[ga] New PDP: Draft Terms of Reference

[Danny Younger <dannyyounger@xxxxxxxxx>]

Hello All,

Below is an initial draft terms of reference which I
hope puts the new PDP [PDP-Feb06] in the context of
our other PDP on New gTLDs [PDP-Dec05].

The issue areas for consideration are drawn from
section D of the issues report.  The Council should
consider whether all of these areas are necessary for
further examination at this time.

Given that the General Counsel did not rule on these
individual issues in the issues report, I have also
asked the General Counsel to review the terms of
reference as they develop to advise the Council on
whether the issues under consideration are within
scope of the ICANN policy process and within the scope
of the GNSO.

Regards,
Bruce Tonkin


Terms of Reference for a PDP to Guide Contractual
Conditions for existing generic top level domains
======================================================


Context
=======

The GNSO initiated a policy development process in
December 2005 [PDP-Dec05] to develop policy around
whether to introduce new gTLDs, and if so, determine
the selection criteria, allocation methods, and
contractual conditions.   

During 2005, ICANN commenced a process of revising the
.net and .com agreements.   There has been substantial
discussion amongst members of the GNSO community
around both the recently signed .net agreement (dated
29 June 2005), and the proposed .com agreements (dated
24 October 2005 and 29 January 2006).   As a result,
the GNSO Council recognised that
issues such as renewal could be considered as part of
the broader issue of contractual conditions for
existing gTLDs, and that it may be more appropriate to
have policies that apply to gTLDs generally on some of
the matters raised by GNSO members, rather than be
treated as matters to negotiate on a contract by
contract basis.

Subsequently on the 17 January 2006, GNSO Council
requested that the ICANN staff produce an issues
report "related to the dot COM proposed
agreement in relation to the various views that have
been expressed by the constituencies."  This issues
report is available at:

http://www.gnso.icann.org/mailing-lists/archives/council/msg01951.html

Section D of this issues report provides a discussion
of many of the issues that had been raised by the GNSO
community in response to the proposed revisions to the
.com agreement.   In the issues report the
ICANN General Counsel advised that it would not be
appropriate to consider a policy development process
that specifically targets the .com registry agreement.
  

At its meeting on 6 February 2006, members of the GNSO
Council clarified that the intention of the request
for the issues report was to seek an
issues report on the topic of the broader policy
issues that relate to the contractual conditions of
gTLD agreements, which have been identified from the
various views expressed by the GNSO constituencies
on the proposed .com agreement.

At its meeting on 6 February 2006 the GNSO Council
recognised that while the PDP initiated in December
2005 [PDP-Dec05] included within its terms of
reference the topic of contractual conditions, a
possible outcome of that PDP would be that there
should be no additional gTLDs, and thus the Council
could not depend on this PDP to address the issues
raised by the GNSO community.

Thus at its meeting on 6 February 2006, the GNSO
Council decided to initiate a separate PDP [PDP-Feb06]
to look at specific areas of contractual conditions of
existing gTLDs.

The work of PDP-Feb06 will naturally be conducted
within the context of the work on PDP-Dec05, and if it
is decided that new gTLDS should be introduced, the
policy work of PDP-Feb06 will be incorporated into a
single gTLD policy.

Goal
====

The overall goal of this PDP therefore is to determine
what contractual conditions are appropriate for the
long term future of gTLDs within the context of
ICANN's mission that relate to the issues identified
in the specific terms of reference below.


Terms of Reference
==================

1. Registry agreement renewal 
 
1a. Examine whether presumptive rights of renewal in
registry agreements serve to promote ICANN's core
mission and values, including promotion of
competition, DNS stability and security and 

1b. Examine whether presumptive rights of renewal
encourage a long-term view of registry operations in
terms of investment and infrastructure production.

1c. Examine under what conditions a presumptive right
of renewal should be deemed unjustified.

1d. While recognizing that several current registry
agreements include a presumptive right of renewal, use
the findings from a) - c) above to determine if
presumptive renewal should be included in all registry
agreements.


2. Relationship between registry agreements and
consensus policies 

2a. Examine whether certain registry agreement
contract provisions should be immune from application
of consensus policy and how this should be determined.

2b. Examine whether sponsored TLDs should retain the
policy-making authority now delegated in their
registry agreements.

2c. Recognizing that current registry agreements
include varying limitations on scope and applicability
of consensus policy, examine the
extent to which registry agreements could state that
consensus policies may not affect certain terms of the
agreement and determine whether future registry
agreements should be restricted to a uniform scope and
applicability of consensus policies.


3. Price controls for registry services 

3a. Examine in what ways price controls contribute to
ICANN's core mission and values, especially the
promotion of competition and the net effects on end
users.

3b. Examine what conditions might justify price
controls for particular registries.

3c. Examine objective measures (cost calculation
method, cost elements, reasonable profit margin) for
approving an application for a price increase when
price control is applied. 

3d. In view of the findings, determine if registry
agreements should prescribe or limit the prices for
registry services.


4. ICANN fees 

4a. Examine whether ICANN fees defined in registry
agreements should be subject to policy determination.

4b. Examine whether ICANN fees should be tailored to
registry business models.

4c. Determine how ICANN's public budgeting process
should relate to the negotiation of ICANN fees.

5. Uses of traffic data 

5a. Examine the differences in traffic data available
to "thin" and "thick" registries and which privacy
rights exist in such traffic data.

5b. Examine how the use of traffic data can enhance
services to registry clients.

5c. Determine whether any allowances should be made
for non-discriminatory access to traffic data.

5d. Determine whether the uses of traffic data,
available to registries as a consequence of registry
operation, should be restricted.


6. Investments in development and infrastructure 

6a. Examine how requirements for specific investment
levels in registry agreements promote ICANN's core
mission and values, especially as to promoting
competition and ensuring DNS stability and security.

6b. Determine whether registry agreements should
require specific investment levels in the areas of
development and infrastructure.

6c. Determine whether security and stability goals
should be reflected in registry agreements as specific
commitments, either as customer service levels or as
investment targets.


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