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<
>