[council] FW: [gnso-dt-wg] Rework of motion

["Mike Rodenbaugh" <mxrodenbaugh@xxxxxxxxx>]

Rita,

I, and I suspect others on the Council, would appreciate your view of the
position stated below by Jeff Neuman, as you are an exceptional attorney who
assisted in drafting the PDP provisions, have been nominated by the Registry
Constituency, and are a member of ICANN's Board Governance Committee
(including GNSO Reform subcommittee) and the Board's Executive Committee.
Oh yes, and we are all asked to vote on your reappointment very shortly :)

Thanks,
Mike Rodenbaugh

-----Original Message-----
From: Mike Rodenbaugh [mailto:mxrodenbaugh@xxxxxxxxx] 
Sent: Sunday, February 24, 2008 9:11 PM
To: 'Council GNSO'
Subject: FW: [gnso-dt-wg] Rework of motion

I think it important for the entire Council to see the reasoning of the
Registry Constituency representative to the domain tasting 'design team', as
it applies to any policy development work of the Council.  Essentially I
think this boils down to a position that the ICANN Board cannot enforce any
Consensus Policy unless the Registry Constituency has agreed to it.  

This came as a surprise to me.  Perhaps I am misinterpreting and will be
corrected by Jeff or another RyC representative.  Perhaps we should have an
opinion of ICANN Counsel on this issue as well?

-Mike Rodenbaugh



-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Neuman, Jeff
Sent: Friday, February 22, 2008 10:45 AM
To: Avri Doria; gnso-dt-wg@xxxxxxxxx
Subject: RE: [gnso-dt-wg] Rework of motion


A couple of notes:

1.  A majority of the Council as opposed to Supermajority is not "deemed
to reflect the view of the Council".  See Section 12.

2.  Yes, the Board can act, but again, that Board decision, in my view
(and in the view of the other registries) would not be binding on the
gTLD Registry Operators because that would not be viewed as "consensus
of Internet stakeholders".  After all, if a majority is not even deemed
to reflect the view of the Council, then how can it represent a
Consensus of Internet stakeholder.

3.  The reason I am using the phrase "consensus of Internet
stakeholders" is because that is the phrase that is used in the gTLD
contracts.  See below which is taken from Section 3.1(b)(iv) of the .com
agreement (See
http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06.
htm) which states:

"Consensus Policies and the procedures by which they are developed shall
be designed to produce, to the extent possible, a consensus of Internet
stakeholders, including the operators of gTLDs.  Consensus Policies
shall relate to one or more of the following: (1) issues for which
uniform or coordinated resolution is reasonably necessary to facilitate
interoperability, Security and/or Stability of the Internet or DNS; (2)
functional and performance specifications for the provision of Registry
Services (as defined in Section 3.1(d)(iii) below); (3) Security and
Stability of the registry database for the TLD; (4) registry policies
reasonably necessary to implement Consensus Policies relating to
registry operations or registrars; or (5) resolution of disputes
regarding the registration of domain names (as opposed to the use of
such domain names).  Such categories of issues referred to in the
preceding sentence shall include, without limitation:

Particularly important is the phrase "including the operators of gTLDs".
Now before you try to argue that it is modified by the phrase "to the
extent possible", let me state that the following:

1.  "To the extent possible" does not mean that if the registries are on
the losing side of the vote it is not "possible" to achieve gTLD
operator support for a proposal on domain tasting.

2.  The gTLD Registries have indicated on a number of occassions that we
do believe a proposal to eliminate tasting (in TLDs where tasting has
occurred) can garner the registry operators support.  We are committed
to working with you to achieve that.  We just need to find a solution
that takes into consideration the differences of each of the registries.

Now if we are done talking about process, lets get down to business:

1.  There is a proposed solution on the table; namely I believe the
NeuStar/Afilias proposal (which by the way should be officially posted
for public comment today).

2.  My recommendation is to take those proposals, get the GNSO Council
to initiate a PDP, and launch a Task Force (or Working Group) open to
the community whose sole purpose and charter is to study the
implications of this proposal.  I would gladly help ICANN staff in the
drafting of that charter.

3.  We follow the strict timing in the Bylaws on the formation of the
Task Force/Working Group, elect a chair, and get constituency statements
getting them to focus solely on the proposal.  This should be very easy,
quick and painless.

4.  Have a Task Force report that analyzes the constituency statements
and public input and modifies the proposal (if necessary).  Put that out
for comment and draft the final report (all included in the Bylaws).

If we follow the strict timing in the Bylaws, which I believe we can, we
can have this done, wrapped up and to the Board within 90 days and still
before the Paris meeting.

This will require some diligent efforts, but let's show that this is
possible.


