Re: gTLD-MoU Related News (August 19, 1997)

["andi payn" <payn@null.net>]

Robert T. Nelson:
>Point here, is not only does POC have the power to enforce provisions of
>documents on CORE members (and gTLD SLD holders by extension) but they do
>also have the powers to ask CORE and PAB for advise on any changes they
>desire (specifically called for with need for speed to operational
>solutions as the reason) and not act on that.

There's also the fact that the POC can change the CORE-MoU.

Interestingly, although they have the ability to remove registrars under
gTLD-MoU II-6-j-v, the registrars don't have to sign the gTLD-MoU, and I
don't think the CORE-MoU gives POC--or even CORE--this authority. Although
CORE is supposed to come up with procedures, make sure that all registrars
follow the rules, etc., there's nothing they can do to someone who
doesn't...

Of course the POC can change the CORE-MoU at any time (as long as they
consult with the PAB and CORE first), but the CORE-MoU doesn't say anything
about registrars being bound by any subsequent changes as if they'd signed
the revised document, so that doesn't really give them any more legal
weight.

I have a feeling that this was an oversight on their part, and that they
wanted to have prior consent of all registrars to change the rules at any
time or to take away their ability to act as registrars, but since these
provisions are only in the gTLD-MoU, and the registrars don't have to sign
that, they don't have that. In gTLD-MoU II-7-d, "CORE shall establish and
enforce requirements that each Registrar operate in all respects
consistently with the provisions of this MoU, the CORE-MoU and decisions of
the Policy Oversight Committee," but despite this, there are no such
requirements in the CORE-MoU, nor is there a provision for the CORE
"executive body" which is referred to in the gTLD-MoU (read CORE-MoU Article
5 to see exactly what they do and do not set up and plan to set up).

They POC still has a loophole they can use: as stated in the CORE-MoU,
Article 4-d, "... Any change of ownership or control which would cause the
Registrar to fail to meet the then current requirements for selection shall
disqualify the Registrar, and it shall no longer have the right to function
as a Registrar." This means that if the POC changes the CORE-MoU or
otherwise changes the requirements for selection such that a registrar no
longer meets the new requirements, any registrar can be kicked out as soon
as any change in the control of the company takes place--even one share of
voting stock sold on the open market.

And of course the POC can always dissolve CORE and create a new organization
to take its place if they really want to get rid of a registrar...

Robert T. Nelson again:
>Further, IANA and ISOC together excercise complete (de facto) veto power
>over any PAB recommendation, or POC decision. I have a few excerpts from
>the gTLD-MoU and the CORE-MoU to wit:

They'll never need this authority anyway. If you look at the makeup of POC,
IANA and ISOC each appoint two members. This gives them four out of twelve.
Now, in gTLD-MoU section 6c, "No decisions of the POC shall be made unless a
quorum of at least 67% of members ar available or represented by proxy;
decisions of the POC shall require a majority of not less than 67% of the
total votes cast." Note that it explicitly says 67%, not two thirds; two
thirds is less than 67% and therefore not sufficient.

So if IANA and ISOC are against some proposal in POC, and all four of their
voters show up, they can't lose. Imagine everyone else is united against
them, and all eight other voters show up. They'd have only 66.6+%, and
therefore IANA and ISOC would win the vote.

Robert T. Nelson again:
>Now, given all this, you can see a few things clearly.
>
> 1) All power is derived from the presumed authority of IANA and
>    ISOC
>
> 2) All but the sole power to modify its own power is left soley
>    to POC. Its power may only be changed by IANA and ISOC
>
> 3) CORE can, with the approval (or perhaps only the lack of
>    disapproval) from POC, take it upon itself to use its legitmacy
>    to determine what services (& Price) it may and will perform.
>    This is left undefined, and unlimited in scope with the
>    gTLD-MoU framework.

This is clearly intentional. They want CORE to handle the day-to-day running
of things and the devising of whatever details are needed for this, just as
CORE wants registrars to handle the day-to-day running of their own
business. This is not really a limitation of their power--since they can
still veto any decision by CORE--so much as a limitation of their
responsibility.

>Further, we seem to perpetuate the lack or questionability of legal status
>of Authority for globally unique identifiers, by not creating POC as a
>legal entity. (IANAL, and therefore could be going off here)

It may be a little questionable to have POC and PAB, neither of which is a
legal entity, having indirect control over, despite not having
representation in or a clear stake in, CORE, a legal entity. But that
doesn't really matter, because the identifiers are not being created or
administered by POC.

All gTLDs and SLDs are administered by CORE, which is a legal entity (and by
the ACPs, which are in turn administered by WIPO, who has a clearly
recognizable legal status of some kind). So for most complainants, the claim
of questionable legal status won't hold much water, because the decision or
other action that you would be complaining about would be performed by CORE,
not by POC.

The only people who should really have a legal conflict with POC are CORE,
the invidual registrars, and any entities refused as registrars (even if
CORE has the sole right to accept or refuse registrars, they're using
guidelines controlled by POC). Since all registrars (and presumably CORE
itself) must sign the CORE-MoU, they can only pursue their complaint by
UNCITRAL arbitration (CORE-MoU 8-e). However, registrars who are refused
presumably have not yet signed the CORE-MoU and are not bound by this, so
they would have to decide where to take their case. This may be the only
time that the claim of questionable POC legal status would be relevant.