Subject: GA-DIGEST V1 #866
From: [email-masked] (GA-DIGEST)
To: [email-masked]

GA-DIGEST         Thursday, November 22 2001         Volume 01 : Number 866

----------------------------------------------------------------------

Date: Wed, 21 Nov 2001 14:34:44 -0800
From: Eric Dierker <[email-masked]>
Subject: Re: [ga] Business Constituency and the GA

Nah,

Peter and all ccTLD managers.  get out while you can.  Including dotUS and neulevel.

You guys are in the best position to represent the countries and the local users.
ICANN has no business telling countries how to manage their domain names.

Eric

William X Walsh wrote:

> Wednesday, Wednesday, November 21, 2001, 1:56:36 PM, Peter Dengate Thrush wrote:
>
> > That is why, incidentally, the DNSO needs to remain as it is, as the
> > debating chamber for the development of consensus policies affecting the
> > g-TLDs,
>
> That is not what it is, nor is it what it should be or become.
>
> There is no special status for the ccTLDs that warrant them having
> their own SO.  None.
>
> The ccTLD CONSTITUENCY bears the brunt of the responsibility for
> non-addressing of ccTLD issues in the DNSO.
>
> --
> Best regards,
> William X Walsh <[email-masked]>
> --
> Webcertificates.info
> SSL Certificates for resellers from $49ea
>
> --
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Date: Wed, 21 Nov 2001 17:05:36 -0800
From: Jeff Williams <[email-masked]>
Subject: Re: [ga] Business Constituency and the GA

WXW, Peter and all assembly members,

  I seems like WXW's response (See below) is rather Kookish.
I guess some assembly members just think that a declaritory
statement is all that is needed to justify their idea or position.
I doubt that plays well with the rest of the assembly members
however...

  There is plenty of good reasons why the ccTLD's should have their
own SO if they collectively believe they should.  I have read their
justifications, and they are well balanced and show a reasonable
set of arguments to consider such an SO.  Perhaps WXW has
not revised these documents very well if at all?

William X Walsh wrote:

> Wednesday, Wednesday, November 21, 2001, 1:56:36 PM, Peter Dengate Thrush wrote:
>
> > That is why, incidentally, the DNSO needs to remain as it is, as the
> > debating chamber for the development of consensus policies affecting the
> > g-TLDs,
>
> That is not what it is, nor is it what it should be or become.
>
> There is no special status for the ccTLDs that warrant them having
> their own SO.  None.
>
> The ccTLD CONSTITUENCY bears the brunt of the responsibility for
> non-addressing of ccTLD issues in the DNSO.
>
> --
> Best regards,
> William X Walsh <[email-masked]>
> --
> Webcertificates.info
> SSL Certificates for resellers from $49ea
>
> --
> This message was passed to you via the [email-masked] list.
> Send mail to [email-masked] to unsubscribe
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Regards,
- --
Jeffrey A. Williams
Spokesman for INEGroup - (Over 121k members/stakeholdes strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [email-masked]
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208

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------------------------------

Date: Thu, 22 Nov 2001 10:56:36 +1300
From: "Peter Dengate Thrush" <[email-masked]>
Subject: Re: [ga] Business Constituency and the GA

- ----- Original Message -----
From: "Gomes, Chuck" <[email-masked]>
To: "'Patrick Corliss'" <[email-masked]>; "Philip Sheppard"
<[email-masked]>
Cc: "[ga]" <[email-masked]>
Sent: Thursday, November 22, 2001 9:18 AM
Subject: RE: [ga] Business Constituency and the GA

> Patrick,
>
> Without detracting from your point about the individuals consitutuency, it
> seems to me that only 3 of the 7 constituencies represent suppliers:
ccTLD,
> gTLD and registrars.  The rest are all on the demand side.

Please read the answers to the questions posed by the g-TLD registries to
the cctlds about the ccSO* (*= in formation ) and appreciate that ccTLds are
more than suppliers and are obliged to represent the interests of users and
individual registrants amongst others in their Local Internet Communities.

