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

Tue Apr 1 07:45:24 UTC 2014

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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