[council] Regarding Item 3 of the agenda on the topic of PDP-Feb06

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

Hello All,

Just some personal thoughts regarding item 3 of the agenda.

The General Counsel's office have provided a response to the question
asked by the PDP-Feb06 task force.
There is no new information in this response, and I think the concepts
were already covered numerous times while the terms of reference for the
task force were being developed.

The real issue for some time has been whether the Board should wait for
the GNSO to reach consensus on a particular issue related to gTLD
agreements, or whether the Board should exercise its judgement based on
the arguments put forward by the parties to a gTLD agreement and the
arguments put forward through the public comment process.

>From my personal point of view it seems that the PDP-Feb06 task force is
concerned that the work it is doing may have no material effect if the
Board simply approves changes to the gTLD agreements (e.g com, net, org)
that have the most material effect on the ICANN community.  The task
force wants the Board to wait until it has finished its work.

On the other hand the Board (and the Department of Commerce with respect
to the .com agreement) is in fact spending considerable time listening
to the community before it makes any decisions on contracts.    The
Board may have the perspective that the views on particular agreements
are fairly diverse, and that either there is no likelihood of consensus
emerging, or that the consensus may take many months to reach.   There
is also possibly a concern that the current GNSO policy process is not
sufficiently representative of a broad cross section of ICANN
stakeholders (hence the interest in the outcomes of the GNSO review).

In either case the lack of certainty around the timeline of both the
PDP-Feb06 consensus development processes, and the timeline of the
Board's (or Department of Commerce's) decision process is leading to
ongoing tension between the operational and policy development
components of ICANN's function.

I recommend a compromise.

I recommend that the GNSO Council ask the Board to delay making a
decision on changes to the existing gTLD agreements (biz, info, org)
until the Sao Paulo ICANN meeting in December 2006, and that the Board
at the time, take into account the level of consensus reached around the
issues being considered in the PDP-Feb 06 task force.

This would then give the PDP-FEB06 task force a clear objective to focus
its resources to attempt to identify areas where it can reach consensus
prior to the Dec 06 meeting.   Note this may not mean that the work is
fully completed, but hopefully by then there will be a set of draft
recommendations with a clear indication of the level of support for each
of these recommendations.

This would also give some certainty to the contracting parties for .biz,
.info, and .org as to when a decision will be made.   The decision would
not be dependent on the completion of the PDP_Feb06 work.  If the delay
causes undue financial issues for those operators, it should be a
relatively simple task to extend the current agreements under the
current contractual terms for another year or even another 5 year term,
with the expectation that the ICANN and the operators could re-negotiate
the agreements after the Dec 06 meeting.

Note that with respect to the registry service approval process, the
work was already well advanced within the GNSO at the time the Board
agreed to the text in the .net agreement (granted that this should have
been done transparently at the time).

Regards,
Bruce Tonkin
- speaking personally