Dear all,

Please find below the notes and chat of IANA IPR call #11, held on 21 Sep 16. Recordings of the meeting are posted under the Meetings and Work Session section of the Implementation page found here: https://www.icann.org/stewardship-implementation .

IANA IPR Follow-up Meeting #11

21 September 16:00 UTC

Agenda: * effective date

Audio only: Trang Nguyen

Participants: Alan Barrett Alissa Cooper Athina Fragkouli Brenda Brewer Eduardo Jimenez (LACNIC´s Counsel) Greg Shatan Jari Arkko Jonathan Robinson Josh Hofheimer Michael Abejuela (ARIN) Nathalie Vergnolle Ray Pelletier Russ Housley Samantha Eisner Ted Hardie Yael Resnick (Sidley) Yuko Green

Notes:

No comments/issues on the latest version of the agreements except effective date language to be discussed here.

Effective date:

· Reviewed language proposed in section 7.11 of the community agreement.

· No concrete effective date as of now.

· For CWG, it should be linked to the transition, one way or another.

· RIRs/Numbers in favor of signing prior to the effective date, like the SLA agreement has been.

· Sidley layed out several procedural options.

· Adding a deadline/sunset date could be sending a wrong or unintended message.

· Having a sunset date is useful as it is unclear how things would evolve if the transition is postponed.

· Some support for a 12-month term for sunset date.

· IETF doesn't want to be bound to the transition for too long if it is postponed.

· Sidley suggests setting sunset date to be the earliest of the dates approved by the various signatories.

· Consensus to keep language with Feb 1, 2017 date.

ACTION (Jonathan): get back to this group after tomorrow's CWG call with the outcome of the community discussion on the topic.

Next Meeting: Wednesday, 28 Sept @ 19:00 UTC

Chat:

Brenda Brewer:Hello all and welcome to the IANA IPR Follow-up Meeting #11 on 21 September 2016 @ 16:00 UTC!

Eduardo Jimenez (LACNIC´s Counsel):hello

Michael Abejuela (ARIN):Hello everyone!

Brenda Brewer:If your phone number is listed, please identify your name for attendance purposes. Thank you!

Greg Shatan:I love a short agenda.

Ray Pelletier:easier to talk about specific language

Athina Fragkouli:thank you Alissa for this clarification

Jonathan Robinson:@All. Please note that discussion with names community / CWG can only take place at our meeting tomorrow

Jonathan Robinson:@Jari. That is a good point on the SLA and interesting thinking on your part. The new / improved (names) SLAs are something that I know the names community feels strongly about.

Jonathan Robinson:@Allis and colleagues. Not so much disagreement but more an interpretation of the extent of our mandate and ability to operate outside of that.

Ray Pelletier:Both accomplish the same thing. That is, if all goes well, it's OCT 1, but if not, then the later date of that and the NTIA contract ends

Alissa Cooper:yep fair enough

Ray Pelletier:If the transition does not occur before 1 January 2017, then agreements not effective

Greg Shatan:That is one position, Ray.

Ray Pelletier:we are making way too much of this -

Ray Pelletier:KISS

Greg Shatan:No point in having the Effective Date be too late eiither.

Michael Abejuela (ARIN):so right now, is there any opposition from the other communities to executing now but having a condition precedent provision for effective date that we should discuss?

Ray Pelletier:We should demonstrate with this language that we are reaay to go when the contract ends

Jari Arkko:+1 for signing this month, one way or another

Jari Arkko:ok with jorge's language

Ray Pelletier:ok with jorge's language

Jari Arkko:prefer that over escrow, btw

Ray Pelletier:yes, no escrow

Michael Abejuela (ARIN):To remain consistent with how we have done things (at least from the numbers community SLA), signing with the condition precedent language would be cleanest. No escrow

Samantha Eisner:@Greg, there is a 1 Jan sunset in the IETF agreement as well so whatever message is sent, it's already there

Samantha Eisner:I also do not take the sunset to preclude us from signing new agreements with a new date when appropriate

Ray Pelletier:Yes, Sam

Alan Barrett:Does NTIA have the ability to renew for a period shorter than 12 months? not by my reading of the existing contract, although I suppose they could first amend the contract and then renew for a short time.

Greg Shatan:Wiill the IETF SLA sunset stop the Transition from occurring?

Ray Pelletier:Alan I understand that NTIA could end it with 30 days notice

Josh Hofheimer:I agree with Greg's comment. language can be seized upon with unintended consequences

Greg Shatan:Or what is it's intended effect?

Samantha Eisner:@greg, I think we'd have a collective obligation to put the correct agreements back into place before transition, if after 1 January

Alan Barrett:The RIR SLA has 1 october 2017 as a sunset if the transition does not occur by then.

Russ Housley:As I recall, that date was picked for the IETF SLA and the RIR SLA with the thought that 3 months was a likely window for the transition

Samantha Eisner:Of note, ICANN would also be open to conditional language that does not include a sunset

Russ Housley:@Alan: I thought the IETF SLA and the RIR SLA both had the same date. Am I wromng?

