Comments of Carlton Samuels: "Jeez, how's this for consideration. If you have to *call and remind* ALAC members to vote on a matter the entire ALAC has declared to be important and which has been circulated too many times out of memory, then I submit we have a larger problem. It just seems awry, not to mention grossly unfair, to ask some members, all of whom are volunteers, to work so hard while others are hardly working! With regard to the RAA, the ALAC has made several submissions, some of which repeat language I have used in my own postings on the matter. Notwithstanding, I will reiterate my perspective. Context is the key here. In the context of ICANN and the Registry/Registrar constituency relationship, I take the position that those who pay the piper will call the tune. The language of extant RAA Subsections 4.3 and 5.4 are the key parts that peak my interests. The ICANN Board Resolution 07.51 directs staff to engage the Registrar constituency on the proposals for modifying the RAA. It reads in part "a set of proposed amendments or alternative version to the RAA, that is intended to address *to the extent feasible* the concerns raised by the Internet community." The *emphases* are mine. Following on these elements, anyone who takes a balanced comparative view of the extant and proposed RAA revisions will not fail to note the tilt towards the registrar/registry constituency. I do believe this is causal rather than casual but entirely understandable. Having had some experience with commercial contracts of different kinds, I'm minded to think a more purposeful form of the RAA could be devised. However it will come into being from the weight of time, clear-eyed business drivers from competition and registrants willing to shop around. In the current setup, sanctions for violations are weak to non-existent and enforcement is spotty, at best. The amended agreement has some sanctions. But it is laced with language so "weaselly" that any lawyer with a fair knowledge of the tort law or uniform commercial code could argue it away. You just need to look back at the initial At-Large response at LA to see that some of us have been onto that for some time. I agree that there are some provisions in the proposed amended RAA that are now explicit in their intent to protect registrants. However, we know that ICANN does not now have an enforcement operation worth its name, in-house or externally. If memory serves, my concern with the ALAC-commisisoned Issues Report on contract enforcement and the conundrum of contract grace periods pertinent to the domain tasting phenomenon was part and parcel of the main issue. This aside, I have diligently combed the operational reports to see if there are enforcement operations in place or planned here forward without success. I remain willing to be educated but until such time, I shall remain a skeptic and mark this one advantage to the registrar/registry constituency. Like any other commercial contract, what one set of lawyers form/generate/devise, an opposing set can and will always see gaps/opportunities to delay/undermine/exploit in the name of competitive advantage. Sometimes they use the tort law. And since ICANN is configured as a California corporation with its contract adjudication under California and/or US law, then there are lots of fungible opportunities for the RAA via the tort law. The point I'm making is the At-Large needs to recognize the limits of influence and decide when to hold.......and when to fold. Here's the other thing concerning RAA subsection 4.3 and 5.4. I am fairly certain that I can recognize "gobbledygook" when I read it. Hell, I myself have contributed my fair share of such "language" to a few contracts, some of which remain in active use today. Every reasonable interpretation of these clauses I see tends to suggest that they preserve an "opt out" for registrars/registries. In other words, some are "grandfathered" and cannot be forced to comply with these amendments or other such clauses they deem inoperative. Or, they cannot be compelled to enforce this or other requirement down the line. Now, let us supposed I was a member of this constituency and, given perfect alignment of all the stars, become aggrieved of an enforcement action. I could see a petition and claim in federal court for equal protection of the laws and iniquitous enforcement as a rational outcome. Because I know that my chance of relief in law and equity would be awfully good. To me, the central issue has always been enforcement. And I see nothing that would make me think or believe it is going to be better this time around than under the existing agreement."