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<DIV><SPAN class=622110816-08112003><FONT face=Arial color=#0000ff size=2>We
need to ensure that legal advice to Council comes to the Council from the
appropriate source -- ICANN General Counsel. </FONT></SPAN></DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face=Arial size=2></FONT> </DIV>
<DIV><FONT face=Arial size=2>202-255-7348c</FONT> <BR><FONT face=Arial
size=2>mcade@att.com</FONT> </DIV>
<BLOCKQUOTE dir=ltr style="MARGIN-RIGHT: 0px">
<DIV class=OutlookMessageHeader dir=ltr align=left><FONT face=Tahoma
size=2>-----Original Message-----<BR><B>From:</B> Ken Stubbs
[mailto:kstubbs@digitel.net]<BR><B>Sent:</B> Friday, November 07, 2003 4:33
PM<BR><B>To:</B> names council<BR><B>Subject:</B> [council] FWD: UNSPONSORED
REGISTRIES STATEMENT - Regarding the Proposed Issues Report on Registry
Services<BR><BR></FONT></DIV>
<DIV><FONT size=2><FONT size=3> Sent: Friday, November 07, 2003 3:55
PM<BR> </FONT><FONT size=3>Subject:
Unsponsored gTLD Registries Statement on Registry
Services<BR><BR><BR> UNSPONSORED REGISTRIES
STATEMENT<BR><BR> Regarding the Proposed Issues Report on Registry
Services<BR><BR> The gTLD Registries Constituency of the Generic Names
Supporting<BR> Organization is currently comprised of the three Sponsored
and six<BR> Unsponsored Registry Operators, including Afilias, Ltd.
(.info),<BR> DotCooperation, LLC (.coop), Global Name Registry (.name),
Musedoma<BR> (.museum), NeuLevel, Inc. (.biz), Public Interest Registry
(.org),<BR> RegistryPro (.pro), SITA (.aero) and VeriSign (.com &
.net).<BR><BR> On behalf of the six Unsponsored gTLD Registry Operators,
we submit the<BR> following statement set forth
below:<BR><BR> BACKGROUND<BR><BR> Each of the gTLD Registry
Operators has entered an agreement with the<BR> Internet Corporation for
Assigned Names and Numbers which governs the<BR> relationship between
ICANN and the individual registry operator. It<BR> should be noted
that only the Unsponsored Registry Agreements have any<BR> provisions
regarding "Registry Services." In addition, the
Unsponsored<BR> Registry contracts only provide that ICANN consent to the
price of a new<BR> "Registry Service" so long as the operation as such
service does not truly<BR> threaten the technical stability of the domain
name system . While this<BR> constituency recognizes the need for
an ICANN procedure for prompt<BR> technical and security impact review of
proposed "Registry Service", with<BR> a predictable, streamlined and
appropriate market-based approach, the<BR> contracts themselves do not
give ICANN or any third party, including any<BR> of the GNSO
Constituencies, Supporting Organizations, Task Forces or<BR> Advisory
Committees, the ability to consent to any other aspects of<BR> "Registry
Services." The applicable contracts do not provide a role
for<BR> ICANN with respect to prices or specifications for services or
products<BR> provided by registries that are not "Registry Services" as
defined in such<BR> agreements.<BR><BR> To the extent that ICANN
wishes to increase its scope and/or powers with<BR> respect to "Registry
Services", it may only do so in accordance with its<BR> agreements or
with the express written consent of those with which it has<BR> contracts
(namely, the Registry Operators and Accredited Registrars).
In<BR> addition, the meaning of such agreements will be governed
according to<BR> applicable legal principles. It cannot be said that any
interpretation by<BR> one party after having entered the agreement is
binding on the other party<BR> or evidences ambiguity. In addition,
interpretations offered by third<BR> parties have no particular relevance
in determining the meaning intended<BR> by the parties to the relevant
agreements. To the extent that there are<BR> any disputes
over the meaning of any terms within ICANN's Agreements with<BR> the
registries, there is a built in dispute resolution process in
the<BR> contracts. Such dispute resolution does not involve any of
the GNSO<BR> Constituencies, Supporting Organizations, Task Forces or
even Advisory<BR> Committees.<BR><BR> SPECIFIC COMMENTS ON ISSUES
REPORT<BR><BR> The gTLD Registries Constituency is extremely concerned
about the issues<BR> raised in the "Excerpt from Draft Version of Staff
Manager's Issues Report<BR> for the Development of a Process for the
Introduction of New or Modified<BR> Registry Services." Not only
are most of those issues irrelevant to the<BR> introduction of "Registry
Services" as defined in the applicable contracts<BR> with gTLD
Unsponsored Registries, but it also inappropriately suggests<BR> that
parties other than ICANN and the gTLD Registry Operators might
be<BR> entitled to prevent the introduction of otherwise lawful new
"Registry<BR> Services." As stated above, many of these issues
involve contractual<BR> interpretation that involve only the parties to
those contracts, and not<BR> the ICANN community as a whole. ICANN
may not unilaterally, or through<BR> the policy development process,
promulgate rules or regulations<BR> interpreting these agreements without
the consent of the registry<BR> operators. Any attempt to do so
would be considered a violation of those<BR> agreements and subject to
the dispute resolution process set forth in
such<BR> agreements.<BR><BR> It is the gTLD Registries
Constituency's view that many of the topics<BR> identified in the "Issues
Report" should not be addressed by the GNSO,<BR> Supporting Organizations
or Advisory Committees, but by the ICANN<BR> staff/board and the gTLD
Registry Operators.<BR><BR> IMPACT OF PDP PROCESS ON GTLD
REGISTRIES<BR><BR> To state the obvious, if there is any one constituency
of the GNSO that<BR> this PDP process potentially affects, it is the gTLD
Registries,<BR> specifically the Unsponsored Registries. Not only
does the introduction<BR> of "Registry Services" impact the competitive
environment in which we<BR> operate, the investment which we are able to
make in our businesses, but<BR> ultimately, it affects the very survival
of our businesses. Without a<BR> procedure for prompt technical and
security impact review of proposed<BR> "Registry Service" with a
predictable, streamlined and appropriate<BR> market-based approach by
which ICANN exercises its rights with respect to<BR> Registry Services,
the future of domain name registries is in jeopardy.<BR><BR> RESERVATION
OF RIGHTS<BR><BR> As the ICANN has posted only a portion of the Issues
Report, the gTLD<BR> Registries reserve the right to comment on the
complete Issues Reports,<BR> when such report is released. In
addition, the comments contained herein<BR> do not address the substance
of the issues raised in the report, but<BR> merely provide, as we were
asked to do, an impact statement.<BR><BR><BR> Afilias,
Ltd.<BR> Global Name Registry<BR> NeuLevel, Inc.<BR> Public
Interest Registry<BR> RegistryPro, Inc.<BR> VeriSign,
Inc.<BR><BR><BR> Jeffrey J. Neuman<BR> Chair, gTLD Registries
Constituency<BR> e-mail: </FONT><A
href="mailto:Jeff.Neuman@Neustar.us"><FONT
size=3>Jeff.Neuman@Neustar.us</FONT></A><BR><FONT
size=3><BR></FONT><BR></FONT></DIV></BLOCKQUOTE></BODY></HTML>