RE: [council] FWD: UNSPONSORED REGISTRIES STATEMENT - Regarding the Proposed Issues Report on Registry Services

Sent: Friday, November 07, 2003 3:55 PM
Subject: Unsponsored gTLD Registries Statement on Registry Services

UNSPONSORED REGISTRIES STATEMENT

Regarding the Proposed Issues Report on Registry Services

The gTLD Registries Constituency of the Generic Names Supporting
Organization is currently comprised of the three Sponsored and six
Unsponsored Registry Operators, including Afilias, Ltd. (.info),
DotCooperation, LLC (.coop), Global Name Registry (.name), Musedoma
(.museum), NeuLevel, Inc. (.biz), Public Interest Registry (.org),
RegistryPro (.pro), SITA (.aero) and VeriSign (.com & .net).

On behalf of the six Unsponsored gTLD Registry Operators, we submit the
following statement set forth below:

BACKGROUND

Each of the gTLD Registry Operators has entered an agreement with the
Internet Corporation for Assigned Names and Numbers which governs the
relationship between ICANN and the individual registry operator. It
should be noted that only the Unsponsored Registry Agreements have any
provisions regarding "Registry Services." In addition, the Unsponsored
Registry contracts only provide that ICANN consent to the price of a new
"Registry Service" so long as the operation as such service does not truly
threaten the technical stability of the domain name system . While this
constituency recognizes the need for an ICANN procedure for prompt
technical and security impact review of proposed "Registry Service", with
a predictable, streamlined and appropriate market-based approach, the
contracts themselves do not give ICANN or any third party, including any
of the GNSO Constituencies, Supporting Organizations, Task Forces or
Advisory Committees, the ability to consent to any other aspects of
"Registry Services." The applicable contracts do not provide a role for
ICANN with respect to prices or specifications for services or products
provided by registries that are not "Registry Services" as defined in such
agreements.

To the extent that ICANN wishes to increase its scope and/or powers with
respect to "Registry Services", it may only do so in accordance with its
agreements or with the express written consent of those with which it has
contracts (namely, the Registry Operators and Accredited Registrars). In
addition, the meaning of such agreements will be governed according to
applicable legal principles. It cannot be said that any interpretation by
one party after having entered the agreement is binding on the other party
or evidences ambiguity. In addition, interpretations offered by third
parties have no particular relevance in determining the meaning intended
by the parties to the relevant agreements. To the extent that there are
any disputes over the meaning of any terms within ICANN's Agreements with
the registries, there is a built in dispute resolution process in the
contracts. Such dispute resolution does not involve any of the GNSO
Constituencies, Supporting Organizations, Task Forces or even Advisory
Committees.

SPECIFIC COMMENTS ON ISSUES REPORT

The gTLD Registries Constituency is extremely concerned about the issues
raised in the "Excerpt from Draft Version of Staff Manager's Issues Report
for the Development of a Process for the Introduction of New or Modified
Registry Services." Not only are most of those issues irrelevant to the
introduction of "Registry Services" as defined in the applicable contracts
with gTLD Unsponsored Registries, but it also inappropriately suggests
that parties other than ICANN and the gTLD Registry Operators might be
entitled to prevent the introduction of otherwise lawful new "Registry
Services." As stated above, many of these issues involve contractual
interpretation that involve only the parties to those contracts, and not
the ICANN community as a whole. ICANN may not unilaterally, or through
the policy development process, promulgate rules or regulations
interpreting these agreements without the consent of the registry
operators. Any attempt to do so would be considered a violation of those
agreements and subject to the dispute resolution process set forth in such
agreements.

It is the gTLD Registries Constituency's view that many of the topics
identified in the "Issues Report" should not be addressed by the GNSO,
Supporting Organizations or Advisory Committees, but by the ICANN
staff/board and the gTLD Registry Operators.

IMPACT OF PDP PROCESS ON GTLD REGISTRIES

To state the obvious, if there is any one constituency of the GNSO that
this PDP process potentially affects, it is the gTLD Registries,
specifically the Unsponsored Registries. Not only does the introduction
of "Registry Services" impact the competitive environment in which we
operate, the investment which we are able to make in our businesses, but
ultimately, it affects the very survival of our businesses. Without a
procedure for prompt technical and security impact review of proposed
"Registry Service" with a predictable, streamlined and appropriate
market-based approach by which ICANN exercises its rights with respect to
Registry Services, the future of domain name registries is in jeopardy.

RESERVATION OF RIGHTS

As the ICANN has posted only a portion of the Issues Report, the gTLD
Registries reserve the right to comment on the complete Issues Reports,
when such report is released. In addition, the comments contained herein
do not address the substance of the issues raised in the report, but
merely provide, as we were asked to do, an impact statement.

Afilias, Ltd.
Global Name Registry
NeuLevel, Inc.
Public Interest Registry
RegistryPro, Inc.
VeriSign, Inc.

Jeffrey J. Neuman
Chair, gTLD Registries Constituency
e-mail: Jeff.Neuman@xxxxxxxxxx