Thanks Liz. In response to this report four months ago, the Council essentially voted to handle these terms of reference itself, rather than form a Task Force to do so. I believe we did this because a majority felt we had enough evidence about the effects, judged that the effects justify measures be taken to impede domain tasting, and had much information about potential impacts of various resolutions but also would get Constituency Impact statements about such potential impacts. We then got those Impact Statements. The Council then voted to have an open, volunteer design team to suggest next steps, and that team unanimously recommended a measure designed to impede domain tasting -- which the Council should be deliberating, if we can get past the process roadblock of the Registries. How did we get here? Here's a brief history of the ICANN process wrt to domain tasting, and specifically wrt to the 'excess delete fee' resolution: PIR request to SSAC in March 2006, http://www.pir.org/PDFs/SSAC-ICANN_ORG_Tasting_3-26-06.pdf Sept. 2006, PIR proposal to implement 'excess delete fee service'. Nov. 2006 the ICANN Board: Resolved, (06.84), the President and the General Counsel are authorized to enter into an amendment of the .ORG Registry Agreement to implement the proposed excess deletion fee service At least five ICANN public meetings and workshops on the domain tasting issue, links to full transcripts of those meeting are at this page, http://public.icann.org/issues/domain-name-tasting: * 27 June 2006: Domain tasting workshop * 6 December 2006: Domain name marketplace. * 25 March 2007: How the Marketplace for Expiring Names Has Changed * 25 March 2007: Domain name secondary market * 24 June 2007: Domain tasting tutorial June 2007, PIR implements excess deletion fee, tasting immediately and drastically reduced in .org June 2007: In response to ALAC request and GNSO vote, ICANN staff prepared an issues paper on domain tasting, which discussed the PIR implementation of the excess delete fee. http://gnso.icann.org/issues/domain-tasting/gnso-domain-tasting-report-14jun 07.pdf. The report also shows the ICANN General Counsel's opinion that policy development wrt to domain tasting is "within scope of the ICANN policy process and within scope of the GNSO." This report also had a public comment period. June 2007, GNSO voted to form a working group to examine the facts and recommend further action, with a report created in October 2007: http://gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report-final ..pdf. The working group contained reps from all Constituencies and from other stakeholders. Their consensus report included discussion of excess delete fee (including PIR's implementation), suggestion of it as a potential resolution, and documented the widespread community discussion about it as a resolution. This report included much public input both via an open questionnaire, and also one designed by the Intellectual Property Constituency for trademark owners. October 2007, GNSO voted to move forward with the PDP by requesting Constituency Impact Statements with respect to the information and proposed resolutions contained in the Outcomes report, including the excess delete fee. GNSO rejected option of forming a Task Force, deciding instead that the issue was ripe for Council deliberation and resolution. BC, NCUC, ALAC and Registrars Constituency each give view on excess delete fees. The statements are incorporated in the "Initial Report" http://gnso.icann.org/issues/domain-tasting/gnso-initial-report-domain-tasti ng-07jan08.pdf, which had a public comment period. November 2007, GNSO voted to form a 'design team' to review all the reports and public comments, and recommend next steps in the PDP. January 2008, Design Team of 3 Councilors and ALAC Advisor unanimously agreed on proposed Council resolution recommending excess delete fee for all registries with an AGP, which is the same proposal put forth by Afilias and Neustar for .info and .biz. The Design Team finds this the most reasonable and potentially achievable compromise among the various options. January 29, 2008, ICANN Board suggests action to address domain tasting: http://www.icann.org/announcements/announcement-29jan08.htm." The Internet Corporation for Assigned Names and Numbers is looking to effectively end domain tasting with a proposal to start charging the annual ICANN fee on registrar domain registrations." It is unclear whether this will actually become part of the ICANN budget beginning July, 2008. February 2008, Registries filibuster substantive Council deliberation by arguing there has not been enough process to address the proposed Council resolution. Registry Constituency representative argues that any Council resolution could not become Consensus Policy unless the Registries Constituency agrees to the resolution. Respectfully submitted, Mike Rodenbaugh -----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Liz Gasster Sent: Sunday, February 24, 2008 5:47 PM To: Gomes, Chuck; Rosette, Kristina; Mike Rodenbaugh; gnso-dt-wg@icann.org Subject: RE: [gnso-dt-wg] Rework of motion All, The three draft terms of reference that were suggested in the October 2007 Domain Tasting Outcomes Report that Chuck refers to below are copied for your reference. Liz 1. Review and assess all the effects of domain tasting activities that have been identified. 2. Judge whether the overall effects justify measures to be taken to impede domain tasting. 