[council] A comment on: GNSO Issues Report Proposed .COM Registry Agreement

[Avri Doria]

Hi,

I am sending this note because I am concerned that I will not be able  
to join the council conference call during this discussion.

 From the GNSO PDP .com Issue report

> 2. General Counsel's Opinion: The General Counsel’s opinion is that  
> "the dot COM
> proposed agreement in relation to the various views that have been  
> expressed by the
> constituencies" is not "properly within the scope of the ICANN  
> policy process and within
> the scope of the GNSO."
>
>

While several of the specific issues in the contract are of interest  
to me, especially the presumption of renewal, I think this meta issue  
is the most important issue facing the council at the moment.

While it may be true the the negotiation of the contract, in and of  
itself, is not within the GNSO council's purview, I think that the  
relationship between the clauses in the contract and the PDP policies  
already in place is indeed an issue that is relevant to the  
council.   I also thing that any precedent or frameworks for future  
decsions a contract may make regarding future policy is relevant to  
the GSNCO council.

I think that the council, as a council and as a body that represents  
the views of constituencies, does have the repsonsiblity to review a  
contract to determine:

  - whether anything negotiated by the staff contradicts any of the  
policies currently in existence.
  - whether anything in the contract sets policy precedents or  
frameworks that have not been reviewed and discussed.

And I believe that the council has the responsibility of reporting on  
these determinations and that the board needs to consider these  
determinations before the Board signs a contract.  I do not agree  
with the implication in the report (7.5, 8) that this duty belongs to  
the General Counsel alone.  I also am not certain that, as outlined  
in (8) that the .com agreement does not set any policy precedents or  
frameworks for future decisions.

This is not to argue that a PDP should be created in regard to a  
specific contract, as a policy should be general and not specific to  
one contract.  But it does argue that creating a PDP relating to  
contracts in general and how the affect they have on current and  
future policies may be a reasonable action to take.  If the policies  
already in place do not call it out specifically, it is important  
that the GSNO council have the authority to review any contract's  
relation to the PDP policies and that the GNSO council should make  
recommendations to the board before it makes any decisions on signing  
a contract.

As I mentioned in the beginning of this note, I think the effort of  
the GC, as I understand it, to remove from ICANN and the GNSO council  
the responsibility for reviewing a contract's policy compliance and  
implications is problematic and needs to be understood and resolved.

Apologies for not being able to participate in the discussion on Monday.

thanks
a.