Approval process for gtld service changes

[Milton Mueller]

Members:
The deadline for a submission is TODAY. 
This and Harold's comments are the only ones
received. Since no one on the Council seems
to take responsibility for responding I indicate below
how I propose to respond to Marc's and Harold's
comments. Not submitting something is unacceptable,
imho.

>>> Marc Schneiders <marc at schneiders.org> 01/11/04 08:55AM >>>
Proposed statement:
>> NCUC observes that by initiating this procedure, ICANN is 
>>assuming that its contracts alone are not sufficient to provide 
>>a predictable and stable basis for the industry. It is assuming 
>>that it needs an ongoing form of regulatory oversight to 
>>supplement its contracts. ICANN should face the fact that it is 
>>expanding further into areas of industry regulation, although
>> no one wants to admit that.

> The contracts can obviously
>not deal with every development possible in the future. Some changes
>may require a modification of the contracts, other could be dealt with
>in a more light weight manner. The PDP tries to develop such a light
>weight method.

Marc: Your comments agree 100% with mine. It is just that my
wording has a somewhat negative tone and yours a somewhat
positive one. There is no substantive difference in the observation.
I will modify the statement to make it more neutral.

>> 1. One question the PDP should consider is whether all issues
>> related to a) above should be handled by national regulatory
>> authorities instead of ICANN. We support ICANN's need for
>> technical coordination related to matters under b). We are less
>> confident of ICANN's ability and right to engage in a). We are also
>> not convinced of its ability to engage in competition policy-related
>> forms of regulation.

>I am not that convinced either. But I do not see how national
>regulatory authorities can take care of consumer protection. 

Unless you propose specific wording or modification, I don't
know what to do. I will leave as is unless someone objects
and proposes an alternative.

>Plus there should be guidelines as to when an issue is important
>enough to put it before ICANN bodies, invite public comment etc. Some
>issues will be too important to leave them to ICANN staff.

I will add this language.

>> 3. The NCUC recognizes the danger that a registry can make
>> damaging changes, such as in the Sitefinder case. We support
>> clear, well-defined specifications for registry operation that make
>> DNS a neutral platform for Internet functions.

>This is hard to do in a water tight way. Who knows the future?

But that argument cuts both ways. If you give ICANN 
discretionary authority to intervene, who knows in the future
how it will be used? 

> We also recognize
> a threat that innovative changes, such as multilingual domain
> names, will be stifled by a central organization such as ICANN
> which may have incentives to prevent useful changes in order to
> maintain its control over the industry.

>Yes, sure, but this is in fact NOT what happened. On the contrary.
>ICANN did not regulate anything as regards IDN. 

False. 

>Even though it is dangerous I'd like ICANN to protect users. Nobody
>else does.

What changes in ICANN have you proposed that will suddenly
make it so sensitive to users? 

>I assume behind 4 and 5 is the fact that Verisign was told to stop
>Sitefinder, while other TLDs use a similar DNS trick? I am afraid we
>cannot formulate in advance (since we are not clairvoyant) what
>distinctions to make.
> It depends on each registry change in context.
>So I would not make any distinctions except to explain that all
>registries are not equal, and should therefore not be treated equally,
>except when fair competition is involved.

Marc, this is horrible policy. Policy means _rules_ that can be applied
in a fair and nondiscriminatory way. You are using the
"God" theory of regulation and giving ICANN absolute power
to impose distinctions in any way it wants. Unacceptable.
A cure worse than the disease.

>Some additional remarks for our statement:
>
>1. The new procedure will only work, if the registries will cooperate
>in a friendly way. They have to submit requests. And do so in time,
>not at the last moment. Example SiteFinder: Registry can ask ICANN
>long before it wants to introduce it, while it is looking into it
>itself. This will then not mean extra delay for the introduction. Since 
>there is a possibility for confidentiality, there is no reason not to ask in
>advance.

I do not believe that you have articulated a coherent procedure.
Submit requests about what? Anything? How do you define what it
needs to submit requests about? You are begging the question.

>3. We should emphasize that public consultation, and consultation of
>constituencies, must be a regular part of dealing with more important
>issues. We do not want to be excluded and let ICANN staff handle
>substantial issues completely.

Again, this sounds fine as rhetoric but the REAL issue is: 
what is a "more important issue"????? Who decides?