Intellectual Property Interests Constituency Statement

on

Procedure for use by ICANN in considering requests for consent and related contractual amendments to allow changes in the architecture or operation of a gTLD registry

"Approval Process for gTLD Service change"

I. INTRODUCTION

The Intellectual Property Constituency (the "IPC") is pleased to have this opportunity to provide input into the procedure to be used by ICANN when considering requests from registry operators for changes to the architecture or operation of a gTLD registry. The Terms of Reference posted by the GNSO counsel specifically state that:

The purpose of this policy development process is to create a policy concerning the essential characteristics of the process by which ICANN considers registry operator or sponsor requests for consent or related contractual amendments to allow changes in the architecture or operation of a gTLD registry.

With this stated goal in mind, the IPC submits the following comments for consideration.

II. COMMENTS

In the Staff Manager's Report posted on November 19, 2003, the Staff Manager described the current informal process that the ICANN staff has historically used when considering requests from registry operators to alter the architecture or operation of the registry. In the past, ICANN staff conducted an initial review to determine whether the change proposed by the registry operator required ICANN approval or a modification of the relevant gTLD agreement. The outcome of this initial staff review then determined how the process would proceed. The Staff Manager's Report concluded that the current informal process has led to inconsistent decisions and insufficient justification for these decisions.

In order to improve the current situation, the IPC suggests that ICANN adopt a three-tiered procedure for considering registry operator's requests to alter the architecture or operation of a registry. The IPC believes that the structured approach set forth below will provide the consistency and transparency that ICANN seeks to achieve.( (3) In some instances, the procedures suggested by the IPC are merely a formalization of the "informal" process described in the Staff Manager's Report))
Given that speed and efficiency are two paramount concerns expressed in the Staff Manager's Report, the timelines recommended below are suggested in order to facilitate the timely resolution of registry requests. That being said, the IPC is fully aware that the suggested timelines set forth in this proposal may need to be adjusted in order to reflect the fact that many of the participants in the ICANN process are volunteer-based organizations that may require timelines that take it into account this reality. ((4 A summary of the timeline for this proposal may be found at the end of this paper.))

A. FIRST TIER - INITIAL REVIEW

The IPC believes that all requests for changes in the architecture or operation of a registry be submitted to ICANN's President for consideration by appropriate ICANN staff. Immediately upon receipt of such a request, ICANN staff should provide public notice on the ICANN web site that ICANN has received a request from a registry operator. ICANN should also forward a copy of this pubic notice to each supporting organization. This public notice should be posted and distributed within 24 hours of receiving the registry operator's request. This public notice should contain a summary of the requested change(s) and provide the deadline for ICANN staff's Preliminary and Final Initial Review Reports (discussed below).

Upon disseminating the public notice, ICANN staff should immediately conduct an initial review to determine whether the registry request should be implemented or referred on to the "quick-look" procedure for further review. In making this determination, ICANN staff should consider whether the proposed change 1) is consistent with the current registry contract; 2) requires a contract modification; or 3) requires ICANN approval. The results of the initial review should be posted on the ICANN web site in a Preliminary Initial Review Report and forwarded to each supporting organization no later than 48 hours from the posting of the initial public notice. The Preliminary Initial Review Report should contain an explanation for ICANN staff's determination and set forth a deadline for interested parties to submit comments regarding the determination set forth in the Preliminary Initial Review Report. The deadline for comments should be no less than 5 days from the posting of the Preliminary Initial Review Report on the ICANN web site.

Within 48 hours of the close of the comment period, ICANN staff should post a Final Initial Review Report on the ICANN web site and forward a copy of this report to each supporting organization. This report should contain the final determination of ICANN staff's initial review (i.e., whether the registry operator's request will require a "quick-look" analysis) an explanation of this determination and a summary of and response to the relevant comments received during the public comment period.

If the ICANN staff determines that the proposed change is consistent with the current contract, does not require modification of the current contract and does not require ICANN approval, ICANN staff should advise the requesting registry operator that it may implement the requested change. ICANN staff should post public notice of its communication with registry operator on the ICANN web site and forward a copy of this public notice to each supporting organization.

In contrast, should ICANN staff determine that the registry operator's requested alteration is inconsistent with the current contract, requires modification of the current contract or requires ICANN approval, ICANN staff should advise the registry operator that it will conduct a "quick-look" analysis of the registry operator's requested changes. Here again, ICANN staff should post public notice of this communication on the ICANN web site and forward a copy of this public notice to each supporting organization.