Local (cc) internet policies are the compromise product worked out by the
interaction of consultation among these groups.
While not all of us are as good at this as we should, and there is room for
improvement, re-delegation is the consequence of failure.  Accordingly,
cctlds also represent the demand side.

>Moreover, only 2
> of the 7 are actually required contractually to implement any consensus
> policies developed.  That means that the supply organizations who are most
> directly impacted by consensus policies only have six of 21 votes on the
NC.

By which you mean contractually bound by a contract with ICANN to implement
policies developed within ICANN.  Be aware that the rest of the world runs
to different rules. Try and appreciate that most of us are not much affected
by gTLD policy, but that US citizens, who have tended to ignore their cc and
opt for the generics, tend to be more interested in g-TLD policy.

In my country, the registry is contractually bound by policies developed by
the consensus processes adopted by InternetNZ.

That is why, incidentally, the DNSO needs to remain as it is, as the
debating chamber for the development of consensus policies affecting the
g-TLDs, including those interested in and affected by gTLD policies, while
the ccSO* is the forum for developing both the binding and the voluntary
policies across the ccTLds.

Regards
Peter Dengate Thrush
Chair, International Affairs
InternetNZ
64 4 499 8959
64 21 49 9888

fax 64 4 471 0672

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------------------------------

Date: Wed, 21 Nov 2001 16:01:37 -0800
From: Roeland Meyer <[email-masked]>
Subject: RE: Re[2]: [ga] Business Constituency and the GA

|> From: William X Walsh [mailto:[email-masked]]
|> Sent: Wednesday, November 21, 2001 2:12 PM
|> 
|> Wednesday, Wednesday, November 21, 2001, 1:56:36 PM, Peter 
|> Dengate Thrush wrote:
|> 
|> > That is why, incidentally, the DNSO needs to remain as it 
|> is, as the
|> > debating chamber for the development of consensus policies 
|> affecting the
|> > g-TLDs,
|> 
|> That is not what it is, nor is it what it should be or become.
|> 
|> There is no special status for the ccTLDs that warrant them having
|> their own SO.  None.

That's not the song that I recall you singing a few years back. Am I wrong?
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Date: Wed, 21 Nov 2001 16:29:24 -0800
From: William X Walsh <[email-masked]>
Subject: Re[4]: [ga] Business Constituency and the GA

Wednesday, Wednesday, November 21, 2001, 4:01:37 PM, Roeland Meyer wrote:

|>> From: William X Walsh [mailto:[email-masked]]
|>> Sent: Wednesday, November 21, 2001 2:12 PM
|>> 
|>> Wednesday, Wednesday, November 21, 2001, 1:56:36 PM, Peter 
|>> Dengate Thrush wrote:
|>> 
|>> > That is why, incidentally, the DNSO needs to remain as it 
|>> is, as the
|>> > debating chamber for the development of consensus policies 
|>> affecting the
|>> > g-TLDs,
|>> 
|>> That is not what it is, nor is it what it should be or become.
|>> 
|>> There is no special status for the ccTLDs that warrant them having
|>> their own SO.  None.

> That's not the song that I recall you singing a few years back. Am I wrong?

You're wrong.

I firmly believe the ccTLDs belong in the DNSO.

I also firmly believe that the ccTLDs are not, and should not be
assumed to be, under the control of the governments of the countries
the ccTLD codes represent.

Perhaps that is what you are thinking of.  The two positions are not
mutually exclusive.

- -- 
Best regards,
William X Walsh <[email-masked]>
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SSL Certificates for resellers from $49ea

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------------------------------

Date: Wed, 21 Nov 2001 18:32:58 -0800
From: Jeff Williams <[email-masked]>
Subject: Re: [ga] Business Constituency and the GA

Eric and all assembly members,

Eric Dierker wrote:

> Nah,
>
> Peter and all ccTLD managers.  get out while you can.  Including dotUS and neulevel.

