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

[Amr Elsadr <aelsadr@xxxxxxxxxxx>]

Hi,

Apologies for getting back to you all this late in the discussion. There was a 
very brief discussion on the introduction of Specification 13 on the NCSG list 
a few weeks ago, but the NCSG has not reached any formal position on the matter.

The discussion that did take place is however pretty consistent with most of 
what has been said here. Although there is some sympathy with the substantive 
implications of Spec 13, it does seem for all intents and purposes inconsistent 
with policy recommendation 19 and the existing Registry Agreement (regarding 
registries’ requirement to not discriminate between ICANN accredited 
registrars).

Personally, I do have a question regarding Specification 9; the Registry 
Operator Code of Conduct. Specification 9 does have a similar requirement 
stating:

“1. In connection with the operation of the registry for the TLD, Registry 
Operator will not, and will not allow any parent, subsidiary, Affiliate, 
subcontractor or other related entity, to the extent such party is engaged in 
the provision of Registry Services with respect to the TLD (each, a “Registry 
Related Party”), to:

a. directly or indirectly show any preference or provide any special 
consideration to any registrar with respect to operational access to registry 
systems and related registry services, unless comparable opportunities to 
qualify for such preferences or considerations are made available to all 
registrars on substantially similar terms and subject to substantially similar 
conditions; …,”

There is also a mechanism for registries to be granted exemptions from this 
point, specifically as an item in the code of conduct. Is this exemption meant 
to influence considerations on contractual requirements in the entire 
agreement? I’m honestly not sure what role Specification 9 is meant to play.

Finally…, if I understood correctly, during the last Council meeting, Alan made 
a point I personally find to be a pretty good one. If Specification 13 is 
consistent with previous policy recommendations, it would be unnecessary to 
introduce it at this point. The apparent need to introduce it now suggests that 
it is a policy that was either not considered during the process leading up to 
the GNSO recommendations, or actually inconsistent with the policy 
recommendations made. In either case (IMHO), I would support a position 
requiring the appropriate process be followed.

Thanks.

Amr

On Apr 28, 2014, at 11:08 AM, Volker Greimann <vgreimann@xxxxxxxxxxxxxxx> wrote:

> 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
>> — — — — — 
>> 
>> 
>> 
>> 
>> On Apr 26, 2014, at 5:14 AM, Thomas Rickert <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>:
>>> 
>>>> Thanks Thomas,
>>>>  
>>>> You will have seen that the motion deadline is Monday 28th 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>
>>>> Betreff: Aw: [council] A way forward on the Specification 13 question
>>>> Datum: 22. April 2014 14:40:58 MESZ
>>>> An: jrobinson@xxxxxxxxxxxx
>>>> Kopie: GNSO Council List <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>:
>>>>  
>>>> 
>>>> 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
>> — — — — — 
>> 
>> 
>> 
>> 
> 
> -- 
> 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 -
> 
> Key-Systems GmbH
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