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[ga] ".aero" draft posted for approval in 7 days


All assembly members,

  The following was posted to the ALSC forum.  I thought that this
would be an issue of interest and possible concern to the
DNSO GA and othere DNSO constituencies.  Hence I am posting it here
for everyones review and possible comment.

==================  Copy as follows ===========================

From: Edward Hasbrouck <edward@hasbrouck.org>

I sent the following today to the ICANN Board of Directors.  Background 
and further details are at <http://hasbrouck.org/icann>. 

============================= 

Contents: 
1. Request for action by members of the ICANN Board of Directors
2. The delegation of authority in the draft .aero agreement would
violate 
ICANN's bylaws
3. The confidentiality restrictions in the .aero agreement would violate 
ICANN's bylaws.
4. The process used to draft the .aero agreement violates ICANN's bylaws 
5. The "opt-out" or "without objection" approval process for the .aero 
agreement would violate ICANN's bylaws. 

============================= 

1. REQUEST FOR ACTION BY MEMBERS OF THE ICANN BOARD OF DIRECTORS 

Last week I asked you, as members of the ICANN Board of Directors, to 
request that the draft agreement for sponsorship by SITA of a proposed 
".aero" global top-level domain (gTLD) *not* be approved.  My request
was 
based on the policy implications of the portions of the draft agreement 
which were posted for comment 9 November 2001 to the ICANN Web site, 
specifically Attachments 1 and 5 My earlier request is available at 
<http://hasbrouck.org/icann/aero-draft.html>. 

I am writing to you again to call your attention to additional reasons
not 
to approve the draft .aero sponsorship agreement.  These additional --
and 
much more fundamental --  objections relate to the remaining portions of 
the draft agreement which were posted between 10 November 2001 and 20 
November 2001. 

While my earlier message concerned policy reasons why you *should not* 
approve the draft .aero agreement, the most recently posted sections of 
the draft agreement indicate reasons why you *must not* approve the
.aero 
agreement. 

Approval of the .aero sponsorship agreement in its current form, under 
your current procedures, would be contrary to ICANN's bylaws, for the 
reasons detailed below. Accordingly, I reiterate my request to each of
you 
individually, as a member of the ICANN Board of Directors, that, within
7 
days (i.e. by 27 November 2001), you request that the President of ICANN 
not sign the draft .aero agreement. 

It's not clear whether, or how, such a request for non-approval of the 
draft from a member of the Board of Directors would be made public.  If 
any of you have already made such a request, I thank you for your
action.  
If you have not, I look forward to your prompt attention to your 
obligation in this matter, within the 7-day comment and request for non- 
approval deadline. 

2. THE DELEGATION OF AUTHORITY IN THE DRAFT .AERO AGREEMENT WOULD
VIOLATE 
ICANN'S BYLAWS. 

Attachment 2 of the draft .aero sponsorship agreement -- the last
section 
to be posted, on 20 November 2001 -- is a delegation of decision-making 
authority by ICANN to SITA over specified areas. 
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att2- 
20nov01.htm> 

However, ICANN can't delegate authority that ICANN doesn't have. And 
ICANN's own decision-making authority is limited by Article 3 of ICANN's 
bylaws, which provides as follows: "The Corporation and its subordinate 
entities shall operate to the maximum extent feasible in an open and 
transparent manner and consistent with procedures designed to ensure 
fairness." <http://www.icann.org/general/bylaws.htm#III> 

In order to be valid, any delegation of authority by ICANN must, 
therefore, include conditions requiring openness, transparency, and 
procedures to ensure fairness in the exercise of delegated authority.  A 
purported delegation of authority lacking such conditions would be
invalid 
as delegating more authority than ICANN itself possesses under its own 
bylaws. 

The delegation of authority by ICANN to SITA in the draft .aero
agreement 
lacks any openness, transparency, or procedural fairness conditions. 
The 
draft agreement thus exceeds ICANN's authority, and cannot be approved 
without violating ICANN's bylaws. 