Alissa Cooper:it gives the parties an opportunity to renegotiate at that time. Remember that the IETF is still operating under its 2014 SLA, when normally we update the SLA every year. So by Jan 2017 we will be almost 2 years late with no updated SLA.

Greg Shatan:NTIA is highly unlikely to terminate without a clear political path to doing so.

Alan Barrett:RIR/ICANN SLA says: 10.1.1 This Agreement has no force or effect unless the Condition Precedent is satisfied on or before 1 October 2017.

Michael Abejuela (ARIN):Sunset date in Numbers Community SLA is Oct 1, 2017

Jonathan Robinson:@Jari and others. I understand that ICANN has indicated willingness to consider partial implementation in new circumstances and I am certainly willing to raise this same issue with the CWG.

Greg Shatan:Why would any party want to amend these agreements? Why would any party want to let any other party "re-trade" these agreements?

Greg Shatan:This should be a steady state, along with the rest of the Transition.

Ted Hardie:Greg, I meant amend the date, sorry if that wasn't clear.

Greg Shatan:Can somebody remind me what the purpose of the sunset is, given the contingency section?

Greg Shatan:If that's the reason for the sunset, it should be a much longer period.

Michael Abejuela (ARIN):Greg, I believe it was so that we didn't have a conditional open-ended agreement open without an end date. Jorge had commented in a previous call that without a sunset provision he felt it was defective if I recall correctly

Jonathan Robinson:@Alan. That (12 month term) seems sensible to me. I'd like to hear a counter-point if there is one.

Michael Abejuela (ARIN):Greg would you support a 12 month sunset term?

Greg Shatan:I personally could support a 12 month sunset term.

Jari Arkko:don't think 12 month is appropriate, personally

Greg Shatan:What would be re-thought?

Samantha Eisner:To Ted's point, the mechanism tracks to teh SHORTEST of the conditional clauses

Greg Shatan:Not "relitigating" -- it's never been agreed to.

Jari Arkko:+1 to ted

Greg Shatan:There's no "as is."

Samantha Eisner:which supports the fact that the agreements rely on the existence of all the community agreements

Ray Pelletier:we can keep it as proposed . the CR will end on 9 Dec, we can re-visit this then if needed.

Greg Shatan:I can support a year.

Greg Shatan:Let's not give those people ammo.

Ray Pelletier:The Trust needs to approve Agreements tomorrow

Ted Hardie:Greg, has any published statement used these?

Ted Hardie:I just don't see this as ammo; no one is questioning whether the communities are willing.

Greg Shatan:I think we would need to take this back to the CWG. A persuasive reason for the January 1 "walkaway date" would be necessary.

Ray Pelletier:Yes, December

Greg Shatan:A "walkaway date" raises those questions, Ted.

Ted Hardie:It's not a "walkaway date"--that characterization is completely unwarranted.

Russ Housley:I can live with February

Ted Hardie:It's a date by which a specific agreement ends. The community remains in close cooperation.

Greg Shatan:That's what these types of dates are called, generically, in the transactional world.

Ted Hardie:We can adjust as needed, and we will no better (either the end of this week or December) what dates are needed.

Ted Hardie:sorry, know better.

Ray Pelletier:Trust Mtg is 12:00 PM ET, GMT -04

Michael Abejuela (ARIN):so for taking back to the communities, is there something that is materially gained by a 3 month sunset vs. a 12 month sunset? It would help in understanding

Ray Pelletier:And the IETF SLA is the later of 1 Oct, NTIA contract ends if occurs within 3 months

Jonathan Robinson:I am sorry if I missed it but is there signifiicant opposition to / concern with current language at 12 months? If not, then 6 months

Ted Hardie:I think this concern about the optics is misplaced.

Ted Hardie:If we fail to agree to these agreements over this, the impact is much higher than any such optics would be.

Michael Abejuela (ARIN):So we cannot get agreement to execution by September 30, condition precedent language and sunset at 12 months?

Greg Shatan:Michael, I would support that and optimistic CWG would do so.

Michael Abejuela (ARIN):I can't hear Jari

Greg Shatan:What happens if the IETF SLA hits Jan 1 without a transition? Go b ack to current SLA? Look for another IANA provider?

Jonathan Robinson:@Michael, Greg, we seem to be on the same page

Greg Shatan:Jari, can you sell us on a short date?

Alissa Cooper:well, 2014 SLA remains in effect even as of now

Greg Shatan:So no significant consequences.

Alissa Cooper:but who knows how long our community will put up with the inability to update our SLA

Alissa Cooper:no, I disagree. our SLAs are important to us.

Greg Shatan:This was never intended to happen without the transition. So that's not a "give,"

Greg Shatan:Forever doesn't have to be 3 months.