  Perhaps a dotUSA .USA will offer some competition for the now newly
emergency delegated .US to Nuelevel in the near future?  Perhaps
even New.net will or would be interested in offering .USA as
a new gTLD?

>
>
> You guys are in the best position to represent the countries and the local users.
> ICANN has no business telling countries how to manage their domain names.

  Indeed ICANN does not have any such right.  However the GAC
which is made up of representatives from these respective countries
believes it has the political  clout to effectively do so.

>
>
> Eric
>
> William X Walsh wrote:
>
> > Wednesday, Wednesday, November 21, 2001, 1:56:36 PM, Peter Dengate Thrush wrote:
> >
> > > That is why, incidentally, the DNSO needs to remain as it is, as the
> > > debating chamber for the development of consensus policies affecting the
> > > g-TLDs,
> >
> > That is not what it is, nor is it what it should be or become.
> >
> > There is no special status for the ccTLDs that warrant them having
> > their own SO.  None.
> >
> > The ccTLD CONSTITUENCY bears the brunt of the responsibility for
> > non-addressing of ccTLD issues in the DNSO.
> >
> > --
> > Best regards,
> > William X Walsh <[email-masked]>
> > --
> > Webcertificates.info
> > SSL Certificates for resellers from $49ea
> >
> > --
> > This message was passed to you via the [email-masked] list.
> > Send mail to [email-masked] to unsubscribe
> > ("unsubscribe ga-full" in the body of the message).
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>
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Regards,

- --
Jeffrey A. Williams
Spokesman for INEGroup - (Over 121k members/stakeholdes strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [email-masked]
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208

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------------------------------

Date: Wed, 21 Nov 2001 18:44:56 -0800
From: Jeff Williams <[email-masked]>
Subject: Re: [ga] Business Constituency and the GA

Roeland and all assembly members,

  Perhaps WXW has been drinking a different flavor of coolaid?
Could it be called Kook-l-aid?  But seriously, yes I do believe
a different view was once taken by WXW.  Remember the
dotTJ .TJ incident?  I do.

Roeland Meyer wrote:

> |> From: William X Walsh [mailto:[email-masked]]
> |> Sent: Wednesday, November 21, 2001 2:12 PM
> |>
> |> Wednesday, Wednesday, November 21, 2001, 1:56:36 PM, Peter
> |> Dengate Thrush wrote:
> |>
> |> > That is why, incidentally, the DNSO needs to remain as it
> |> is, as the
> |> > debating chamber for the development of consensus policies
> |> affecting the
> |> > g-TLDs,
> |>
> |> That is not what it is, nor is it what it should be or become.
> |>
> |> There is no special status for the ccTLDs that warrant them having
> |> their own SO.  None.
>
> That's not the song that I recall you singing a few years back. Am I wrong?
> --
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Regards,
- --
Jeffrey A. Williams
Spokesman for INEGroup - (Over 121k members/stakeholdes strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [email-masked]
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208

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------------------------------

Date: Thu, 22 Nov 2001 14:18:13 +1300
From: "Peter Dengate Thrush" <[email-masked]>
Subject: Re: Re[4]: [ga] Business Constituency and the GA

- ----- Original Message -----
From: "William X Walsh" <[email-masked]>
To: "Roeland Meyer" <[email-masked]>
Cc: <[email-masked]>; "Peter Dengate Thrush" <[email-masked]>
Sent: Thursday, November 22, 2001 1:29 PM
Subject: Re[4]: [ga] Business Constituency and the GA

>
> I firmly believe the ccTLDs belong in the DNSO.
>
But you don't give any reasons, and, equally unproductively, you don't rebut
any of the now-widely accepted reasons given by the cc's for the change that
is now well underway.

So, you are not advancing the argument, merely re-asserting an opinion.
Accordingly,  I shall no longer respond to similar posts, as repetition of
positions is simply unproductive.

