RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws

["Tony Holmes" <tonyarholmes@xxxxxxxxxxxxxx>]

I frequently hear members of the contracted parties  telling everyone that
they "find themselves in the unique situation of having to negotiate their
key business contracts in a forum that includes other parties in addition to
the two contracting parties involved."

What they never say is that the alternative of having to live in a regulated
environment where governments/regulators DICTATE the terms and conditions
under which they operate, is even more untenable. 

That is the reality now that the Internet is recognised as a critical
resource for the world's economic, cultural and social  development. A point
underlined by the level of importance with which the world's governements
view the Internet.

So can we please stop being preached to and told how difficult life is. If
you've ever worked in an environment that's heavily regulated you'd welcome
being able to negotiate contracts, even if it was on a level playing field
(50/50) with all the other parties.

Tony

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Stéphane Van Gelder
Sent: 24 August 2009 18:00
To: icann@xxxxxxxxxxxxxx; gnso-council-draft2@xxxxxxxxx
Cc: 'Council GNSO'
Subject: Re: [council] Rodenbaugh Comment re GNSO Restructure Amendments to
ICANN Bylaws

Mike,

I'm sure your passionate tirade will generate a lot of comments and there is
certainly a lot to be said.

One of the main points for me is the resentment you speak of. It has become
clear over the past few months that there is a certain amount of
dissatisfaction in the "non-contracted" side of the GNSO. Both the opinions
you voice in your email and the ongoing "NCUC controversy" are obvious signs
of that. It is something that, on a personal level, has me worried. I care
about the GNSO and I believe in the way it brings together such diverging
interests in a (nearly) homogeneous way. I think it would be a great shame
for all concerned if we were not able to maintain this 'entente cordiale' in
the long run.

This is why I feel strongly that discussion should be encouraged on the
points you raise. This despite the fact that, as the general manager of a
company that is forced to have a direct contract with ICANN in order to do
business, I feel that a lot of what you say borders on propaganda and
certainly paints a slanted picture of the real situation. I resent what I
feel is an attempt to stigmatise the contracted parties.

In your assessment of the situation, I don't think you should forget that
the contracted parties find themselves in the unique situation of having to
negotiate their key business contracts in a forum that includes other
parties in addition to the two contracting parties involved. I'm not sure
that when your law firm negotiates a contract with a customer, it discusses
the details of that contract with third parties and even allows them to vote
on certain aspects of that contract...

I think if we can all strive for a little understanding of the other
entities' points of view, we can move forward in a positive way with the
restructuring effort. And address what are very clear and very real feelings
of resentment which, I fully agree, must be addressed.

Thanks,

Stéphane

Le 24/08/09 18:25, « Mike Rodenbaugh » <icann@xxxxxxxxxxxxxx> a écrit :

> 
> For nearly three years I have represented the Business Constituency as 
> one of its Officers and GNSO Councilors, but make these comments in my 
> personal capacity only, as they have not been reviewed by the BC.
> 
> Why is ICANN refusing to allow new constituencies in the Contracted 
> Party SG?
> 
> There are applications for two subsets of newTLD registry operators -- 
> geoTLDs and IDN TLDs.  It seems reasonable for there to be a 
> "Resellers Constituency."  These commercial entities have interests 
> wholly aligned with those of the Contracted Parties.  Indeed resellers 
> effectively are contracted parties, and prospective registry operators 
> will have a contract with ICANN upon making their application.  
> Meanwhile they have an "as soon as possible" expectancy of such a
contract, and then a registry contract.
> Yet the Board and Staff, without any explanation that I have seen, 
> have unilaterally decided that no other entities will be allowed into 
> the "Contracted Party" House.
> 
> These entities do not belong in the Non-Contracted Party SG, as they 
> simply would dilute the power and voice of the vast majority of 
> entities and individuals in the world, who do not rely substantially 
> on ICANN contracts (or the expectation of ICANN contract) for their 
> livelihood, but are materially impacted by the policies of ICANN and its
contracting parties.
> Resellers and prospective registry applicants (if that was their 
> primary purpose, at least) would not be allowed in the existing or 
> proposed Business Constituency, ISPCPC or IPC -- and should not be 
> allowed to dilute the voices of the new Commercial SG and 
> Non-Commercial SG.  Representatives of those parties have indicated 
> assent, however reluctantly in many cases, to this restructuring plan 
> on the basis that parties aligned with ICANN Contracting Parties would
find their voice through that House, not ours.
> 
> The voices and voting power of so-called "Non-Contracting" commercial 
> interests are already heavily diluted under this restructuring scheme, 
> with the NCSG gaining much and the Contracting Parties losing nothing
whatsoever.
> Yet it is those "Non-Contracting" commercial interests that 
> essentially fund by far the greatest portion of ICANN's budget through 
> their domain registration fees, and it is those commercial interests 
> that make domain names valuable.  While those interests suffer much 
> already in the proposed restructure, now it will be proposed that 
> 'contracting party' interests be allowed in our House as well?
> 
> The result will be an even stronger stranglehold on policy development 
> than is already wielded by the Contracting Parties.  Their two 
> Constituencies are essentially aligned in interest on virtually all 
> issues.  Alignment will only increase if ICANN repeals restrictions on 
> cross-ownership, which anyway do not exist with respect to ccTLDs in 
> most cases, so we have seen registrars and registries teaming up on 
> ventures for many years now.  One of the GNSO Councilors, for the 
> Registrar Constituency, is CEO of a registry services company.  
> Effectively today they are one block with effective veto power over 
> anything.  The best way to cement that in place is to forbid any other
voices from joining their House.
> 
> Why do Contracting Parties maintain double voting?
> 
> It is unwise that the Contracting Parties are allowed to continue with 
> 'double voting' on the new Council.  Is it not a main point of the 
> restructure to increase participation and diversity on the Council?  
> Why does this only apply to one House, and not the other?  
> Particularly in the near future with hundreds more new TLD operators, 
> and most likely hundreds more registrars, there is no excuse to allow 
> just six seats in that House, while there are twelve in the other.  
> That makes it twice as hard to persuade a single vote to "switch 
> sides", which might make the difference in many cases.  [Not sure if 
> this is changed in their new charters, but for similar reasons it also 
> should be forbidden that the Registry Constituency Councilors be 
> required to vote as a block as they are today, rather than 
> individually as in the Registrar Constituency.]
> 
> ICANN should be well aware that this entire GNSO restructure has been 
> a bitter pill for the "Non-Contracting" business community to swallow.  
> Their power and voices will be diminished and those who have been 
> involved know it.  It has not caused such recent uproar since the 
> newTLD process has proved to be a more immediate and distressing 
> battle for some in that community, though by no means all.  These 
> details are also rather uninteresting for any normal person to 
> consider, particularly anyone who has not participated on Council.  
> From my perspective, these specific elements of the new restructure 
> could result in a lot more bitterness in the years to come, and appear 
> wholly contrary to the spirit and stated intention of the ICANN Board 
> in its mandate of this effort.  Moreover, they were primary facets of 
> the compromise reached in 2008, which now appear to have been discarded by
the Board and Staff, without explanation or reason.
> 
> Sincerely,
> 
> Mike Rodenbaugh
> Rodenbaugh Law
> 548 Market Street
> San Francisco, CA  94104
> +1.415.738.8087
> www.rodenbaugh.com
>