Jeffrey J. Neuman, Esq. 
Sr. Director, Law, Advanced Services  & 

Business Development 

NeuStar, Inc. 
e-mail: Jeff.Neuman@xxxxxxxxxx 


-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Avri Doria
Sent: Friday, February 22, 2008 12:15 PM
To: gnso-dt-wg@xxxxxxxxx
Subject: Re: [gnso-dt-wg] Rework of motion



On 22 Feb 2008, at 11:41, Rosette, Kristina wrote:

> eff, good question.  I'd appreciate clarification of that, too, to  
> make
> sure we're all on the same page.  The transcripts of the GNSO Council
> meeting and Thursday wrap-up are far from crystal clear.  As for your
> other point, I had understood that the bylaws do not require
> supermajority support of Council before Board can vote.  If there's
> language elsewhere that controls, I'd appreciate if you would point me
> in the right direction so that I'm working from the same baseline.

Hi,

As I read the by-laws, appended below, the Council does not need to  
achieve a supermajority in order to forward on a decision (note 11b).   
A non supermajority view, though, is treated differently by the board  
(13b vs. 13f).

In terms of this DT, the purpose is still to present a way forward for  
the council to discuss.  That can be a motion, a motion plus update of  
constituency statements, or a WG charter.  The motion can be based on   
the reworked version Alan has presented, or another motion all  
together, e.g. the elimination of a required AGP as was suggested by  
many of the comments or some other motion.

I think it is best if the way forward leads to a supermajority  
position.  If we can't get a motion that would be able to garner  
supermajority support, then perhaps we need to do more work and a WG  
charter might be the right way forward.

a.


from the by-laws
-----------------------

11. Council Report to the Board

The Staff Manager will be present at the final meeting of the Council,  
and will have five (5) calendar days after the meeting to incorporate  
the views of the Council into a report to be submitted to the Board  
(the "Board Report"). The Board Report must contain at least the  
following:

     a. A clear statement of any Supermajority Vote recommendation of  
the Council;

     b. If a Supermajority Vote was not reached, a clear statement of  
all positions held by Council members. Each statement should clearly  
indicate (i) the reasons underlying each position and (ii) the  
constituency(ies) that held the position;

     c. An analysis of how the issue would affect each constituency,  
including any financial impact on the constituency;

     d. An analysis of the period of time that would likely be  
necessary to implement the policy;

     e. The advice of any outside advisors relied upon, which should  
be accompanied by a detailed statement of the advisor's (i)  
qualifications and relevant experience; and (ii) potential conflicts  
of interest;

     f. The Final Report submitted to the Council; and

     g. A copy of the minutes of the Council deliberation on the  
policy issue, including the all opinions expressed during such  
deliberation, accompanied by a description of who expressed such  
opinions.

12. Agreement of the Council

A Supermajority Vote of the Council members will be deemed to reflect  
the view of the Council, and may be conveyed to the Board as the  
Council's recommendation. Abstentions shall not be permitted; thus all  
Council members must cast a vote unless they identify a financial  
interest in the outcome of the policy issue. Notwithstanding the  
foregoing, as set forth above, all viewpoints expressed by Council  
members during the PDP must be included in the Board Report.

13. Board Vote

     a. The Board will meet to discuss the GNSO Council recommendation  
as soon as feasible after receipt of the Board Report from the Staff  
Manager.

     b. In the event that the Council reached a Supermajority Vote,  
the Board shall adopt the policy according to the Council  
Supermajority Vote recommendation unless by a vote of more than sixty- 
six (66%) percent of the Board determines that such policy is not in  
the best interests of the ICANN community or ICANN.

     c. In the event that the Board determines not to act in  
accordance with the Council Supermajority Vote recommendation, the  
Board shall (i) articulate the reasons for its determination in a  
report to the Council (the "Board Statement"); and (ii) submit the  
Board Statement to the Council.

     d. The Council shall review the Board Statement for discussion  
with the Board within twenty (20) calendar days after the Council's  
receipt of the Board Statement. The Board shall determine the method  
(e.g., by teleconference, e-mail, or otherwise) by which the Council  
and Board will discuss the Board Statement.

     e. At the conclusion of the Council and Board discussions, the  
Council shall meet to affirm or modify its recommendation, and  
communicate that conclusion (the "Supplemental Recommendation") to the  
Board, including an explanation for its current recommendation. In the  
event that the Council is able to reach a Supermajority Vote on the  
Supplemental Recommendation, the Board shall adopt the recommendation  
unless more than sixty-six (66%) percent of the Board determines that  
such policy is not in the interests of the ICANN community or ICANN.

     f. In any case in which the Council is not able to reach  
Supermajority, a majority vote of the Board will be sufficient to act.

     g. When a final decision on a GNSO Council Recommendation or  
Supplemental Recommendation is timely, the Board shall take a  
preliminary vote and, where practicable, will publish a tentative  
decision that allows for a ten (10) day period of public comment prior  
to a final decision by the Board.