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Proposed Amendments to Base New gTLD Registry Agreement Follow Updates

ADOPTED 10Y, 0N, 0AAlan Greenberg     
Krista Papac
krista.papac@icann.org
AL-ALAC-ST-0716-01-01-EN

For information about this Public Comment, please click here 

 

Brief Overview

Purpose: ICANN is posting today for public comment proposed amendments to the base NewgTLD Registry Agreement. Section 7.7(a) of the Registry Agreement provides a mechanism enabling ICANN or the Registries Stakeholder Group (RySG) to periodically initiate negotiations to discuss revisions to the Registry Agreement.

Current Status: As required by Section 7.7(b) of the Registry Agreement, ICANN engaged in a "Discussion Period" with the Working Group established by the RySG on the form and substance of mutually acceptable proposed contract amendments. The amendments, posted for comment today, are the result of several months of negotiations between the parties.

Next Steps: Following the conclusion of the public comment period, ICANN and the Working Group will consider the public comments, and submit the proposed final version of the amendments for Registry Operator approval (according to the process defined in Section 7.6) and approval by the ICANN Board of Directors. If these approvals are obtained, the amendment will become effective upon 60 days notice from ICANN to the Registry Operators.

Section I: Description, Explanation, and Purpose

ICANN is posting today for public comment proposed amendments to the base New gTLDRegistry Agreement. Section 7.7(a) of the Registry Agreement provides a mechanism enablingICANN or the Registries Stakeholder Group (RySG) to periodically initiate negotiations to discuss revisions to the Registry Agreement. These negotiations may be initiated not more than once per year, and the first notice to initiate negotiations could not be submitted by either party prior to 1 July 2014.

On 16 July 2014, the RySG notified ICANN that it wished to negotiate proposed changes to the Registry Agreement.

As required by Section 7.7(b) of the Registry Agreement, ICANN engaged in a "Discussion Period" with the Working Group established by the RySG on the form and substance of proposed contract amendments that were submitted by the Working Group. The amendments, posted for comment today, are the result of several months of negotiations between the parties on mutually agreeable text of the proposed amendments.

Please refer to the global amendment [PDF, 238 KB], redline document [PDF, 563 KB] and thesummary of changes [PDF, 242 KB] showing how the proposed amendments will revise the Registry Agreement. Note the final amendment will only contain the amendment provisions and will not restate the entire Registry Agreement. The attached redline is being provided for reference purposes only.

The Registry Agreement requires ICANN to publish the changes for comment for no less than 30 days and provide notice of the proposed revisions to all Applicable Registry Operators. In connection with initiating this public comment period, ICANN is also providing the required notice to all Registry Operators in satisfaction of such obligations. Following the conclusion of the public comment period, ICANN and the Working Group will consider the public comments, and submit the proposed final version of the amendments for Registry Operator approval (according to the process defined in Section 7.6) and approval by the ICANN Board of Directors. If these approvals are obtained, the amendment will become effective upon 60 days notice from ICANN to the Registry Operators.

Section II: Background

The base New gTLD Registry Agreement, which was originally approved and published on 2 July 2013, was updated to its latest version on 9 January 2014.

Section 7.7(a) of the Registry Agreement provides a mechanism enabling ICANN or the Registries Stakeholder Group (RySG) to periodically initiate negotiations to discuss revisions to the Registry Agreement. These negotiations may be initiated not more than once per year, and the first notice to initiate negotiations could not be submitted by either party prior to 1 July 2014.

On 16 July 2014, the RySG notified ICANN that it wished to negotiate proposed changes to the Registry Agreement. As required by Section 7.7(b) of the Registry Agreement, ICANN engaged in a "Discussion Period" with the Working Group established by the RySG on the form and substance of proposed contract amendments that were submitted by the Working Group. The amendments, posted for comment today, are the result of several months of negotiations between the parties on mutually agreeable text of the proposed amendments.

Section III: Relevant Resources

Section IV: Additional Information

Section V: Reports

Staff Contact

Krista Papac
krista.papac@icann.org

 

FINAL VERSION TO BE SUBMITTED IF RATIFIED

 

FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC

 

The ALAC welcomes the opportunity to comment on the proposed amendments to the Base New gTLD Registry Agreement. While the ALAC is in agreement with the majority of the changes, there are strong concerns with several of the changes, and an equally strong concern regarding the overall process followed.

Fee Reduction Waiver at ICANN's Sole Discretion

Fee reductions may well be warranted in some situations, but they could significantly impact ICANN's revenue and have other significant effects as well. Such reductions must be subject to an ICANN Public Comment consultation and the non-contracted party comments addressing the public interest taken into account when making any decisions on such reductions.

ICANN Notification of Registration Fee Changes

ICANN must not remove the requirement to have registries report registration fee changes to ICANN and ICANN must track and publish such changes. Low registration fees have been linked to a variety of abuses including spam and phishing. With such fees tracked and published ICANN or others can potentially correlate them to reported abuses allowing ICANN to fulfill its essential role of ensuring the public interested associated with stewardship of the generic TLD namespace.

Dotless Domains

The reference to the prohibition on "dotless domains" immediately followed by the reference to the RSEP being used to gain permission to alter what a registry may do could be taken as implying that the use of dotless domains might be sanctioned through an RSEP. Any such implication must be removed.

Registry Agreement Modification Process

The ALAC understands that the process to amend the Registry Base Agreement is contractually an ICANN-Registry issue. However, the concept of this amendment process being initiated and carried out in secret for two years is counter to the ICANN principle of transparency. The original New gTLD Registry Agreement was crafted through a public process, and any amendment should be carried out in a similar fashion. The overall ICANN community should have been aware of the process from the start and been given periodic updates on the issues being presented by both sides. This is comparable to how the last RAA amendment was carried out, even if that process too was too "in camera". While the ALAC disputes the opinion of some parties that not all stakeholders should be present at the negotiating table, not even making the existence of discussions or the list of issues to be addressed public is not acceptable.

