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

[Thomas Rickert <rickert@xxxxxxxxxxx>]

All,
as a Council, we need to be responsive when we are asked and we should get back 
to the Board with a substantive answer in time. We cannot complain about being 
circumvented and not answer when we are asked. 

In terms of how we do this: This might be a matter of implementation oversight, 
so can we reach out to original WG members and tap their knowledge about the WG 
deliberations at the time on this specific recommendation? 

Thomas

=============
thomas-rickert.tel
+49.228.74.898.0

> Am 01.04.2014 um 18:36 schrieb "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.
> 
> --
> Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.
> 
> Mit freundlichen Grüßen,
> 
> Volker A. Greimann
> - Rechtsabteilung -
> 
> Key-Systems GmbH
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> Volker A. Greimann
> - legal department -
> 
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