A
working document of the Best Practices and Redelegation Working Group
of the ccTLD Constituency of the DNSO, part of ICANN
June
18, 2000
Version
2.0, for comment by ccTLD Constituency
TABLE
OF CONTENTS
Introduction
Background
Note
on Government Involvement in the Administration of a ccTLD
1.
Definitions
2.
Principles
3.
General Guidelines
4.
Complaint Procedure
4.1
Complaint Procedure
4.2
Types of complaints
4.3
Complaints of violations of technical operations
4.4
Complaints of violations of non-technical operations
4.4.1
Cure of Complaint
4.4.2
Failure to Cure
5.
Mediation
6.
Redelegation Proceedings
6.1
ccTLD Dispute Resolution Body
6.1.1
Membership and Formation of the ccTLD Dispute Resolution Body
6.2
Redelegation Principles
6.3
ccTLD Dispute Resolution Body Processes
6.3.1
Deliberations
6.3.2
Criteria
6.3.3
Decisions and Voting
6.3.4
Access to Records
6.4
Appeals
7.
Redelegation Implementation
Introduction
As
the Internet becomes a mainstream medium for education and commerce,
andas
domain names have acquired value as a means of identification on theInternet,
the responsibility and authority to manage top-level domains hasbecome
a question of hot dispute. Prodded by the United States Departmentof
Commerce, the Internet Assigned Numbers Authority (IANA), and a host
ofother
organizations and individuals, the Internet Corporation for AssignedNames
and Numbers (ICANN) was formed to ensure the stability of theInternet,
a bottom-up process for instituting change, and the prevention ofabuse
of monopoly powers.
During
the term of its exercise of powers, ICANN has concentrated itsefforts
on bringing reliability and openness to the generic top-level domainspace.
Meanwhile, controversy continues in the country-code top-leveldomain
space. In the spirit of the ICANN mandate for self-regulation, theCountry-Code
Top-Level Domain Constituency (ccTLD Constituency) of theDomain
Name Supporting Organization (DNSO) of ICANN declares its intentionto
settle controversies over the authority to manage country-code top-leveldomains
using the principles and procedures set forth in this document.
Background
Starting
in 1985, ccTLD managers received delegations to administer ccTLDsfrom
IANA, or from Dr. Jon Postel as IANA's chief, based on informalcriteria.
Generally these managers were recognized as being an Internetauthority
within the territory described by the ccTLD code, either becauseof
their technical expertise, their renown in the global Internet community,or
because of their standing within Internet community in the relevantterritory.
In 1994, Dr. Postel and others authored RFC 1591, which laid outcriteria
for the delegation of a ccTLD to a manager, and on this basis, allfurther
ccTLDs were delegated to their managers. In either case, the twofoundation
stones of the delegation of any ccTLD from IANA to its managerwere
the stability of the technical functioning of the delegated zone, andservice
to the Internet community, both local and global. These dual tasksremain
the major responsibilities of ccTLD managers to this day and into theforeseeable
future.
In
1998, IANA was merged into the newly formed ICANN, and its tasks weresubsumed
under ICANN's larger remit. Due in part to the divergence betweenthe
principles of RFC 1591 on the one hand, and the practice of IANA on
theother,
the ICANN staff at its Berlin meeting in March of 1999 promulgatedIPC-1,
which set out the current practice of IANA. Since that time, RFC1591
and IPC-1, taken together, have been the documents from which ccTLDmanagers
have, at least officially, taken their instructions.
In
reality, however, the source of authority for ccTLD operations was Dr.Postel
personally. His untimely death in 1998 left a void that ICANN,occupied
with its main task of opening up the gTLD namespace to competition,has
not filled. Nor has ICANN garnered the trust from ccTLD managers thatDr.
Postel enjoyed. In his last years, Dr. Postel was also much occupiedwith
the gTLD fracas; and he did not turn his attention much to ccTLDs,which
were largely stable and whose problems were not as troublesome to him.As
a practical matter, therefore, ccTLDs have been largely self-regulatedfor
some time, with largely positive but not unmixed results. On the onehand,
most ccTLD managers have established themselves institutionally in amanner
that has met with widespread, if not unanimous, approval both fromthe
global and local Internet communities. These managers have solicitedtheir
government, Internet service providers, business groups, educationalinstitutions,
consumer advocates and others for advice, and have wonapproval
and consent from these and other elements of their local Internetcommunity.
