[council] Regarding Item 3: Correspondence - Clarification sought by PDP-Feb06 task force

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

Hello All,

With respect to the agenda topic:

> 
> Item 3: Correspondence
> 
> - Clarification sought by PDP-Feb06 task force on whether the 
> outcomes of the PDP would affect gTLD contracts in existence 
> at the time the
> Board approves the policy.   See
> http://www.gnso.icann.org/correspondence/cubberley-to-tonkin-2
> 5aug06.pdf
> 

I had a phone conference with John Jeffrey and Dan Halloran of the
General Counsel's office, along with Denise Michel regarding this agenda
item.

John agreed to provide a written response to this request for discussion
at our next Council call.

I think there are really two quite separate issues that underlie the
question from the PDP-Feb06 task force.

(1) Legally is a registry operator obligated to comply when the ICANN
Board approves a recommendation resulting from the PDP-Feb06 work.
Note that ICANN can only require businesses to comply with a policy
recommendation through its contracts with those businesses.  These
contracts have limitations on what recommendations a business must
comply with.

(2) Will the ICANN Board wait until the GNSO completes its work in
PDP-Feb 06 before approving anymore contracts.  


I think it is reasonable for the General Counsel's office to provide
advice with respect to point (1).  The current contracts may make it
difficult to apply or implement some new ICANN policies.  It is
certainly a requirement under Annex A, clause 2 (e)(3) of the bylaws
that the GNSO consider policies that have "applicability".

 With respect to point (2) this is probably a discussion that needs to
happen with the ICANN Board.  The GNSO did request that the Board wait
until approving the proposed .com agreement until the GNSO had a chance
to consider all the issues through a PDP, and the Board decided to
approve the agreement.  We are now in the same position again with
respect to biz, info, and org agreements.    


Regards,
Bruce Tonkin