[council] new gTLD Program Committee resolution regarding Specification 13 of the new gTLD registry agreement

Tue Apr 1 11:57:27 UTC 2014

Hi Jonathan,

I would argue in favor of providing some form of advice as the matter 
clearly touches upon some of the most basic policies, namely promoting 
competition through equal, non-discriminatory registrar access across 
all gTLDs. At face value the excemption seems to be in direct conflict 
with Recommendation 19.

While this conflict may be resolvable, remaining mute on the matter may 
be detrimental when the board has explicitly reached out to the GNSO for 
input on the matter. While we have - as a council - remained mute during 
the public comment phase, we should work on a common position now, if 
achievable.

Best,

Volker

Am 01.04.2014 09:40, schrieb Jonathan Robinson:
> All,
>
> As per the resolution below, we need to be aware of the following point:
>
> ---
>
> Implementation will not take effect until 45 days from the publication of
> this resolution to:
>
>   (i) provide the GNSO Council an opportunity to advise ICANN as to whether
> the GNSO Council believes that this additional provision is inconsistent
> with the letter and intent of GNSO Policy Recommendation 19 on the
> Introduction of New Generic Top-Level Domains;
>
> or (ii) advise ICANN that the GNSO Council needs additional time for review,
> including an explanation as to why additional time is required.
>
> ---
>
> I understand the 45 days from publication (28 March 2014) to be [23h59 UTC]
> on 12 May 2014.
>
> Therefore the course of action open to the Council seems to me that we must
> exercise one of the following (1, 2a, 2b, 2c) options on or before 10 May
> 2014:
>
> 1. To provide no advice and therefore:
> To NOT advise ICANN that the GNSO Council believes that this additional
> provision is inconsistent [with the letter and intent of GNSO Policy
> Recommendation 19] in which case the additional provision will prevail.
>
> 2. To provide advice and therefore:
> (a) To advise ICANN that the GNSO Council believes that this additional
> provision is NOT inconsistent [with the letter and intent of GNSO Policy
> Recommendation 19] in which case the additional provision will prevail.
> OR
> (b) To advise ICANN that the GNSO Council believes that this additional
> provision is inconsistent [with the letter and intent of GNSO Policy
> Recommendation 19] in which case the additional provision may NOT prevail.
> OR
> (c) To advise that the GNSO Council needs additional time for review,
> including an explanation as to why additional time is required.
>
> N.B. 2(a) is logically equivalent to 1 above except that in the case of
> 2(a), we pro-actively provide the advice.
>
> In looking into this in a little more detail, I can see:
>
> Recommendation 19 is that "Registries must use only ICANN accredited
> registrars in registering domain names and may not discriminate among such
> accredited registrars."
> See here:
> http://gnso.icann.org/issues/new-gtlds/council-report-to-board-pdp-new-gtlds
> -11sep07.pdf
>
> The original public comment period on Specification 13 is located here:
> http://www.icann.org/en/news/public-comment/spec13-06dec13-en.htm
>
> including the BRG's supporting statement here:
> http://newgtlds.icann.org/en/applicants/agb/brand-spec-13-statement-06dec13-
> en.pdf
>
> and the ICANN staff summary here:
> http://www.icann.org/en/news/public-comment/report-comments-spec13-14mar14-e
> n.pdf
>
> Note that the GNSO Council did not previously comment or provide advice to
> ICANN in relation to this matter i.e. the
> " Proposal for a Specification 13 to the ICANN Registry Agreement to
> Contractually Reflect Certain Limited Aspects of ".Brand" New gTLDs".
>
> Thanks,
>
>
>
> Jonathan
>
>
>
>
>
>
> -----Original Message-----
> From: Bruce Tonkin [mailto:Bruce.Tonkin at melbourneit.com.au]
> Sent: 31 March 2014 08:02
> To: council at gnso.icann.org
> Subject: [council] new gTLD Program Committee resolution regarding
> Specification 13 of the new gTLD registry agreement
>
> From:
> http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-26mar14-
> en.htm
>
> Approval of Registry Agreement Specification 13 for Brand Category of
> Applicants
>
>   Whereas, on 2 July 2013, the ICANN Board New gTLD Program Committee (NGPC)
> approved the form of the New gTLD Registry Agreement to be entered into by
> ICANN and successful New gTLD applicants.
>
> Whereas, the Brand Registry Group engaged with ICANN regarding modifications
> to the New gTLD Registry Agreement to address concerns of their