3. If the answer to 2 is affirmative, then consider the potential impacts of various measures on the Constituencies, and recommend measures designed to impede domain tasting. -----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Gomes, Chuck Sent: Sunday, February 24, 2008 12:57 PM To: Rosette, Kristina; Mike Rodenbaugh; gnso-dt-wg@icann.org Subject: RE: [gnso-dt-wg] Rework of motion Thanks for the questions Kristina. I attempted to answer them as best I can below with the understanding that what I say is my personal interpretation because I have not cleared it with the RyC. I certainly encourage Jeff as the RyC representative on this WG to confirm or correct anything I say, and I of course will communicate any differences of opinion from RyC members if and when I become aware of any. Chuck -----Original Message----- From: Rosette, Kristina [mailto:krosette@cov.com] Sent: Sunday, February 24, 2008 1:12 PM To: Gomes, Chuck; Mike Rodenbaugh; gnso-dt-wg@icann.org Subject: RE: [gnso-dt-wg] Rework of motion Chuck, It would be helpful to me (and perhaps others) if you could provide some clarification of one point made in the RyC constituency statement. Paragraph 3.1.2 states that "The RyC believes that a one-size-fits-all approach will not work for all registries and sponsors. The RyC therefore suggests that consideration of variations of this approach should be evaluated by individual registries and sponsors. It should also be noted that what is successful for one gTLD may not have the same results in another gTLD." Paragraph 3.2.1 indicates that this position has supermajority support within the RYC. I read this paragraph to mean that the RyC will not support a "one-size-fits-all approach." Is that interpretation correct? CG: Yes, but it may be helpful to qualify what I believe the position means. I attempt that below. If it is, I am having difficulty understanding how it is possible for the design team (or the Council, for that matter) to develop any policy, which will inherently be a one-size-fits-all approach", that will have any support from the RyC. (I am excluding "policies" that recommend no action be taken or recommend the status quo, namely, each registry do its own thing.) Is it possible? If so, I would appreciate some clarification. CG: If a policy is proposed that does not take into consideration the differences among registries and sponsors with regard to the AGP and the impacts the proposed policy might have on various registries and sponsors, then it is highly unlikely that the RyC would support the proposed policy. In my opinion though, that does not mean that the RyC would oppose any proposed policy. What I believe we are saying is that any such policy needs to adequately deal with any applicable differences that exist among registries and sponsors. In other words, the policy development process needs to attempt to address any applicable differences that exist among registries and sponsors. If that is done in a reasonable manner, then I do not think that the RyC would oppose any resulting policy recommendations on the basis of the issue of 'one size fits all'. The fact that this did not happen yet should not be taken as a criticism of the 'design team', because I do not believe they were tasked with developing policy but rather, as Avri pointed out, to suggest next steps forward. But, to the extent that the 'design team' takes on a broader role that includes proposing a possible policy, then it is essential that the one-size fits all issue be dealt with. This to me would best be handled by an open working group with clear terms of reference that delineate tasks as those suggested in the Domain Tasting Outcomes Report. Many thanks. K -----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Gomes, Chuck Sent: Saturday, February 23, 2008 8:51 AM To: Mike Rodenbaugh; gnso-dt-wg@icann.org Subject: RE: [gnso-dt-wg] Rework of motion A few corrections and clarifications below Mike. Chuck -----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Mike Rodenbaugh Sent: Friday, February 22, 2008 3:34 PM To: gnso-dt-wg@icann.org Subject: RE: [gnso-dt-wg] Rework of motion I would prefer to vote on the proposal ASAP. Council has already decided not to have a Task Force, and had commissioned an open WG already, and has taken Constituency Impact Statements. This proposal has been thoroughly vetted through open process. I see no hope of coming to a solution that RyC will accept, because their position appears to be that ICANN can't make policy that binds them, unless they agree. And they haven't agreed to any policy development the last 3 years, except for newTLDs which will make them more money and Inter-Registrar Transfer which will save them money via less disputes. Seems to me that RyC is again trying to delay policy development for as long as they can, by throwing up bogus arguments about lack of process. CG: The open WG was an information gathering WG. The impact statements were not based on any policy recommendations developed by a PDP. What proposal was "thoroughly vetted"? Certainly not the proposal in the motion. While we won't have a SuperMajority (if indeed we even have a majority), it will be clear why, and the Board can do as it likes. And we can move onto other issues as we will have done our job. I simply have no confidence that 3 more months will produce anything different in the situation we have today. I have lost patience on this issue because the practice is so facially wrong and has garnered almost unanimous antipathy from the non-contracting community, yet Council have spun our wheels endlessly for about a year now, fruitlessly trying to do anything about it. Process like this gives ICANN a bad name. CG: Whether or not you think