[ga] Jordan Buchanan's comments on registry contract policy

[Danny Younger <dannyyounger@xxxxxxxxx>]

Excerpt:

"NO ICANN POLICY EXISTS TO GUIDE REGISTRY CONTRACTS

The current registrar accreditation agreement
memorializes the Registrar Accreditation Policy
adopted on March 4, 1999 (http://
www.icann.org/registrars/policy_statement.html). In
addition to qualifications for initial accreditation,
the Accreditation Policy contains significant detail
relating to the ongoing responsibilities and
operations of all registrars, including: the process
by which the accreditation is renewed, the process for
resolving disputes under the agreement, and ownership
of data.

On the other hand, there is no formal ICANN policy
that broadly applies to the ongoing operations of a
gTLD registry. There are a few consensus policies that
have been developed that apply to registries, for
example the Transfer Policy, but these describe a very
narrow portion of the registry's obligations or the
nature of its relationship with ICANN and the
marketplace. Arguably, there are some policy
statements, such as the green paper and the white
paper, that precede ICANN's policy process and should
apply to registries, but these are generally at a very
high level and are not easily translatable into
specific contract provisions. There is simply no
registry analog to the Registrar Accreditation Policy.

ABSENCE OF A REGISTRY POLICY RESULTS IN BOTH
INCONSISTENCY AND CONFLICTS WITH THE COMMUNITY

Because the staff cannot rely on a policy to develop
registry contracts and to guide negotiations, the
current gTLD registry contracts contain significant
discrepancies on a variety of issues, many of which
are issues of policy. For example, some contracts
include presumptive rights of renewal and others do
not. Some contain fixed prices, some contain price
caps that can be adjusted upward periodically, and
others contain no price controls at all. Some contain
a specific process to approve registry services, while
others merely incorporate the existing consensus
policy on the matter. In all of these cases, the ICANN
staff has been forced to make judgment calls about the
appropriate approach to each of these policy issues.
It is no surprise, then, that changes in staff have
led over time to significantly different contractual
terms. While this result is perfectly understandable,
it has nonetheless led to significant inequities
between registries in terms of the conditions under
which ICANN has been willing to enter into contracts
with them. This is especially problematic because the
dominant market player, VeriSign, seems to be
operating under the most favorable terms available to
any gTLD registry. As a result, it is difficult for
newer gTLD operators to become effective competitors.

Additionally, registry contractual terms have resulted
in conflicts between the ICANN staff (and board) and
the rest of the ICANN community. In many cases, the
staff will make judgment calls about a specific
contract that results in an arrangement that does not
reflect the understanding or assumptions of the
community about key policy issues that are reflected
by registry contracts. Many of the largest
controversies within ICANN over recent years have
centered around these issues.


THE SOLUTION IS TO DEVELOP A POLICY FRAMEWORK FOR
REGISTRIES

The obvious solution to this problem is for the GNSO
to develop a set of policies that would provide a
framework for the critical elements of the registry
contract. The GNSO has a defined policy development
process that can be used to create this framework in a
timely manner. Examples of the the types of issues
that might be addressed by this policy framework
include:

1) Required services to be provided by registries
2) Mechanisms by which prices are set and adjusted,
including consideration of relying on market forces
3) Standards of conduct to promote competition between
registrars
4) Process by which registry contracts renew

The above list is not intended to be exhaustive, but
it illustrates the range of issues that are currently
not guided by policy, but rather rely on situational
judgments by the staff.

Once the GNSO developed such a policy framework, the
board would have an opportunity to consider whether or
not the policies were in the best interests of the
Internet community. If so, they could be approved as
consensus policy to guide the staff in developing
registry contracts. If not, the board would have the
option to reject the proposed changes (along with
reasons why) and request that the GSNO reconsider the
policy framework."

http://forum.icann.org/lists/settlement-comments/msg00414.html



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