[council] Regarding Item 3: Correspondence - Clarification sought by PDP-Feb06 task force

[Daniel Halloran]

Bruce,

As discussed in your message below, attached is a memo from the ICANN  
General Counsel to the GNSO Council regarding "Clarification sought  
by PDP-Feb06 task force."

Thank you for your attention.  I will be available on tomorrow's  
Council call to listen to any feedback or questions.

Best Regards,
Daniel Halloran
Deputy General Counsel
ICANN

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Begin forwarded message:

> From: "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au>
> Date: 14 September 2006 200609140244
> To: "Council GNSO" <council at gnso.icann.org>
> Subject: [council] Regarding Item 3: Correspondence - Clarification  
> sought by PDP-Feb06 task force
>
> Hello All,
>
> With respect to the agenda topic:
>
>>
>> Item 3: Correspondence
>>
>> - Clarification sought by PDP-Feb06 task force on whether the
>> outcomes of the PDP would affect gTLD contracts in existence
>> at the time the
>> Board approves the policy.   See
>> http://www.gnso.icann.org/correspondence/cubberley-to-tonkin-2
>> 5aug06.pdf
>>
>
> I had a phone conference with John Jeffrey and Dan Halloran of the
> General Counsel's office, along with Denise Michel regarding this  
> agenda
> item.
>
> John agreed to provide a written response to this request for  
> discussion
> at our next Council call.
>
> I think there are really two quite separate issues that underlie the
> question from the PDP-Feb06 task force.
>
> (1) Legally is a registry operator obligated to comply when the ICANN
> Board approves a recommendation resulting from the PDP-Feb06 work.
> Note that ICANN can only require businesses to comply with a policy
> recommendation through its contracts with those businesses.  These
> contracts have limitations on what recommendations a business must
> comply with.
>
> (2) Will the ICANN Board wait until the GNSO completes its work in
> PDP-Feb 06 before approving anymore contracts.
>
>
> I think it is reasonable for the General Counsel's office to provide
> advice with respect to point (1).  The current contracts may make it
> difficult to apply or implement some new ICANN policies.  It is
> certainly a requirement under Annex A, clause 2 (e)(3) of the bylaws
> that the GNSO consider policies that have "applicability".
>
>  With respect to point (2) this is probably a discussion that needs to
> happen with the ICANN Board.  The GNSO did request that the Board wait
> until approving the proposed .com agreement until the GNSO had a  
> chance
> to consider all the issues through a PDP, and the Board decided to
> approve the agreement.  We are now in the same position again with
> respect to biz, info, and org agreements.
>
>
> Regards,
> Bruce Tonkin