It is this issue of openness, transparency, procedural fairness, and at- 
large participation in delegated decision-making that is central to my 
earlier recommendations to the ICANN AT- Large Study Committee at 
<http://hasbrouck.org/icann/alsc.html>. 

If ICANN could evade the requirements of Article 3 of its bylaws by 
delegating authority to  a body that operated in secret, that would
render 
Article 3 of the bylaws meaningless.  And it is a fundamental principle
of 
legal interpretation that a document should be interpreted in such a 
manner as to give meaning to each of its terms. 

(It could be argued, in the alternative, that the gTLD sponsorship 
agreement would make SITA a "subordinate entity" of ICANN, and thus 
implicitly subject to the openness, transparency, and fairness 
requirements of Article 3 of the ICANN bylaws.  If that interpretation 
were adopted, however, any delegation of authority by ICANN to SITA's 
application would have to be rejected for noncompliance by SITA with
those 
bylaw requirements in SITA's conduct to date in drafting the .aero 
agreement and in formulating policies for .aero.) 

3. THE CONFIDENTIALITY RESTRICTIONS IN THE DRAFT .AERO AGREEMENT WOULD 
VIOLATE ICANN'S BYLAWS. 

Attachment 21 of the draft .aero sponsorship agreement, concerning
"proof 
of concept" reports, contains the following provision: "The reports 
provided by Sponsor as described in this Attachment shall be subject to 
confidentiality restrictions according to categories described in
Section 
11."  The categories on Section 11 of Attachment 21 provide restrictions 
on release of information by ICANN for as much as 18 months after it is 
reported to ICANN.
<http://www.icann.org/tlds/agreements/aero/sponsorship- 
agmt-att21-10nov01.htm> 

As noted above, ICANN's bylaws require that ICANN and its subordinate 
entities "operate to the maximum extent feasible in an open and 
transparent manner and consistent with procedures designed to ensure 
fairness."  Restrictions on public disclosure information by ICANN can 
only be justified by a showing that disclosure is not feasible, even 
judged according to standards of maximum feasibility. 

No rationale whatsoever is given in the draft .aero agreement as to why
it 
would not be "feasible" for this information to be publicly disclosed 
immediately, or in less than the specified time periods, by ICANN and/or 
SITA.  Nor, to the best of my knowledge, has SITA or ICANN made public 
such a rationale in any other forum. Absent a showing of lack of 
feasibility, the confidentiality restrictions are, on their face,
contrary 
to ICANN's bylaws, and cannot be approved. 

It should also be noted that possible impairment of SITA's commercial 
interests by early public disclosure of the "proof of concept"
information 
should have no bearing on a determination of whether disclosure is 
"feasible".  In any event, SITA stressed as one of the reasons its 
application for sponsorship should be granted that SITA is a not-for- 
profit entity with no commercial interest in the proposed .aero gTLD.  

SITA was aware of the openness, transparency, and procedural fairness 
requirements of ICANN's bylaws when SITA submitted its sponsorship 
application.  If SITA was unwilling to accept those conditions, and
wanted 
to operate under confidentiality restrictions, it shouldn't have
applied, 
and its application shouldn't have been accepted. As ICANN has
repeatedly 
reminded other would-be gTLD sponsors, those who weren't willing to
accept 
ICANN's conditions for gTLD sponsorship didn't have to apply. That
should 
apply equally to the transparency and fairness conditions that ICANN is 
required by its bylaws to include in all delegations of authority. 

4. THE PROCESS USED TO DRAFT THE .AERO AGREEMENT VIOLATES ICANN'S
BYLAWS. 

To reiterate, ICANN's bylaws require that ICANN and its subordinate 
entities "operate to the maximum extent feasible in an open and 
transparent manner and consistent with procedures designed to ensure 
fairness." 

