I am not VeriSign either but I do represent VeriSign in the RyC. Whereas I cannot speak for our legal team, I am not aware of anyone in VeriSign ever suggesting that "a policy dictating how much VeriSign could refund registrars during the AGP (would) be considered a prescription or limitation on the price of Registry Services". Chuck

-----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Neuman, Jeff Sent: Wednesday, March 05, 2008 10:49 AM To: Tim Ruiz; Mike Rodenbaugh Cc: Registrars Constituency; owner-council@gnso.icann.org; gnso-dt-wg@icann.org; GNSO Council; Adrian Kinderis Subject: RE: [gnso-dt-wg] RE: [council] Motions re Domain Tasting

For what it is worth, with respect to the following:

"Would a policy dictating how much VeriSign could refund registrars during the AGP be considered a prescription or limitation on the price of Registry Services?"

The registries as a group have never expressed the view that this proposal would fall within the exception to the Consensus Policies provision above.

I am not sure where that issue has come from and I do not believe that the answer to that question should delay public comment on the present proposal. Also for what it is worth, NeuStar (and yes I know we are not VeriSign which controls 90% of the market) does not believe that this proposal would be considered a prescription or limitation on the price of Registry Services since the price being charged is not affected, it is only whether we can offer a refund or not.

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 Tim Ruiz Sent: Wednesday, March 05, 2008 10:14 AM To: Mike Rodenbaugh Cc: 'Registrars Constituency'; owner-council@gnso.icann.org; gnso-dt-wg@icann.org; 'GNSO Council'; 'Adrian Kinderis' Subject: [gnso-dt-wg] RE: [council] Motions re Domain Tasting

Mike,

Let's stay rational here. The Staff and Counsel may have stated the opinion that tasting was within scope, but that doesn't mean that every element of any policy proposal we come up is viable under current contracts. That's all we're saying. If the Council does send something to the Board it just seems reasonable that if there is a question about it actually being implementable that we first try to resolve that.

I apologize that it didn't dawn on me during our team meeings, but then I'm not a lawyer. Regarding the concern most on the team had regarding Jeff's initial comments on 3.1 of the registry agreements, I think Jeff's last post helps clear that up, at least for me.

So we just need John's opinion on the refund issue and whether or not that constitutes prescribing or limiting the price of a registry service. Pretty simple question that he should be able to answer within a couple of weeks (probably less). Noting however, that it may not necessarily be the opinion of the registries but at least we'll have done our due dilligence if the Council decides to send the recommendation to the Board.

Tim

-------- Original Message -------- Subject: RE: [council] Motions re Domain Tasting From: "Mike Rodenbaugh" <mxrodenbaugh@yahoo.com> Date: Tue, March 04, 2008 6:11 pm To: "'Tim Ruiz'" <tim@godaddy.com>, "'Adrian Kinderis'" <adrian@ausregistry.com.au> Cc: "'Registrars Constituency'" <registrars@gnso.icann.org>, <owner-council@gnso.icann.org>, <gnso-dt-wg@icann.org>, "'GNSO Council'" <council@gnso.icann.org>

I do not like the idea that one Constituency can come up with any legal theory and demand that be the subject of ICANN Counsel opinion, while all policy development work goes on hold to wait for that opinion. Though I maintain complete respect for ICANN Counsel, their opinion may not be the final opinion that matters on issues of contract interpretation or otherwise. In order to avoid litigation, ICANN's much safer position is to side with the parties they contract with, rather than any other party who would have a much tougher time suing ICANN successfully on a contract (or 'third party beneficiary') theory. So I see this as another ploy for contracting parties to delay or derail policy development that they don't like, and we ought not let that become a precedent.

While I also would like ICANN's counsel's view on the outlandish position set out by Jeff Neuman (purportedly on behalf of the Registry Constituency), I do not think that issue, or this one now raised by the Registrars, should roadblock the policy development work of the GNSO Council. We should continue our work and let the legal proceedings take their separate course. Again, the ICANN Counsel has already found the domain tasting issue to be within scope of GNSO policy work, nine months ago, after this sort of 'excess delete fee' proposal was already enacted by PIR through ICANN process, discussed in the initial Staff report that included Counsel's opinion, and so presumably it was understood to be a potential outcome of the GNSO as well.

