RE: [gnso-dt-wg] RE: [council] Motions re Domain Tasting

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

I am not VeriSign either but I do represent VeriSign in the RyC.
Whereas I cannot speak for our legal team, I am not aware of anyone in
VeriSign ever suggesting that "a policy dictating how much VeriSign
could refund 
registrars during the AGP (would) be considered a prescription or
limitation on the price of Registry Services".

Chuck 

> -----Original Message-----
> From: owner-gnso-dt-wg@xxxxxxxxx 
> [mailto:owner-gnso-dt-wg@xxxxxxxxx] On Behalf Of Neuman, Jeff
> Sent: Wednesday, March 05, 2008 10:49 AM
> To: Tim Ruiz; Mike Rodenbaugh
> Cc: Registrars Constituency; owner-council@xxxxxxxxxxxxxx; 
> gnso-dt-wg@xxxxxxxxx; GNSO Council; Adrian Kinderis
> Subject: RE: [gnso-dt-wg] RE: [council] Motions re Domain Tasting
> 
> 
> For what it is worth, with respect to the following:
> 
> 
> "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?" 
> 
> The registries as a group have never expressed the view that 
> this proposal would fall within the exception to the 
> Consensus Policies provision above.
> 
> I am not sure where that issue has come from and I do not 
> believe that the answer to that question should delay public 
> comment on the present proposal.  Also for what it is worth, 
> NeuStar (and yes I know we are not VeriSign which controls 
> 90% of the market) does not believe that this proposal would 
> be considered a prescription or limitation on the price of 
> Registry Services since the price being charged is not 
> affected, it is only whether we can offer a refund or not.
> 
> 
> 
> Jeffrey J. Neuman, Esq. 
> Sr. Director, Law, Advanced Services  & 
> 
> Business Development 
> 
> NeuStar, Inc. 
> e-mail: Jeff.Neuman@xxxxxxxxxx 
> 
> 
> -----Original Message-----
> From: owner-gnso-dt-wg@xxxxxxxxx 
> [mailto:owner-gnso-dt-wg@xxxxxxxxx] On Behalf Of Tim Ruiz
> Sent: Wednesday, March 05, 2008 10:14 AM
> To: Mike Rodenbaugh
> Cc: 'Registrars Constituency'; owner-council@xxxxxxxxxxxxxx; 
> gnso-dt-wg@xxxxxxxxx; 'GNSO Council'; 'Adrian Kinderis'
> Subject: [gnso-dt-wg] RE: [council] Motions re Domain Tasting
> 
> 
> 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-co
> m-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
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
> 
>