We need to ensure that legal advice to Council comes to the Council from the appropriate source -- ICANN General Counsel. 202-255-7348c mcade@att.com -----Original Message----- From: Ken Stubbs [mailto:kstubbs@digitel.net] Sent: Friday, November 07, 2003 4:33 PM To: names council Subject: [council] FWD: UNSPONSORED REGISTRIES STATEMENT - Regarding the Proposed Issues Report on Registry Services Sent: Friday, November 07, 2003 3:55 PM Subject: Unsponsored gTLD Registries Statement on Registry Services UNSPONSORED REGISTRIES STATEMENT Regarding the Proposed Issues Report on Registry Services The gTLD Registries Constituency of the Generic Names Supporting Organization is currently comprised of the three Sponsored and six Unsponsored Registry Operators, including Afilias, Ltd. (.info), DotCooperation, LLC (.coop), Global Name Registry (.name), Musedoma (.museum), NeuLevel, Inc. (.biz), Public Interest Registry (.org), RegistryPro (.pro), SITA (.aero) and VeriSign (.com & .net). On behalf of the six Unsponsored gTLD Registry Operators, we submit the following statement set forth below: BACKGROUND Each of the gTLD Registry Operators has entered an agreement with the Internet Corporation for Assigned Names and Numbers which governs the relationship between ICANN and the individual registry operator. It should be noted that only the Unsponsored Registry Agreements have any provisions regarding "Registry Services." In addition, the Unsponsored Registry contracts only provide that ICANN consent to the price of a new "Registry Service" so long as the operation as such service does not truly threaten the technical stability of the domain name system . While this constituency recognizes the need for an ICANN procedure for prompt technical and security impact review of proposed "Registry Service", with a predictable, streamlined and appropriate market-based approach, the contracts themselves do not give ICANN or any third party, including any of the GNSO Constituencies, Supporting Organizations, Task Forces or Advisory Committees, the ability to consent to any other aspects of "Registry Services." The applicable contracts do not provide a role for ICANN with respect to prices or specifications for services or products provided by registries that are not "Registry Services" as defined in such agreements. To the extent that ICANN wishes to increase its scope and/or powers with respect to "Registry Services", it may only do so in accordance with its agreements or with the express written consent of those with which it has contracts (namely, the Registry Operators and Accredited Registrars). In addition, the meaning of such agreements will be governed according to applicable legal principles. It cannot be said that any interpretation by one party after having entered the agreement is binding on the other party or evidences ambiguity. In addition, interpretations offered by third parties have no particular relevance in determining the meaning intended by the parties to the relevant agreements. To the extent that there are any disputes over the meaning of any terms within ICANN's Agreements with the registries, there is a built in dispute resolution process in the contracts. Such dispute resolution does not involve any of the GNSO Constituencies, Supporting Organizations, Task Forces or even Advisory Committees. SPECIFIC COMMENTS ON ISSUES REPORT The gTLD Registries Constituency is extremely concerned about the issues raised in the "Excerpt from Draft Version of Staff Manager's Issues Report for the Development of a Process for the Introduction of New or Modified Registry Services." Not only are most of those issues irrelevant to the introduction of "Registry Services" as defined in the applicable contracts with gTLD Unsponsored Registries, but it also inappropriately suggests that parties other than ICANN and the gTLD Registry Operators might be entitled to prevent the introduction of otherwise lawful new "Registry Services." As stated above, many of these issues involve contractual interpretation that involve only the parties to those contracts, and not the ICANN community as a whole. ICANN may not unilaterally, or through the policy development process, promulgate rules or regulations interpreting these agreements without the consent of the registry operators. Any attempt to do so would be considered a violation of those agreements and subject to the dispute resolution process set forth in such agreements. It is the gTLD Registries Constituency's view that many of the topics identified in the "Issues Report" should not be addressed by the GNSO, Supporting Organizations or Advisory Committees, but by the ICANN staff/board and the gTLD Registry Operators. IMPACT OF PDP PROCESS ON GTLD REGISTRIES To state the obvious, if there is any one constituency of the GNSO that this PDP process potentially affects, it is the gTLD Registries, specifically the Unsponsored Registries. Not only does the introduction of "Registry Services" impact the competitive environment in which we operate, the investment which we are able to make in our businesses, but ultimately, it affects the very survival of our businesses. Without a procedure for prompt technical and security impact review of proposed "Registry Service" with a predictable, streamlined and appropriate market-based approach by which ICANN exercises its rights with respect to Registry Services, the future of domain name registries is in jeopardy. RESERVATION OF RIGHTS As the ICANN has posted only a portion of the Issues Report, the gTLD Registries reserve the right to comment on the complete Issues Reports, when such report is released. In addition, the comments contained herein do not address the substance of the issues raised in the report, but merely provide, as we were asked to do, an impact statement. Afilias, Ltd. Global Name Registry NeuLevel, Inc. Public Interest Registry RegistryPro, Inc. VeriSign, Inc. Jeffrey J. Neuman Chair, gTLD Registries Constituency e-mail: <mailto:Jeff.Neuman@Neustar.us> Jeff.Neuman@Neustar.us