[bc-gnso] FW: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws

["Mike Rodenbaugh" <icann@xxxxxxxxxxxxxx>]

To BC List:  these are comments I filed today as the public comment period
closes on this issue.  I provide them fyi, and in case anyone wants to make
comments to me and/or the public comment process.

Thanks,
Mike



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