Council, A few personal reflections on the GC's advice to us. The issues report on dot com contains general counsel's (GC) advice on scope. The GC concludes we are out of scope but I find the reasoning overly narrow. The GC considered the PDP scope article: "1. is within the scope of ICANN's mission statement; 2. is broadly applicable to multiple situations or organizations; 3. is likely to have lasting value or applicability, albeit with the need for occasional updates; 4. will establish a guide or framework for future decision-making; or 5. implicates or affects an existing ICANN policy."
And the GC states: "a) any such issues resulting from this request are specifically targeting the 2005 Proposed .COM Registry Agreement, and therefore such policies do not apply to multiple situations or organizations"; - Surely illogical. The essence of the GNSO concern is that GNSO consensus policy which is "broadly applicable to multiple situations or organisations" has been REMOVED from the specific proposed agreement. - "b) any such issues resulting from this request are specifically targeting the 2005 Proposed .COM Registry Agreement will not have lasting value or applicability, particularly where that agreement has already been supplanted by the 2006 Proposed .COM Registry (Agreement);" - Surely irrelevant. This would be relevant if the character of the 2006 agreement was a radical shift from the 2005 agreement. IT IS NOT! - "c) any such issues resulting from this request are specifically targeting the 2005 Proposed .COM Registry Agreement are unlikely to provide a guide or framework for future decisions making, particularly as in this case where the proposed version of the agreement for which the comments have been raised has already been supplanted and amended (where possible) in response to the community feedback." - Surely irrelevant. The issues of concern to the GNSO have been raised in community feedback and ignored.
The issues report quotes Council's December resolution for which a key recital is: "Whereas the GNSO Council believes that there are broader questions raised in the proposed settlement that need to be first addressed by the GNSO";
It was this resolution which underpins Council's request for an issues report. The issues report seems to circumvents the pertinent issues: a) that existing and binding ICANN consensus policy is being ignored in the proposed Agreement, b) and the precedence this sets, c) the precedent set for other issues. - This issues report disappoints.
Philip