FW: Draft Motions on Vertical Integration

[William Drake]

Hi,

5 of 6 NCSG councilors were able to make a call yesterday with CSG counterparts to discuss options regarding the two motions Council will vote on Thursday.  

Re: motion 1, to just delay a PDP (in the current language, "the GNSO Council will consider initiating a PDP on this issue 1 year after the launch of the new gTLD program;" in the compromise suggested yesterday, will initiate, at the same time it launches), nobody was favorably disposed to a delay, so I presume we'll vote against 1 rather than amend.

So that leaves motion 2.  We discussed a) the scope of a motion, e.g. unrestricted per now vs carving out JM, and b) the timing question and potential impacts on the gTLD launch (should that ever happen).  With prior efforts to tweak 2 in a way folks would all accept bottomed out, CSG offered to take a crack at it.  Below is their attempt to take on board some of the concerns that have been raised, changes to consider in brackets.  I suspect there will be issues with these too.

I hope we can have some compromise NCSG folks can all live with on timing and scope (e.g. separating JM from true VI and focusing in this case on the latter), even if it's a half a loaf solution substantively from their perspective.  Having our group working together seems a more pressing priority than selecting one or the other polarized solution that leaves a chunk of folks unhappy, at least to me.

To discuss on the call in a half hour,

Bill


> MOTION TO COMMENCE A PDP:
>  
> [Whereas, with respect to vertical integration between registries and registrars, ICANN Staff has proposed contractual terms for new gTLD operators that are largely inconsistent with contractual terms in most existing gTLD Registry Agreements (for example, as set forth in the ...com, .net and .org agreements);]
> [Whereas, ICANN Staff consulted with ant-trust and economics experts and with members of the ICANN community in developing those proposed contractual terms, but has not made available to the public nor to the GNSO Council, a comprehensive documentation of all of the inputs into ICANN Staff’s work with respect to vertical integration;]
> Whereas, on 24 September 2009, the GNSO Council requested ICANN Staff to prepare an Issues Report on the topic of vertical integration between registries and registrars;
> Whereas, on 11 December 2009, the Issues Report on Vertical Integration between Registries and Registrars was delivered to the GNSO Council;
> [Whereas, the Issues Report states that existing gTLD contractual provisions are inconsistent with respect to Vertical Integration, and that policy developed by the GNSO with respect to Vertical Integration may delay new gTLD implementation, and in any event may not be within the scope of the GNSO’s Consensus Policy purview;]
> Whereas, the Issues Report includes recommendations that the GNSO Council delay the initiation of a PDP for a period of 1-2 years;
> [Whereas, notwithstanding the suggestions of the Issues Report, the GNSO Council believes: 1) that the existing gTLD contractual provisions with respect to Vertical Integration are largely consistent as set forth in the Registry Agreements for .com, .net and .org; 2) that that ICANN Staff’s alternative proposals for new TLD registries represents substantial policy development that would create different rules for new gTLD operators than for most of the existing gTLD operators; and 3) that any recommendations approved by the GNSO Council and the ICANN Board, with respect to vertical integration between registries and registrars, would be binding upon existing contracting parties as Consensus Policy, since the topic is not specifically excluded from the scope of GNSO Consensus Policy in any existing registry agreements nor the RAA;]
> Whereas, notwithstanding the recommendations in the Issue Report, the GNSO Council has decided to initiate a PDP on Vertical Integration between Registries and Registrars;
> Whereas, the GNSO council has decided against initiating a Task force as defined in the ICANN Bylaws;
> Now therefore, be it:
> RESOLVED, that the GNSO Council has reviewed the recommendations contained in the Issues Report, and nonetheless approves the initiation of a PDP on the topic of Vertical Integration between Registries and Registrars;
> [FURTHER RESOLVED, that ICANN Staff shall not propose any alternative contractual provisions, substantially different than those embodied in the existing .com, .net and .org Registry Agreements, for new gTLD operators unless and until any alternative contractual provisions are approved by the GNSO Council and ICANN Board;]
> FURTHER RESOLVED, that the PDP shall evaluate which policy recommendations, if any,  should be developed on the topic of vertical integration between registrars and registries affecting both new gTLDs and existing gTLDs, as may be possible under existing contracts and as allowed under the ICANN Bylaws;
> FURTHER RESOLVED, recognizing that this PDP may not conclude its work in time to affect the initial round of New gTLD applications, the GNSO Council recommends that any Stakeholder Group or Constituency affected by this issue actively participate in the implementation activities conducted by ICANN for the New gTLD program;
> FURTHER RESOLVED, that the GNSO Council shall convene a [DELETE:  drafting team to propose a draft charter for a working group to be created to fulfill the requirements of the PDP, which draft charter to be delivered approximately thirty (30) days from the date of this resolution.] [ADD:  Working Group to review ICANN Staff’s prior work with respect to vertical integration, and to develop recommendations with respect to vertical integration for appropriate contractual provisions in new gTLD registry agreements;
> [FURTHER RESOLVED, that ICANN Staff shall promptly provide to the Working Group complete and comprehensive documentation of all of the inputs into ICANN Staff’s work with respect to vertical integration to date;]
> [FURTHER RESOLVED, that the Working Group shall deliver its Final Report to Council no later than 90 days from the date of this resolution.]
>  
>  

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