[comments-deletes] Comments on the TF Final report -- Part Two

[DannyYounger@cs.com]

III.    The obligation to examine "policy"

In evaluating VeriSign's proposal to amend Appendix G of the .com and .net 
registry agreements to allow for the introduction of a proposed Wait-Listing 
Service, the ICANN Board must necessarily attend to both policy 
considerations and the merits or deficiencies of the proposal itself.  To 
obtain policy guidance, the Board relies on the research body assigned to 
this project by the Supporting Organization with primary responsibility for 
the area to which the proposal relates, in this case the Transfers Task Force 
of the DNSO.  

With regard to the question of "policy", if there are policy issues that 
relate to the WLS proposal, the clear expectation would have been that such 
policy questions would have been rigorously debated within the TF … yet 
having thoroughly examined the record of the Names Council Transfers Task 
Force, I am sadly forced to conclude that there has been almost no debate on 
"policy" matters.
  
The proposed Names Council recommendations to ICANN are, in general, not 
focused on "policy" issues, but rather are predicated on the relative 
"merits" of the VeriSign proposal, along with suggestions about how the 
proposal could be modified, by changing the fee structure, adding 
notification provisions, and the like.  While this input is certainly 
important, it can hardly be described as representing the type of policy work 
that is, pursuant to ICANN's bylaws, the initial responsibility of the DNSO 
within the ICANN structure.  

This forces one to ask, "What are the policy issues implicated by the WLS 
proposal, and why has the Task Force failed to address these issues?" 

the policy issues: 

1. As a matter of policy, should a well-defined procedure for considering 
requests by registry operators to charge for additional registry services be 
established?  If so, what form should that procedure take? 

2. As a matter of policy, can we allow the prospect of innovation to be 
stifled by requiring an arduous consensus-development process to be invoked 
on each occasion that a new registry service is proposed? 

3. As a matter of policy, is it permissible to materially harm the legitimate 
interests of others if such harm is offset by greater benefits that accrue to 
the Internet community, and if such decision is arrived at through fair and 
open processes and indeed does further the purposes of, and is in the best 
interest of, the Corporation? 

4. As a matter of policy, does ICANN have an obligation to protect the 
financial interests of its registries (as would seem to be implicated by 
section 18B of the current .com and .net registry agreements)? 

5. As a matter of policy, under the terms of its MoU with the Department of 
Commerce, is ICANN empowered to function as a "regulator" that can 
micro-manage the introduction of gTLD registry services? 

6. As a matter of policy, should ICANN first evaluate whether it should adopt 
a policy relating to the operation or ownership of a registry and registrar 
by the same entity prior to rendering a decision on WLS? 

7. As a matter of policy, if a consensus process is to be invoked as a 
prelude to a final Board decision, what form should that process take to 
ensure that a legitimate consensus has been achieved?  Does a Task Force 
discussion list limited to a handful of participants constitute the "fair and 
open processes" as required by our Bylaws?  

8. As a matter of policy, should the consumer benefit of having a guaranteed 
effective reservation at the registry level be promoted (understanding that 
such can not be done at the registrar level)? 

9. As a matter of policy, is it within the scope of the DNSO to make a 
judgment about appropriate maximum prices for registry services (is this, in 
fact, a policy or contractual issue, and is the DNSO competent to make such 
an evaluation), or should the ICANN Board or the market decide the 
appropriateness of the costs?  Should a registry offering be limited to a 
cost-plus-reasonable-profit basis as a matter of policy?  As a matter of 
policy, does ICANN have the right to determine that which constitutes "a 
reasonable profit", or should that determination be a proprietary matter?  If 
ICANN does have such a right, what criteria are being used to arrive at their 
determination of what a "reasonable profit" entails? 

10. As a matter of policy, can the DNSO financially burden the registrar 
community (by requiring that notice be provided by the registry (through the 
registrar) to the existing registrant of a domain name when a WLS option is 
taken out against that registrant's domain name) without any such 
consultation with the registrar constituency? 

11. As a matter of policy, can the Task Force forward any recommendations to 
the Board without including a fair statement of the points in opposition to 
the recommendations, a substantive analysis of their merits, and the 
intensity of the opposition as noted in both oral and written comments? 

12. As a matter of policy, what conditions need to be met for a registry to 
introduce a new service? 

This Task Force has failed in its duty to consider the policy questions (all 
of these were posted to the Public Forum as considerations a month ago on 14 
June), and discussion of WLS in general terms has been at an absolute 
minimum. 
 
The following list indicates the names of all Transfers Task Force 
participants (other than the Chair) and the total number of comments that 
they have contributed on the TF list to the discussion of WLS:

0 -- Elisabeth Porteneuve
0 -- Rick Shera
0 -- Tony Holmes
0 -- Mark McFadden
0 -- Nick Wood
0 -- Sloan Gaon
0 -- Philip Sheppard 
0 -- Erick Iriarte
1 -- Grant Forsyth 
2 -- Christine Russo 
4 -- Dan Steinberg
6 -- Ross Wm. Rader
6 -- David Safran
6 -- James Love

Less than half of this Task Force has bothered to participate, and those few 
that accepted their responsibility to participate in the consensus-building 
process rarely broached policy matters in their discussion.   When the Task 
Force finally held a face-to-face meeting in Bucharest, only 3 TF members 
attended.