> I also firmly believe that the ccTLDs are not, and should not be
> assumed to be, under the control of the governments of the countries
> the ccTLD codes represent.
>
This represents a major mis-undersatnding on your part. I suggest you begin
by looking at the control your own government exerts over your own cctld,
.US.

After you've got up to speed on that, have a look at  Laos, Cambodia,
Bangladesh and Australia for Asia Pacific examples.Then, try Peru and
Argentina in South America.

 Although be careful - some facts might affect the beliefs you so firmly
hold.

Regards
Peter Dengate Thrush
Senior Vice Chair
Asia Pacific TLD Association

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Date: Wed, 21 Nov 2001 16:46:40 -0800
From: Jeff Williams <[email-masked]>
Subject: [ga] Dateline China: China shuts down Internet Bars/cafes chargeing Web cafes fail to block subversive sites

All assembly members,

  Seems that today the Chinese authorities are having a bit of
a problem with the Internet Bars/Cafes.  Could the shoeshine
boys be interested in subversive web sites?  Parish the thought!
See:http://www.msnbc.com/news/654583.asp

  I called some of my contacts in China today trying to get
an idea which sites were deemed "Subversive" I ask if
ICANN.org was one of them.  The reply was a resounding
YES!  I was flabbergasted to say the least....

  I seems that some of the political ideology that the ICANN
BOD and staff is purporting is considered to be in the
same vain as Pornographic web sites with respect to
it's potential damage to china's young people...

Regards,

- --
Jeffrey A. Williams
Spokesman for INEGroup - (Over 121k members/stakeholdes strong!)
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail [email-masked]
Contact Number:  972-244-3801 or 214-244-4827
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208
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Date: Wed, 21 Nov 2001 17:27:55 -0800
From: William X Walsh <[email-masked]>
Subject: Re[6]: [ga] Business Constituency and the GA

Wednesday, Wednesday, November 21, 2001, 5:18:13 PM, Peter Dengate Thrush wrote:

>>
>> I firmly believe the ccTLDs belong in the DNSO.
>>
> But you don't give any reasons, and, equally unproductively, you don't rebut
> any of the now-widely accepted reasons given by the cc's for the change that
> is now well underway.

Yes, I have, in response to you even in the past.  There is no
pressing reasons presented by the ccTLDs to support their argument.
They claim that the DNSO doesn't pay attention to ccTLD issues, but
they are also unable to provide specific examples of when the ccTLD
CONSTITUENCY brought forward those issues for consideration.  They
blame the DNSO and ICANN, when they have done little to promote the
issues themselves.

There is no evidence supporting the suppositions used by the ccTLDs to
demand a change like this.

> So, you are not advancing the argument, merely re-asserting an opinion.
> Accordingly,  I shall no longer respond to similar posts, as repetition of
> positions is simply unproductive.

No, I'm presenting the reality. That the ccTLDs are, and should be,
responsible for having their issues addressed.

When was the last time you brought up ccTLD policy concerns in the GA
for discussion and debate?

>> I also firmly believe that the ccTLDs are not, and should not be
>> assumed to be, under the control of the governments of the countries
>> the ccTLD codes represent.
>>
> This represents a major mis-undersatnding on your part. I suggest you begin
> by looking at the control your own government exerts over your own cctld,
> .US.

> After you've got up to speed on that, have a look at  Laos, Cambodia,
> Bangladesh and Australia for Asia Pacific examples.Then, try Peru and
> Argentina in South America.

>  Although be careful - some facts might affect the beliefs you so firmly
> hold.

I didn't say it wasn't happening, I said I didn't think it should be
automatically assumed, or that ICANN should just recognize that the
countries' governments have rights that they shouldn't have in the
namespace.

What ICANN is doing, and what I think is right, are very often
different, certainly in this case.