Thanks, -Mike

-----Original Message----- From: Tim Ruiz [mailto:tim@godaddy.com] Sent: Tuesday, March 04, 2008 2:32 PM To: Adrian Kinderis Cc: Registrars Constituency; Mike Rodenbaugh; owner-council@gnso.icann.org; gnso-dt-wg@icann.org; GNSO Council Subject: RE: [council] Motions re Domain Tasting

Mike,

In fact, I believe we need an answer from Counsel to the other question as well (raised as a result of Jeff's reference to 3.1(b)(iv) of the registry agreements) before we proceed any further with any policy work at all. The role registries are playing here in the definition of consensus needs to be fully and clearly understood, as much as and even more than the picket fence.

Tim

-------- Original Message -------- Subject: RE: [council] Motions re Domain Tasting From: "Adrian Kinderis" <adrian@ausregistry.com.au> Date: Tue, March 04, 2008 3:48 pm To: "Mike Rodenbaugh" <mxrodenbaugh@yahoo.com>, <owner-council@gnso.icann.org>, <gnso-dt-wg@icann.org>, "GNSO Council" <council@gnso.icann.org> Cc: "Registrars Constituency" <registrars@gnso.icann.org>

Thanks Mike.

Unfortunately, myself and other members of the RC disagree.

We would prefer to get specific advice from ICANN General Counsel before proceeding.

Can you please forward your motion for review?

Thanks.

Adrian Kinderis Managing Director AusRegistry Group Pty Ltd Level 8, 10 Queens Road Melbourne. Victoria Australia. 3004 Ph: +61 3 9866 3710 Fax: +61 3 9866 1970 Email: adrian@ausregistry.com Web: www.ausregistrygroup.com

The information contained in this communication is intended for the named recipients only. It is subject to copyright and may contain legally privileged and confidential information and if you are not an intended recipient you must not use, copy, distribute or take any action in reliance on it. If you have received this communication in error, please delete all copies from your system and notify us immediately.

-----Original Message----- From: Mike Rodenbaugh [mailto:mxrodenbaugh@yahoo.com] Sent: Wednesday, 5 March 2008 3:47 AM To: Adrian Kinderis; owner-council@gnso.icann.org; gnso-dt-wg@icann.org; 'GNSO Council' Cc: 'Registrars Constituency' Subject: RE: [council] Motions re Domain Tasting

I do not see how this would prescribe or limit the price of a Registry Service. It simply says that whatever price is charged cannot be refunded under certain circumstances, in order to mitigate a practice that the ICANN Counsel has already found to be within GNSO policy-making purview.

I think there is no harm in continuing with the 21-day public comment period, and hopefully we can get any additional guidance from Counsel during that timeframe as well.

-Mike Rodenbaugh

-----Original Message----- From: Adrian Kinderis [mailto:adrian@ausregistry.com.au] Sent: Monday, March 03, 2008 2:30 PM To: mxrodenbaugh@yahoo.com; owner-council@gnso.icann.org; gnso-dt-wg@icann.org; GNSO Council Cc: Registrars Constituency Subject: RE: [council] Motions re Domain Tasting

Thanks for your response Mike.

One question from the Registrar Constituency to the Council;

Is it possible to get ICANN General Counsel's Office to review this proposal and advise whether it is viable under the existing registry agreements?

The .com agreement states that Consensus Policies may not "prescribe or limit the price of Registry Services" (see Section 3.1(b)(v)(A) http://www.icann.org/tlds/agreements/verisign/registry-agmt-co m-01mar06. htm) ..

Would a policy dictating how much VeriSign could refund registrars during the AGP be considered a prescription or limitation on the price of Registry Services?

This is fundamental to the progressing of this issue and was discussed briefly at the meeting in India.

We, the Registrar Constituency, would certainly like to have this answered prior to utilising resources in reviewing a proposal that may, indeed, be unenforceable.

Thanks.

Adrian Kinderis Managing Director AusRegistry Group Pty Ltd Level 8, 10 Queens Road Melbourne. Victoria Australia. 3004 Ph: +61 3 9866 3710 Fax: +61 3 9866 1970 Email: adrian@ausregistry.com Web: www.ausregistrygroup.com

The information contained in this communication is intended for the named recipients only. It is subject to copyright and may contain legally privileged and confidential information and if you are not an intended recipient you must not use, copy, distribute or take any action in reliance on it. If you have received this communication in error, please delete all copies from your system and notify us immediately.

-----Original Message----- From: Mike Rodenbaugh [mailto:mxrodenbaugh@yahoo.com] Sent: Tuesday, 4 March 2008 12:19 AM To: Adrian Kinderis; owner-council@gnso.icann.org; gnso-dt-wg@icann.org; GNSO Council Cc: Registrars Constituency Subject: Re: [council] Motions re Domain Tasting

Hi Adrian.

