http://www.icann.org/minutes/prelim-report-16jan07.htm Discussion of Proposed .XXX Registry Agreement with ICM Kurt Pritz explained that staff had posted on 5-January, 2007 a new contract to establish a .XXX Registry. This followed additional discussions with the applicant, ICM resulting from their request to resubmit a registry agreement relating to their pending application from the unresolved sTLD round. Kurt explained that there was an extensive background to this proposal and that this had been posted on the ICANN website on 5-January 2007. He noted that an important element of the history of the consideration of the .XXX Registry had been the communiqué from the Governmental Advisory Committee (GAC) received by the Board during the ICANN Wellington Meeting in March 2006. Kurt explained that when the Board considered this issue at its meeting of 10 May 2006, the decision by the Board was not to reject the application, but to reject the contract that ICM requested that the Board vote on at that time. ICM believes that it has in its new proposed contract addressed many issues that were of concern to the Board and the GAC. Materials were also posted on the ICANN website regarding the changes and ICM's view that they had met the requirements set out in the previously mentioned GAC Communiqué. The Chair asked whether Staff would be able to provide to the Board outside of this meeting an outline of the criteria that would be required for ICM to comply with the terms of the agreement, if implemented. John Jeffrey stated that it was possible to supply that information and that Staff would endeavor to do so. He also added that there had already been good dialogue regarding some of the legal issues among a number of the Board members. Steve Goldstein requested clarification about the fee per registration under this proposal. He was concerned that the figure may be extremely high. Staff clarified that the figure being proposed by the ICM was close to $90 per registration. Sharil Tarmizi restated that the GAC had expressed strong concerns based on the previous contract proposed by ICM and that these concerns had been set out in the GAC Communiqué during the ICANN Wellington Meeting. He suggested that a number of members of the GAC were of the understanding that this issue had been decided upon by the Board in May 2006 and had asked for clarification about why the matter was now being considered again. Sharil made it clear that the GAC was advised of the reasons for ICANN's review of a revised agreement on the same day that he was made aware which was 5 January 2007. However, he also made it clear that the deadline for consultation by 5 February 2007 was an insufficient time to respond for all members of the GAC. While some members were already analyzing the contract, it was unlikely that there would be a complete response from the GAC until ICANN's Lisbon meeting. Janis Karklins as GAC Chair-elect also supported Sharil's view that many on the GAC felt that the .XXX matter had been decided previously and that some were not aware that the contract was still under discussion. The Chair stated that he would provide a further communication to Sharil as current Chair of the GAC and Janis as Chair-elect explaining clearly that the Board was considering a new contract and that the application for a .XXX domain had remained in place. Sharil also stated that the application was a volatile issue. In previous discussions in the GAC, there had emerged very diverse responses from GAC members. These included: opposition on moral grounds; views that ICM did not meet sponsorship criteria; concern about the enforcement of Registry agreement provisions. Eventually the GAC brought its views formally to expression through its communiqué at Wellington. Susan Crawford said that she had looked carefully at this new contract. She is concerned that the current draft still puts ICANN in the position of a "hands-on" role in relation to ICM's administration of the proposed Registry, and that this situation was not appropriate. Paul Twomey indicated that the process of consideration so far for this proposed registry application was very clear. The decision that the Board took at its meeting on 10 May 2006 was a vote on the contract to establish the Registry not a denial of ICM's application. The decision of the Board in voting down the contract was posted in the preliminary report and minutes of that board meeting and there was media coverage that included this delineation. Paul was also made clear that the applicant applied to go through the Board's reconsideration process. There was communication about the reconsideration process in the President's report to the GAC at meetings since the Wellington meeting. On 4 January 2007, an update on the sTLD round was posted and the fact that the .XXX domain proposal was still being considered as a live application amongst other sTLDs was included. Finally a posting of the new proposed contract from ICM and a comprehensive background was posted on 5 January 2007. Paul Twomey said that while he appreciated that some may have thought that the Board's decision of 10 May 2006 was a decision to reject the proposal it was a decision to reject the contract and there has been a consistent communications process about this since May 2006. He also pointed out that if there is any perception that the consideration of this new contract was sudden, that perception may have been driven by the timing of the revised contractual framework, which was only discussed and made clear by the applicant after ICANN's Sao Paulo meeting. Sharil Tarmizi also wanted it noted that whilst ICM has stated that this new proposed contract addressed the GAC's concern there had been no communications between the applicant and the GAC. He differentiated between the documents outlining ICM's contention that they have met the conditions set out by the GAC as not being the same as the GAC determining the conditions have been met. Rita Rodin stated as a new member of the Board she believed that there was clear knowledge that the contract could be re-submitted after the Board's decision of 10 May 2006. However, she acknowledged that there might be some confusion on the part of observers. Janis Karklins asked whether the Board considered this as a new proposal from ICM or a revision of the previous one, because different procedural provisions would apply. The Chair stated that it can not be considered a new proposal because it is not new. He reiterated that it was consideration of a contract to establish a .XXX domain that resulted from an Request For Proposal response in 2004. Paul Twomey added again that in May 2006 ICM had asked the Board to vote up or down on the contractual agreement and that is exactly what happened, concluding that the Board did not take the step of voting down the application at that time. The Chair drew discussion on this item to a conclusion noting the consultation period remained open until 5 February 2007, and that it would be discussed again at the next meeting on 12 February 2007. ____________________________________________________________________________________ Food fight? Enjoy some healthy debate in the Yahoo! Answers Food & Drink Q&A. http://answers.yahoo.com/dir/?link=list&sid=396545367