- -- 
Best regards,
William X Walsh <[email-masked]>
- --
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SSL Certificates for resellers from $49ea

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Date: Wed, 21 Nov 2001 21:23:32 -0800
From: Jeff Williams <[email-masked]>
Subject: [ga] ".aero" draft posted for approval in 7 days

All assembly members,

  The following was posted to the ALSC forum.  I thought that this
would be an issue of interest and possible concern to the
DNSO GA and othere DNSO constituencies.  Hence I am posting it here
for everyones review and possible comment.

==================  Copy as follows ===========================

From: Edward Hasbrouck <[email-masked]>

I sent the following today to the ICANN Board of Directors.  Background 
and further details are at <http://hasbrouck.org/icann>. 

============================= 

Contents: 
1. Request for action by members of the ICANN Board of Directors
2. The delegation of authority in the draft .aero agreement would
violate 
ICANN's bylaws
3. The confidentiality restrictions in the .aero agreement would violate 
ICANN's bylaws.
4. The process used to draft the .aero agreement violates ICANN's bylaws 
5. The "opt-out" or "without objection" approval process for the .aero 
agreement would violate ICANN's bylaws. 

============================= 

1. REQUEST FOR ACTION BY MEMBERS OF THE ICANN BOARD OF DIRECTORS 

Last week I asked you, as members of the ICANN Board of Directors, to 
request that the draft agreement for sponsorship by SITA of a proposed 
".aero" global top-level domain (gTLD) *not* be approved.  My request
was 
based on the policy implications of the portions of the draft agreement 
which were posted for comment 9 November 2001 to the ICANN Web site, 
specifically Attachments 1 and 5 My earlier request is available at 
<http://hasbrouck.org/icann/aero-draft.html>. 

I am writing to you again to call your attention to additional reasons
not 
to approve the draft .aero sponsorship agreement.  These additional --
and 
much more fundamental --  objections relate to the remaining portions of 
the draft agreement which were posted between 10 November 2001 and 20 
November 2001. 

While my earlier message concerned policy reasons why you *should not* 
approve the draft .aero agreement, the most recently posted sections of 
the draft agreement indicate reasons why you *must not* approve the
.aero 
agreement. 

Approval of the .aero sponsorship agreement in its current form, under 
your current procedures, would be contrary to ICANN's bylaws, for the 
reasons detailed below. Accordingly, I reiterate my request to each of
you 
individually, as a member of the ICANN Board of Directors, that, within
7 
days (i.e. by 27 November 2001), you request that the President of ICANN 
not sign the draft .aero agreement. 

It's not clear whether, or how, such a request for non-approval of the 
draft from a member of the Board of Directors would be made public.  If 
any of you have already made such a request, I thank you for your
action.  
If you have not, I look forward to your prompt attention to your 
obligation in this matter, within the 7-day comment and request for non- 
approval deadline. 

2. THE DELEGATION OF AUTHORITY IN THE DRAFT .AERO AGREEMENT WOULD
VIOLATE 
ICANN'S BYLAWS. 

Attachment 2 of the draft .aero sponsorship agreement -- the last
section 
to be posted, on 20 November 2001 -- is a delegation of decision-making 
authority by ICANN to SITA over specified areas. 
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att2- 
20nov01.htm> 

However, ICANN can't delegate authority that ICANN doesn't have. And 
ICANN's own decision-making authority is limited by Article 3 of ICANN's 
bylaws, which provides as follows: "The Corporation and its subordinate 
entities shall operate to the maximum extent feasible in an open and 
transparent manner and consistent with procedures designed to ensure 
fairness." <http://www.icann.org/general/bylaws.htm#III> 

In order to be valid, any delegation of authority by ICANN must, 
therefore, include conditions requiring openness, transparency, and 
procedures to ensure fairness in the exercise of delegated authority.  A 
purported delegation of authority lacking such conditions would be
invalid 
as delegating more authority than ICANN itself possesses under its own 
bylaws. 

