This post notifies ICANN org and its board that Noncommercial Stakeholders are still waiting for a consultation regarding the sale of .ORG. It explains why such a consultation is not a courtesy to be offered at ICANN’s discretion, but is a requirement based on ICANN’s own Registry Agreement (RA) contract and its Registry Transition Process (RTP) policies.
First request for a consultation
In a letter sent to the Board December 9, the NCSG said:
“ICANN … should make decisions about the future of the ORG TLD only after consulting with impacted registrants and the global non-commercial Internet community.”
NCSG received a response from ICANN board chair Marten Botterman on January 7. The letter assured the NCSG that “ICANN org team and the Board are working together to evaluate the proposed acquisition to ensure that the registry remains secure, reliable, and stable.” But Botterman did not address the request for consultation.
Apparently ICANN’s board and staff think that a consultation would be some kind of a courtesy or special request that can be granted or not at its discretion. This is not correct. A consultation is not a courtesy but a legal requirement. Here is why.
The Registry Transition Process
A sale or change of control of the Registry is anticipated in the ORG Registry Agreement (RA), the basic contract between ICANN and Public Interest Registry that governs the operation of the ORG top level domain.
Section 7.5 of the ORG RA covers “Change of Control; Assignment and Subcontracting.” Subsection (e) of Section 7.5 says this:
“In connection with any such assignment, change of control or Material Subcontracting Arrangement, Registry Operator shall comply with the Registry Transition Process.”
The Registry Transition Process (RTP) of ICANN is outlined here:
A Registry Transition is defined as “A change in the contracting party of a gTLD Registry Agreement with ICANN. Examples of circumstances leading to a Registry Transition are: name change of the organization running the gTLD, a sale or transfer of the registry….” Clearly, Ethos and PIR will be undergoing a registry transition, and so the RA commits them to following the RTP.
When there is a “Registry Transition with Proposed Successor” a specific set of assessments and consultations are supposed to be made. One of the specific questions that must be asked is: “Does the TLD have a relevant community that must be consulted?”
The answer to that question is clear in the case of .ORG. The answer is “Yes, there is a relevant community to be consulted.” And it is clear, from the RFP governing the original award of .ORG that the “relevant community” consists of the noncommercial Internet users with .org domains.
Recall that the RFP for the award of .ORG set out some very clear criteria for selection. Proposals were supposed to “promote and attract registrations from the global noncommercial community.” They were supposed to be responsive “to the needs, concerns, and views of the noncommercial Internet user community.” Proposals were supposed to have “specific mechanisms” for achieving this responsiveness and support. And proposals were supposed to show high levels of support from “those actually using ORG domain names for noncommercial purposes.”
It is abundantly clear from this that “those actually using the ORG domain for noncommercial purposes” is the relevant community, and must be consulted.
Second request for a consultation
This is not a difficult demand to meet, and we are at a loss to understand why ICANN would not do it. The NCSG is the formal representative of noncommercial domain users in ICANN. It would not be difficult for it to convene some kind of a formal consultation. Time is not really a constraining factor now. ICANN has been engaged in information exchanges with the prospective buyers of the ORG domain for several weeks. After a request from the California Attorney General’s Office, it now looks like that process will be going on until the middle of April. There is, therefore, plenty of time for NCSG and ICANN’s board and staff to convene a consultation with the NCSG, for example at the ICANN 67 meeting in Cancun taking place in early March.
It is incumbent upon ICANN to take its procedures and its community representatives seriously. The relevant community must be consulted before any decision is made.