These ccTLDs, heeding local conditions and customs, have evolvedinto
vital Internet institutions organically, achieving a local consensusthat
could not, in all probability, have been achieved by decrees from IANA,however
well-intentioned. These success stories point the way forward.On
the other hand, IANA delegated some ccTLDs to managers who have not
yetsuccessfully
achieved consensus within the local Internet community, or havenot
performed their task to the satisfaction of IANA. The causes vary:opposition
to the policies of the manager; lack of an identifiable localInternet
community with which the manager can successfully engage,particularly
in underdeveloped territories; and the destabilizing influenceof
the potential for huge profits, which has led some ccTLD managers topursue
unpopular policies, and, with equal harm, has led others to challengethe
legitimacy of the ccTLD manager in hopes of obtaining the delegation
fortheir
own profit.
In
certain cases, the mismanagement of a ccTLD may require the replacementof
a ccTLD manager, known as redelegation. As defined by the ccTLDConstituency's
Best Practice Guidelines. In these Guidelines, thesuccessful
performance of a ccTLD manager depends on itsapproval andacceptance
of the local and global Internet communities, as well as thecompetent
fulfillment of the technical operations of the ccTLD . Thisdocument
outlines the steps and procedures to be followed in the case whereredelegation
of the ccTLD is contemplated.
Note on Government Involvement
in the Administration of a ccTLD
The
role of governments in the administration of ccTLDs has been the subjectof
considerable debate and rancor in various venues within ICANN andwithout,
as well as the source of uncertainty and doubt among ccTLDmanagers.
It
is important to note that the local Internet community includes, and
mustinclude,
the government of the territory associated with the country code ofthe
ccTLD, and a government's wishes with respect to a ccTLD must be givenvery
serious weight, both by the incumbent ccTLD manager and by the globalInternet
community. Governments, be they good, bad, or indifferent,represent
a territory's interest in the world arena; and governments, withdiffering
results, are responsible for providing the healthy economic,social,
and political environment, which allows for the stable operation ofany
enterprise.
It
is equally important, however, to shield a ccTLD manager from shiftingpolitical
winds. The stability of the ccTLD, which is the primaryresponsibility
of the ccTLD manager, must be protected from whimsicalpersonal
interference by political figures; from distraction by moneymakingschemes
backed by political influence, and from disenfranchisement andeconomic
loss due to changes in government. The will of the government mustbe
expressed in a way that makes it clear that it is the will of thegovernment,
and not of one or more individuals within a government.The
smooth functioning of a ccTLD is part of the smooth functioning of theInternet
as a whole. The stability of the ccTLD is part of the stability ofthe
Internet as a whole. Therefore, the actions of a government, withrespect
to a ccTLD, cannot be viewed as uniquely local actions; nor can agovernment
be viewed as the sole interest that the ccTLD serves. A ccTLDbelongs
to the local Internet community, of which the government is a part;but
also to the global Internet community.
The
government of a territory is, indirectly, given substantial power over
accTLD
in that the administrative contact for the ccTLD is required by RFC1591
and IPC-1 to reside in that territory, and is thus subject to its laws.
1.
Definitions
ccTLD
- A country code top level domain in the top level of the globaldomain
name system, assigned according to the two-letter codes in the ISO3166-1
standard codes for the representation of names of countries orterritories.
ccTLD
Registry - The entity which records names as domain names in aregister
of domain names for the country-code top level domain name,according
to policies and rules established by the ccTLD manager inconsultation
with the local and global Internet communities, and conformingto the
Best Practice Guidelines established by the ccTLD community.ccTLD
Manager - A company, organisation or individual managing a ccTLDRegistry.
Registrant
- A company, organisation or individual for whom a name has beenregistered
as a domain name in the ccTLD domain name register.ICANN - Internet
Corporation for Assigned Names and Numbers.IANA - Internet Assigned
Numbers Authority (incorporated into ICANN in1999).