The delegation of authority by ICANN to SITA in the draft .aero
agreement 
lacks any openness, transparency, or procedural fairness conditions. 
The 
draft agreement thus exceeds ICANN's authority, and cannot be approved 
without violating ICANN's bylaws. 

It is this issue of openness, transparency, procedural fairness, and at- 
large participation in delegated decision-making that is central to my 
earlier recommendations to the ICANN AT- Large Study Committee at 
<http://hasbrouck.org/icann/alsc.html>. 

If ICANN could evade the requirements of Article 3 of its bylaws by 
delegating authority to  a body that operated in secret, that would
render 
Article 3 of the bylaws meaningless.  And it is a fundamental principle
of 
legal interpretation that a document should be interpreted in such a 
manner as to give meaning to each of its terms. 

(It could be argued, in the alternative, that the gTLD sponsorship 
agreement would make SITA a "subordinate entity" of ICANN, and thus 
implicitly subject to the openness, transparency, and fairness 
requirements of Article 3 of the ICANN bylaws.  If that interpretation 
were adopted, however, any delegation of authority by ICANN to SITA's 
application would have to be rejected for noncompliance by SITA with
those 
bylaw requirements in SITA's conduct to date in drafting the .aero 
agreement and in formulating policies for .aero.) 

3. THE CONFIDENTIALITY RESTRICTIONS IN THE DRAFT .AERO AGREEMENT WOULD 
VIOLATE ICANN'S BYLAWS. 

Attachment 21 of the draft .aero sponsorship agreement, concerning
"proof 
of concept" reports, contains the following provision: "The reports 
provided by Sponsor as described in this Attachment shall be subject to 
confidentiality restrictions according to categories described in
Section 
11."  The categories on Section 11 of Attachment 21 provide restrictions 
on release of information by ICANN for as much as 18 months after it is 
reported to ICANN.
<http://www.icann.org/tlds/agreements/aero/sponsorship- 
agmt-att21-10nov01.htm> 

As noted above, ICANN's bylaws require that ICANN and its subordinate 
entities "operate to the maximum extent feasible in an open and 
transparent manner and consistent with procedures designed to ensure 
fairness."  Restrictions on public disclosure information by ICANN can 
only be justified by a showing that disclosure is not feasible, even 
judged according to standards of maximum feasibility. 

No rationale whatsoever is given in the draft .aero agreement as to why
it 
would not be "feasible" for this information to be publicly disclosed 
immediately, or in less than the specified time periods, by ICANN and/or 
SITA.  Nor, to the best of my knowledge, has SITA or ICANN made public 
such a rationale in any other forum. Absent a showing of lack of 
feasibility, the confidentiality restrictions are, on their face,
contrary 
to ICANN's bylaws, and cannot be approved. 

It should also be noted that possible impairment of SITA's commercial 
interests by early public disclosure of the "proof of concept"
information 
should have no bearing on a determination of whether disclosure is 
"feasible".  In any event, SITA stressed as one of the reasons its 
application for sponsorship should be granted that SITA is a not-for- 
profit entity with no commercial interest in the proposed .aero gTLD.  

SITA was aware of the openness, transparency, and procedural fairness 
requirements of ICANN's bylaws when SITA submitted its sponsorship 
application.  If SITA was unwilling to accept those conditions, and
wanted 
to operate under confidentiality restrictions, it shouldn't have
applied, 
and its application shouldn't have been accepted. As ICANN has
repeatedly 
reminded other would-be gTLD sponsors, those who weren't willing to
accept 
ICANN's conditions for gTLD sponsorship didn't have to apply. That
should 
apply equally to the transparency and fairness conditions that ICANN is 
required by its bylaws to include in all delegations of authority. 

4. THE PROCESS USED TO DRAFT THE .AERO AGREEMENT VIOLATES ICANN'S
BYLAWS. 

To reiterate, ICANN's bylaws require that ICANN and its subordinate 
entities "operate to the maximum extent feasible in an open and 
transparent manner and consistent with procedures designed to ensure 
fairness." 

