All, I can only support Sam and Thank Stefania and Ed for their excellent work. As Sam did already, I propose this to be made a topic for the Intersessional. It's very important, it's needs to be sorted out once and for all in order to set a sound foundation for the role of the empowered community and it is something we can use to see how we can be constructive together as non-contracted stakeholders. Yours Klaus On 12/2/2016 1:30 AM, Sam Lanfranco wrote: > Stefania and Ed, > > A big thank you for the work involved in pulling this together. > > I would like to underscore what is at risk here. ICANN has built its > credibility and its acceptance on the basis of ICANN being a bottom up > multistakeholder policy making organization. With no disrespect to the > hard work put in by others (Staff, etc.) this process of contract > adjustment runs the risk of serious harming ICANN as THE > multistakeholder entity dealing with the Domain Name System (DNS). > > This is above and beyond the possibility, and likelihood, that future > proper policy development and dispute resolution processes may result > in conflicts with these legally binding non-policy based adjustments > to registry contracts. Beyond that, not only will such actions have a > negative impact on volunteer efforts within ICANN’s policy making > process, they will open the door for others to seek policy changes and > dispute resolution directly with various elements within ICANN (Board? > Staff?) outside of ICANN’s Chartered multistakeholder policy > development and dispute resolutions procedures. > > Independent of the merit of the “Why” and the “What” of the proposed > registry contract changes, this is not the right “How” and this path > is fraught with danger to the very core of ICANN’s existence as a > multistakeholder entity. The path has to be rejected. > > Sam L. > > > On 12/1/2016 6:40 PM, Milan, Stefania wrote: >> Dear all Ed Morris and I have worked today on a last-minute public >> comment to the 'Proposed Amendment to .XXX Registry Agreement to >> Transition to New Fee Structure and to Adopt Additional Safeguards’, >> posted for public comments on October 12, 2016. We submitted it at >> the deadline of today December the 1st midnight UTC, thanks to a >> deadline extension requested by the NCSG. We enclose the text below, >> and are happy to answer any question you might have. Stefania and Ed >> ------- Comment to ‘Proposed Amendment to .XXX Registry Agreement to >> Transition to New Fee Structure and to Adopt Additional Safeguards’ >> Submitted [log in to unmask] on December 1st, >> 2016 by Stefania Milan and Edward Morris, Councillors, NonCommercial >> Users Stakeholders Group. We are deeply concerned with the >> staff-driven process that subtended to the “Proposed Amendment to >> .XXX Registry Agreement to Transition to New Fee Structure and to >> Adopt Additional Safeguards”, posted for public comments on October >> 12, 2016. We believe that the process of policy made by contract >> subverts the bottom-up consensus policy processes laid out in ICANN’s >> Bylaws and sets a dangerous precedent that imperils the role of the >> ICANN community, and by extension that of non-commercial users, in >> policy development. It also has the effect of discouraging volunteers >> from continuing their involvement in the ICANN community. After all, >> if staff is to establish policy by a contract that is not supported >> by the proper community based policy development processes (PDP) then >> why volunteer to participate in said processes? In addition, we would >> like to draw your attention to the tenuous nature of the Uniform >> Rapid Suspension (URS) Policy. The URS was NOT developed by the >> Community in a proper PDP: it was ONLY to apply to the first round of >> the new gTLD program. It was part of a group of Rights Protection >> Mechanisms (RPMs) created to allay concerns of the Trademark >> Community regarding the release of many new gTLDs in a short period >> of time. But there are many concerns about the Uniform Rapid >> Suspension including: Do its procedures move too fast? Does it allow >> Registrants a reasonable time to respond? Do Registrants understand >> their rights under this new mechanism? Is it a fair and balanced >> mechanism? Further, NCSG has raised concerns to ICANN and especially >> the Global Domains Division (GDD) that not a single cent has been >> spent to educate Registrants regarding their rights and defenses >> under the URS. Is it even fair to have a dispute mechanism that >> Registrants cannot navigate and have never heard of? That is why the >> URS is currently under review by a GNSO PDP. The GNSO Council has >> created the Review of All Rights Protection Mechanisms Working Group >> to review the Trademark Post-Delegation Dispute Resolution Procedure >> (TM-PDDRP,) the Trademark Clearinghouse (TMCH) and the URS. What the >> working group may recommend is unbounded - anything from eliminting >> these RPMs completely to extending all, some or none to legacy gTLDs. >> So why would GDD short-circuit this review, evaluation and action by >> the ICANN Community? Future policy lies within the purview of the >> GNSO Council--and whatever recommendations it may choose to make to >> the Board when Phase I of the RPM PDP WG is completed. Accordingly, >> it is is outside of the scope of ICANN Staff powers to add RPMs >> created for New gTLDs to legacy registry contracts, including .XXX. >> We respectfully but strongly submit that Staff is applying the >> TM-PDDRP, URS and Public Interest Commitments (PICs) to legacy TLDs >> entirely without the consent of the Community. The results could be >> striking. If the Community decides to reject the URS for use going >> forward, for example, what then of the URS policy provisions >> improperly written by Staff into the renewal contract with .XXX? It >> is clear that the consequences of this subversion of proper policy >> development processes was not carefully thought out and needs to be >> rejected before more harm is done not only to the integrity of the >> proper policy development process but to ICANN corporate itself. >> Finally, as members of a stakeholder group that is heavily reliant on >> volunteers to take part in policy work, we believe the top-down >> process seen in operation with the Proposed Amendment to .XXX >> Registry Agreement is detrimental to our activities in a number of >> ways. First, it constitutes a (and yet another) dangerous precedent >> jeopardizing the bottom-up consensus policy process at ICANN. We >> believe this makes our efforts to represent non-commercial interests >> relatively irrelevant looking forward. Second, undermining the >> credibility of ICANN’s multistakeholder policymaking it negatively >> impacts the efforts of our stakeholder group to recruit volunteers >> willing to do policy work at ICANN. We note that none of these >> comments are intended to be derogatory to the ICM Registry. We do not >> doubt their good faith in the renegotiation of their contract. We do, >> however, note that ICANN has given them something that is outside the >> scope of its powers to grant. In this matter, we agree with the >> Business Constituencies comment of 25 November 2016 which stares: >> “While greater consistency as between registry agreements is a >> worthwhile goal, and convenient for ICANN in terms of contractual >> compliance, it cannot supersede consistency of action in accord with >> ICANN’s Bylaws.” We join all of the Commenters who have clearly >> called upon ICANN to delete from Amendment No. 4 to [ICM’s] Registry >> Agreement the addition of Section 3.1(i) and completely eliminate >> Appendix 8 as wholly inappropriate to its renewal agreement with ICM >> as a legacy gTLD. Nothing could be more inappropriate than >> circumventing the GNSO’s PDP Process. Respectfully submitted, >> Stefania Milan Edward Morris Councillors, NonCommercial Users >> Stakeholders Group. >>> end of public comment< >