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

  • To: "Gomes, Chuck" <cgomes@xxxxxxxxxxxx>, Stéphane Van Gelder <stephane.vangelder@xxxxxxxxx>, <icann@xxxxxxxxxxxxxx>, <gnso-council-draft2@xxxxxxxxx>
  • Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws
  • From: "Rosette, Kristina" <krosette@xxxxxxx>
  • Date: Tue, 25 Aug 2009 11:04:09 -0400

Chuck:  I'm confused.  I read your reference below to suggest that Interest 
Groups can be formed by entities that aren't members of the RySG.  However, I 
read the Registries SG Charter to limit participation in Interest Groups to 
RySG members.  Would you please clarify which is correct?

All:  Here's what I have trouble with.   All of the relevant documents (SG 
charters, constituency by-laws, ICANN bylaws) focus on the common "interests" 
or "views" of the particular stakeholder (lower case s) group.  What ultimately 
unites the members of that group are those commmon interests or views.  It 
seems very bizarre to me that such an important distinction as to where the 
group's voice "belongs" is being based on events over which the potential 
stakeholder (again, lower case s) group members do not have full control. The 
members of the potential City TLD or IDN TLD constituencies do not have full 
control over when (or if) they each enter into Registry Agreements.  (I'm 
characterizing the ability of those members to file - eventually - gTLD 
applications and determine when those are filed within the window, how complete 
they are, etc. as providing some, albeit indirect, control.)  Similarly, if 
there were to be consensus policy developed relating to whether resellers must 
have contracts with ICANN, the resellers do not have full control over that 
possibility.  Yet, both groups have interests and views far more aligned with 
the contracted parties than the non-contracted parties

I'm struck by the seeming randomness of the "triggering" events that determine 
Stakeholder (upper case) group placement.  With apologies for the analogy (I've 
been attending a number of birthday parties for 5-year-old girls and Cinderella 
is quite popular with that set), it strikes me as absurd to assume that signing 
a contract with ICANN has the equivalent effect on a City TLD applicant as 
Cinderella's fairy godmother waiving her magic wand. No magical transformation 
occurs.  That applicant's interests have always been more aligned with 
interests of the members of the RyC. Simply getting a contract doesn't change 
that.  So why is it being treated as such a dispositive event?

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Gomes, Chuck
Sent: Tuesday, August 25, 2009 10:14 AM
To: Stéphane Van Gelder; icann@xxxxxxxxxxxxxx; gnso-council-draft2@xxxxxxxxx
Cc: Council GNSO
Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to 
ICANN Bylaws

I inserted a few comments below.

> 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?

CG:  They are allowed under a different name, Interest Groups.

> > 
> > There are applications for two subsets of newTLD registry
> operators --
> > geoTLDs and IDN TLDs.

CG: First a correction: as I understand it the IDN TLD constituency
application was for the CSG, not the RySG or RrSG.  Regardless though, a
geoTLD (or City TLD) and an IDN TLD Interest Group can form and become part
of the Contracted party House in either or both SGs.  In fact, it is easier
to do than becoming a constituency in the Noncontracted Party House because
it does not require Board approval.

>  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.

CG:  Not true as stated above.

> > 
> > 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.

CG: Any parties planning to become a contracted party are welcome in the
Contracted Party SGs as observers until such time that they execute a
contract. As observers, they may participate actively but do not have a

> > 
> > 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?

CG:  I personally think that it is not my place to decide who should be
allowed in other SGs as long as the Charters are approved by the Board.

> > 
> > 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.

CG: This is just plain false.  We have not been aligned on many issues:
Whois, registry-registrar cross ownership, registry contract approvals,
PEDNR, just to cite four.

>  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.

CG:  Wrong again.  I already pointed out four examples of important policy
issues where we have not voted as a block.  Secondly, the contracted parties
do not have veto power today or in the new bicameral model.  Contracted and
Noncontracted parties have equal voting power but not veto power.  In the
new model, the thresholds were carefully designed to avoid giving veto power
to one house if it was not given to the other house also.

>  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?

CG:  There is no double voting but it true that most of the voting
thresholds require some level of approval by both houses.

> > 
> > 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.]

CG:  RyC Councilors and in the future RySG Councilors are not required to
vote as a block.  They are required to vote as directed by the RyC/RySG.
That often results in all three Councilors voting alike because the RyC has
reached a consensus position.  But our present and future charters allow for
non-block votes.  In fact on an issue that may be acted on in the next
Council meeting, we are actually considering a mixed vote because there is
not consensus in the RyC.

> > 
> > 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
> > 

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