Letter from Kevin E. Brannon
to Stuart Lynn Regarding VeriSign WLS
9 September 2002
September 9, 2002
Mr. M. Stuart Lynn, President and CEO
Re: ICANN's decision related to the Wait List Service ("WLS") Proposal; Request for review under the Independent Review Policy
Dear Mr. Lynn:
This office represents Dotster, Inc. ("Dotster"), a registrar that has a contractual relationship with ICANN. Dotster was disappointed to learn that the ICANN Board of Directors recently approved the WLS Proposal in the face of overwhelming opposition by the ICANN constituencies and in contravention to the Registrar Accreditation Agreement ("Accreditation Agreement") entered into between Dotster and ICANN. This letter is to formally request that this decision be vacated until such time, as any, as it may be properly adopted by a consensus; or, at a minimum, that a formal review of the WLS Proposal decision be made by an Independent Review Panel pursuant to the Accreditation Agreement.
The WLS Proposal decision made by ICANN should have been adopted pursuant to Consensus Policy requirements
In approving the WLS Proposal, the ICANN Board, without following the procedure required in Section 4.3.1 of the Accreditation Agreement for establishing a Consensus Policy, created its own "Consensus Policy." That is, Section 4.2 provides the topics for specifications and policies that ICANN should establish as Consensus Policies, including specifically Section 4.2.4 ("principles for allocation of Registered Names"). The WLS Proposal falls clearly within this topic for a specification and policy, as the WLS Proposal governs how Registered Names will be held after expiration. Thus, the adoption of the WLS Proposal should have been treated as a Consensus Policy. It was not.
The WLS Proposal decision made by ICANN was not adopted pursuant to Consensus Policy requirements
Section 4.3.1 of the Accreditation Agreement indicates that Consensus Policies are those policies established based on a consensus among Internet stakeholders represented in the ICANN process, as demonstrated by (a) an action by the ICANN Board of Directors, (b) a recommendation, adopted by at least a two-thirds vote of the council of the ICANN Supporting Organization to which the matter is delegated, that the policy should be established, and (c) a written report. Here, there was no recommendation that the policy should be established that was passed with the requisite vote. Quite to the contrary, the preferred recommendation was to deny implementation of the WLS Proposal.
Failure to establish an Independent Review Panel
Pursuant to Section 4.3.2 of the Accreditation Agreement, if a registrar disputes the presence of a consensus, which Dotster has done and continues to do in the case of the WLS Proposal, the registrar is required to seek review of the issue from an Independent Review Panel established under ICANN's bylaws. Such review must be sought within fifteen working days of the publication of the Board's actions establishing the policy. At this time, it does not appear that ICANN has established an Independent Review Panel.
Further, Pursuant to Section 4.3.6, if ICANN's Board established a specification or policy under Section 4.3.1 and ICANN does not have in place an Independent Review Panel as established under ICANN's bylaws, the fifteen-working-day period allowed under Section 4.3.2 to seek review shall be extended until fifteen working days after ICANN does have such an Independent Review Panel in place and Registrar shall not be obligated to comply with the specification or policy in the interim.
Thus, Dotster formally requests the following: (i) that implementation of the WLS Proposal be stayed until such time, if any, as the WLS Proposal is approved as required by consensus; or that Dotster is able to dispute the adoption of the WLLS Proposal through the Independent Review Panel; (ii) that an Independent Review Panel be established as soon as possible by ICANN; and (iii) that such policies be established by the Independent Review Panel to allow Dotster and others to formally dispute the WLS Proposal.
If ICANN has established an alternative process or procedure for conducting an Independent Review of its actions, Dotster hereby makes the following requests: (i) that such a process be immediately instituted; and (ii) that Dotster be provided specific information as to the formal steps of the Independent Review process within two (2) business days.
The above-described actions in relation to the WLS Proposal constitutes breaches of Dotster's Registrar Agreement with ICANN. Implementation of WLS by such breach will cause irreparable harm to Dotster and to others. This letter is without prejudice to our client's rights and remedies, all of which are expressly reserved.
cc: Louis Touton, Vice-President, Secretary, and General Counsel of ICANN
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