[council] GNSO Issues Report: .COM Agreement

["Philip Sheppard" <philip.sheppard@xxxxxx>]

> Council,
> A few personal reflections on the GC's advice to us.
> The issues report on dot com contains general counsel's (GC) advice on scope. 
> The GC
> concludes we are out of scope but I find the reasoning overly narrow.
> The GC considered the PDP scope article:
"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."
> 
> And the GC states:
"a) any such issues resulting from this request are specifically targeting the 
2005 Proposed
.COM Registry Agreement, and therefore such policies do not apply to multiple 
situations or
organizations";
> -
Surely illogical. The essence of the GNSO concern is that GNSO consensus policy 
which is
"broadly applicable to multiple situations or organisations" has been REMOVED 
from the
specific proposed agreement.
> - 
"b) any such issues resulting from this request are specifically targeting the 
2005 Proposed
.COM Registry Agreement will not have lasting value or applicability, 
particularly where
that agreement has already been supplanted by the 2006 Proposed .COM Registry 
(Agreement);" 
> -
Surely irrelevant. This would be relevant if the character of the 2006 
agreement was a
radical shift from the 2005 agreement. IT IS NOT!
> -
"c) any such issues resulting from this request are specifically targeting the 
2005 Proposed
.COM Registry Agreement are unlikely to provide a guide or framework for future 
decisions
making, particularly as in this case where the proposed version of the 
agreement for which
the comments have been raised has already been supplanted and amended (where 
possible) in
response to the community feedback."
> -
Surely irrelevant. The issues of concern to the GNSO have been raised in 
community feedback
and ignored.

> The issues report quotes Council's December resolution for which a key 
> recital is:
> "Whereas the GNSO Council believes that there are broader questions raised in 
> the proposed
> settlement that need to be first addressed by the GNSO";
> 
> It was this resolution which underpins Council's request for an issues 
> report. 
> The issues report seems to circumvents the pertinent issues:
> a) that existing and binding ICANN consensus policy is being ignored in the 
> proposed
> Agreement,
> b) and the precedence this sets,
> c) the precedent set for other issues.
> -
> This issues report disappoints.
> 
> 
> Philip