Internet Corporation for Assigned Names and Numbers

Reconciliation between Consensus Policy and the Contractual Terms in gTLD Agreements Containing the Evaluation Process


Provision in Consensus Policy

Provision in gTLD Agreements

Reconciliation

Definition of Registry Service:

The consensus policy does not define “registry service”.

 

"Registry Service" is defined in these agreements.

 

The two documents are not inconsistent. The ICANN Board has directed that the definition of registry service in the .NET Agreement be used in the implementation of the Policy because that is the only definition available and the Consensus Policy does not conflict.

Sufficient Information and Confidentiality:

The gTLD registry operator or sponsoring organization should provide ICANN with sufficient information on a change to allow ICANN to assess whether the change should be subject to the approval process. The information should include a technical description of the change as would be seen by external users, and an assessment of the impact on external users. If the registry operator or sponsoring organization has sought feedback from external parties and the community, details of the process and the results of that feedback should be included. At this stage in the process the information should be regarded by ICANN staff as confidential.

 

Registry Operator must provide sufficient information at the time of notification to ICANN that it may implement such a proposed Registry Service to enable ICANN to make an informed "preliminary determination." Information provided by Registry Operator and marked "CONFIDENTIAL" shall be treated as confidential by ICANN. Registry Operator will not designate "CONFIDENTIAL" information necessary to describe the purpose of the proposed Registry Service and the effect on users of the DNS.

 

The GNSO Recommendation and gTLD Agreements are not inconsistent. The language of the policy implementation and the gTLD Agreements containing the same provisions on confidentiality provides for greater transparency.

Expert Advice:

"ICANN may seek expert advice during the preliminary determination period (from entities or persons subject to confidentiality agreements) on the competition, Security or Stability implications of the registry service in order to make its 'preliminary determination.' To the extent ICANN determines to disclose confidential information to any such experts, it will provide notice to Registry Operator (or sponsoring organization) of the identity of the expert(s) and the information it intends to convey. For Security or Stability implications, ICANN may draw an expert from the Standing Panel of Experts described in Step 6 below."

 

"ICANN may seek expert advice during the preliminary determination period (from entities or persons subject to confidentiality agreements) on the competition, Security or Stability implications of the Registry Service in order to make its 'preliminary determination.' To the extent ICANN determines to disclose confidential information to any such experts, it will provide notice to Registry Operator of the identity of the expert(s) and the information it intends to convey.

 

ICANN may consult with any member of the technical community during the preliminary determination period. This will provide for more flexibility and analysis. The two documents are not inconsistent.

Reconsideration:

"The GNSO recommends that parties affected by an ICANN decision use the existing reconsideration processes in the ICANN bylaws."

 

The gTLD Agreements are silent on reconsideration.

 

The Reconsideration process described in the Final Report of the GNSO and present in the ICANN Bylaws has been incorporated in Section 3 of the Registry Services Evaluation Policy.

Determination based on contract:

"A gTLD registry operator or sponsoring organization will determine whether a change to a service would require approval based on the contract between ICANN and the registry operator."

 

The gTLD Agreements are silent on this provision.

 

If a gTLD registry operator or registry sponsoring organization desires to offer a new registry service, the gTLD registry operator or sponsoring organization will consult with ICANN to determine whether the proposed change would require ICANN approval based on the contract between ICANN and the registry operator. This does not conflict with the Final Report of the GNSO, which states "ICANN will assess whether approval is required under the agreement between ICANN and the registry operator or sponsoring organization".

Competition:

Step 5 of The Final Report of the GNSO states that “ICANN should consider whether the change would lesson [sic] competition amongst registrars providing services to registrants, or lesson [sic] the fair competition amongst registrants for specific domain names.”

 

The gTLD Agreements state that a reasonable determination should be made on whether a proposed new registry service raises significant competition issues.

 

The two documents are not inconsistent and the language of the gTLD Agreements has been adopted.

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