Contrary to this requirement, the negotiations between ICANN and SITA,
and 
the drafting of the .aero sponsorship agreement, have been conducted in
a 
closed manner lacking procedures to ensure fairness. 

There has been no public notice of negotiating or drafting sessions, and 
there has been no opportunity for stakeholders or community members to 
observe the process, much less participate. 

I formally requested information on opportunities to observe and/or 
participate in the policy formulation process -- as a stakeholder and 
member of the Air Transport Community and the .aero constituency -- from 
SITA through the form provided on SITA's Web site for this purpose at 
<http://www.sita.int/aero/info/reqinfo.asp>.  In response, I was told by 
SITA, "We shall  communicate the... details of registration policies...
in 
due time and we shall inform you directly once the launch date for the 
Registry Operation and Registration Services has been confirmed."  
<http://hasbrouck.org/icann/sita.html> 

No indication was given as to why it would not be "feasible" to provide 
more information, or opportunities for openness to all stakeholders and 
community members, prior to the setting of the launch date for the .aero 
gTLD. Absent a showing that this was not feasible, the failure to
provide 
this openness and transparency is a violation of ICANN's bylaws. 

ICANN also told me that "The exact definition of the individuals or 
entities qualifying for registration and related policies are currently 
being developed in close co-operation with representatives from various 
industry bodies including IATA, ACI and ICAO."  As I have detailed here 
and in my earlier comments, the airline industry is only a small subset
of 
the air transport community which was defined as the .aero constituency
in 
SITA's original proposal.  SITA's procedures provide for participation 
only by the industry -- one specific interest group amongst many 
stakeholders in the .aero constituency -- while excluding stakeholders 
from other interest groups in the constituency.  This  fails to satisfy 
the requirement of ICANN's bylaws for "procedures designed to ensure 
fairness," especially fairness in balancing the interests of the airline 
industry and other, non-industry, members of the community. 

5. The "opt-out" or "without objection" approval process for the .aero 
agreement would violate ICANN's bylaws. ICANN Resolutions 01.83-01.85 
established the following "opt-out" or "without objection" process for 
approval of the .aero sponsorship agreement by the ICANN Board of 
Directors: 

"The President and General Counsel are authorized and requested to 
complete negotiation of the .aero and .coop agreements (including 
attachments) as soon as feasible and to post the attachments on the
ICANN 
web site; ... the Board shall be notified of the complete posting of the 
agreement and appendices for each of .aero and .coop and after that 
notification seven days shall be allowed for Board members to make any 
additional comments to the President and General Counsel; ... in the 
absence of the request of any Board member to  the contrary based on 
policy considerations, the President is authorized to sign the posted 
agreements for .aero and .coop after the conclusion of those seven
days." 
<http://www.icann.org/minutes/prelim-report-10sep01.htm#01.83> 

However, Article 3, section 3 (b) of ICANN's bylaws requires as follows: 

"With respect to any policies that are being considered by the Board for 
adoption that substantially affect ... third parties ... the Board will: 
... iii) hold a public forum at which the proposed policy would be 
discussed." <http://www.icann.org/general/bylaws.htm#III-3b> 

Since the "without objection" approval process does not include a public 
forum for discussion of the draft agreement, that procedure is
permissible 
only for policies that do not substantially affect the interests of any 
third parties. 

