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[council] Note to counsel on DT motion

  • To: Council GNSO <council@xxxxxxxxxxxxxx>
  • Subject: [council] Note to counsel on DT motion
  • From: Avri Doria <avri@xxxxxxx>
  • Date: Mon, 10 Mar 2008 11:05:21 -0400
  • List-id: council@xxxxxxxxxxxxxx
  • Sender: owner-council@xxxxxxxxxxxxxx


Outside of salutations and politeness at the end, this is a draft of the note to ICANN Legal counsel regarding aspects of Domain Tasting. I have tried to capture the questions I know about. If anyone has another question, or recommends edits to what is written, please let the me/the list know. I plan to send this out after 24 hours - i.e. shortly after 1500 UTC 11 March.




On 6 March 208, the GSNO council drafted a motion http://gnso.icann.org/issues/domain-tasting/dnt-motion-6mar08.shtml to curb domain tasting. It would prohibit any gTLD operator that has implemented an add grace period from offering a refund for any domain name deleted during the AGP that exceeds 10% of its net new registrations in that month, or fifty domain names, whichever is greater. An exemption may be sought for a particular month, upon the documented showing of extraordinary circumstances, as detailed in the motion. The GSNO council has sent this motion out for public comment until 28 March at which point public comments and any updates to constituency statements will be considered as part of the GSNO council process for resolving the Domain Tasting PDP that is currently open and in the deliberations stage.

As part of the GNSO council's discussions on 6 March, we also decided to ask for Legal Counsel to review the motion and to let us know whether it is in scope for the GNSO Council. While the PDP itself had been deemed within scope by Legal Counsel, there were questions as to whether the motion itself remained in scope.

Additionally, the following specific issues were raised:

a. 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? The question extends to whether this policy would, therefore, unenforceable.

b. If the answer to the preceding question is affirmative, would a policy eliminating the Add Grace Period be considered a prescription or limitation on the price of Registry Services?

As we intend to resume work on this at the beginning of April, I would appreciate, if it is at all possible, having your response by that time.

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