Bruce, As discussed in your message below, attached is a memo from the ICANN General Counsel to the GNSO Council regarding "Clarification sought by PDP-Feb06 task force." Thank you for your attention. I will be available on tomorrow's Council call to listen to any feedback or questions. Best Regards, Daniel Halloran Deputy General Counsel ICANN Begin forwarded message:

From: "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> Date: 14 September 2006 200609140244 To: "Council GNSO" <council@gnso.icann.org> Subject: [council] Regarding Item 3: Correspondence - Clarification sought by PDP-Feb06 task force

Hello All,

With respect to the agenda topic:

...

Item 3: Correspondence

- Clarification sought by PDP-Feb06 task force on whether the outcomes of the PDP would affect gTLD contracts in existence at the time the Board approves the policy. See http://www.gnso.icann.org/correspondence/cubberley-to-tonkin-2 5aug06.pdf

I had a phone conference with John Jeffrey and Dan Halloran of the General Counsel's office, along with Denise Michel regarding this agenda item.

John agreed to provide a written response to this request for discussion at our next Council call.

I think there are really two quite separate issues that underlie the question from the PDP-Feb06 task force.

(1) Legally is a registry operator obligated to comply when the ICANN Board approves a recommendation resulting from the PDP-Feb06 work. Note that ICANN can only require businesses to comply with a policy recommendation through its contracts with those businesses. These contracts have limitations on what recommendations a business must comply with.

(2) Will the ICANN Board wait until the GNSO completes its work in PDP-Feb 06 before approving anymore contracts.

I think it is reasonable for the General Counsel's office to provide advice with respect to point (1). The current contracts may make it difficult to apply or implement some new ICANN policies. It is certainly a requirement under Annex A, clause 2 (e)(3) of the bylaws that the GNSO consider policies that have "applicability".

With respect to point (2) this is probably a discussion that needs to happen with the ICANN Board. The GNSO did request that the Board wait until approving the proposed .com agreement until the GNSO had a chance to consider all the issues through a PDP, and the Board decided to approve the agreement. We are now in the same position again with respect to biz, info, and org agreements.

Regards, Bruce Tonkin