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ICANN to water down contract powers with “Public Interest Amendments”

Kevin Murphy, March 27, 2013, 14:40:40 (UTC), Domain Registries

ICANN has made a few tweaks to its proposed unilateral-right-to-amend powers in order to fend off open hostility from registries, registrars and new gTLD applicants.
The organization is set to announce “Public Interest Amendments”, a rebadged version of its hugely unpopular proposals for the Registry Agreement and Registrar Accreditation Agreement.
As previously reported, ICANN wants to be able to change both contracts in future, if there’s a “substantial and compelling need”, even if it does not have the majority support of the affected companies.
CEO Fadi Chehade has reportedly indicated that he won’t be budged on the need for some method for ICANN to make emergency changes to the contracts.
And during last night’s new gTLD applicants webinar, he made it clear that the RA and RAA will delay the launch of new gTLDs if registries and registrars cannot agree to ICANN’s terms.
But according to documentation seen by DI today — actually a flowchart of how the amendment process would work — these terms are going to be watered down, giving more power to commercial stakeholders.
Apart from the new Pubic Interest Amendment name, there appear to be three big changes.
First, there would be a way for registrars and/or registries to make a late-stage counter-proposal to the ICANN board if they didn’t like the look of a proposed amendment.
Second, any issues that fell within the so-called “picket fence” — the list of pre-agreed topics for which ICANN is allowed to make binding policy — would have to go into a formal GNSO Policy Development Process first.
Only if the PDP failed to reach consensus would the ICANN board of directors be able to step in and attempt to legislate unilaterally.
A practical effect of that would be to give contracted parties ample opportunity to delay amendments — possibly by years — that they weren’t happy with.
Third, PIAs would only cover changes designed to “ensure competition & consumer choice and promote consumer access to fair business practices” and explicitly “not to change ICANN fees, Consensus Policy Spec., or mechanism to change PIA process”.
This would prevent ICANN unilaterally amending the contract to make its amendment powers even stronger in future, which had been one criticism of the proposed process.
“The board’s ability to introduce an amendment is very tightly defined and limited in scope, so it’s only used in extreme cases and under very strict conditions,” Chehade said last night.
It appears — though I can’t be certain — that ICANN has also decided that the full board of directors, including those with identified conflicts of interest, would be able to participate in votes on PIAs.
That would mean registry and registrar representatives to the board would get to vote on amendments affecting their stakeholder groups.
Chehade is currently explaining all of this to a cautiously optimistic Registry Stakeholder Group on a conference call, and I believe more information is due to be published later this week.

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Comments (2)

  1. Volker A. Greimann says:
    March 27, 2013 at 2:59 pm

    The new process changes little. it stretches out the process but in the end, it only serves to abolish the multi-stakeholder process and neuter the GNSO:
    While it prescribes GNSO involvement for picket-fence issues the process as it is described now will remove any incentive for a stakeholder group that would benefit from the unchanged amendment proposal to compromise in the PDP. A failed PDP would actually be in their best interest as it would move the proposal back onto the unilateral track.
    Once the incentive for compromise solutions is lost however, the entire PDP process will become a waste of time.

    Reply
  2. John Berryhill says:
    March 28, 2013 at 4:33 pm

    Volker, your comment is well taken, but may depend on how one defines “failed PDP” and whether it means “failure to reach consensus” or “reaching a consensus that no change in policy is warranted”.

    Reply

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