RE: [council] Motions re Domain Tasting

[Tim Ruiz <tim@xxxxxxxxxxx>]

Mike,

Let's stay rational here. The Staff and Counsel may have stated the
opinion that tasting was within scope, but that doesn't mean that every
element of any policy proposal we come up is viable under current
contracts. That's all we're saying. If the Council does send something
to the Board it just seems reasonable that if there is a question about
it actually being implementable that we first try to resolve that.

I apologize that it didn't dawn on me during our team meeings, but then
I'm not a lawyer. Regarding the concern most on the team had regarding
Jeff's initial comments on 3.1 of the registry agreements, I think
Jeff's last post helps clear that up, at least for me.

So we just need John's opinion on the refund issue and whether or not
that constitutes prescribing or limiting the price of a registry
service. Pretty simple question that he should be able to answer within
a couple of weeks (probably less). Noting however, that it may not
necessarily be the opinion of the registries but at least we'll have
done our due dilligence if the Council decides to send the
recommendation to the Board.


Tim 


-------- Original Message --------
Subject: RE: [council] Motions re Domain Tasting
From: "Mike Rodenbaugh" <mxrodenbaugh@xxxxxxxxx>
Date: Tue, March 04, 2008 6:11 pm
To: "'Tim Ruiz'" <tim@xxxxxxxxxxx>, "'Adrian Kinderis'"
<adrian@xxxxxxxxxxxxxxxxxx>
Cc: "'Registrars Constituency'" <registrars@xxxxxxxxxxxxxx>,
<owner-council@xxxxxxxxxxxxxx>, <gnso-dt-wg@xxxxxxxxx>, "'GNSO Council'"
<council@xxxxxxxxxxxxxx>


I do not like the idea that one Constituency can come up with any legal
theory and demand that be the subject of ICANN Counsel opinion, while
all
policy development work goes on hold to wait for that opinion. Though I
maintain complete respect for ICANN Counsel, their opinion may not be
the
final opinion that matters on issues of contract interpretation or
otherwise. In order to avoid litigation, ICANN's much safer position is
to
side with the parties they contract with, rather than any other party
who
would have a much tougher time suing ICANN successfully on a contract
(or
'third party beneficiary') theory. So I see this as another ploy for
contracting parties to delay or derail policy development that they
don't
like, and we ought not let that become a precedent.

While I also would like ICANN's counsel's view on the outlandish
position
set out by Jeff Neuman (purportedly on behalf of the Registry
Constituency),
I do not think that issue, or this one now raised by the Registrars,
should
roadblock the policy development work of the GNSO Council. We should
continue our work and let the legal proceedings take their separate
course.
Again, the ICANN Counsel has already found the domain tasting issue to
be
within scope of GNSO policy work, nine months ago, after this sort of
'excess delete fee' proposal was already enacted by PIR through ICANN
process, discussed in the initial Staff report that included Counsel's
opinion, and so presumably it was understood to be a potential outcome
of
the GNSO as well.

Thanks,
-Mike

-----Original Message-----
From: Tim Ruiz [mailto:tim@xxxxxxxxxxx] 
Sent: Tuesday, March 04, 2008 2:32 PM
To: Adrian Kinderis
Cc: Registrars Constituency; Mike Rodenbaugh;
owner-council@xxxxxxxxxxxxxx;
gnso-dt-wg@xxxxxxxxx; GNSO Council
Subject: RE: [council] Motions re Domain Tasting

Mike,

In fact, I believe we need an answer from Counsel to the other question
as well (raised as a result of Jeff's reference to 3.1(b)(iv) of the
registry agreements) before we proceed any further with any policy work
at all. The role registries are playing here in the definition of
consensus needs to be fully and clearly understood, as much as and even
more than the picket fence.


Tim 

-------- Original Message --------
Subject: RE: [council] Motions re Domain Tasting
From: "Adrian Kinderis" <adrian@xxxxxxxxxxxxxxxxxx>
Date: Tue, March 04, 2008 3:48 pm
To: "Mike Rodenbaugh" <mxrodenbaugh@xxxxxxxxx>,
<owner-council@xxxxxxxxxxxxxx>, <gnso-dt-wg@xxxxxxxxx>, "GNSO Council"
<council@xxxxxxxxxxxxxx>
Cc: "Registrars Constituency" <registrars@xxxxxxxxxxxxxx>


Thanks Mike.

