NCUC final position on PDP-Feb06' TORs

[Milton Mueller]

Looks good to me, Mawaki. 

--MM

Dr. Milton Mueller
Syracuse University School of Information Studies
http://www.digital-convergence.org
http://www.internetgovernance.org

>>> Mawaki Chango <ki_chango at YAHOO.COM> 12/27/06 1:39 PM >>>
Folks,
please find below the updated NCUC position on the TORs for the PDP
on existing registry contractual conditions (PDP-Feb06). If there is
no objections, I will forward it before the end of the year as our
final position. If there are objections, please propose a workable
formulation for the other to agree on. If there is no workable
alternative formulation, or no consensus (or agreement with those
involved in crafting the previous draft,) I will forward the current
version.

Thanks for your understanding, and Happy New Year!

Mawaki


TERM OF REFERENCE 1

ToR 1a. Registry agreement renewal
---------------------------------
Examine whether or not there should be a policy guiding renewal, and
if so, what the elements of that policy should be. 

Policy Recommendation A:
There should be a policy guiding renewal. 

NCUC: Yes

Policy Recommendation B: 
There should be a standard term for all gTLD registries that is a
"commercially reasonable length." 

NCUC: Yes (SP consensus), subject to the definition of "Commercially
reasonable" to be provided. 

Policy Recommendation C: 
There should be a reasonable expectation of renewal for all registry
agreements.  

OR

Policy Recommendation D:
There should be a renewal expectancy for all registry agreements. 

OR

Policy Recommendation E:
There should be a presumption of renewal for all registry agreements

NCUC: 

Current Option 3: no rebid unless there are repeated material
breaches.

(Note: this is the Renewal Expectancy/Presumption of Renewal  
Option as essentially expressed in the current .com etc contracts.)

1b. Registry agreement renewal standardization
----------------------------------------------
Recognizing that not all existing registry agreements share the same
Rights of Renewal, use the findings from above to determine whether
or not these conditions should be standardized across all future
agreements. 

Policy Recommendation F: 
The 'right of renewal' should be standardized for all gTLD registry
agreements.

OR

Policy Recommendation G:
The 'right of renewal' should be standardized for gTLD registry
agreements except when there is an exceptional situation, such as a
situation of market dominance or market power.  

NCUC: G 

TERM OF REFERENCE 2
Relationship between registry agreements and consensus policies

2.a

Policy Recommendation H: 
Consensus policies limitations are inappropriate. 

OR

Policy Recommendation I:
Consensus policies should always apply to all gTLD registries.

OR

Policy Recommendation J:
Consensus policies should always be applied to all gTLD registries.
On an individual basis, during the contract negotiation, a registry
could present a situational analysis and justification, which should
be posted for public comment before acceptance/inclusion in the
contract, for an exception/or modification from a particular
consensus policy, due to unique circumstances of how a particular
policy would affect that registry. Such an exception will not create
any prejudice for extension to any other gTLD registry. 

OR

Policy Recommendation K:
The present limitations to Consensus policies are appropriate and
should continue.

NCUC: 
Modified Policy Recommendation I: "Consensus policies should apply to
all gTLD registries after the nearest contract term ends." (Shouldn't
change a contract in mid-stream. After the contract ends if they
don't like it they can get out.)

2b.

Policy Recommendation L:

Certain policy making responsibility should be delegated to the
sponsored gTLD operators, but variations can be made, based on
characteristics of the sponsoring community. Variations should be
discussed/disclosed in charter for public comment. Examples of policy
making responsibility to be delegated to the sponsored gTLD operators
include but may not be limited to:  

-      Charter and scope of 'sponsored community'
-      Eligibility to be in the 'sponsored category' 
-      Eligibility for a particular name
-      The concept of a conflicts/dispute process as a service to the
sponsored community

NCUC: Yes


TERM OF REFERENCE 3
Policy for price controls for registry services

Policy recommendation M (option 1)

Option 1 

When a registry contract is up for renewal, there should be a
determination whether that registry is market dominant. That
determination should be made by a panel of competition experts
including competition lawyers and economists. This panel would
operate similarly to the panel that reviews the security and
stability implications of new registry services.

If the panel determines that there is a situation of market power,
then the registry agreement must include a pricing provision for new
registrations, as currently is included in all of the largest gTLD
registry agreements. If the panel determines that there isn't market
power, then there would be no need for a pricing provision related to
new registrations, as is the practice in the recent round of sTLD
registry agreements. 

