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

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Mike,

Happy to discuss details with you anytime you like but it is probably
more effective in a mode other than email.

Chuck 

> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx 
> [mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Mike Rodenbaugh
> Sent: Thursday, August 27, 2009 1:37 PM
> To: gnso-council-draft2@xxxxxxxxx
> Cc: 'Council GNSO'
> Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure 
> Amendments to ICANN Bylaws
> 
> 
> Hi Adrian,
> 
> Of course I am not ignoring you, I've had a busy work week.  
> 
> And of course I was not criticizing you personally, only 
> pointing out the fact that there is much amalgamation between 
> registrars and registries, as has been demonstrated by their 
> Council reps.  I could also have referred to another 
> registrar Councilor whose company is actively engaged in 
> ccTLD registry businesses.  (Hi Tim! ... but he's not a CEO 
> yet, so not quite as sexy an example.)
> 
> I refer to the Contracting Parties' "effective 
> stranglehold/veto" because under the current and future 
> system, the Contracting Parties have much more alignment in 
> their interests and in their positions than do the Commercial 
> Users and the Non-Commercial Users.  It obviously has been 
> far harder for the non-contracting parties to come to any 
> agreement among themselves, than for the contracting parties, 
> on almost every issue in the history of ICANN.
> Hopefully, that will decrease as NCUC becomes more diverse in 
> their representation and interests, and the balance of power 
> between commercial and non-commercial interests is evened -- 
> but that remains to be seen.
> 
> Based on the very clear trend over the past few years, the 
> contracting parties are likely to become more aligned in the 
> future rather than less.
> When they vote together, there is little anyone can do to 
> stop whatever they want, except with unanimous opposition 
> among fragmented and historically unaligned parties.  The 
> "double voting" compounds this as contract parties need to 
> get just six people to a vote, while the non-contracting 
> parties have to get twelve unanimous votes just to counter 
> them -- which I believe has never happened before, and 
> probably will be less likely to ever happen in the future 
> given the shift in power in that "House," from 9/3 to 6/6.
> 
> Chuck mentioned a few examples that he says show unaligned 
> interests among Contracting Parties, but I do not agree with 
> several of those, including WHOIS and PEDNR.  Perhaps I need 
> to understand better, and would love to hear any further 
> explanation.  Perhaps RrC and RyC have voted differently a 
> few specific times, but generally their interests are aligned 
> on almost all issues.  If policy development might 
> conceivably change the way contract parties do business, they 
> generally fight like hell, together, to prevent it.  I've 
> seen it too many times to count.  We've had exactly one 
> policy development in three years that changed business 
> methods -- wrt domain tasting.  I also think any "unaligned" 
> instances will become much fewer and farther between, under 
> the new system and as industry amalgamation between 
> registrars and registries likely increases.  
> 
> I also do not recall a single example of the RyC Councilors 
> ever voting individually rather than in a block, though Chuck 
> says an instance may be coming, and I'm sure he'll remind me 
> if I'm forgetting something else.  The new RyC charter, by 
> Chuck's description, sounds unacceptable on this point since 
> the RyC can still force its Councilors to vote in a block, 
> and typically always has done so in the past.  Yet I would be 
> remiss to not point out that the BC has had the same rule 
> forever, and we have not changed it in our new Charter.  But 
> we have not and will not have anywhere near the level of 
> power as the RyC, we will have 1/3 their power.  Also we have 
> voted differently in the past when there was not an adopted 
> BC position on point.
> Also, I would prefer we eliminated that requirement in the 
> BC, for the same reasons I think it should be eliminated in 
> the RyC or anywhere else.
> 
> It is important for the Contracting Parties to have the same 
> number of Councilors as the Non-Contracting Parties, so there 
> is more hope of greater diversity of opinion, demographics 
> and geography, as well as ultimate consensus.
> 
> Avri, I don't have facts to back up that assertion about 
> individual vs.
> commercial reg fees.  But commercial interests include 
> domainers and brandholders, who average several hundred (more 
> likely, well over a
> thousand) domain names apiece.  I know at least a dozen 
> domainers (including a bunch of ICANN accredited registrars) 
> that have over 100,000 registrations each.  I know at least 
> 25 major brands that have over 20,000 registrations each.  
> And that's just people I know personally.  I don't know any 
> individuals who own more than two, and I know of dozens of 
> free hosting sites, social networks, communication tools and 
> other ways that individuals communicate online without need 
> of a domain name.  Also, we're talking gTLDs, and many 
> individuals must gravitate towards ccTLDs because the good 
> gTLD names have consistently been snagged by commercial interests (and
> registrars) for many years now.  Stats in this area would be 
> useful for policy development, particularly PEDNR, IRTP and 
> WHOIS, but relevant data could only come from the Registrars 
> (or some sort of big ICANN study), so I will not hold my 
> breath waiting for it to appear. 
> 
> I am happy we are having this discussion.  I am not trying to 
> "tirade", but merely put my beliefs into the open as you all 
> know I have a habit of doing (perhaps sometimes too directly) 
> -- as I feel I've been elected to do.
> 
> Thanks,
> Mike
> 
> Mike Rodenbaugh
> Rodenbaugh Law
> 548 Market Street
> San Francisco, CA  94104
> +1.415.738.8087
> www.rodenbaugh.com 
> 
> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx 
> [mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Adrian Kinderis
> Sent: Tuesday, August 25, 2009 2:09 AM
> To: icann@xxxxxxxxxxxxxx; gnso-council-draft2@xxxxxxxxx
> Cc: 'BC List'; 'Council GNSO'
> Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure 
> Amendments to ICANN Bylaws
> 
> 
> Mike,
> 
> Thanks for the "shout out". I'm honoured (correct Australian 
> spelling!).
> 
> I appreciate your "personal" comments.
> 
> One quick question;
> 
> When you refer to the following "Effectively today they are 
> one block with effective veto power over anything", what do you mean?
> 
> Either we do or we don't which is it?
> 
> Adrian Kinderis
> Chief Executive Officer
> Registrar, Registry Services Provider oh.. and I own a few 
> names, so throw in Registrant.
> 
> 
> 
> -----Original Message-----
> From: owner-council@xxxxxxxxxxxxxx 
> [mailto:owner-council@xxxxxxxxxxxxxx] On Behalf Of Mike Rodenbaugh
> Sent: Tuesday, 25 August 2009 2:25 AM
> To: gnso-council-draft2@xxxxxxxxx
> Cc: 'BC List'; 'Council GNSO'
> Subject: [council] Rodenbaugh Comment re GNSO Restructure 
> Amendments to ICANN Bylaws
> 
> 
> 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
> 
> 
>