Unfortunately, myself and other members of the RC disagree.

We would prefer to get specific advice from ICANN General Counsel before
proceeding.

Can you please forward your motion for review?

Thanks.

Adrian Kinderis
Managing Director
AusRegistry Group Pty Ltd
Level 8, 10 Queens Road
Melbourne. Victoria Australia. 3004
Ph: +61 3 9866 3710
Fax: +61 3 9866 1970
Email: adrian@xxxxxxxxxxxxxxx
Web: www.ausregistrygroup.com

The information contained in this communication is intended for the
named recipients only. It is subject to copyright and may contain
legally privileged and confidential information and if you are not an
intended recipient you must not use, copy, distribute or take any action
in reliance on it. If you have received this communication in error,
please delete all copies from your system and notify us immediately.



-----Original Message-----
From: Mike Rodenbaugh [mailto:mxrodenbaugh@xxxxxxxxx] 
Sent: Wednesday, 5 March 2008 3:47 AM
To: Adrian Kinderis; owner-council@xxxxxxxxxxxxxx; gnso-dt-wg@xxxxxxxxx;
'GNSO Council'
Cc: 'Registrars Constituency'
Subject: RE: [council] Motions re Domain Tasting

I do not see how this would prescribe or limit the price of a Registry
Service. It simply says that whatever price is charged cannot be
refunded under certain circumstances, in order to mitigate a practice
that the ICANN Counsel has already found to be within GNSO policy-making
purview. 

I think there is no harm in continuing with the 21-day public comment
period, and hopefully we can get any additional guidance from Counsel
during that timeframe as well.

-Mike Rodenbaugh



-----Original Message-----
From: Adrian Kinderis [mailto:adrian@xxxxxxxxxxxxxxxxxx] 
Sent: Monday, March 03, 2008 2:30 PM
To: mxrodenbaugh@xxxxxxxxx; owner-council@xxxxxxxxxxxxxx;
gnso-dt-wg@xxxxxxxxx; GNSO Council
Cc: Registrars Constituency
Subject: RE: [council] Motions re Domain Tasting

Thanks for your response Mike.

One question from the Registrar Constituency to the Council;

Is it possible to get ICANN General Counsel's Office to review this
proposal and advise whether it is viable under the existing registry
agreements?

The .com agreement states that Consensus Policies may not "prescribe or
limit the price of Registry Services" (see Section 3.1(b)(v)(A)
http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06.htm)
..

Would a policy dictating how much VeriSign could refund registrars
during the AGP be considered a prescription or limitation on the price
of Registry Services? 

This is fundamental to the progressing of this issue and was discussed
briefly at the meeting in India.

We, the Registrar Constituency, would certainly like to have this
answered prior to utilising resources in reviewing a proposal that may,
indeed, be unenforceable.

Thanks.


Adrian Kinderis
Managing Director
AusRegistry Group Pty Ltd
Level 8, 10 Queens Road
Melbourne. Victoria Australia. 3004
Ph: +61 3 9866 3710
Fax: +61 3 9866 1970
Email: adrian@xxxxxxxxxxxxxxx
Web: www.ausregistrygroup.com

The information contained in this communication is intended for the
named recipients only. It is subject to copyright and may contain
legally privileged and confidential information and if you are not an
intended recipient you must not use, copy, distribute or take any action
in reliance on it. If you have received this communication in error,
please delete all copies from your system and notify us immediately.



-----Original Message-----
From: Mike Rodenbaugh [mailto:mxrodenbaugh@xxxxxxxxx] 
Sent: Tuesday, 4 March 2008 12:19 AM
To: Adrian Kinderis; owner-council@xxxxxxxxxxxxxx; gnso-dt-wg@xxxxxxxxx;
GNSO Council
Cc: Registrars Constituency
Subject: Re: [council] Motions re Domain Tasting

Hi Adrian.

The team was me, Kristina, Tim, Alan and recently Jeff Neuman. Text was
unanimously agreed although i made some minor edits at last turn that
some may not have seen.

There is precedent for Council to monitor implementation of its
policies, and seemed like a good idea for this.