Contrary to this requirement, the negotiations between ICANN and SITA,
and 
the drafting of the .aero sponsorship agreement, have been conducted in
a 
closed manner lacking procedures to ensure fairness. 

There has been no public notice of negotiating or drafting sessions, and 
there has been no opportunity for stakeholders or community members to 
observe the process, much less participate. 

I formally requested information on opportunities to observe and/or 
participate in the policy formulation process -- as a stakeholder and 
member of the Air Transport Community and the .aero constituency -- from 
SITA through the form provided on SITA's Web site for this purpose at 
<http://www.sita.int/aero/info/reqinfo.asp>.  In response, I was told by 
SITA, "We shall  communicate the... details of registration policies...
in 
due time and we shall inform you directly once the launch date for the 
Registry Operation and Registration Services has been confirmed."  
<http://hasbrouck.org/icann/sita.html> 

No indication was given as to why it would not be "feasible" to provide 
more information, or opportunities for openness to all stakeholders and 
community members, prior to the setting of the launch date for the .aero 
gTLD. Absent a showing that this was not feasible, the failure to
provide 
this openness and transparency is a violation of ICANN's bylaws. 

ICANN also told me that "The exact definition of the individuals or 
entities qualifying for registration and related policies are currently 
being developed in close co-operation with representatives from various 
industry bodies including IATA, ACI and ICAO."  As I have detailed here 
and in my earlier comments, the airline industry is only a small subset
of 
the air transport community which was defined as the .aero constituency
in 
SITA's original proposal.  SITA's procedures provide for participation 
only by the industry -- one specific interest group amongst many 
stakeholders in the .aero constituency -- while excluding stakeholders 
from other interest groups in the constituency.  This  fails to satisfy 
the requirement of ICANN's bylaws for "procedures designed to ensure 
fairness," especially fairness in balancing the interests of the airline 
industry and other, non-industry, members of the community. 

5. The "opt-out" or "without objection" approval process for the .aero 
agreement would violate ICANN's bylaws. ICANN Resolutions 01.83-01.85 
established the following "opt-out" or "without objection" process for 
approval of the .aero sponsorship agreement by the ICANN Board of 
Directors: 

"The President and General Counsel are authorized and requested to 
complete negotiation of the .aero and .coop agreements (including 
attachments) as soon as feasible and to post the attachments on the
ICANN 
web site; ... the Board shall be notified of the complete posting of the 
agreement and appendices for each of .aero and .coop and after that 
notification seven days shall be allowed for Board members to make any 
additional comments to the President and General Counsel; ... in the 
absence of the request of any Board member to  the contrary based on 
policy considerations, the President is authorized to sign the posted 
agreements for .aero and .coop after the conclusion of those seven
days." 
<http://www.icann.org/minutes/prelim-report-10sep01.htm#01.83> 

However, Article 3, section 3 (b) of ICANN's bylaws requires as follows: 

"With respect to any policies that are being considered by the Board for 
adoption that substantially affect ... third parties ... the Board will: 
... iii) hold a public forum at which the proposed policy would be 
discussed." <http://www.icann.org/general/bylaws.htm#III-3b> 

Since the "without objection" approval process does not include a public 
forum for discussion of the draft agreement, that procedure is
permissible 
only for policies that do not substantially affect the interests of any 
third parties. 

