RE: [council] new gTLD Program Committee resolution regarding Specification 13 of the new gTLD registry agreement

["Jonathan Robinson" <jrobinson@xxxxxxxxxxxx>]

Volker,

Good point to place this discussion in the context of the promotion of " ...
competition, consumer choice and consumer trust ... " as a reference point.

Also, to be aware that many (all?) of us may need time to sound out our
respective groups / constituencies on the substance and processes relating
to this issue.

Jonathan

-----Original Message-----
From: Volker Greimann [mailto:vgreimann@xxxxxxxxxxxxxxx] 
Sent: 01 April 2014 12:57
To: jrobinson@xxxxxxxxxxxx; 'Bruce Tonkin'; council@xxxxxxxxxxxxxx
Subject: Re: [council] new gTLD Program Committee resolution regarding
Specification 13 of the new gTLD registry agreement

Hi Jonathan,

I would argue in favor of providing some form of advice as the matter
clearly touches upon some of the most basic policies, namely promoting
competition through equal, non-discriminatory registrar access across all
gTLDs. At face value the excemption seems to be in direct conflict with
Recommendation 19.

While this conflict may be resolvable, remaining mute on the matter may be
detrimental when the board has explicitly reached out to the GNSO for input
on the matter. While we have - as a council - remained mute during the
public comment phase, we should work on a common position now, if
achievable.