Regardless of whether there is market dominance, consumers should be
protected with regard to renewals due to the high switching costs
associated with domain names. Therefore, this policy recommendation
is to continue the system of pricing provisions in the current
unsponsored TLD agreements with regard to domain name renewals. 

The price for new registrations and renewals for market dominant
registries and for renewals for non-market dominant registries should
be set at the time of the renewal of the registry agreement. Such a
price should act as a ceiling and should not prohibit or discourage
registries from providing promotions or market incentives to sell
more names. In agreeing on such a price ceiling, ICANN should
consider the domain name market, the price of names in the prior
agreement, the market price in cases of competition through rebids,
and the specific business plans of the registry. 

The pricing provision should include the ability for an increase if
there is cost justification for such an increase, as is required in
the current registry agreements with pricing provisions. Such
increases should be evaluated and approved by a third party entity,
such as an accounting or financial analyst firm.

Differential pricing between domain names should be prohibited
whenever there is a set price/price cap and should be permitted when
there isn't such a price constraint. In other words, non-dominant
registries may differentially price for new registrations, but not
for renewals. Dominant registries may not differentially price for
new registrations or renewals.

Finally, as is the current practice, all registries should provide
equitable pricing opportunities for all registrars and at least six
months notice before any price increase. 

Policy Recommendation N (Option 2):

The NCUC has argued that it is premature to formulate policy in the
area of pricing without having had the benefit of an intensely
focused study on this topic. They believe that a new PDP is required
to address the specific issue of price controls. ("We believe that
existing price caps should be left in place for the short term, and
another, separate PDP inaugurated on methods and criteria for
changing, raising or eliminating price caps in the future.")

Thus, another option is to keep the status by encouraging ICANN to
continue with existing pricing provisions and initiating a targeted
PDP on this issue alone taking into account the upcoming economist's
report (http://www.icann.org/minutes/resolutions-18oct06.htm). 

NCUC: N

TERM OF REFERENCE 4
ICANN fees

4a. Examine whether or not there should be a policy guiding registry
fees to ICANN, and if so, what the elements of that policy should be.


Policy Recommendation O: 
In order to improve ICANN accountability and effective business
planning by registries, ICANN staff should immediately implement a
system of ICANN fees from registries that avoids individual
negotiations of ICANN fees and provides consistency unless there is
established justification for disparate treatment. 

NCUC: Yes (SP consensus

4b. Determine how ICANN's public budgeting process should relate to
the negotiation of ICANN fees. 

Policy Recommendation P: 
The ICANN Board should establish a Task Force or Advisory Committee
to examine budgeting issues, including the manner and allocation of
revenue collection, budget oversight, and budget approval processes.
This group should solicit and review public comments on the issues.

NCUC: Yes (SP consensus) 

TERM OF REFERENCE 5
Uses of registry data

5a Examine whether or not there should be a policy regarding the use
of registry data for purposes other than for which it was collected,
and if so, what the elements of that policy should be. 

Policy Recommendation Q: 
There should be a policy regarding the use of registry data [which
includes traffic data] for purposes other than that for which it was
collected. 

NCUC: Yes (SP consensus) 

5b. Determine whether any policy is necessary to ensure
non-discriminatory access to registry data that is made available to
third parties. 

Policy Recommendation R: 
There should be a policy to ensure non-discriminatory access to
registry data that is made available, but that policy should include
safeguards on protection against misuse of the data. 

Agreed by all the TF members that further work is needed at the Task
Force level. 

NCUC: Yes (SP consensus)


TERM OF REFERENCE 6
Investment in development and infrastructure

6a. Examine whether or not there should be a policy guiding
investments in development and infrastructure, and if so, what the
elements of that policy should be.  

Policy Recommendation S: 
There should not be a policy guiding investments in development and
infrastructure. ICANN should, however, establish baseline
requirements for the security and stability of the registries and
anything above that would be negotiated on a case-by-case basis, if
necessary. Such a baseline requirements should be recommended to the
Board by the Security and Stability Advisory Committee ("SSAC") after
consultation with the gTLD registry operators. In determining these
recommendations, the SSAC also should solicit and consider public
comments.

Notes: Revised text developed by Jeff Neuman and Jon Nevett

NCUC: Abstention until further clarification (there was no clear
consensus expressed here, but my suggestion ´taking into account
Avri's opinion and after reflection.)