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Friday, March 03, 2006


ICANN Registries Challenge the GNSO Council

Statement of the Registry Constituency:

Bruce Tonkin, Chair of the Council of the GNSO, on 26 February 2006, distributed a Draft Terms of Reference for PDP-Feb06 (the "ToR"). The Registry Constituency (RyC) of the GNSO is responding to this draft with comments and suggested revisions of the ToR. As a preface to these comments, the RyC submits this position statement:

For the reasons stated herein, the RyC submits that any further proceedings on this PDP are outside the legal powers of the GNSO, and can have no effect on the subject matter of contractual conditions for existing generic top level domains.

The draft ToR is the result of a supermajority vote of the GNSO to initiate a PDP despite the clear recommendation in an ICANN Staff Issues Report that concluded against recommending a dedicated PDP "on this matter as framed by the GNSO Council." As framed by the GNSO Council, the issue was "the dot COM proposed agreement in relation to the various views that have been expressed by the constituencies."

The report further said, "There are aspects identified by the GNSO Constituencies which could be used to inform policy development within the framework of the ongoing PDP regarding new gTLDs." These aspects are, however, not the subject matter of the current PDP. Notwithstanding the explicit limitations expressed in the Staff Issues Report, the GNSO has proceeded to launch a PDP on an entirely new and different subject "contractual conditions for existing generic top level domains," a subject that is clearly not "within the framework of the ongoing PDP regarding new gTLDs", as suggested by the Staff Issues Report.

This PDP is not only unauthorized and out of scope, it is without legal foundation. It purports to impose possible conclusions of a PDP on subject matter that is exclusively within the responsibility of the Board of Directors of ICANN.

The participation of RyC in commenting on the proposed text of the ToR should be viewed in the context of this preface. Any comments are without prejudice to the position of RyC that the proceedings are out of scope and without legal foundation.

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