brief report on NCSG Policy Discussion Wednesday 6 January

[William Drake]

Hi Milton

Please copy NCSG-policy as well...

On Jan 9, 2010, at 9:44 AM, Milton L Mueller wrote:

> 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.

I agree that the staff's assertions about the role of the GNSO are generic and hence somewhat separable from the particular issues at hand.  Interestingly, aside from Mike, nobody on the council list seems prepared to engage on the former.  I was a little surprised by this, thought more people would feel similarly.  Maybe it will resurface in the next couple weeks prior to the vote.

In any event, I'm not going to be writing something solo, don't think that's the way this should work.  If there is to be an NCSG, or just NCUC, position statement, it has to be a collective effort based on consensus.  Unfortunately, after a couple of months on the table, it's not clear we have that, only a couple people have spoken directly to the issues and their views vary.  So the first, minimalist step has to be that we determine whether we are in agreement re: a PDP.  Whether there's agreement beyond that on a statement that gets into the specific substantive issues re: what the market does and should look like etc is another and more demanding issue, not clear we'll get there, particularly absent a PDP, but let's see.
> 
>> 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. 

I don't think it's a confused summary, it accurately reflects what we talked about on the call you weren't on.  But I do agree we need to decide collectively what we do or don't regard as a change in policy.  (I actually have some issue with the notion that something that merely changes a staff 'practice' rather than an agreed 'policy' by definition does not give rise to issues that could merit a PDP, but that's a different matter.  In the first instance we have to decide where we are on the staff's claim.  Without wanting to put words in her mouth, she can correct me, Avri seemed to feel that new gTLD Rec. 19 on nondiscrimination and the attendant council discussions do point to a relevant policy/legislative intent that there should be no change; I wasn't on council then and don't know what the intersubjective understanding was.  I can see though how, just on the face of the agreed wording, staff can make the argument.)

Re: the link between policy change and a PDP, I'm not clear what you have in mind here.  Your draft says

"What has been proposed by the Registrar constituency and debated in Seoul is not full vertical integration of registries and registrars but an opportunity for businesses that own both a TLD registry and a registrar to use the owned registrar to sell names in the TLD. That is not vertical integration, because the contractual and functional separation of registry and registrar remains, and all registries would still be open to all ICANN-accredited registrars. As noted above, any contracts that permit true vertical integration could not be enacted as a staff-defined “implementation” measure in the impending round of gTLD additions, but would require a PDP and a comprehensive review of ICANN’s economic regulations. The current debate is about registry-registrar cross-ownership and the ability of a cross-owned registrar to integrate marketing of names in the cross-owned TLD. We refer to this as “joint marketing.” We believe that contracts that permit joint marketing by new TLDs do not require a PDP and do not constitute a change in policy...Drafting new gTLD contracts that permit joint marketing and promotion by cross-owned registries and registrars does not, in our opinion, constitute a significant deviation from the established policy described above. It is, rather, a change in the enforcement mechanisms meant to implement the policy."

So if what's currently proposed by staff is not true VI and does not require a PDP, which is what the Council's considering, which are the issues regarding registry-registrar separation that are not merely a change in the enforcement mechanisms and do require a PDP?  If the draft makes these clear, nobody seems to have picked up on it, so please indicate where they are addressed.  

> 
> 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've done no such thing.  WE do not have a consensus on the pending motion, or on your draft. 

> 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. 

If you are suggesting that if people don't agree with your position it's because the issues are complex and hard to understand, I can only ask that those who've said they aren't persuaded respond.  As for me, I've not yet come to that conclusion or any other and am looking for more focused dialogue upon which to base a final view.
> 
>> 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. 

Right, we didn't discuss this on the call, but if we do agree a position statement it'd make sense to build that in.
> 
>> 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. 

Right
> 
>> 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. 

How do you view the concept of functional separation in relation to joint marketing?
> 
>> 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? 

Aha.  But these issues are not in fact spelled out in your draft.  So how about proposing some language for a motion that addresses the bits you do think merit a PDP?  That would be helpful.
> 
> 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. 

People on the NCSG and council calls did not appear to be convinced that a PDP on VI as others conceive it or JM per you would necessarily slow things further; hard to know for sure ex ante.

Anyway, this is useful, and hopefully we can start to hear from more people on such matters as

*The staff view on the role of the council
*The contention that GNSO has provided no policy guidance from which the DAG VI/JM shifts would be deviation
*Whether, even if the answer's no and we're just talking about a staff practice, a PDP on these would be merited, and if so why
*Whether in addition or instead a PDP would be merited on the other dimensions, e.g. private brands

We're not going to progress with just a bilateral dialogue in which MM advocates a view and I report that others seem to be unconvinced or unsure.

Best,

Bill