GNSO Council Teleconference Minutes
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6 February 2006 Proposed agenda and related documents List of attendees: 19 Council Members Bruce Tonkin chaired this teleconference. Bruce Tonkin asked John Jeffrey to provide some advice, on how the Council should manage Statements of Interest, related to the purpose of the council in comparison with the purpose of the ICANN board, and to elaborate on the role of councilors and voting circumstances. Cary Karp asked how the distinction was perceived between a councillor advocating a constituency interest and speaking more broadly about issues before the Council, but not necessarily specifically relating to the constituency represented. John Jeffrey responded that personal interests, distinct to the constituency, were worth pointing out and would be relevant for the ICANN Board to consider in examining Council's vote. An explanation of how an interest might conflict with an issue or a particular vote would be relevant to the Council whether it were constituency based or not . The process should be as transparent as possible and if interests would impact or would have the potential to impact a vote or discussion they should be clearly stated. Marilyn Cade suggested working on a set of guidelines as a longer term project and having further dialogue with general Counsel on the issue. Marilyn noted that there was the tendency to believe mentioning the company that employed someone actually described their interest while it was not the case. Sophia Bekele commented that as ICANN was based on a constituency model it was difficult to define conflict of interests because they existed in the organisation's basic structure. Therefore, a unique approach was required to address issues such as transparency and define "transparent". Bruce Tonkin referring to the StaffIssues Report on the dotCOM agreement , 1 February 2006 said that a decision had to be made whether to initiate a policy development process on the basis of the Issues Report or whether further action should be taken. Olof Nordling clarified that Staff, on a short statement and the resolution from the Council, were requested to provide an Issues Report related to the dotCom proposed agreement, taking into account the various views that the constituencies had expressed which narrowed it down rather than making it generally applicable to the existing policy development process on new tlds which included a chapter on contractual conditions. Ken Stubbs believed that the staff addressed the specific request from council, and expressed concern that moving the target may pervert the process, developed in part by council members, set out in the ICANN bylaws. Ken suggested that clearer guidelines were needed when requesting an Issues Report and Council needed to examine the policy development process in the future to make it work more effectively. There were legal issues involved that impacted far beyond the issues report and the gTLD expansion process which were not within the issues under discussion. Philip Sheppard remarked that the essence of the dissonance on the issues report seemed to arise because it was solely predicated on the 17 January 2006 Council resolution and did not factor in Council's intent, a direct follow up from the report on 2 December 2005, which explicitly mapped out Council's concern and the broader implications of the settlement. Therefore, the interest in the issue as a policy development process, and not specific to one contract that developed from the secondary resolution. Bruce Tonkin summarizing the discussion, asked the following questions: John Jeffrey commented that the issues in section d were not evaluated with the scope of ICANN' s mission and the GNSO responsibilities in mind, so it should be taken under advisement. The Staff faced the problem that what Council requested on 17 January 2006 did not mention wider scope. General Counsel listened to the mp3 recording of the GNSO Council meeting on January 17, 2006 to determine whether it was possible to elicit a broader meaning. Its scope indicated that it was focused on the .com registry agreement which formed the base of the analysis. John commented that it was difficult to go back to the December 2, 2005 resolution that he had previously he listened to, but had not been considered in forming this opinion, and try to imply what the council meant by January 17, 2006. The report attempted to identify the issues Council commented on regarding the constituency statements but not relating to a specific agreement. The policy development process guidelines specify that staff should not find options for the solutions. Bruce Tonkin mentioned that as an option to move forward and referred to the 4th item in the terms of reference of the new gTLD PDP initiated in December 2005 concerning contractual conditions. It was Council's expectation that the conditions applied to all gTLDS and perhaps a clarification should be issued stating that the outcome of the policy development process would be consensus policy that applied to all gTLDs. Grant Forsyth proposed an alternative solution. In the ICANN bylaws, annex A, describing the policy development process, Council could proceed with a policy development process, even though General Counsel's opinion considered it out of scope, with a 66% vote in favour. Thus Grant Forsyth proposed that Council vote to start a policy development process based on the Staff Issues Report . Maureen Cubberley supported moving ahead with a policy development process not specific to the proposed dotCOM agreement but covering cover new and existing gTLD agreement and questioned whether there were more than the 6 issues in Section D, Discussion of Proposed Issues, mentioned in the Staff Issue Report on pages 5, 6 and 7. Bruce Tonkin summarised and commented that Council members needed to consider the legal advice heard . John Jeffrey had pointed out that the Issues Report was produced in response to the wording of the January 17 2006 meeting. Marilyn Cade and Grant Forsyth had recommended adjusting motion before Council to include broader issues. Vote: 19 votes in favour, Marilyn Cade, Philip Sheppard, Grant Forsyth, (CBUC) Ute Decker, Kiyoshi Tsuru, (IPC) Tony Holmes, Tony Harris, Greg Ruth, (ISPCPC) Robin Gross (NCUC), Bruce Tonkin (2), Ross Rader (2), Tom Keller (2)(Registrars constituency), Maureen Cubberley, Sophia Bekele, Avri Doria (Nominating committee appointees), (18 votes) Just to clarify my intentions for the proxy statement I made during the initial voting procedure, I think I should have made statements in advance on why I wanted to do it earlier than my proxy statement. As I mentioned during the call, I am in the Council to represent my constituency's position, not my personal one. The Articles of Operations of the gTLD Constituency also require me to represent the views of the Constituency. I do not believe there are any conflicts of interests for me to vote in this motion, but I wanted to avoid any probable misperceptions of conflicts of interests by giving my proxy to Ken. Decision 1: Council resolves to initiate a Policy Development Process in line with it's 17 January 2006 request for an issues report the intent of which was to address the broader policy issues raised."
Item 4: Next meeting - 21 February 2006 Item 5: Statements of Interest - deferred The meeting ended: 21:40 UTC.
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