The draft .aero agreement would substantially affect the interests of, 
among others, those members of the air transport community (as defined
as 
the .aero constituency in the SITA proposal accepted by ICANN as the
basis 
for negotiation of the .aero agreement) but excluded from eligibility
for 
.aero registration and/or participation under the draft agreement. 
These 
affected parties include, among others: 

1. Users and purchasers of air transport services, including: 	A.
Airline 
passengers and their organizations 	B. Air cargo shippers and their 
organizations 

2. Elements of civil society concerned with air transport, including: 
A. 
Air transport consumer advocates and organizations 	B. Air transport 
safety and security advocates and organizations 	C. Organizations 
concerned with the environmental impact of air transport 	D.
Organizations 
of airport neighbors concerned with aircraft noise 	E. Organizations 
concerned with land use planning for airports 	F. Organizations
concerned 
with the impact of air transport industry practices on civil liberties 

3. Critics of the air transport industry, including: 	A. Muckrakers, 
investigators, and gadflies outside the industry 	B. Whistleblowers, 
critics, and advocates for change from within the industry 	C. Other at-
large stakeholders 

Travel agents and sellers of air travel are implicitly included in the 
".aero Charter" (Attachment 1) and 
the "Description of the Sponsored TLD Community" (Attachment 5) as
people 
or entities which "perform 
the necessary transactions to transport people and cargo by air."  But 
they are excluded from the "Start-
Up Plan" (Attachment 8, posted 17 November 2001).  
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att8- 
17nov01.htm> 

No explanation has been provided for this differential treatment of
travel 
agents vis-à-vis other segments 
of the air transport industry.  Whatever the reason, the decision to 
exclude travel agents from the Start-
Up Plan, and thus from registration and participation in .aero during
the 
start-up period, affects the 
interests of: 

1. Air travel agencies 2. Independent air travel agents 3. Sellers of
air 
travel other than agents of airlines 
4. Sellers of bundled travel services that include air transport, such
as 
air-inclusive tours 

The "Registry Operator's Proposal" that was part of SITA's original 
application for .aero estimated that 
there would be from 94,288 (pessimistic) to 259,360 (optimistic) .aero 
name registrations. 
<http://www.icann.org/tlds/air1/Registry%20Operator's%20Proposal.htm> 
Given the much smaller 
numbers of other types of (large) companies identified in the proposal, 
it's likely that these numbers of 
domain name registrations could only be achieved if a large percentage
of 
them came from travel 
agencies and agents. 

Whatever the total number of potential .aero registrants might be, it's 
clear that the vast majority of 
.aero stakeholders and members of the .aero constituency, as defined in 
the original .aero proposal, 
would be excluded from .aero registration and participation under the 
draft agreement. 

All the people and organizations outlined above had every reason to 
expect, based on the plain 
language of SITA's original proposal, that they would be eligible to 
register .aero names as part of "the 
Air Transport Community... defined as all companies and organizations
for 
which the main activity is 
related to Air Transport".  Their first notice that they were to be 
excluded from registration and/or 
participation in .aero came with the posting of the draft .aero
agreement, 
on which there has been no 
public hearing. 

Since the draft .aero agreement would substantially affect third
parties, 
ICANN bylaw's require a public 
forum before it can be approved. In the absence of such a forum, any 
purported approval by the Board of 
Directors through the "without objection" process, or by the President 
through signing of a purported 
contract, would be in violation of ICANN's bylaws, and invalid. 

For all these reasons, and those in my prior recommendations to the
ICANN 
Board of Directors and the 
At-Large Study Committee, I urge you promptly to request that the draft 
.aero sponsorship agreement 
with SITA not be approved, and schedule a proper public forum on this 
issue at your next (Accra) or a 
subsequent meeting. 

Sincerely, 

Edward Hasbrouck edward@hasbrouck.org Http://hasbrouck.org 

Passenger air travel and travel e-commerce consumer advocate, author,
and 
FAQ-maintainer 

Member-at-large of the Air Transport Community and the ".aero" gTLD 
constituency 
----------------
Edward Hasbrouck
<edward@hasbrouck.org>
<http://hasbrouck.org>

"The Practical Nomad Guide to the Online Travel Marketplace"
<http://www.amazon.com/exec/obidos/ASIN/1566912504/edwardhasbro>
"The Practical Nomad: How to Travel Around the World"
<http://www.amazon.com/exec/obidos/ASIN/1566912148/edwardhasbro>
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