additional time will produce what you want is not the issue. The issue is whether or not we have a legitimate policy development process. -Mike Rodenbaugh -----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Neuman, Jeff Sent: Friday, February 22, 2008 12:04 PM To: Avri Doria; gnso-dt-wg@icann.org Subject: RE: [gnso-dt-wg] Rework of motion Avri, Is your question to the ICANN GC on whether the ICANN Board can act? If that is the question, the answer is yes. If your question is whether the ICANN's Board decision is binding on the registries, that is a totally separate issue. Irrespective of the answer, whether we call it a new PDP or jus opening a new WG, I guess I am neutral. I would just clarify that rather than having the WG determine a solution, in order to narrow that down, and speed up the times lines, I would propose that the WG just focus on the solution presented by the Design Team which I believe is the NeuStar/Afilias solution (unless people think that would be too narrow). Design Team -- Does this sound like a way forward? If so, I could take the substance of the motion that has been reworked (minus all of the Whereas clauses) and try to come up with a draft charter and proposed time-line to send to the group. (To that end, if someone has a form charter to use as a template, that would help). If not, I am sure I can wing it. Jeffrey J. Neuman, Esq. Sr. Director, Law, Advanced Services & Business Development NeuStar, Inc. e-mail: Jeff.Neuman@Neustar.us -----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Avri Doria Sent: Friday, February 22, 2008 2:50 PM To: gnso-dt-wg@icann.org Subject: Re: [gnso-dt-wg] Rework of motion Hi, Two quick comments: - The issue of whether this would or would not be a consensus policy is one for legal counsel. I can certainly check with legal counsel to find out the status of a decision according to 13f. - We are already in a PDP. As opposed to trying to begin yet another PDP, I would would think a suggestion for an open WG to come up with a solution that could get a supermajority would be a more feasible route. Assuming others in the DT and the council, agree with you. If this is the path the DT suggests, it would be good for the DT to propose the charter and timings. a. On 22 Feb 2008, at 13:45, Neuman, Jeff wrote:
A couple of notes:
1. A majority of the Council as opposed to Supermajority is not "deemed to reflect the view of the Council". See Section 12.
2. Yes, the Board can act, but again, that Board decision, in my view
(and in the view of the other registries) would not be binding on the gTLD Registry Operators because that would not be viewed as "consensus
of Internet stakeholders". After all, if a majority is not even deemed to reflect the view of the Council, then how can it represent a
Consensus of Internet stakeholder.
3. The reason I am using the phrase "consensus of Internet stakeholders" is because that is the phrase that is used in the gTLD contracts. See below which is taken from Section 3.1(b)(iv) of the .com agreement (See
http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06
. htm) which states:
"Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including the operators of gTLDs. Consensus Policies shall relate to one or more of the following: (1) issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, Security and/or Stability of the Internet
or DNS; (2) functional and performance specifications for the provision of Registry Services (as defined in Section 3.1(d)(iii) below); (3) Security and Stability of the registry database for the TLD; (4) registry policies reasonably necessary to implement Consensus Policies
relating to registry operations or registrars; or (5) resolution of disputes regarding the registration of domain names (as opposed to the
use of such domain names). Such categories of issues referred to in the preceding sentence shall include, without limitation:
Particularly important is the phrase "including the operators of gTLDs". Now before you try to argue that it is modified by the phrase "to the extent possible", let me state that the following:
1. "To the extent possible" does not mean that if the registries are on the losing side of the vote it is not "possible" to achieve gTLD operator support for a proposal on domain tasting.
2. The gTLD Registries have indicated on a number of occasions that we do believe a proposal to eliminate tasting (in TLDs where tasting has occurred) can garner the registry operators support. We are committed
to working with you to achieve that. We just need to find a solution that takes into consideration the differences of each of the registries.
Now if we are done talking about process, lets get down to business:
1. There is a proposed solution on the table; namely I believe the NeuStar/Afilias proposal (which by the way should be officially posted
for public comment today).
2. My recommendation is to take those proposals, get the GNSO Council
to initiate a PDP, and launch a Task Force (or Working Group) open to the community whose sole purpose and charter is to study the implications of this proposal. I would gladly help ICANN staff in the
drafting of that charter.
3. We follow the strict timing in the Bylaws on the formation of the Task Force/Working Group, elect a chair, and get constituency statements getting them to focus solely on the proposal. This should be very easy, quick and painless.
4. Have a Task Force report that analyzes the constituency statements
and public input and modifies the proposal (if necessary). Put that out for comment and draft the final report (all included in the Bylaws).
