Re: [council] A way forward on the Specification 13 question

[Volker Greimann <vgreimann@xxxxxxxxxxxxxxx>]

Dear council-members,

after extensive discussion of the question put before us, the RrSG has 
likewise found this excemption to be inconsistent with both the language 
as well as with the spirit of the recommendation.
The question we have been asked is not whether we like the proposed 
exemption or can live with it, but rather a very simple one: Is the 
proposed incorporation of an ability to restrict nondiscriminatory 
registrar access to dotBrand TLDs is not consistent with the intent and 
wording of Recommendation 19, or is it not. The recommendation 
explicitly states that "Registries  (...) may not discriminate among 
(ICANN) accredited registrars". In other words, the language of the 
Recommendation 19 contradicts the proposed exemption.
Therefore, to find the additional language to be consistent with the 
recommendation requires substantial arguments to that effect that would 
allow such an interpretation. To find it consistent because one likes 
the result or can live with the result does not fulfill this 
requirement. For such cases where implementation would conflict with 
existing policy, further policy work adjusting or confirming the Policy 
Recommendation is required. The GNSO Council should take the lead in 
initiating this policy work.
Beyond the grammatical inconsistency of the Recommendation, the intent 
of the Recommendation also indicates inconsistency.
As detailed in the final report on the Introduction of New Generic Top 
Level Domains, the recommendation was supported by all GNSO 
Constituencies and Mrs Doria. According to the recollections of members 
of the new gTLD policy committee at the time the Recommendation was 
agreed upon, the concept of restricting registrar access was discussed 
in the context of community TLDs, which are in many ways similar to 
dotBrands. As registries have the ability under the Registry Agreement 
to restrict registrar access to their TLDs by establishing reasonable, 
nondiscriminatory accreditation criteria, it was ultimately agreed that 
discrimintation between registrars should not be permitted.
In fact, the only public comment with regard to this recommendation came 
from the RyC, which was concerned that small, specialized registries may 
not be able to find a registrar to carry them. Note that this concern 
deals with a completely different problem. This concern led to the 
Vertical Integration Working group and the subsequent board decision 
allowing vertical integration. The idea of allowing only a few 
registrars does not appear in the Final Report.
Finally, as registrants, dotBrands are perfectly free to discriminate 
between registrars. The Recommendation only deals with registries. By 
establishing certain registration requirements and policies, registries 
can further eliminate the ability of registrars to provide registry 
services beyond the eligible circle of registrants.
Best regards,