 

FIRST DRAFT SUBMITTED

The first draft submitted will be placed here before the call for comments begins.

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13 Comments

  1. Ariel Liang

    ALAC discussion about this topic: http://atlarge-lists.icann.org/pipermail/alac/2016-June/thread.html

  2. Alan Greenberg

    In retrospect, after talking to others including some outside of At-Large, I think there is more to this than I originally saw.

    I have asked Ariel to request an additional week to allow us to more fully consider this. Specifically, the following points.

    Fee Reduction Waiver at ICANN's Sole Discretion

    Fee reductions may well be warranted in some situations, but they could significantly impact ICANN's revenue and have other significant effects as well. Such reductions must be subject to an ICANN Public Comment consultation and the comments taken into account when making any decisions on such reductions.

    ICANN Notification of Registration Fee Changes

    ICANN must not remove the requirement to have registries report registration fee changes to ICANN and ICANN must track and publish such changes. Low registration fees have been linked to a variety of abuses including spam and phishing. With such fees tracked and published ICANN or others can  potentially correlate them to reported abuses allowing ICANN to fulfill its essential role of ensuring the public interested associated with stewardship of the generic TLD namespace.

    Dotless Domains

    The reference to the prohibition on "dotless domains" immediately followed by the reference to the RSEP being used to gain permission to alter what a registry may do could be taken as implying that the use of dotless domains might be sanctioned through an RSEP. Any such implication must be removed.

    Registry Agreement Modification Process

    The ALAC understands that  the process to amend the Registry Base Agreement is contractually an ICANN-Registry issue. However, the concept of this amendment process being initiated and carried out in secret for two years is counter to the ICANN principle of transparency. The overall ICANN community should have been aware of the process from the start and been given periodic updates on the issues being presented by both sides. This is comparable to how the last RAA amendment was carried out, even if that process too was too "in camera". It is understandable why the parties might not want others present during the negotiations (something that the ALAC disagrees with), but not even making the existence of discussions or the list of issues to be addressed public is not acceptable.

    ==Edited to correct Spelling error: 11 July 2016==

    1. Olivier Crepin-Leblond

      The last sentence of the last paragraph: "It is understandable why the parties might not want others present during the negotiations (something that the ALAC disagrees with), but not even making the existence of discussions or the list of issues to be addressed public is not acceptable."

       

      We need to be careful about saying "it is understandable" in this context. I propose re-writing to: "Whilst the ALAC disputes the opinion made by some parties that not all stakeholders should be present at the negotiating table, not even making the existence of discussions or the list of issues to be addressed public is simply not acceptable."

      (or text that resolves the "it is understandable")

      1. Alan Greenberg

        Not sure what is wrong with saying that we understand why you may think something, even though you are looney to do so (sorry, just a bit of levity), but I am happy to use your language instead.

  3. Holly Raiche

    Fee waiver reduction: First, can we challenge 'sole discretion'.  Sometimes, it makes sense wheh we are talking about registries in the developing world where costs to establish a registry are prohibitive.  Ultimately, yes at ICANN's sole discretion, but what about guidance - in case of economic hardship or some such.

    I absolutely support having a public comment phase required

    Notification of Registration Fee changes:  Support the suggestion

    Dotless Domains: Support the proposal to clarify that dotless domains must not be allowed.  This is potentially a security issue

    Registre Agreement modification: Again support.  At least the process should be public as well as a general statement of issues

    1. Alan Greenberg

      On the fee reduction waiver, the contract is between registries and ICANN, and the way I read it, the "sole" is in reference to NOT being the registries who call this shot.

      Ultimately, registries (and registrars) will likely support any reduction in a PC, and perhaps ask for it to be wider. Potential registrants will also likely support this, as any reduction might serve to increase registry profits, or could be passed on to registrants. According to long-standing practice, At-Large supports the interests of individual registrants UNLESS it implies harm to users. In this case, if the reduction is used as an inducement to do something good (like monitor and control bad actors), great. This is an issue where you need to understand the second and third-order effects of the reduction.

      Can you suggest a wording change that makes the comment stronger? Perhaps replace "and the comments taken into account" with "and the non-contracted party comments taken into account". But that is really already implied in the PC concept.

      1. Holly Raiche

        What I was thinking about was more something that has the words public interest included.  So yes, add your words as well, but something like made in the interests of Internet users - which is what they are supposed to be thinking about anyway

        1. Alan Greenberg

          ok. Will add reference to public interest.o

  4. Alberto Soto

    I agree with all observations. In particular, with Holly  about  Fee waiver reduction; It is equal in Latin America and the Caribean.

  5. Seun Ojedeji

    For fee reduction and based on Alan's response to Holly, I understand this to imply ICANN as an organisation (ie the board/staff) granting a fee reduction/waiver. If this is the case, I actually don't see why we should be opposing that. Yes it implies reduction in ICANN revenue but it's expected that the board has considered that before taking the shot. However if we must comment on that, I will suggest that we word this in a way that does not deny registries in developing region from getting such opportunities.

    1. Alan Greenberg

      I actually don't see why we should be opposing that.

      We are not opposing a waiver reducing fees. We are just saying that we want to be part of the process.

      I will suggest that we word this in a way that does not deny registries in developing region from getting such opportunities.

      A good example of where such a waiver may be warranted.

      1. Seun Ojedeji

        Someone had told me in the past; be careful of what you ask for. Considering that the waiver would be towards such developing regions are we sure we will always have it pass if it goes through the process we are proposing.

        1. Alan Greenberg

          No, but for better or worse, that is the nature of the MS process...