[Gnso-newgtld-wg] 6th Topical E-mail: Base Registry Agreement (Topic 36)

[Jeff Neuman]

All,

This is the Sixth Topical E-mail on outstanding questions being "put to the list."  This covers the Base Registry Agreement (Topic 36)

Remember:  We are down to the wire on this, so unless you have a VERY strong objection to these, we will put these into the document.  If you do have a big issue with the responses to these (all of which were previously discussed and in emails over the past 1.5 months), please let us know ASAP.  Only comments that provide the rationale for the objection with proposed replacement text to address the specific outstanding questions will now be considered.

Lets not let the perfect be the enemy of the good.

Question we asked Community to Comment on
Recommendation 36.4 states: "ICANN must add a contractual provision stating that the registry operator will not engage in fraudulent or deceptive practices." The Working Group discussed two options for implementing the recommendation: the addition of a PIC or a provision in the Registry Agreement. A new PIC would allow third parties to file a complaint regarding fraudulent and deceptive practices. ICANN would then have the discretion to initiate a PICDRP using the third-party complaint. If a provision regarding fraudulent and deceptive practices would be included in the RA, enforcement would take place through ICANN exclusively. Which option is preferable and why?

ALAC Comment:  ALAC does not object to the inclusion of the above provision as a PIC, but they are concerned that as a PIC, the only third parties that would have standing to commence a PDDRP would be an entity that can demonstrate that it was "harmed" by the alleged fraudulent or deceptive practice.  Therefore, they would like to allow third parties to have standing to commence a compliance action based on fraudulent or deceptive practices regardless of whether they could demonstrate significant harm.

Discussion / Recommendation:  Based on the discussion on this topic and the general topic of ICANN compliance, Leadership recommends the following:

  1.  Confirm our support for the recommendation of adding a contractual provision stating that the registry operator will not engage in fraudulent or deceptive practices.
  2.  In the event that ICANN receives an order from a court that a Registry has engaged in fraudulent or deceptive practices, ICANN may issue a notice of breach for such practices and allow the registry to cure such breach in accordance with the Registry Agreement.
  3.  In the event that there is a credible allegation by any third party of fraudulent or deceptive practices, other than as set forth in (b) above, ICANN may, at its discretion, either commence Dispute Resolution actions under the Registry Agreement (Currently Article 5 of the Registry Agreement),  or appoint a Panel under the PICDRP.  For the purposes of a credible claim of fraudulent or deceptive practices the Reporter (as defined by the PICDRP) must only specifically state the grounds of the alleged non-compliance, but not that it personally has been harmed as a result of the Registry Operator's act or omission.

Please have your comments (If any) by no later than 23:59:59 UTC on Tuesday, December 8, 2020.

Sincerely,

Jeff & Cheryl
SubPro Co-Chairs


[cid:image001.png at 01D6CA1D.131AE3C0]
Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
http://jjnsolutions.com


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