Re: [wg-c] registry contracts

[Eric Brunner <brunner@world.std.com>]

Jon,

You asked for thoughts. I'm sorry I can't be more positive, but this is
as up-beat as I can manage.

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Several weeks ago a part of the discussion involved finding some general
principles and then applying them without a discretionary stage, versus
examining specific cases and where useful, deriving the general from the
specific. These two methodologies were presented in the cadre of a proposal
for minimal ICANN discretion beyond generic definitional norms and several
proposals for substantive ICANN discretion without the precondition of the
creation of generic definitional norms.

How can the first of the proposals on the floor, a project to draft model
contracts which capture the same issues, be distinguished from the prior
proposal? 

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The next of these proposals, the applicant submission of statement of
qualifications, I've always assumed was a requirement, the only bit
subject to discretion being when the applicant SoQ is due.

For-profit entities can engage in functions (e.g., operate registries)
as a public trust on a cost-recovery basis, or even on a non-recovery
basis, assuming alternate mechanisms for the operating costs and profit
margins exist (e.g., bundled with other core profit generating product,
a la IE in current Microsoft product). 

Non-profit entities can engage in functions (e.g., operate registries)
on a non-public trust return on investment maximizing basis, directly
or through wholy owned subsidiaries.

What is the relationship between an applicant SoQ and the operational
character of the registry?

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The structure of these proposals, the elevation of boilerplate over the
political process of necessity and utility review, the narrowing of
mechanisms to express policy choices to market price, preclude ICANN
from having an affirmative human rights policy.

Additionally, ICANN appears to be precluded from having affirmative
economic, or technology policies, through lack of mechanism.

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An element of these proposals is the issue of "unwarranted wealth
transfer". Having taken an overly long look at insolvency, the notion
that the Board seeks to avoid capital accumulation, and as a matter
of policy also seeks to avoid the capability to engage in capital
allocation, is a personal surprise. 

How little benefit is ICANN to obtain from delegations of access to
root, and is the benefit (if any) volume sensitive, fixed fee, or
capable of incorporating other derived benefits?

How is this issue identified in wg-c's charter?

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The project of drafting model contracts to reduce the risk of error or
breach in the execution of registry operation by candidate for-profit
operators of new gTLDs may require collaboration by ICANN's General
Counsel, Mr. Louis Touton, and may require collaboration by the ICANN
Board.

In view of the complexity of the task, particularly when the pool of
for-profit applicants will include applicants who's conduct ranges from
the obstructionist to the bizarre, how can this drafting process reach
a conclusion in a set time, and what time do you suggest is set?

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Cheers, maybe,
Eric