brief report on NCSG Policy Discussion Wednesday 6 January

[Milton L Mueller]

Bill

> the staff's contentions in the issues report that: GNSO Council
> approval of policies is not required as the council's just one of the
> many voices the board listens to;

This _does_ require a response from the Council and the constituency. Feel free to adapt or lift or otherwise use my 11 December blog post flagging this issue if you do choose to write something:
http://blog.internetgovernance.org/blog/_archives/2009/12/11/4402569.html 
But (a point I will repeat below) the issue of whether staff or GNSO makes policy sould not be confused with the narrower, substantive issue of what is the right policy on registry-registrar joint marketing and cross ownership.

> the Council has provided no guidance on
> how the issues should be addressed re: new gTLDs; and the approach taken
> in the DAG does not constitute a change in policy that merits a PDP, so
> Council should just weigh in through the implementation process already
> underway.

This is a confused summary. You need to specify which part of the 60+-page DAG does or does not constitute a change in policy.  Further, you need to separate the issue of a PDP and the issue of whether the current DAG constitutes a change in policy. There are issues regarding registry-registrar separation that do require a PDP, as the NCUC position statement-in-progress makes clear. 

We discussed this at length at our teleconference back in December. It seems that in my absence you've moved backwards and muddied the waters. I know rthat the economic issues are complex, and the terminology somewhat detailed and technical, but let's not move backwards. The joint marketing issue for small, new TLDs really does not constitute a major change in policy. The one virtue of the staff report is that it makes that abundantly and irrefutably clear, simply by recounting all the instances in which it has already existed. And as a practical matter, it is true that if we want to actually affect how this turns out we do have to weigh in through the DAG "implementation" process already underway. 

> We also discussed the draft position paper Milton circulated in
> December suggesting, inter alia, that the issues in play concern joint
> marketing rather than VI per se; that joint marketing by new TLDs does not
> require a PDP or constitute a change in policy; and that only JM by
> registrars with at least a 45% market share should give rise to
> limitations.

Not a bad summary, thanks. However, I am disappointed to see that still no progress has been made regarding Wendy's excellent suggestion to add something that is important to US (NCSG) to the whole discussion, by calling for lifetime registrations. 

> In essence, participants agreed that a restrictive interpretation of the
> Council's role seems problematic and worth discussing with other SG's
> representatives on the Council.

Agreed. But this issue applies broadly to ALL GNSO policy matters and should not be mixed up with the specific issue of registry-registrar relations. 

> It was also noted that the Council's recs
> and attendant discussions on new gTLDs did provide some guidance to the
> effect that that separations should be preserved.  

Yes, but keep in mind that allowing cross ownership and joint marketing does not eliminate the separation of registries and registries - they remain functionally and contractually separate. It simply permits a practice that has in fact already been allowed under numerous prior contracts. And which is already allowed when back-end registries own registrars, or when registrars own registries. 

> As to whether the DAG
> approach constitutes a change in policy that merits a PDP, some people
> felt the answer is clearly yes, while others were a bit more equivocal but
> had not yet been persuaded to the contrary.

See my comments earlier. This statement is meaningless unless you specify what you mean by the "DAG approach." If you mean that allowing cross ownership and joint marketing for small new registries, I am sorry, but that does not constitute a change in policy. Even the registries have conceded that point - they are now forced to say that allowing JM is a change in "enforcement mechanisms". 

However, one could still favor a PDP (as I do) to deal with a host of broader changes. For example, what about those private-brand TLDs - do they have to use registrars? Should we pave the way for real vertical integration over the longer term as the market becomes more competitive? If so, what rules and restrictions would apply? 

The support for a small form of liberalization in the policy paper I drafted would allow the first round of new TLD applicants to enter the market on the favorable terms (i.e., allowing JM) - and it is clear that those favorable terms will have a huge impact on the viability of new entrants. Why are we stalling this? 

Among those putting the brakes on our position, I have not heard a single argument that relates their opposition or concerns to a pro-consumer, pro-registrant position. I have heard that they don't like staff procedure, I have heard that they are concerned about the way registries will react, but not a peep about the consumer/registrant. 

Let's get our priorities back on track. I know there's a tendency for people on the Council to get wrapped up in intra-GNSO politics but let's try to keep the big picture in mind. 

> In any event, there is
> presently no consensus for opposing a PDP when the Council votes on
> January 28, and a feeling that the issues should be explored further and
> could be clarified over the next year plus without delaying the new gTLD
> process.  

Last time I looked, the new gTLD process was already delayed another year. However, the only way to avoid delaying the new gTLD process even further by allowing cross ownership and JM by new TLD owners, as our position paper suggests. Anything else is just a fancy rationalization for keeping existing registries free of competition. 

--MM