Volker Greimann

Am 26.04.2014 16:54, schrieb Bret Fausett:
> Feedback:
>
> What we have been asked by the Board is 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.”
> Policy Recommendation 19 reads: "Registries must use only ICANN 
> accredited registrars in registering domain names and may not 
> discriminate among such accredited registrars.” 
> http://gnso.icann.org/en/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm 
> The discussion section of this policy recommendation does not make for 
> any exceptions for brands.
> Plainly, as I read the provisions of the .BRAND Specification 13, it 
> is “inconsistent with the letter and intent of GNSO Policy 
> Recommendation 19.”
> Now, I personally happen to think that the draft Specification 13 for 
> .BRAND TLDs is a tightly drafted, well-considered exception for a 
> specialized type of TLD that was not being considered carefully when 
> Recommendation 19 was prepared. BUT, it is definitely inconsistent 
> with the policy recommendation we made in August, 2007.
> Let’s think about what this means.
>
> --
> Bret Fausett, Esq. • General Counsel, Uniregistry, Inc.
> 12025 Waterfront Drive, Suite 200 • Playa Vista, CA 90094-2536
> 310-496-5755 (T) • 310-985-1351 (M) • bret@xxxxxxxxxxxxxxx 
> <mailto:bret@xxxxxxxxxxxxxxx>
> — — — — —
>
>
>
>
> On Apr 26, 2014, at 5:14 AM, Thomas Rickert <rickert@xxxxxxxxxxx 
> <mailto:rickert@xxxxxxxxxxx>> wrote:
> > Jonathan,
> > I do hope to get more feedback. So far, I do not really have 
> > information to act on, but I am standing by to do what is necessary 
> > to meet the deadline.
> > Thanks,
> > Thomas
> >
> > Am 26.04.2014 um 10:29 schrieb Jonathan Robinson 
> > <jrobinson@xxxxxxxxxxxx <mailto:jrobinson@xxxxxxxxxxxx>>:
> > > Thanks Thomas,
> > >
> > > You will have seen that the motion deadline is Monday 28^th 23h59 
> > > UTC so, assuming we will meet the 45 day deadline, we will need a 
> > > motion on Monday.
> > > Let’s hope we can do that in such a way as to reflect the feedback 
> > > you have and retain flexibility to modify (if necessary) as we 
> > > receive further feedback.
> > > Let’s you and I talk on Monday.
> > >
> > > Jonathan
> > >
> > > *From:*Thomas Rickert [mailto:rickert@xxxxxxxxxxx]
> > > *Sent:*25 April 2014 20:38
> > > *To:*GNSO Council List
> > > *Subject:*Fwd: [council] A way forward on the Specification 13 question
> > > All,
> > > this is a gentle reminder to provide me with preliminary feedback. 
> > > The motions and documents deadline is approaching rapidly and I have 
> > > only received one response from the registrars so far.
> > > Also, I have reached out to Marilyn Cade (CBUC), Tony Holmes (ISPC), 
> > > Kristina Rosette (IPC), Robin Gross (NCUC), Bruce Tonkin 
> > > (Registrars) and Ken Stubbs (Registries) as they were listed in the 
> > > final report of the PDP to cover their respective groups and since 
> > > they hopefully have first-hand information on the discussions at the 
> > > time. More people such as Avri, Bret and Alan are still here - 
> > > please to chime in and respond.
> > > Thanks and kind regards,
> > > Thomas
> > > Anfang der weitergeleiteten Nachricht:
> > >
> > > *Von:*Thomas Rickert <rickert@xxxxxxxxxxx <mailto:rickert@xxxxxxxxxxx>>
> > > *Betreff: Aw: [council] A way forward on the Specification 13 question*
> > > *Datum:*22. April 2014 14:40:58 MESZ
> > > *An:*jrobinson@xxxxxxxxxxxx <mailto:jrobinson@xxxxxxxxxxxx>
> > > *Kopie:*GNSO Council List <council@xxxxxxxxxxxxxx 
> > > <mailto:council@xxxxxxxxxxxxxx>>
> > > All,
> > > thanks to Jonathan for putting together and sending out the below 
> > > message.
> > > I am more than happy to assist with making sure we get an answer 
> > > prepared in time.
> > > Can I ask Councillors to get back to me offlist (in order not to 
> > > swamp the list) with a status of the discussions with your 
> > > respective groups? Certainly, one response per group is sufficient.
> > > If there is anything I can help with to facilitate your discussions, 
> > > please let me know.
> > > The earlier I am provided with information on what direction your 
> > > answers will take, the sooner I will be able to draft a motion and a 
> > > letter to the NGPC for your review.
> > > Thanks,
> > > Thomas
> > > Am 10.04.2014 um 19:10 schrieb Jonathan Robinson 
> > > <jrobinson@xxxxxxxxxxxx <mailto:jrobinson@xxxxxxxxxxxx>>:
> > > All,
> > > Following on from previous dialogue and the Council meeting today, 
> > > it seems to me that the way forward is to focus as closely as 
> > > possible on the question being asked and to make every attempt to 
> > > respond in a timely and effective manner.
> > > This means that, assuming it is required, a motion to be voted on 
> > > needs to be submitted to the Council by 28 April for consideration 
> > > at the 8 May 2014 meeting.
> > > We are being asked  (full letter attached for reference) to
> > > 1.… 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
> > > 2.advise ICANN that the GNSO Council needs additional time for 
> > > review, including an explanation as to why additional time is required.
> > > I believe that the question to take to your respective stakeholder 
> > > groups / constituencies  is therefore:
> > > Is this additional provision inconsistent with the letter and intent 
> > > of GNSO Policy Recommendation 19?
> > > It will be helpful to have as clear as possible an answer as soon as 
> > > possible along the following lines:
> > > ·No. It is not inconsistent (… with the letter and intent …).
> > > and
> > > ·Possibly, an explanation as to why it is not inconsistent.
> > > and
> > > ·Are there any other qualifying points that the Council should make 
> > > in its response to the NGPC?
> > > OR
> > > ·Yes. It is inconsistent ( … with the letter and intent … ).
> > > and
> > > ·Possibly, an explanation as to why it is inconsistent.
> > > and
> > > ·Is there a process by which the Council could assist the NGPC in 
> > > resolving this issue and in what time frame?
> > > *_Please can you all act as quickly as possible to provide an answer 
> > > to the above.  The timing is very tight._*
> > > We already have an indication of where the BC & the IPC stand on 
> > > this i.e. no, it is not inconsistent.
> > > Someone will need to lead on drafting a motion (for submission to 
> > > the Council on or before 28 April) and an associated letter to the NGPC.
> > > Given the time constraints, this should probably take place in 
> > > parallel with the consultation work.
> > > *_Can we please have a volunteer to lead this effort and ensure it 
> > > gets done?  Thomas?_*
> > > I have tried to simplify and focus the problem here in the interest 
> > > of providing a representative, timely and effective response.
> > > I trust that in doing so I have not discounted any material points 
> > > in the discussion to date.  Please correct me if I have.
> > > Jonathan
>
>
> --
> Bret Fausett, Esq. • General Counsel, Uniregistry, Inc.
> 12025 Waterfront Drive, Suite 200 • Playa Vista, CA 90094-2536
> 310-496-5755 (T) • 310-985-1351 (M) • bret@xxxxxxxxxxxxxxx 
> <mailto:bret@xxxxxxxxxxxxxxx>
> — — — — —
--
Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung.

Mit freundlichen Grüßen,

Volker A. Greimann
- Rechtsabteilung -

Key-Systems GmbH
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