IV. On the Specific Recommendations:

The Final Report commenced with this initial recommendation:  "The ICANN 
Board move with all haste to implement and actively enforce the proposed 
Redemptions Grace Period for Deleted Names policy and practice" -- this 
recommendation was a slight variant on the original recommendation posted on 
June 4.  It should be noted that the Technical Steering Group's 
Implementation Proposal on Redemption Grace Periods for Deleted Names wasn't 
even published until three days later (June 7), and that at no time did the 
Task Force ever consult with the Technical Steering Group prior to making 
this recommendation.  Essentially, they have endorsed a proposal that they 
haven't even seen, and of course there has been no TF commentary on the 
specific proposal even after it was released.

The second "preferred recommendation" is that "the ICANN Board reject 
VeriSign's request to amend its agreement to enable it to introduce its 
proposed WLS".   Why as a matter of policy this should be the case is not 
explained, justified, or otherwise substantiated.  

The third such recommendation calls on the ICANN Board to "reject VeriSign's 
request to trial the WLS for 12 months".   It probably need not be stated 
that members of the TF never discussed the issue of a trial length or the 
appropriateness of a trial, or for that matter why a trial is not acceptable 
as a matter of policy.  In short, they didn't discuss much of anything.

Additional alternative recommendations followed in the likely event that the 
Board did not accept the primary recommendations of the TF.   The TF sought 
to delay the implementation of WLS by three months and to condition it on the 
successful operation of the Redemption Grace Period.  It should be noted that 
VeriSign already had made concessions in this area.     

The TF further recommended that any interim Grace Period as proposed by 
VeriSign have all the characteristics and conditions of the RGP, stating that 
"no support is indicated for a process which differs from the ICANN 
Redemption Grace period".  In view of the fact that there has been no 
discussion on the task force list about this matter, it is rather hard to 
arrive at the conclusion "that no support is indicated".

The TF also recommended that a standard deletion period be established and 
implemented.  While this thought has some merit, frankly it is the job of 
this TF to provide the ICANN Board with the necessary details regarding such 
a standard deletion period, and in fact this should have been part of their 
comprehensive review of the issues concerning deletions - another job still 
not yet done.

The TF asked that the WLS include a requirement that notice be provided by 
the Registry (through the registrar) to the existing registrant of a domain 
name when a WLS option is created.  Again, no reason is given for this 
recommendation, nor is it clear why as a matter of policy this should be 
required and why the privacy of one who has purchased such a subscription 
(that is not even guaranteed to materialize) should be compromised.  The TF 
also hasn't considered the cost implications to the registrars for providing 
such service, nor who would pay for such support activities.

Finally, the TF has recommended that the price of the WLS be set at the same 
amount as the current registry fee for a registration (arguing that the cost 
of the WLS function is no more, and probably less, than a registration).  In 
this instance, the Task Force has gone way beyond the scope of its mandate.  
It has long been held that price caps are contractual matters, and are not 
policy matters that would be within the purview of the DNSO.  

If it could be argued that the fee for this new registry service far exceeded 
fees charged by other registries for other services, then it might be 
possible as a matter of policy to contest a proposed price within the context 
of price cap evaluations… however, as the .biz registry contract demonstrates 
(by way of one example), their Intellectual Property Notification and Domain 
Name Application Service is priced at $90 (more than three times higher than 
the proposed WLS price)... hence, there is no apparent registry price cap 
issue.  In short, the price for a particular service constitutes the 
application of policy, not the establishment of policy, and as such has no 
business being in a Task Force recommendation.


V.  Still not discussed:

The ICANN Board made it quite clear that they expected the Transfers Task 
Force to discuss the three changes proposed by the VeriSign organization -- 
these changes were in regard to an interim grace period, treatment to be 
accorded to SnapNames holders, and the simplification and reduction of 
pricing by removing rebate provisions.  Prior to releasing this Final Report, 
the members of the Transfers Task Force had still not discussed these matters.

As of this date, well over 600 comments have been posted the Public Forum 
with surely an equal number of comments posted to both the GA and registrars' 
list.  Organizations like SnapNames have posted extensive and thoroughly 
researched commentary that has also been presented to the ICANN Board.  Yet 
nowhere in the Final Report of the Transfers Task Force on WLS do we find an 
evaluation of such commentary, a compilation of the policy questions raised, 
or even an assessment of the relative intensity of discussions on both sides 
of the fence.  This Task Force has not done its duty to the Community or to 
the Board by offering these ill-considered and unsubstantiated 
recommendations.

Clearly the Community is divided on the WLS issue.  In my estimation, there 
is no consensus to be had.  In such circumstances, a task force is required 
to set out all information that could reasonably be relevant to the Board's 
review so that the Board is well-positioned to make an informed judgment in 
the best interest of the Corporation.

This has not been done, and I hope that the Evolution and Reform Committee 
will take under its consideration the need to radically reform the current 
Council policy-development process.  This type of travesty should never again 
be allowed to be repeated.


VI. Summary

The Final Report of the Transfer Task Force on the WLS Proposal makes a 
mockery of required process and does little to satisfy the expectations of 
the Board.   The task of this group was to deliberate on policy (which has 
always been the initial responsibility of the DNSO within the ICANN 
structure), but instead this group chose to ignore their mandate and 
willfully exceeded the scope of their authority by focusing almost solely on 
the relative "merits" of the WLS proposal.

There has been no consensus-building.  There has been no thorough analysis.  
There has been no substantiation of policy recommendations.  Once again we 
conclude that the Names Council task force process remains an abject failure.

The Board should reject this Report and its recommendations and (as per the 
Bylaws) should return this recommendation to the Supporting Organization for 
further consideration, along with a statement of the reasons as to why they 
decline to accept these recommendations.   Simply stating that this is the 
most unprofessional report that they have ever seen should probably suffice.