Local
Internet Community - The Internet industry and users (e.g. theeducational
community, the private sector, Internet societies, individualusers,
et al.), and the government and authorities of the state or territorywith
which the ccTLD is associated.
ccTLD
Dispute Resolution Body - a Body, as further defined in this document,which
will function as a panel to adjudicate disputes concerning themanagement
of a ccTLD or the right to manage a ccTLD.
2.
Principles
- ccTLD
managers operate within a self-regulating environment, within theICANN
framework
- ccTLDs
are managed for the benefit of the local and global Internet communities,
and are responsible to those communities
- ccTLD
managers require certainty and stability in ccTLD delegations
- Any
party who is dissatisfied with the performance of a ccTLD manager
has the
right to a venue where its complaint will be heard and considered.
- Redelegation
of a ccTLD, or replacement of a ccTLD manager, is appropriate in
the case of death or dissolution of the ccTLD manager; voluntary
relinquishment
of duties by the incumbent ccTLD manager; or because of non-performance
of ccTLD managerial duties, and only after a fair and open process
as described in this document
- No
ccTLD manager shall be replaced, and no redelegation of a ccTLD
shall occur,
without a showing of non-performance, and without an opportunity
by the
ccTLD manager to rectify any deficiencies
- The
role of IANA with respect to ccTLDs is to assure the technical stability
of all ccTLD operations, and to facilitate and implement codes of
conduct
as established by the ccTLD constituency
- The
mandate for a redelegation comes jointly from the local Internet
community
and the IANA, as these two bodies - per the Best Practices Guidelines
established by the ccTLD Constituency - are similarly the source
of
the mandate under which a ccTLD manager operates a ccTLD.
- All
parties involved in disputes need to know that their point of view
will
be fairly heard
3.
General Guidelines
Any
consideration of redelegation of a ccTLD, or replacement of a ccTLDmanager,
must stem from a complaint about poor performance by a manager.Therefore,
any redelegation action should occur only after these steps arefollowed:
a.
Complaint
b.
Opportunity for the ccTLD Manager to resolve or cure the cause of
the complaint,
or to give notice that it considers the complaint to be of no merit
c.
Mediation
d.
Formal redelegation proceedings
4.
Complaint Procedure
4.1
Complaint Procedure
Any
party having dealings with a ccTLD may lodge a complaint with the
IANAconcerning
the behavior of the ccTLD Manager.
4.2
Types of complaints
Any
complaint concerning the performance of a ccTLD manager shall fall
intoone
of two categories:
4.2.1
Complaints concerning the technical operation of the ccTLD
4.2.2
Complaints concerning the non-technical administration of the
ccTLD, including
complaints about the policy or procedures of a ccTLD
4.3
Complaints of violations of technical operations
In
the case where a complaint is lodged concerning the technical operationof
a ccTLD, and the IANA considers that the alleged violation threatens
thestability
of the DNS, the IANA may move to enforce its technical standardsimmediately,
including the temporary suspension of operations of the ccTLD.Such
suspension may only be undertaken as a temporary measure, and may
becontinued
only as long as the IANA determines that lifting the suspensionwould
constitute a threat to the smooth operation of the DNS.
4.4
Complaints of violations of non-technical operations
If
the IANA considers that the complaint of an alleged non-technicalviolation
is serious, and that it violates the Best Practices Guidelinesestablished
by the ccTLD Constituency, it shall inform the ccTLDConstituency
of the complaint in writing, and it may contact the ccTLDManager
and ask for an explanation. The ccTLD Constituency may advise IANAin
the matter. A showing that the ccTLD management has not and will notoperate
the domain according to the desires of the local Internet community,if
such desires are consistent with the Best Practice Guidelines, shall
besufficient
to establish that the complaint is serious.
4.4.1
Cure of Complaint. If the IANA, having asked a ccTLD manager for
anexplanation
of an apparent violation, finds the explanation inadequate, orif
the IANA receives a complaint of a serious violation of the BestPractices
and Guidelines that requires immediate action, IANA may instructthe
ccTLD Manager to fix the problem. IANA shall issue such instructions
inwriting,
and shall suggest a course of action to rectify the violation.
4.4.2
Failure to Cure. If the ccTLD Manager refuses to cure a violation,
ordoes
not cure a violation, the IANA shall issue written notice that
theManager
is in violation of the Best Practices Guidelines. Such writtennotice
shall be sufficient cause, at IANA's discretion, in consultation
withthe
ccTLD Constituency, to initiate Mediation, as described below.
