[Gnso-newgtld-wg-wt2] Work Track 2: Single Base Agreement

Mon Oct 3 04:38:57 UTC 2016

Oy, sorry, cut off . . .

ICANN is handcuffed by the terms and conditions agreed via the community process. When an individual applicant or group of applicants comes in after the public process has resolved requesting changes due to "extraordinary circumstances," ICANN must justify any changes it might accept in light of the opinion of every other applicant and constituency, whether it be the opinion of an IGO/GO, community, "brand" or other applicant or of the GAC, ALAC, etc.

So I (personally) support having separate and unique agreements for distinct categories (assuming we properly define these categories) because it will help ICANN to enable and process these unique applications, but the distinctions need to ensure security and stability across all TLDs.

kevin kreuser
senior assistant general counsel | GoDaddy™
kkreuser at godaddy.com<mailto:kkreuser at godaddy.com>
602-420-4121<tel:602-420-4121> (o) / 480-258-7957<tel:480-258-7957> (m)

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On Oct 2, 2016, at 9:26 PM, Kevin Kreuser <kkreuser at godaddy.com<mailto:kkreuser at godaddy.com>> wrote:

As the guy that negotiated every RA with every applicant and drafted the final version of Spec 13, I disagree with Michael that ICANN wasn't equipped to understand brand concerns - it was a case, as is always case for ICANN, of not feeling

kevin kreuser
senior assistant general counsel | GoDaddy™
kkreuser at godaddy.com<mailto:kkreuser at godaddy.com>
602-420-4121<tel:602-420-4121> (o) / 480-258-7957<tel:480-258-7957> (m)

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On Oct 2, 2016, at 9:09 PM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:

I have to agree with Rubens and Michael, with the following additional thoughts:

Specification 13 was an after the fact "patch" on the Registry Agreement, because it was fundamentally not "fit for purpose" for .Brand registries.  There's no reason to perpetuate a patch, which effectively changes the agreement anyway, when we have an opportunity to create an appropriate agreement for these registries.

Having a modest number of differing agreements sharing many common provisions is not going to cause "massive overhead" for anybody.  This might a valid criticism if we were talking about hundreds of individual agreements drafted and negotiated from scratch or from totally different templates (as might happen if the applicants, rather than ICANN, submitted the first drafts of their agreements), but that's not what anybody's suggesting.

Greg

On Sunday, October 2, 2016, Michael Flemming <flemming at brightsconsulting.com<mailto:flemming at brightsconsulting.com>> wrote:
>From my own personal opinion and not in my role as Co-Chair, I reply with the following.

I will have to echo Rubens in my opinion. I believe there is a firm demand for separate agreements
because there exist many provisions within the 2012 RA that do not take into account the needs of
different categories. Moreover, noting that the 2012 RA was built around the one-size fits all gTLD
basis, it was not until we began asking ICANN for certain provisions/exemptions to the RA because
they didn't apply to the outlook of that TLD that we saw progress in this area. I think that I can argue
the point that ICANN has been very uncooperative in this area because they still think all TLDs must
operate around the same outlook. Whenever I have a conversation with ICANN about dotBrands, the
response is that ICANN has little experience, contractually and on a service level, with TLDs other than
gTLDs that operated until the New gTLD program. We are seeing the development of new categories,
that I believe we already have a consensus for in the overall working group, that have large issues
that do not pertain to other categories. While it is likely that potential category based RAs will have a
similar model and base for technical standards, it is necessary to build the contract with the outlook of
the TLD in mind. Keeping the same contract we have puts forth too much constraint on the TLDs and
limits the cooperation of ICANN to recognize how TLDs operate differently in the scope of their category.
Furthermore, as Rubens pointed out, most TLDs will likely switch over to the separate agreements
per their respective category in the future.

Regards,

Michael Flemming

On Mon, Oct 3, 2016 at 8:57 AM, Rubens Kuhl <rubensk at nic.br<javascript:_e(%7B%7D,'cvml','rubensk at nic.br');>> wrote:

On Oct 2, 2016, at 8:21 PM, Zylstra, Raymond <Raymond.Zylstra at neustar.biz<javascript:_e(%7B%7D,'cvml','Raymond.Zylstra at neustar.biz');>> wrote:

Dear all,
I wanted to start the discussion on a question that was raised about the Base Agreement just prior to the end of the 22 September call – the question of ‘does a single base agreement make sense for all types of registries?’ and the need to have different agreements for different categories of TLDs.

I do not believe that the concept of multiple Registry Agreements is warranted. This is an important topic and I believe the discussion should be broader than simply answering the question as posed. Provided below are some issues I believe we should consider in order to respond to the question.

•                    Predictability – This is something that is often talked about, and also applies in this case. As an end user should I expect the same service levels and requirements of TLDs as I navigate the internet? I would argue yes. It seems that we could end up in a situation where 2012 Registry Operators have very different obligations.

That is already not the case, due to the existence of ccTLDs and gTLDs... 2012 Registry Operators would possibly move to the new portfolio of agreements.

•                    Level Playing Field – A level playing field is important for 2012 Applicants and Registry Operators and those future Applicants; introducing a different Registry Agreement for future Applicants may unfairly disadvantage those who have signed the 2012 Registry Agreement.

ICANN has moved most gTLDs with prior agreements to agreements that look a lot like 2012 RA, so that also doesn't hold.

•                    Status Quo – We currently have a Registry Agreement, albeit with additional Specifications, under which the various categories of TLDs can, and do, operate. While there are certainly situations where the Registry Agreement is not ideal, it is functional; there are things about it which we may not like, but they are not show stoppers.

Some situations would be show stoppers if ICANN actually exercised those, so that is still to be seen...

•                    Where Does the Problem Lie – As with many of you I have experienced many operational issues dealing with ICANN and their lack of understanding of the diverse business models for different TLDs. I don’t believe that having a different Registry Agreement will solve that issue, rather it is a case of working with ICANN to resolve those problems, and I for one have had some success with this.

Even if some success was achieved, that is still more stressful and costly that it should.

•                    Lengthy Process – Without question the development of, and agreement to, multiple Registry Agreements has the potential seriously compromise the timelines for the commencement of subsequent new gTLDs. Further, on the call brands were singled out; however, I am confident that many Registry Operators could argue some form of unique requirement which they believe required a unique Registry Agreement.

Actually I believe the call mentioned brand and exclusive use TLDs, both of which already have different specifications. Community TLDs also have a different specification, and there are also in the 2012 agreement a different version (not specification) for governmental entities. See https://www.icann.org/resources/agreement/rio-2014-02-27-en for one example that this is already in place in the 2012 agreement.

•                    Administrative Burden – The introduction of multiple Registry Agreements and dealing with these new agreements and the 2012 Registry Agreement will introduce massive overhead for ICANN, Registry Operators, Applicants, and service providers.

I agree with the overhead for ICANN, but not necessarily for ROs, applicants and SPs; if different agreements come with less requirements, that can be less overhead for those.

Rubens

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