The draft .aero agreement would substantially affect the interests of, 
among others, those members of the air transport community (as defined
as 
the .aero constituency in the SITA proposal accepted by ICANN as the
basis 
for negotiation of the .aero agreement) but excluded from eligibility
for 
.aero registration and/or participation under the draft agreement. 
These 
affected parties include, among others: 

1. Users and purchasers of air transport services, including: 	A.
Airline 
passengers and their organizations 	B. Air cargo shippers and their 
organizations 

2. Elements of civil society concerned with air transport, including: 
A. 
Air transport consumer advocates and organizations 	B. Air transport 
safety and security advocates and organizations 	C. Organizations 
concerned with the environmental impact of air transport 	D.
Organizations 
of airport neighbors concerned with aircraft noise 	E. Organizations 
concerned with land use planning for airports 	F. Organizations
concerned 
with the impact of air transport industry practices on civil liberties 

3. Critics of the air transport industry, including: 	A. Muckrakers, 
investigators, and gadflies outside the industry 	B. Whistleblowers, 
critics, and advocates for change from within the industry 	C. Other at-
large stakeholders 

Travel agents and sellers of air travel are implicitly included in the 
".aero Charter" (Attachment 1) and 
the "Description of the Sponsored TLD Community" (Attachment 5) as
people 
or entities which "perform 
the necessary transactions to transport people and cargo by air."  But 
they are excluded from the "Start-
Up Plan" (Attachment 8, posted 17 November 2001).  
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att8- 
17nov01.htm> 

No explanation has been provided for this differential treatment of
travel 
agents vis-à-vis other segments 
of the air transport industry.  Whatever the reason, the decision to 
exclude travel agents from the Start-
Up Plan, and thus from registration and participation in .aero during
the 
start-up period, affects the 
interests of: 

1. Air travel agencies 2. Independent air travel agents 3. Sellers of
air 
travel other than agents of airlines 
4. Sellers of bundled travel services that include air transport, such
as 
air-inclusive tours 

The "Registry Operator's Proposal" that was part of SITA's original 
application for .aero estimated that 
there would be from 94,288 (pessimistic) to 259,360 (optimistic) .aero 
name registrations. 
<http://www.icann.org/tlds/air1/Registry%20Operator's%20Proposal.htm> 
Given the much smaller 
numbers of other types of (large) companies identified in the proposal, 
it's likely that these numbers of 
domain name registrations could only be achieved if a large percentage
of 
them came from travel 
agencies and agents. 

Whatever the total number of potential .aero registrants might be, it's 
clear that the vast majority of 
.aero stakeholders and members of the .aero constituency, as defined in 
the original .aero proposal, 
would be excluded from .aero registration and participation under the 
draft agreement. 

All the people and organizations outlined above had every reason to 
expect, based on the plain 
language of SITA's original proposal, that they would be eligible to 
register .aero names as part of "the 
Air Transport Community... defined as all companies and organizations
for 
which the main activity is 
related to Air Transport".  Their first notice that they were to be 
excluded from registration and/or 
participation in .aero came with the posting of the draft .aero
agreement, 
on which there has been no 
public hearing. 

Since the draft .aero agreement would substantially affect third
parties, 
ICANN bylaw's require a public 
forum before it can be approved. In the absence of such a forum, any 
purported approval by the Board of 
Directors through the "without objection" process, or by the President 
through signing of a purported 
contract, would be in violation of ICANN's bylaws, and invalid. 

For all these reasons, and those in my prior recommendations to the
ICANN 
Board of Directors and the 
At-Large Study Committee, I urge you promptly to request that the draft 
.aero sponsorship agreement 
with SITA not be approved, and schedule a proper public forum on this 
issue at your next (Accra) or a 
subsequent meeting. 

Sincerely, 

Edward Hasbrouck [email-masked] Http://hasbrouck.org 

Passenger air travel and travel e-commerce consumer advocate, author,
and 
FAQ-maintainer 

Member-at-large of the Air Transport Community and the ".aero" gTLD 
constituency 
- ----------------
Edward Hasbrouck
<[email-masked]>
<http://hasbrouck.org>

"The Practical Nomad Guide to the Online Travel Marketplace"
<http://www.amazon.com/exec/obidos/ASIN/1566912504/edwardhasbro>
"The Practical Nomad: How to Travel Around the World"
<http://www.amazon.com/exec/obidos/ASIN/1566912148/edwardhasbro>
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