B. SECOND TIER - "QUICK-LOOK" ANALYSIS

Within 7 days of advising the registry operator of its decision and posting notice of this communication on the ICANN web site, the ICANN staff will post a Preliminary Quick-Look Analysis Report on the ICANN web site and forward a copy of this report to each supporting organization. This report should set forth ICANN staff's determination on the following questions:

1. Will implementation of the registry operator's requested change harm the legitimate interests of third parties?

2. Will implementation of the registry operator's requested change threaten stability or security of the Internet?

3. Will implementation of the registry operator's requested change violate an existing ICANN policy?

If the answer to any of these questions is affirmative, the ICANN staff should recommend that the registry operator's request proceed to the third tier for more comprehensive evaluation and consultation with affected parties. In addition, the Preliminary Quick-Look Analysis Report should provide deadline for receiving public comments on the determinations set forth in the report. The deadline for comment should be no less than 10 days from the posting of the Preliminary Quick-Look Analysis Report on the ICANN web site.

Within 7 days from the close of the public comment period, ICANN staff should forward a Final Quick-Look Analysis Report to the requesting registry operator, post a copy of the report on the ICANN web site and forward a copy of the report to each support organization. The Final Quick-Look Analysis Report should set forth the ICANN staff's final determinations and advise whether the registry operator's request will be forwarded on for a more comprehensive evaluation. The Final Quick-Look Analysis Report should also contain an explanation of the ICANN staff's determinations, a summary of comments received during the public comment period and a response to all relevant comments received during the public comment period. If it is determined that no further evaluation of the registry operator's request is required, ICANN staff should work with the registry operator to implement the necessary changes within 120 days from the date of the Final Quick-Look Analysis Report.

C. THIRD TIER - EVALUATION AND CONSULTATION

Within 7 days of posting a Final Quick-Look Analysis Report requiring further evaluation of a registry operator's request, ICANN staff should post a Preliminary Evaluation Notification Report identifying the issues to be explored during the more detailed evaluation, identify those parties that it believes will be affected by the proposed change requested by the registry operator and any areas that require the input of outside expert advice. This preliminary report should also set forth a deadline, no less than 7 days from the posting of the report, for a public comment period. This preliminary report should be posted on the ICANN web site and forwarded to each supporting organization.

Within 5 days from the close of the public comment period, ICANN staff should post a Final Evaluation Notification Report setting out its determinations regarding the issues to be considered during the further evaluation, a final list of affected parties and the issues that will require outside expert advice. The Final Evaluation Notification Report should also contain a call for all affected parties identified in the final report to appoint a designated representative(s) to participate in a Task Force to further evaluate and consider the issues identified therein. In addition, the Final Evaluation Notification Report should list the names of the outside experts that will be consulted during the process. Each affected party should be allowed 5 days from the posting and distribution of the Final Evaluation Notification Report to advise the ICANN staff of the names of the designated representative(s) appointed to serve on the Task Force.

The appointed Task Force should have an evaluation period not to exceed 35 days from the close of the 5-day period for appointment of Task Force representatives. During this evaluation period, the Task Force should carefully consider the issues/sub-issues set out in the Final Evaluation Notification Report and consult with the identified outside experts on the issues set out in the final report. The Task Force should prepare a Preliminary Evaluation Task Force Report that should be posted on the ICANN web site and forwarded to each supporting organization. This preliminary report should clearly identify the issues and sub-issues considered by the Task Force, set forth the Task Force's conclusions with regard to each issue/sub-issue and clearly explain the Task Force's reasoning for its determinations. The Preliminary Evaluation Task Force Report should also set deadline for public comment on the preliminary report. The deadline for public comment to the Preliminary Evaluation Task Force Report should be no greater than 10 days for the posting and distribution of the preliminary report.

Within 15 days of the close of the public comment period, the Task Force should post a Final Evaluation Task Force Report on the ICANN web site, forward a copy of the report to the requesting registry operator and forward a copy to each supporting organization. This Final Evaluation Task Force Report should clearly identify the issues and sub-issues considered by the Task Force, set forth the Task Force's conclusions with regard to each issue/sub-issue, thoroughly explain the Task Force's reasoning for its determinations, summarize all relevant comments received in the public comment period and respond to each relevant comment received during the public comment period. The Final Evaluation Task Force Report should also contain a recommendation from the Task Force to ICANN's President setting out its recommendation of whether ICANN should take the necessary steps to implement the changes requested by the registry operator. Provided the registry operator does not lodge an appeal (see below), the ICANN President should present the Final Evaluation Task Force Report to the ICANN Board along with the recommendation of the Task Force. In the event an appeal is lodged, the ICANN President would await the outcome of the appeal before making any presentation to the ICANN Board.

