introduction of otherwise lawful new "Registry
 Services."  As stated above, many of these issues involve contractual
 interpretation that involve only the parties to those contracts, and not
 the ICANN community as a whole.  ICANN may not unilaterally, or through
 the policy development process, promulgate rules or regulations
 interpreting these agreements without the consent of the registry
 operators.  Any attempt to do so would be considered a violation of those
 agreements and subject to the dispute resolution process set forth in such
 agreements.

 It is the gTLD Registries Constituency's view that many of the topics
 identified in the "Issues Report" should not be addressed by the GNSO,
 Supporting Organizations or Advisory Committees, but by the ICANN
 staff/board and the gTLD Registry Operators.

 IMPACT OF PDP PROCESS ON GTLD REGISTRIES

 To state the obvious, if there is any one constituency of the GNSO that
 this PDP process potentially affects, it is the gTLD Registries,
 specifically the Unsponsored Registries.  Not only does the introduction
 of "Registry Services" impact the competitive environment in which we
 operate, the investment which we are able to make in our businesses, but
 ultimately, it affects the very survival of our businesses.  Without a
 procedure for prompt technical and security impact review of proposed
 "Registry Service" with a predictable, streamlined and appropriate
 market-based approach by which ICANN exercises its rights with respect to
 Registry Services, the future of domain name registries is in jeopardy.

 RESERVATION OF RIGHTS

 As the ICANN has posted only a portion of the Issues Report, the gTLD
 Registries reserve the right to comment on the complete Issues Reports,
 when such report is released.  In addition, the comments contained herein
 do not address the substance of the issues raised in the report, but
 merely provide, as we were asked to do, an impact statement.


 Afilias, Ltd.
 Global Name Registry
 NeuLevel, Inc.
 Public Interest Registry
 RegistryPro, Inc.
 VeriSign, Inc.


 Jeffrey J. Neuman
 Chair, gTLD Registries Constituency
 e-mail:  <mailto:Jeff.Neuman@xxxxxxxxxx> Jeff.Neuman@xxxxxxxxxx