Ray Pelletier:The Transition is not a period it's a point - it's 1 October, or when the NTIA contract ends

Eduardo Jimenez (LACNIC´s Counsel):is it acceptable for all february 1st.

Jari Arkko:back... was dropped

Ray Pelletier:All the Agreements will have same language

Greg Shatan:I meant significant immedaite consequences. I understand the need for progress on the SLAs.

Jari Arkko:I am ok with feb 1, but not later

Eduardo Jimenez (LACNIC´s Counsel):@jari

Eduardo Jimenez (LACNIC´s Counsel):that is the latest acceptble foryou

Greg Shatan:You're cutting out Josh

Ray Pelletier:cant hear

Michael Abejuela (ARIN):keep cutting in and out

Ray Pelletier:But didn't sound workable

Russ Housley:Can we take the current language with a date of 1 Feb? Who objects?

Eduardo Jimenez (LACNIC´s Counsel):is everone ok with february 1

Ray Pelletier:And leave sunset blank in all the agreements?

Eduardo Jimenez (LACNIC´s Counsel):I think the RIR are ok with that

Jonathan Robinson:@Josh. Sounds like you are on mobile or speaker and this cuts in and out

Ray Pelletier:need a sunsset in the agreements

Ray Pelletier:Josh type suggestion into chat

Greg Shatan:If we put Feb 1., and we get to Feb 1 without the transition happening, what happens to the transition?

Greg Shatan:Since the transition is dependent on this piece.

Alissa Cooper:that is the same situation we have today, greg. transition hasn't happened, IPR has not been transferred.

Greg Shatan:But now we have an agreement about what will happen.

Greg Shatan:Or we should have an agreement....

Josh Hofheimer:thank you Alan. yes.

Ray Pelletier:Goal - is everyone executes

Michael Abejuela (ARIN):Greg, I would expect in that situation, prior to Feb 1, we would work together to agree on another sunset date if all parties were still on board with the transition.

Eduardo Jimenez (LACNIC´s Counsel):@greg same results that with january 1

Ray Pelletier:not wait until something happens

Josh Hofheimer:tHe date would be the earliest of the dates approved by the various signatories

Greg Shatan:Michael, that's a big, big "if." And reflects my concerns about being "on board" for the transition.

Jonathan Robinson:If we stick with 7.11 as currently worded, I suggst we have three options on date - short (feb 1), medium (Apr 1) or long (12 months)

Eduardo Jimenez (LACNIC´s Counsel):@jonathan I agree

Ray Pelletier: This Agreement will become effective on the date ("Effective Date") that the IANA functions contract between NTIA and ICANN ends or is terminated, provided that date occurs before January 1, 2017. If such ending or termination has not occurred by February 1, 2017, this Agreement shall automatically terminate without further action of the Parties. Except as provided in the preceding sentence, no Party shall have the right to revoke or terminate this Agreement prior to the Effective Date.

Ray Pelletier:Feb 1 - both dates

Ray Pelletier: This Agreement will become effective on the date ("Effective Date") that the IANA functions contract between NTIA and ICANN ends or is terminated, provided that date occurs before February 1, 2017. If such ending or termination has not occurred by February 1, 2017, this Agreement shall automatically terminate without further action of the Parties. Except as provided in the preceding sentence, no Party shall have the right to revoke or terminate this Agreement prior to the Effective Date.

Ray Pelletier:Support?

Eduardo Jimenez (LACNIC´s Counsel):@ray support

Greg Shatan:How can we assure people we are committed to completing the transition even after Feb 1.

Ray Pelletier:@Greg - tomorros problem

Russ Housley:Please ask the CWG on the call this week whether the current language with 1 feb is acceptable.

Greg Shatan:Tomorrow is the CWG meeeting, so I agree it's tomorrow's problem.

Ray Pelletier:Let's respect everyones time spent already and do this -

Michael Abejuela (ARIN):support @ray - and agree that most important thing is to get something signed before Sept, 30

Jonathan Robinson:We have 7.11. We simply need to agree a date. It will be very helpful to know why the IETF trust needs a window of less than 12 motnths in order to explain to CWG

Michael Abejuela (ARIN):+1 Jonathan, would be helpful to have that explanation, perhaps on the list since we are short on time here

Greg Shatan:Agree with Jonathan. We need to sell a short date, and explain why it doesn't mean that IETF Trust may decline to participate after that date.

Eduardo Jimenez (LACNIC´s Counsel):+1 jonathan

Jonathan Robinson:@Alissa and otheres, that will be helpful. Thank-you.

Eduardo Jimenez (LACNIC´s Counsel):bye

Michael Abejuela (ARIN):Thank you everyone

Greg Shatan:Bye all.

Thanks, Nathalie.

Direct line: +1-310-578-8957 Mobile: +1-310-938-1037 Skype: nathalie.vergnolle.icann Jabber: nathalie.vergnolle@jabber.icann.org