The suggested timelines set forth above are designed to allow the entire three-tier process to conclude in less than 120 days for initiation by a registry operator's request to the ICANN President.

D. PRESERVATION OF PROPRIETARY INFORMATION

The IPC also realizes that the consideration of certain registry operator requests will require that review and evaluation of proprietary information. For this reason, ICANN should develop a procedure whereby the registry operator is required in its initial request to advise the ICANN President that its proposed change(s) will include the use of proprietary information and request that appropriate action be taken to preserve the proprietary nature of this information.

Once identified by the registry operator, ICANN staff should be allowed to provide high-level summaries of such information in all public notices regarding the registry request. In the event a registry request requires consideration at the third tier, such proprietary information should only be disclosed to Task Force members that demonstrate they have no conflict of interest and sign the required confidentiality and non-disclosure agreement. In addition, minutes of all Task Force discussions of such proprietary information should only contain very high-level summaries of the discussions and all discussion of proprietary information during Task Force meetings should be held off line; provided, however, that a written summary of such discussions is available for public inspection.

E. APPEAL

The IPC supports the development of an appeal process whereby a registry operator may appeal a decision denying its request for a change to the architecture or operation of a TLD. In keeping with the goal of streamlining the decision process, the IPC believes that any appeal process should be completed within 60 days from the posting of the Final Task Force Evaluation Report. This appeal would take place only on paper. Each party would submit a written paper arguing its position on appeal. All appeals could then be considered and decided by a panel consisting of one representative from the GNSO, the ccNSO and the ASO. In the event the registry operator was successful, each party would bear their own costs. In the event the panel decided in ICANN's favor, the registry operator would be responsible for ICANN's reasonable costs for preparing its appeal position paper.

III. CONCLUSION

The IPC believes that the formalization of a procedure for considering registry operator requests seeking changes to the architecture or operation of a gTLD registry will assist ICANN in managing the process in an efficient, open and transparent manner. Additionally, the IPC believes that a formalized procedure will provide the certainty sought by the registry community. Lastly, the IPC believes that the three-tiered approach and appeals procedure outlined above provide ample opportunity for participation by the Internet stakeholder community including, but not limited to the GNSO constituencies, by providing numerous public comment periods and a Task Force populated with representatives of parties identified as being most affected by any requested registry changes.

TIMELINE SUMMARY

TIER ONE
Registry Request sent to ICANN President.

Public Notice of Request posted and sent to supporting organizations within 24 hrs.

Preliminary Initial Review Report posted and sent to supporting organizations within 48 hours of posting of Public Notice.

Comment Period for a minimum of 5 days from posting of Preliminary Initial Review Report.

Final Initial Review Report posted within 48 hours of close of Comment Period. If no further review required, implementation begins. If further analysis required, move to Tier Two.

Total days in Tier One: 10

TIER TWO

Preliminary Quick-Look Analysis Report posted and sent to supporting organizations within 7 days of posting of Final Initial Review Report.

Comment Period for a minimum of 10 days from posting of Preliminary Quick-Look Analysis Report.

Final Quick-Look Analysis Report posted and sent to supporting organizations within 7 days of close of Comment Period. In no further analysis required, ICANN should work with requesting registry operator to implement change within 120 days from the posting of this report. If further analysis required move to Tier Three.

Total days in Tier Two: 24

Total days in Tier One & Two: 34

TIER THREE

Preliminary Evaluation Notification Report posted and sent to supporting organizations within 7 days of posting of Final Quick-Look Analysis Report.

Comment Period no less than 7 days from posting of Preliminary Evaluation Notification Report.

Final Evaluation Notification Report posted and sent to supporting organizations within 5 days from close of public comment period. Appointment of Task Force representatives from each affected party have 5 days from the posting of Final Evaluation Notification Report to appoint representative to Evaluation Task Force.

Preliminary Evaluation Task Force Report posted and sent to supporting organizations within 35 days from close of appointment period.

Comment Period of no less than 10 days from Posting of Preliminary Evaluation Task Force Report.

Final Evaluation Task Force Report posted and sent to supporting organizations within 15 days from close of Comment Period.

Total Tier Three days: 84

Total days Tiers One - Three: 118

APPEALS

Conclusion Of Appeal: 60 days from posting and dissemination of the Final Evaluation Task Force Report.