RE: [ga] Re: Board descisions

["Kevin J. Connolly" <connollyk@rspab.com>]

I concur that the policy is not well-documented. However, the idea that NSI would segregate the Registrar and Registry functions was part of the basic worldview that Becky Burr articulated at the grave side of the GTLD-MoU. She expressed concerns that anything less than separating the functions and opening registrar powers to any qualified player would simply perpetuate the perception of NSI as "evil monopolist" forever. In some ways, this expectation became part of the "unwritten constitution" of the domain name reform plan that was expressed in the White Paper and which we all are attempting to put into operational practice.

Kevin J. Connolly
Attorney and Counselor at Law
Robinson Silverman Pearce Aronsohn & Berman, LLP
1290 Sixth Aveue of the Americas
New York, NY 10104
212-541-1066/fax 212-541-1346
This note is not legal advice. If it were legal advice, it would come with an invoice.

Live, like there's no tomorrow.....
     Love, like you've never been hurt.....
          And dance, like no one's watching.

>>> "Gomes, Chuck" <cgomes@verisign.com> 03/12/01 01:23PM >>>
As Dave Crocker pointed out in a separate post, requiring consensus
decisions for contract negotiations will not work.  ICANN's only source of
power is through contracts.  If they have to wait for a consensus decision
on every contract they negotiate, their ability to function will come to a
screeching halt.  Many here in Melbourne have complained about ICANN staff's
inability to respond in a timely manner to their responsibilities.  It
doesn't take much imagination to predict how requiring consensus decisions
would worsen this situation.

If you read the ICANN Bylaws carefully, you will find that the NC's role is
not to make consensus decisions but rather to manage the consensus process
through mechanisms such as working groups.  As we all know, that is an
extremely time consuming process as it should be in a global setting.

The Bylaws clearly require consensus recommendations for policy issues.  And
I am fully aware that there is a difference of opinion as to whether this is
a policy decision.  Certainly, I don't believe that anyone can point to a
documented policy with regard to separation of registry and registrar.  As
Roberto pointed out in the open forum, he believes that there was an implied
policy, but even if that was true, I don't believe that such an implied
policy was specifically developed as a consensus policy.  Instead a few
individuals simply decided to include such provisions in contracts.

Chuck Gomes

-----Original Message-----
From: david@farrar.com [mailto:david@farrar.com] 
Sent: Sunday, March 11, 2001 4:40 PM
To: ga@dnso.org 
Subject: Re: [ga] Re: Board descisions


Dave Crocker wrote:

> The Names Council spent all of its time complaining about the process and>
  timing of the proposed new Verisign contract.  They spent no time at all>
  considering the actual merits of the proposal.
> 
> Hence they chose to provide no constructive input to the ICANN Board.

That is not the case at all.  The input was very clearly that it is 
unacceptable to ask for the Names Council to gain a consensus on the issue
in 
such a small time-frame - a time-frame which has not been mandated by the
Board 
but purely at the whim of the staff.  The fact there is a final deadline of
18 
May has been known for 18 months and if NSI and the staff wanted changes
they 
should have finished negiotating them earlier.  
 
>  From an individual staff consultant, such dereliction of duty would not
be 
> tolerated.

Possibly you fail to grasp the significance of the ICANN bylaws with regards
to 
the DNSO and the diffeerence between it and a staff member.  A staff member
can 
put forward viewpoints and argue a position with no need to consult anyone
at 
all.  The Names Council are not there to argue their 21 different personalp
 rejudices about this proposal.  They are there to represent and articulate
the 
consensus of the DNSO and their constituencies.  Now that takes time.
 
> 
> >so the question is : why cancel the rules which had the success
> >they were made for ? because of the success ?
> 
> Because the current contract grossly favors Verisign, to the detriment of>
  the community.  

Yet the proposed changes appear to favour Verisign many time more.  Verisign

basically get two major wins
1) Keep their registrar business (which despite falling market share is
still 
the largest and incredibly profitable)
2) Gain a presumptive right to *.com for all eternity

In return they give up early *.org and *.net.  While this is of some benefit
it 
is my opinion that the amounts involved here are basically chicken feed 
compared to *.com.  

> As you cite the greatly reduced price for a registration, 
> such as the excellent price from your own joker.com (that I have used 
> multiple times) let us note that the registry price is still a factor of>
  3-6 times higher than it should be.

And the proposed new contract will allow NSI to increase prices for *.com in

future and even worse by removing a tender process in 2007, gets rid of theb
 est competitive pressure one could have tpo reduce prices in future.
 
> Another example of the gross disproportion:  Verisign has 3 TLDs when
other 
> registries have (will have) only one.

While it is nice to separate the three out, the price is far too high and
more 
to the point it is too early to know if such a move is prudent.
 
> A contract which brings Verisign closer -- no doubt not as close as we all

> would like, but still, closer -- to being treated the same as any other>
  gTLD registry should be automatically appealing.

At the moment every other registry has zero entries in it and NSI has 20 
million or so.  While in a year or two when they are fully functioning andp
 roviding competition to *.com we could look at bringing them all into line,

but to move *.com to a model which is as yet totally untested seems foolish.
 
> We need to be very careful to consider the importance of rejecting the 
> proposed contract.  For example, if we reject a proposal that largely 
> "regularizes" the arrangement with Verisign, imagine how much stronger 
> Verisign's legal position becomes when they need to defend the 
> disproportionate advantages they were granted in the current contract.

The proposed changes give Verisign even more disproportionate advanatges and

gives the Internet community very little.  There is no cost benefit analysis
of 
the proposal, no figures on how it will affect ICANN's finances, no costs on

whether it would mean price increases for *.org (very very possible) etc.
 
> Let's all try to focus on the real content of the proposed contract,
rather 
> than being distracted by inevitable imperfections of process.

I've re-read the proposals multiple times and I can see no appeal at all int
 hem.  I think it would be dangerous to have the staff rush ICANN into 
endorsing them without proper scrutiny.

DPF

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