If we follow the strict timing in the Bylaws, which I believe we can, we can have this done, wrapped up and to the Board within 90 days and still before the Paris meeting.
This will require some diligent efforts, but let's show that this is possible.
Jeffrey J. Neuman, Esq. Sr. Director, Law, Advanced Services &
Business Development
NeuStar, Inc. e-mail: Jeff.Neuman@Neustar.us
-----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Avri Doria Sent: Friday, February 22, 2008 12:15 PM To: gnso-dt-wg@icann.org Subject: Re: [gnso-dt-wg] Rework of motion
On 22 Feb 2008, at 11:41, Rosette, Kristina wrote:
eff, good question. I'd appreciate clarification of that, too, to make sure we're all on the same page. The transcripts of the GNSO Council meeting and Thursday wrap-up are far from crystal clear. As for your other point, I had understood that the bylaws do not require
supermajority support of Council before Board can vote. If there's language elsewhere that controls, I'd appreciate if you would point me in the right direction so that I'm working from the same baseline.
Hi,
As I read the by-laws, appended below, the Council does not need to achieve a supermajority in order to forward on a decision (note 11b). A non supermajority view, though, is treated differently by the board (13b vs. 13f).
In terms of this DT, the purpose is still to present a way forward for
the council to discuss. That can be a motion, a motion plus update of
constituency statements, or a WG charter. The motion can be based on the reworked version Alan has presented, or another motion all together, e.g. the elimination of a required AGP as was suggested by many of the comments or some other motion.
I think it is best if the way forward leads to a supermajority position. If we can't get a motion that would be able to garner supermajority support, then perhaps we need to do more work and a WG charter might be the right way forward.
a.
from the by-laws -----------------------
11. Council Report to the Board
The Staff Manager will be present at the final meeting of the Council,
and will have five (5) calendar days after the meeting to incorporate the views of the Council into a report to be submitted to the Board (the "Board Report"). The Board Report must contain at least the following:
a. A clear statement of any Supermajority Vote recommendation of the Council;
b. If a Supermajority Vote was not reached, a clear statement of all positions held by Council members. Each statement should clearly indicate (i) the reasons underlying each position and (ii) the constituency(ies) that held the position;
c. An analysis of how the issue would affect each constituency, including any financial impact on the constituency;
d. An analysis of the period of time that would likely be necessary to implement the policy;
e. The advice of any outside advisors relied upon, which should be
accompanied by a detailed statement of the advisor's (i) qualifications and relevant experience; and (ii) potential conflicts of interest;
f. The Final Report submitted to the Council; and
g. A copy of the minutes of the Council deliberation on the policy
issue, including the all opinions expressed during such deliberation, accompanied by a description of who expressed such opinions.
12. Agreement of the Council
A Supermajority Vote of the Council members will be deemed to reflect the view of the Council, and may be conveyed to the Board as the Council's recommendation. Abstentions shall not be permitted; thus all
Council members must cast a vote unless they identify a financial interest in the outcome of the policy issue. Notwithstanding the foregoing, as set forth above, all viewpoints expressed by Council members during the PDP must be included in the Board Report.
13. Board Vote
a. The Board will meet to discuss the GNSO Council recommendation as soon as feasible after receipt of the Board Report from the Staff Manager.
b. In the event that the Council reached a Supermajority Vote, the
Board shall adopt the policy according to the Council Supermajority Vote recommendation unless by a vote of more than sixty- six (66%) percent of the Board determines that such policy is not in the best interests of the ICANN community or ICANN.
c. In the event that the Board determines not to act in accordance
with the Council Supermajority Vote recommendation, the Board shall (i) articulate the reasons for its determination in a report to the Council (the "Board Statement"); and (ii) submit the Board Statement to the Council.
d. The Council shall review the Board Statement for discussion with the Board within twenty (20) calendar days after the Council's receipt of the Board Statement. The Board shall determine the method (e.g., by teleconference, e-mail, or otherwise) by which the Council and Board will discuss the Board Statement.
e. At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the
Board, including an explanation for its current recommendation. In the
event that the Council is able to reach a Supermajority Vote on the Supplemental Recommendation, the Board shall adopt the recommendation unless more than sixty-six (66%) percent of the Board determines that such policy is not in the interests of the ICANN community or ICANN.
f. In any case in which the Council is not able to reach Supermajority, a majority vote of the Board will be sufficient to act.
g. When a final decision on a GNSO Council Recommendation or Supplemental Recommendation is timely, the Board shall take a preliminary vote and, where practicable, will publish a tentative decision that allows for a ten (10) day period of public comment prior
to a final decision by the Board.