Thanks,
Mike

-----Original Message-----
From: "Adrian Kinderis" <adrian@xxxxxxxxxxxxxxxxxx>

Date: Mon, 3 Mar 2008 14:57:11 
To:"Mike Rodenbaugh" <mxrodenbaugh@xxxxxxxxx>, <gnso-dt-wg@xxxxxxxxx>,
"Council GNSO" <council@xxxxxxxxxxxxxx>
Cc:"Registrars Constituency" <registrars@xxxxxxxxxxxxxx>
Subject: RE: [council] Motions re Domain Tasting



Mike,

I have a few issues with what you have suggested but will wait for the
Registrar Constituency's response prior to proposing them.

That said, I am not sure I understand Part 3 of your motion and would
like some clarification.

I am of the opinion that once the Board decides on supporting a request
or a policy, that it becomes a "Board policy". Why are we instructing
staff to report back to the GNSO council? Surely the Board would want to
grapple with the effectiveness and implications arising out of the
policy "they" implemented. It is up to them, I would think, to set the
parameters of measurement.

I could be wrong, but I thought that we, as the GNSO Council were to
suggest policy and provide background to enable the ICANN Board to make
informed decisions. It is the ICANN Board that makes policy and reviews
the effectiveness of those decisions.

Is it our job to get ICANN staff to report to us on matters of the
Board? 

Also, can you please provide some clarity around "the Design Team"
(perhaps just to remind me again). Who were the members exactly and how
did you arrive at the motion? How was consensus for the actual wording
reached?

Thanks for this and sorry if I am backtracking unnecessarily.

Regards,

Adrian Kinderis
Chief Executive Officer
AusRegistry International Pty Ltd
Level 8, 10 Queens Road
Melbourne. Victoria Australia. 3004
Ph: +61 3 9866 3710
Fax: +61 3 9866 1970
Email: adrian@xxxxxxxxxxxxxxx
Web: www.ausregistryinternational.com

The information contained in this communication is intended for the
named recipients only. It is subject to copyright and may contain
legally privileged and confidential information and if you are not an
intended recipient you must not use, copy, distribute or take any action
in reliance on it. If you have received this communication in error,
please delete all copies from your system and notify us immediately.


-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx]
On Behalf Of Mike Rodenbaugh
Sent: Monday, 3 March 2008 1:33 PM
To: gnso-dt-wg@xxxxxxxxx; 'Council GNSO'
Subject: [council] Motions re Domain Tasting

The Domain Tasting team has devised the following motion, which
effectively would put the attached substantive motion out for public
comments for 21 days and set a timeline for final vote in our April 17
Council meeting.

Whereas, the GNSO Council has discussed the Issues Report on Domain
Tasting and the Final Outcomes Report of the ad hoc group on Domain
Tasting;

Whereas, the GNSO Council resolved on 31 October 2007 to launch a PDP on
Domain Tasting and to request Constituency Impact Statements with
respect to issues set forth in the Issues Report and in the Final
Outcomes Report;

Whereas, the GNSO Council authorized on 17 January 2008 the formation of
a small design team to develop a plan for the deliberations on the
Domain Tasting PDP (the "Design Team"), the principal volunteers to
which had been members of the Ad Hoc Group on Domain Tasting and were
well-informed of both the Final Outcomes Report of the Ad Hoc Group on
Domain Tasting and the GNSO Initial Report on Domain Tasting
(collectively with the Issues Report, the "Reports on Domain Tasting");

Whereas, the Design Team has met and agreed on a Draft Motion [attached]
to be set out for public comment and for Constituency Impact review;

The GNSO Council RESOLVES:

1. The Draft Motion shall be posted for 21-day public comment on
March 7,
2008. Each Constituency shall have 21 days from March 7, 2008 to update
its Constituency Impact Statement with respect to this motion, if it so
chooses.
The deadline for amended Statements shall be March 28, 2008.

2. ICANN Staff please shall provide a summary of any public comments
and/or amended Constituency Impact Statements to the Council, via
submission of a Final Report with respect to this PDP, by April 4, 2008.

3. The Design Team shall then meet and confer with respect to the
Final
Report, in order to consider any public comments and/or amended
Constituency Impact Statements and to consider any suggested amendments
to the Draft Motion, and shall recommend a Final Motion to be considered
by Council for vote in its scheduled meeting April 17, 2008.

4. It is the intention of the GNSO for the Staff to produce a Board
Report on this PDP for consideration by the ICANN Board, in the hope
that the Board may vote on any recommendations of the GNSO with respect
to this PDP, at the scheduled ICANN meeting in Paris in June, 2008



Mike Rodenbaugh