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.