[council] Draft Terms of Reference for PDP on contractual conditions for current gtlds

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

Hello All,

Below is an initial draft terms of reference which I hope puts the new
PDP 
[PDP-Feb06] in the context of our other PDP on New gTLDs [PDP-Dec05].

The issue areas for consideration are drawn from section D of the issues
report.
The Council should consider whether all of these areas are necessary for
further examination at this time.

Given that the General Counsel did not rule on these individual issues
in the issues report, I have also asked the General Counsel to review
the terms of reference as they develop to advise the Council on whether
the issues under consideration are within scope of the ICANN policy
process and within the scope of the GNSO.

Regards,
Bruce Tonkin


Terms of Reference for a PDP to Guide Contractual Conditions for
existing generic top level domains
========================================================================
=========

Context
=======

The GNSO initiated a policy development process in December 2005
[PDP-Dec05] to develop policy around whether to introduce new gTLDs, and
if so, determine the selection criteria, allocation methods, and
contractual conditions.   

During 2005, ICANN commenced a process of revising the .net and .com
agreements.   There has been substantial discussion amongst members of
the GNSO community around both the recently signed .net agreement (dated
29 June 2005), and the proposed .com agreements (dated 24 October 2005
and 29 January 2006).   As a result, the GNSO Council recognised that
issues such as renewal could be considered as part of the broader issue
of contractual conditions for existing gTLDs, and that it may be more
appropriate to have policies that apply to gTLDs generally on some of
the matters raised by GNSO members, rather than be treated as matters to
negotiate on a contract by contract basis.

Subsequently on the 17 January 2006, GNSO Council requested that the
ICANN staff produce an issues report "related to the dot COM proposed
agreement in relation to the various views that have been expressed by
the constituencies."  This issues report is available at:
 http://www.gnso.icann.org/mailing-lists/archives/council/msg01951.html
.  

Section D of this issues report provides a discussion of many of the
issues that had been raised by the GNSO community in response to the
proposed revisions to the .com agreement.   In the issues report the
ICANN General Counsel advised that it would not be appropriate to
consider a policy development process that specifically targets the .com
registry agreement.   

At its meeting on 6 February 2006, members of the GNSO Council clarified
that the intention of the request for the issues report was to seek an
issues report on the topic of the broader policy issues that relate to
the contractual conditions of gTLD agreements, which have been
identified from the various views expressed by the GNSO constituencies
on the proposed .com agreement.

At its meeting on 6 February 2006 the GNSO Council recognised that while
the PDP initiated in December 2005 [PDP-Dec05] included within its terms
of reference the topic of contractual conditions, a possible outcome of
that PDP would be that there should be no additional gTLDs, and thus the
Council could not depend on this PDP to address the issues raised by the
GNSO community.

Thus at its meeting on 6 February 2006, the GNSO Council decided to
initiate a separate PDP [PDP-Feb06] to look at specific areas of
contractual conditions of existing gTLDs.

The work of PDP-Feb06 will naturally be conducted within the context of
the work on PDP-Dec05, and if it is decided that new gTLDS should be
introduced, the policy work of PDP-Feb06 will be incorporated into a
single gTLD policy.

Goal
====

The overall goal of this PDP therefore is to determine what contractual
conditions are appropriate for the long term future of gTLDs within the
context of ICANN's mission that relate to the issues identified in the
specific terms of reference below.


Terms of Reference
==================

1. Registry agreement renewal 
 
1a. Examine whether presumptive rights of renewal in registry agreements
serve to promote ICANN's core mission and values, including promotion of
competition, DNS stability and security and 

1b. Examine whether presumptive rights of renewal encourage a long-term
view of registry operations in terms of investment and infrastructure
production.

1c. Examine under what conditions a presumptive right of renewal should
be deemed unjustified.

1d. While recognizing that several current registry agreements include a
presumptive right of renewal, use the findings from a) - c) above to
determine if presumptive renewal should be included in all registry
agreements.


2. Relationship between registry agreements and consensus policies 

2a. Examine whether certain registry agreement contract provisions
should be immune from application of consensus policy and how this
should be determined.

2b. Examine whether sponsored TLDs should retain the policy-making
authority now delegated in their registry agreements.

2c. Recognizing that current registry agreements include varying
limitations on scope and applicability of consensus policy, examine the
extent to which registry agreements could state that consensus policies
may not affect certain terms of the agreement and determine whether
future registry agreements should be restricted to a uniform scope and
applicability of consensus policies.


3. Price controls for registry services 

3a. Examine in what ways price controls contribute to ICANN's core
mission and values, especially the promotion of competition and the net
effects on end users.

3b. Examine what conditions might justify price controls for particular
registries.

3c. Examine objective measures (cost calculation method, cost elements,
reasonable profit margin) for approving an application for a price
increase when price control is applied. 

3d. In view of the findings, determine if registry agreements should
prescribe or limit the prices for registry services.


4. ICANN fees 

4a. Examine whether ICANN fees defined in registry agreements should be
subject to policy determination.

4b. Examine whether ICANN fees should be tailored to registry business
models.

4c. Determine how ICANN's public budgeting process should relate to the
negotiation of ICANN fees.

5. Uses of traffic data 

5a. Examine the differences in traffic data available to "thin" and
"thick" registries and which privacy rights exist in such traffic data.

5b. Examine how the use of traffic data can enhance services to registry
clients.

5c. Determine whether any allowances should be made for
non-discriminatory access to traffic data.

5d. Determine whether the uses of traffic data, available to registries
as a consequence of registry operation, should be restricted.


6. Investments in development and infrastructure 

6a. Examine how requirements for specific investment levels in registry
agreements promote ICANN's core mission and values, especially as to
promoting competition and ensuring DNS stability and security.

6b. Determine whether registry agreements should require specific
investment levels in the areas of development and infrastructure.

6c. Determine whether security and stability goals should be reflected
in registry agreements as specific commitments, either as customer
service levels or as investment targets.