The team was me, Kristina, Tim, Alan and recently Jeff Neuman. Text was unanimously agreed although i made some minor edits at last turn that some may not have seen.

There is precedent for Council to monitor implementation of its policies, and seemed like a good idea for this.

Thanks, Mike

-----Original Message----- From: "Adrian Kinderis" <adrian@ausregistry.com.au>

Date: Mon, 3 Mar 2008 14:57:11 To:"Mike Rodenbaugh" <mxrodenbaugh@yahoo.com>, <gnso-dt-wg@icann.org>, "Council GNSO" <council@gnso.icann.org> Cc:"Registrars Constituency" <registrars@gnso.icann.org> Subject: RE: [council] Motions re Domain Tasting

Mike,

I have a few issues with what you have suggested but will wait for the Registrar Constituency's response prior to proposing them.

That said, I am not sure I understand Part 3 of your motion and would like some clarification.

I am of the opinion that once the Board decides on supporting a request or a policy, that it becomes a "Board policy". Why are we instructing staff to report back to the GNSO council? Surely the Board would want to grapple with the effectiveness and implications arising out of the policy "they" implemented. It is up to them, I would think, to set the parameters of measurement.

I could be wrong, but I thought that we, as the GNSO Council were to suggest policy and provide background to enable the ICANN Board to make informed decisions. It is the ICANN Board that makes policy and reviews the effectiveness of those decisions.

Is it our job to get ICANN staff to report to us on matters of the Board?

Also, can you please provide some clarity around "the Design Team" (perhaps just to remind me again). Who were the members exactly and how did you arrive at the motion? How was consensus for the actual wording reached?

Thanks for this and sorry if I am backtracking unnecessarily.

Regards,

Adrian Kinderis Chief Executive Officer AusRegistry International Pty Ltd Level 8, 10 Queens Road Melbourne. Victoria Australia. 3004 Ph: +61 3 9866 3710 Fax: +61 3 9866 1970 Email: adrian@ausregistry.com Web: www.ausregistryinternational.com

The information contained in this communication is intended for the named recipients only. It is subject to copyright and may contain legally privileged and confidential information and if you are not an intended recipient you must not use, copy, distribute or take any action in reliance on it. If you have received this communication in error, please delete all copies from your system and notify us immediately.

-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Monday, 3 March 2008 1:33 PM To: gnso-dt-wg@icann.org; 'Council GNSO' Subject: [council] Motions re Domain Tasting

The Domain Tasting team has devised the following motion, which effectively would put the attached substantive motion out for public comments for 21 days and set a timeline for final vote in our April 17 Council meeting.

Whereas, the GNSO Council has discussed the Issues Report on Domain Tasting and the Final Outcomes Report of the ad hoc group on Domain Tasting;

Whereas, the GNSO Council resolved on 31 October 2007 to launch a PDP on Domain Tasting and to request Constituency Impact Statements with respect to issues set forth in the Issues Report and in the Final Outcomes Report;

Whereas, the GNSO Council authorized on 17 January 2008 the formation of a small design team to develop a plan for the deliberations on the Domain Tasting PDP (the "Design Team"), the principal volunteers to which had been members of the Ad Hoc Group on Domain Tasting and were well-informed of both the Final Outcomes Report of the Ad Hoc Group on Domain Tasting and the GNSO Initial Report on Domain Tasting (collectively with the Issues Report, the "Reports on Domain Tasting");

Whereas, the Design Team has met and agreed on a Draft Motion [attached] to be set out for public comment and for Constituency Impact review;

The GNSO Council RESOLVES:

1. The Draft Motion shall be posted for 21-day public comment on March 7, 2008. Each Constituency shall have 21 days from March 7, 2008 to update its Constituency Impact Statement with respect to this motion, if it so chooses. The deadline for amended Statements shall be March 28, 2008.

2. ICANN Staff please shall provide a summary of any public comments and/or amended Constituency Impact Statements to the Council, via submission of a Final Report with respect to this PDP, by April 4, 2008.

3. The Design Team shall then meet and confer with respect to the Final Report, in order to consider any public comments and/or amended Constituency Impact Statements and to consider any suggested amendments to the Draft Motion, and shall recommend a Final Motion to be considered by Council for vote in its scheduled meeting April 17, 2008.

4. It is the intention of the GNSO for the Staff to produce a Board Report on this PDP for consideration by the ICANN Board, in the hope that the Board may vote on any recommendations of the GNSO with respect to this PDP, at the scheduled ICANN meeting in Paris in June, 2008

Mike Rodenbaugh