NeitherIANA
or ICANN shall take any action to redelegate the domain or replace
theccTLD
Manager without first undertaking Mediation and Redelegationproceedings.
5.
Mediation
If,
in the face of serious and persistent violations, a ccTLD continues
toviolate
the Best Practices Guidelines, the Local Internet Community maychallenge
the delegation of the ccTLD to the ccTLD manager and may requestthat
the manager be replaced.
In
such an event, IANA shall attempt to mediate the dispute. It shall
bethe
policy of IANA to insist that significant parties to a dispute over
themanagement
of a ccTLD engage in good faith attempts to consult with eachother
in constructive ways to resolve disputes relating to the management
ofthe
ccTLD, including independent third-party mediation where appropriate.The
goal of mediation shall be to have the parties better understand thelegitimate
desires, intentions, and activities of the other party, and tohave
the parties agree to adjust their policies and practices wherenecessary
to accommodate reasonable interests of the other parties.It
shall be the goal of mediation to educate all the parties as to the
bestpractices
in the Internet Community and to the methods of conforming suchbest
practices to the circumstances of the particular ccTLD. The primarygoal
of the mediation shall be to bring the operation of a ccTLD intocompliance
with the Best Practices Guidelines, which include operating thedomain
according to the wishes of the local Internet community. compliancewith
the desires of the local Internet community, where such wishes areconsistent
with the Best Practice Guidelines.
IANA
shall keep written records of any mediation, for use, if necessary,
inredelegation
proceedings.
Upon
a showing that such good-faith efforts have been undertaken, butwithout
satisfactory resolution of the dispute, IANA will invoke the disputeresolution
mechanism described below. The ultimate sanction of redelegationshall
only be considered after exhausting alternative avenues of bringingthe
ccTLD into compliance with the Best Practices Guidelines.
6.
Redelegation Proceedings
In
the event that good-faith attempts at mediation fail,IANA will invokeformal
redelegation proceedings.
6.1
ccTLD Dispute Resolution Body
Redelegation
proceedings shall be conducted by the ccTLD Dispute ResolutionBody,
which shall adopt procedures that guarantee an open and fair processfor
all parties, including open hearings with the right to have meaningfulreview
in advance of all evidence to be presented in the proceedings, topresent
evidence in writing and through witnesses, and to confront witnessespresenting
evidence adverse to a party.
6.1.1
Membership and Formation of the ccTLD Dispute Resolution Body
The
ccTLD Dispute Resolution Body will consist of a panel of seven members.Members
shall be appointed as follows:
a)
One member appointed by the Local Internet Community
b)
One member appointed by the government of the territory associated
with the
country code of the ccTLD
c)
One member appointed by the ccTLD Constituency
d)
One member appointed by the ccTLD Manager
e)
Two members appointed by IANA
f)
One member, chosen by IANA, who shall be a "trusted third party."
IANAshall
attempt to find a person who is a renowned figure with experience
indispute
resolution, who has no involvement with the either the territory
inquestion,
or the ccTLD manager.
6.2
Redelegation Principles
The
principles below, framed as questions, must be taken into account
beforethe
ccTLD Dispute Resolution Body releases any decision:
a)
Is the ccTLD Dispute Resolution Body's decision likely to cause
or sustain
a fundamental injustice?
b)
Will the decision disadvantage the local or global Internet community
to a
greater degree than any perceived advantage that might accrue
from its implementation?
c)
Will the decision breach the law in the country in question?
d)
Will the decision threaten the stability of the DNS?
6.3
ccTLD Dispute Resolution Body Processes
6.3.1
Deliberations
The
ccTLD Dispute Resolution Body shall meet to deliberate, either in
personor
by other means that are acceptable to panel members and to thedisputants.