Best,

Volker






Am 01.04.2014 09:40, schrieb Jonathan Robinson:
> All,
>
> As per the resolution below, we need to be aware of the following point:
>
> ---
>
> Implementation will not take effect until 45 days from the publication 
> of this resolution to:
>
>   (i) provide the GNSO Council an opportunity to advise ICANN as to 
> whether the GNSO Council believes that this additional provision is 
> inconsistent with the letter and intent of GNSO Policy Recommendation 
> 19 on the Introduction of New Generic Top-Level Domains;
>
> or (ii) advise ICANN that the GNSO Council needs additional time for 
> review, including an explanation as to why additional time is required.
>
> ---
>
> I understand the 45 days from publication (28 March 2014) to be [23h59 
> UTC] on 12 May 2014.
>
> Therefore the course of action open to the Council seems to me that we 
> must exercise one of the following (1, 2a, 2b, 2c) options on or 
> before 10 May
> 2014:
>
> 1. To provide no advice and therefore:
> To NOT advise ICANN that the GNSO Council believes that this 
> additional provision is inconsistent [with the letter and intent of 
> GNSO Policy Recommendation 19] in which case the additional provision will
prevail.
>
> 2. To provide advice and therefore:
> (a) To advise ICANN that the GNSO Council believes that this 
> additional provision is NOT inconsistent [with the letter and intent 
> of GNSO Policy Recommendation 19] in which case the additional provision
will prevail.
> OR
> (b) To advise ICANN that the GNSO Council believes that this 
> additional provision is inconsistent [with the letter and intent of 
> GNSO Policy Recommendation 19] in which case the additional provision may
NOT prevail.
> OR
> (c) To advise that the GNSO Council needs additional time for review, 
> including an explanation as to why additional time is required.
>
> N.B. 2(a) is logically equivalent to 1 above except that in the case 
> of 2(a), we pro-actively provide the advice.
>
> In looking into this in a little more detail, I can see:
>
> Recommendation 19 is that "Registries must use only ICANN accredited 
> registrars in registering domain names and may not discriminate among 
> such accredited registrars."
> See here:
> http://gnso.icann.org/issues/new-gtlds/council-report-to-board-pdp-new
> -gtlds
> -11sep07.pdf
>
> The original public comment period on Specification 13 is located here:
> http://www.icann.org/en/news/public-comment/spec13-06dec13-en.htm
>
> including the BRG's supporting statement here:
> http://newgtlds.icann.org/en/applicants/agb/brand-spec-13-statement-06
> dec13-
> en.pdf
>
> and the ICANN staff summary here:
> http://www.icann.org/en/news/public-comment/report-comments-spec13-14m
> ar14-e
> n.pdf
>
> Note that the GNSO Council did not previously comment or provide 
> advice to ICANN in relation to this matter i.e. the " Proposal for a 
> Specification 13 to the ICANN Registry Agreement to Contractually 
> Reflect Certain Limited Aspects of ".Brand" New gTLDs".
>
> Thanks,
>
>
>
> Jonathan
>
>
>
>
>
>
> -----Original Message-----
> From: Bruce Tonkin [mailto:Bruce.Tonkin@xxxxxxxxxxxxxxxxxx]
> Sent: 31 March 2014 08:02
> To: council@xxxxxxxxxxxxxx
> Subject: [council] new gTLD Program Committee resolution regarding 
> Specification 13 of the new gTLD registry agreement
>
> From:
> http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-26
> mar14-
> en.htm
>
> Approval of Registry Agreement Specification 13 for Brand Category of 
> Applicants
>
>   Whereas, on 2 July 2013, the ICANN Board New gTLD Program Committee 
> (NGPC) approved the form of the New gTLD Registry Agreement to be 
> entered into by ICANN and successful New gTLD applicants.
>
> Whereas, the Brand Registry Group engaged with ICANN regarding 
> modifications to the New gTLD Registry Agreement to address concerns 
> of their constituents.
>
> Whereas, on 6 December 2013, ICANN posted for public comment a 
> proposed Specification 13 to the New gTLD Registry Agreement
>
http://newgtlds.icann.org/en/applicants/agb/base-agreement-spec-13-proposed-
> 06dec13-en.pdf   [PDF, 80 KB] ("Specification 13"), which if adopted would
> provide limited accommodations to registry operators of TLDs that 
> qualify as ".Brand TLDs."
>
> Whereas, the proposed Specification 13 was revised in response to the 
> public comments, including the removal of a provision allowing a 
> registry operator of a .BRAND TLD to designate one or more ICANN 
> accredited registrars as the exclusive registrar(s) for the TLD in
response to a comment submitted by a
> group of eleven registrars.   An update to the community and a revised
draft
> was posted on the ICANN Blog on 14 March 2014 
> (http://blog.icann.org/2014/03/summary-and-analysis-of-specification-1
> 3-publ
> ic-comments/ ).
>
> Whereas, on 25 March 2014 the NGPC received notification from the 
> group of registrars that submitted the joint comment referenced above 
> during the public comment period that it no longer objected to the 
> inclusion of a provision allowing a registry operator of a .BRAND TLD 
> to be limited to using no more than two registrars at one time.
>
> Whereas, the NGPC takes specific note of Policy Recommendation 19 in 
> the GNSO's Final Report on the Introduction of New Generic Top-Level 
> Domains (8 August 2007), which provides that "registries must use only 
> ICANN accredited registrars in registering domain names and may not 
> discriminate among such accredited registrars."
>
> Whereas, the NGPC has considered all of the comments received from the 
> community, and has determined that the revised Specification 13 
> provides appropriate and limited accommodations to registry operators 
> of TLDs that qualify as .Brand TLDs.
>
> Whereas, the NGPC is undertaking this action pursuant to the authority 
> granted to it by the Board on 10 April 2012, to exercise the ICANN 
> Board's authority for any and all issues that may arise relating to 
> the New gTLD Program.
>
> Resolved (2014.03.26.NG01), the NGPC approves Specification 13 to the 
> New gTLD Registry Agreement attached to this Resolution as Annex 1
>
(http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-annex-1
> -26mar14-en.pdf   ) [PDF, 106 KB] (which does not include the clause
> allowing a .Brand registry operator to designate a limited number 
> preferred registrars for the TLD), and authorizes the President and 
> CEO, or his designee, to take all necessary steps to implement 
> Specification 13 to the New gTLD Registry Agreement consistent with this
resolution.
>
> Resolved (2014.03.26.NG02), the NGPC approves the incorporation of the 
> additional clause identified below into Specification 13. 
> Implementation will not take effect until 45 days from the publication 
> of this resolution
> to:
>
>   (i) provide the GNSO Council an opportunity to advise ICANN as to 
> whether the GNSO Council believes that this additional provision is 
> inconsistent with the letter and intent of GNSO Policy Recommendation 
> 19 on the Introduction of New Generic Top-Level Domains;
>
> or (ii) advise ICANN that the GNSO Council needs additional time for 
> review, including an explanation as to why additional time is required.
>
>
>       "The second sentence of Section 2.9(a) of the Agreement is
superseded 
> by the following:
>
>       Subject to the requirements of Specification 11, Registry Operator
> must either (i) provide non-discriminatory access to  Registry Services to
> all ICANN accredited registrars that enter into and are in compliance with
> the registry-registrar        agreement for the TLD; provided that
Registry
> Operator may establish non-discriminatory criteria for qualification to
> register      names in the TLD that are reasonably related to the proper
> functioning of the TLD, or (ii) designate no more than three  ICANN
> accredited registrars at any point in time to serve as the exclusive
> registrar(s) for the TLD."
>
> A .BRAND TLD registry operator may amend its Specification 13 to 
> incorporate this provision upon request as part of implementation. The 
> President and CEO, or his designee, is authorized to take all 
> necessary steps to implement this provision in Specification 13 to the 
> New gTLD Registry Agreement consistent with this resolution.
>

--
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