RE: [council] ICANN Board resolution on Vertical Integration - dated 5 Nov 2010

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

I have been told that it will be posted this week, maybe late this
evening.

Chuck

> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-
> council@xxxxxxxxxxxxxx] On Behalf Of Mike Rodenbaugh
> Sent: Wednesday, November 10, 2010 1:58 PM
> To: 'Bruce Tonkin'; 'Council GNSO'
> Subject: RE: [council] ICANN Board resolution on Vertical Integration
-
> dated 5 Nov 2010
> 
> 
> Any word on when to expect the next version of the Applicant
Guidebook?
> 
> Mike Rodenbaugh
> RODENBAUGH LAW
> tel/fax:  +1 (415) 738-8087
> http://rodenbaugh.com
> 
> 
> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx [mailto:owner-
> council@xxxxxxxxxxxxxx] On
> Behalf Of Bruce Tonkin
> Sent: Wednesday, November 10, 2010 1:07 AM
> To: Council GNSO
> Subject: [council] ICANN Board resolution on Vertical Integration -
> dated 5
> Nov 2010
> 
> 
> 
> From:  http://www.icann.org/en/minutes/resolutions-05nov10-en.htm
> 
> New gTLDs - Cross-Ownership Issues for Registries and Registrars
> 
> Whereas, at the ICANN meeting in Nairobi in March 2010, the Board
> passed
> a resolution indicating that as a default position that no
co-ownership
> would be allowed in new gTLDs, but that if the GNSO were to develop a
> policy on the subject prior to the launch of new TLDs that the Board
> would consider using the new policy for the new gTLD program
> <http://www.icann.org/en/minutes/resolutions-12mar10-en.htm#5>.
> 
> Whereas, in May 2010, ICANN published version 4 of the Draft Applicant
> Guidebook, which included a note that the Board encouraged the GNSO to
> recommend policy on this issue, and that the Board would review this
> issue again if the GNSO did not make recommendations in time for
launch
> of the new gTLD program
> <http://www.icann.org/en/topics/new-gtlds/comments-4-en.htm>.
> 
> Whereas, the GNSO's Vertical Integration Working Group is divided on
> whether registrars should be allowed to operate registries (and
> consequentially whether registries should be allowed to operate
> registrars). The VI-WG's "Revised Initial Report on Vertical
> Integration
> Between Registrars and Registries" is posted at
> <http://gnso.icann.org/issues/vertical-integration/revised-vi-initial-
> re
> port-18aug10-en.pdf> [PDF, 2.42 MB].
> 
> Whereas, the GNSO VI working group's report includes a number of
> proposals to address vertical integration for the new gTLD program,
but
> the VI-WG has not reached consensus as to which one to recommend
> <http://gnso.icann.org/mailing-lists/archives/council/msg09754.html>.
> 
> Whereas, on 23 September 2010, ICANN's Governmental Advisory Committee
> submitted its comments on v4 of the Applicant Guidebook, including
> comments on the issue of registry-registrar separation
> <http://www.icann.org/en/correspondence/dryden-to-dengate-thrush-
> 23sep10
> -en.pdf> [PDF, 44 KB].
> 
> Whereas, the Board has had over six months since Nairobi to consider
> the
> issue, including consideration of the GNSO VI working group's
> deliberations, and community comment including at the ICANN meeting in
> Brussels in June 2010.
> 
> Whereas, the current set of agreements are not balanced in that while
> recent contracts prohibit registries from acquiring registrars, ICANN
> has never had a rule prohibiting registrars from applying for or
> operating TLDs.
> 
> Whereas, while ICANN has individually negotiated contracts that
> recently
> have included restrictions on registry ownership of registrars,
> cross-ownership provisions have varied over time and no formal
"policy"
> on this topic has ever been recommended by the GNSO or adopted by
> ICANN.
> 
> Whereas, historical contract prohibitions on registries acquiring
> registrars do not provide a compelling basis for principled
> decision-making.
> 
> Whereas, the Board is committed to making fact-based decisions, and
has
> carefully considered available economic analysis, legal advice and
> advice from the community.
> 
> Resolved, (2010.11.05.02), the Board directs the CEO to include the
> following principles relating to registry-registrar cross-ownership in
> the forthcoming version of the Applicant Guidebook.
> 
> 1. ICANN will not restrict cross-ownership between registries and
> registrars. Registry operators are defined as the registry operator
and
> all other relevant parties relating to the registry services.
> 
> 
> 2. Registry agreements will include requirements and restrictions on
> any
> inappropriate or abusive conduct arising out of registry-registrar
> cross
> ownership, including without limitations provisions protecting
against:
> 
> a. misuse of data; or
> 
> b. violations of a registry code of conduct;
> 
> 
> 3. These provisions may be enhanced by additional enforcement
> mechanisms
> such as the use of self-auditing requirements, and the use of
graduated
> sanctions up to and including contractual termination and punitive
> damages.
> 
> 
> 4. ICANN will permit existing registry operators to transition to the
> new form of registry agreement, except that additional conditions may
> be
> necessary and appropriate to address particular circumstances of
> established registries.
> 
> 
> 5. ICANN will have the ability to refer issues to relevant competition
> authorities.
> 
> 
> 6. ICANN will have the ability to address possible abuses that may
> arise
> out of registry-registrar cross-ownership through the consensus policy
> process.