In the course of its deliberations, the ccTLD DisputeResolution
Body shall:
a)
Request from the IANA a written record of all previous proceedings
concerning
the debate, which IANA shall provide
b)
Keep a written record of all of its proceedings
c)
Introduce into the record all communications with the disputants
and with other
parties with whom it communicates in connection with its fact-finding
activities
and its deliberations, and note in the record any communications,
solicited
or unsolicited, that it receives from third parties
d)
Attempt to gather all relevant information, as an affirmative
duty
e)
Accord to each side in the dispute an opportunity to present
evidence and witnesses
in support of its case
6.3.2
Criteria
The
ccTLD Dispute Resolution Body must consider the following criteria,among
any others it deems suitable:
a)
The manager's adherence to the Best Practice Guidelines, or
other Internet
standards
b)
The manager's track record with the local Internet (user) community
c)
The legal basis for the original delegation to the current manager
d)
Whether the manager is abusing a dominant position in the marketplace
e)
Whether an acceptable alternative to the current manager exists.
An
alternative candidate should:
1)
Have a structure or process to guarantee that a future situation
of monopolistic
abuse will not come about
2)
Have access to the technology to operate a ccTLD in a manner
that assures the
stable operation of the DNS
3)
Be financially viable
4)
Be acceptable to the local and global Internet communities
6.3.3
Decisions and Voting
In
the interests of continuing stability, the ccTLD Dispute Resolution
Bodyshall
strive to reach a unanimous decision following its deliberations.
Ifa
unanimous decision is not possible, however, any decision shall
require atleast
an affirmative majority of two-thirds of all members, includingnon-voting
members.
The
ccTLD Dispute Resolution Body may reach one of the following decisions:
a)
The current ccTLD manager retains the delegation
b)
The ccTLD is redelegated to the alternative proposed by the
complainant
c)
Either of the above with modifications to the approach of the
complainant's
alternative or the existing manager,
d)
Such restrictions and conditions as the ccTLD Dispute Resolution
Body deems
appropriate and just under the circumstances are ordered
6.3.4
Access to Records
In
the interests of privacy and in order to foster an atmosphere conduciveto
productive work, free from outside interference, the ccTLD DisputeResolution
Body shall conduct its proceedings in private, but shall makeavailable
its complete record in the event of an appeal, or at the requestof
either party, upon completion of its proceedings.
6.4
Appeals
Either
party to the dispute may appeal the decision of the ccTLD DisputeResolution
Body to an Appeal Tribunal. The appeal will be heard by sixmembers
of the ICANN Board, who shall be chosen as follows:
a)
Two members chosen by the incumbent ccTLD Manager
b)
Two members chosen by the Local Internet Community
c)
Two members chosen by the ICANN Board itselfThe
Appeals Tribunal will be presented with the entire record of thedispute,
and may gather new evidence and interview new witnesses as it seesfit.
The Appeals Tribunal must keep a written record of all of itsdeliberations,
which shall be made available to the public after the appealsprocess
is over.The
Appeals Tribunal may, by a two-thirds vote, decide on one of thefollowing
courses of action:
a)
Uphold the findings and decisions of the ccTLD Dispute Resolution
Body
b)
Overturn the findings and decisions of the ccTLD Dispute ResolutionsBody,
in which case a new ccTLD Dispute Resolution Body will be empanelled,which
will re-examine the dispute and make its own decision according
to therules,
principles, and criteria set forth in this document
If
the Appeals Tribunal is not able to reach a two-thirds majority
in avote,
the decision of the ccTLD Dispute Resolution Body will stand.
7.
Redelegation Implementation
In
the event that a redelegation of a ccTLD is necessary, either because
theprevious
ccTLD manager no longer wishes to continue, or if a redelegation isordered
by the ccTLD Dispute Resolution Body after following the processesas
described in this document, the IANA will announce a process forselecting
a new Manager for the ccTLD.
To
be qualified for consideration as the new Manager, an applicant must
showthat
it has at least an administrative contact in the relevant country,
thatit
is technically qualified, that it has the financial backing to manage
thedomain
as required by the Best Practices defined in the Best PracticesGuidelines,
and that it has the ability, the vision, and the capacity toserve
the interests of the global Internet community, and that it is as
wellor
better qualified to serve the interests of the local community as
anyother
applicant.
As
the representative of the International Internet Community, IANA willselect
the manager based on its best judgment of which applicant can bestserve
the local and global Internet community represented by the ccTLD.Before
announcing its final decision, the IANA will solicit and consider theviews
of all persons or organizations wishing to comment. The IANA willalso
seek out and seriously consider the views of the local Internetcommunity
to the extent that such can be consistently ascertained.
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