> constituents.
>
> Whereas, on 6 December 2013, ICANN posted for public comment a proposed
> Specification 13 to the New gTLD Registry Agreement
> http://newgtlds.icann.org/en/applicants/agb/base-agreement-spec-13-proposed-
> 06dec13-en.pdf   [PDF, 80 KB] ("Specification 13"), which if adopted would
> provide limited accommodations to registry operators of TLDs that qualify as
> ".Brand TLDs."
>
> Whereas, the proposed Specification 13 was revised in response to the public
> comments, including the removal of a provision allowing a registry operator
> of a .BRAND TLD to designate one or more ICANN accredited registrars as the
> exclusive registrar(s) for the TLD in response to a comment submitted by a
> group of eleven registrars.   An update to the community and a revised draft
> was posted on the ICANN Blog on 14 March 2014
> (http://blog.icann.org/2014/03/summary-and-analysis-of-specification-13-publ
> ic-comments/ ).
>
> Whereas, on 25 March 2014 the NGPC received notification from the group of
> registrars that submitted the joint comment referenced above during the
> public comment period that it no longer objected to the inclusion of a
> provision allowing a registry operator of a .BRAND TLD to be limited to
> using no more than two registrars at one time.
>
> Whereas, the NGPC takes specific note of Policy Recommendation 19 in the
> GNSO's Final Report on the Introduction of New Generic Top-Level Domains (8
> August 2007), which provides that "registries must use only ICANN accredited
> registrars in registering domain names and may not discriminate among such
> accredited registrars."
>
> Whereas, the NGPC has considered all of the comments received from the
> community, and has determined that the revised Specification 13 provides
> appropriate and limited accommodations to registry operators of TLDs that
> qualify as .Brand TLDs.
>
> Whereas, the NGPC is undertaking this action pursuant to the authority
> granted to it by the Board on 10 April 2012, to exercise the ICANN Board's
> authority for any and all issues that may arise relating to the New gTLD
> Program.
>
> Resolved (2014.03.26.NG01), the NGPC approves Specification 13 to the New
> gTLD Registry Agreement attached to this Resolution as Annex 1
> (http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-annex-1
> -26mar14-en.pdf   ) [PDF, 106 KB] (which does not include the clause
> allowing a .Brand registry operator to designate a limited number preferred
> registrars for the TLD), and authorizes the President and CEO, or his
> designee, to take all necessary steps to implement Specification 13 to the
> New gTLD Registry Agreement consistent with this resolution.
>
> Resolved (2014.03.26.NG02), the NGPC approves the incorporation of the
> additional clause identified below into Specification 13. Implementation
> will not take effect until 45 days from the publication of this resolution
> to:
>
>   (i) provide the GNSO Council an opportunity to advise ICANN as to whether
> the GNSO Council believes that this additional provision is inconsistent
> with the letter and intent of GNSO Policy Recommendation 19 on the
> Introduction of New Generic Top-Level Domains;
>
> or (ii) advise ICANN that the GNSO Council needs additional time for review,
> including an explanation as to why additional time is required.
>
>
> 	"The second sentence of Section 2.9(a) of the Agreement is
> superseded by the following:
>
> 	Subject to the requirements of Specification 11, Registry Operator
> must either (i) provide non-discriminatory access to 	Registry Services to
> all ICANN accredited registrars that enter into and are in compliance with
> the registry-registrar 	agreement for the TLD; provided that Registry
> Operator may establish non-discriminatory criteria for qualification to
> register 	names in the TLD that are reasonably related to the proper
> functioning of the TLD, or (ii) designate no more than three 	ICANN
> accredited registrars at any point in time to serve as the exclusive
> registrar(s) for the TLD."
>
> A .BRAND TLD registry operator may amend its Specification 13 to incorporate
> this provision upon request as part of implementation. The President and
> CEO, or his designee, is authorized to take all necessary steps to implement
> this provision in Specification 13 to the New gTLD Registry Agreement
> consistent with this resolution.
>

-- 
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Mit freundlichen Grüßen,

Volker A. Greimann
- Rechtsabteilung -

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