Summary and Analysis of Public Comments for Bylaws Amendments Related To GNSO Restructuring (Version 2)
Summary and analysis of public comments for: BYLAWS AMENDMENTS RELATED TO GNSO RESTRUCTURING (Version 2) Comment period ended: 24 August 2009 Summary published: 25 August 2009 Prepared by: Robert Hoggarth, Senior Policy Director I. BACKGROUND Implementation of the Generic Names Supporting Organization (GNSO) Review/Improvements process requires the amendment of a substantial number of the ICANN Bylaws to reflect new GNSO structures, processes and mechanisms. An initial set of Bylaws amendments (Version 1) were posted for public comment on 30 June 2009, reflecting the work product of a GNSO Council Restructure Drafting Team (consisting of the entire GNSO Council and additional GNSO community members), and additional Staff recommendations (see http://www.icann.org/en/public-comment/#gnso-restructure1). After the initial round of community comments and the 30 July Board meeting, a revised compilation of draft Bylaws and additional Staff recommendations were developed for public review and comment. That second set of amendments (Version 2) is based upon the 30 June 2009 initial version and includes additional amendments that reflect community comments, guidance received by Staff from the Board's Structural Improvements Committee (SIC), as well as other issues identified by Staff in its efforts to develop Bylaws that are internally consistent and conform to the principles of the BGC Report. The package consists of three documents. * The first document is a side-by-side comparison showing the existing Bylaws and the proposed new version (see http://www.icann.org/en/general/proposed-gnso-council-bylaw-amendments-comparison-31jul09-en.pdf [PDF, 256K] * The second document identifies the key differences between the draft Bylaws developed by the GNSO through its Restructure Drafting Team and this Version 2 text (see http://www.icann.org/en/general/proposed-gnso-council-bylaw-amendments-notes-comments-03aug09-en.pdf [PDF, 76K] * The third document consisted of additional background and explanation of Staff's rationale for certain proposed amendments included in Version 2 (see http://www.icann.org/en/general/proposed-gnso-council-bylaw-amendments-explanation03aug09-en.pdf [PDF, 76K] Community feedback on the proposed Bylaws amendments is an important component of the Board's evaluation process. II. GENERAL COMMENTS and CONTRIBUTORS As of the 24 August deadline, eight (8) community submissions from seven different parties had been made to this comment forum. The contributors are listed below in alphabetical order (with relevant initials noted in parentheses): AIM - European Brands Association, by Philip Sheppard (AIM); Caroline Chicoine - in her individual capacity (CC); Avri Doria - in her individual capacity (AD); Chuck Gomes - in his individual capacity (CG); Tony Holmes - in his individual capacity (TH) - appending a dialogue with Stephane Van Gelder (SVG) and Mike Rodenbaugh (MR); Steven Metalitz - in his individual capacity (SM); and The Non Commercial Users Constituency, by Robin Gross (NCUC) III. SUMMARY & ANALYSIS The comments submitted to this public forum each focused on various specific aspects of the Bylaws amendments package. They addressed the following general issue areas: * The selection of delegates for the Nominating Committee (Article VII) and The assignment of Nominating Committee Appointees to the GNSO Council (Article X); * GNSO Organizational issues; * Geographic diversity issues; * Provisions regarding potential new Constituencies; * The allocation of Board Seats #13 and #14; * Non Commercial Stakeholder Group Seats on the GNSO Council; * Language regarding the Policy Development Process, certain voting thresholds and other procedures included in Annex A of the Bylaws; and * Assorted minor edits for clarity and specificity of language. A. Nominating Committee Matters: Appointment of Delegates and Assignment of Appointees (Article VII): The NCUC "strongly objects" to Article VII, Section 2 (7) Nominating Committee. In particular, the NCUC is concerned with "the imbalanced treatment given between commercial users and noncommercial users in the selection of the Nominating Committee and the number of voting delegates given to the two interests." The NCUC notes that "the draft posted by ICANN for adoption gives 4 delegates to the commercial interests, while only giving 1 delegate to noncommercial interests." NCUC says, " This unfair 4:1 ratio does not match the attempt to restructure the GNSO with parity between commercial and noncommercial interests. The number of delegates to the Nominating Committee should reflect parity, equality, between commercial and noncommercial interests. The Non-Commercial Stakeholder Group (NCSG) should have the same number of delegates as the Commercial Stakeholder Group (CSG) in the Nominating Committee under the bylaws." The NCUC notes favorably the Staff suggestion to assign the present "academic" Nominating Committee delegate to the NCSG. NCUC says it supports that proposal since it would provide noncommercial users with more than the one delegate otherwise assigned to it in the proposed Bylaws. NCUC says that idea would increase noncommercial representation on the Nominating Committee and reflect "a small step in the right direction to achieving the parity between commercial and non commercial interests that is supposed to be happening at ICANN." Mr. Metalitz disagrees. He says the Staff suggestion in Footnote 1 "assumes that academic institutions will be fully represented in the noncommercial stakeholder group, even during the transition period." He says, "This assumption is inconsistent with the Board's decision with regard to filling NCSG slots." Ms. Doria says that Article VII, Section 2 (7)(f) is "too restrictive" in that it limits the delegate appointed by the NCUC to someone from "consumer and civil society groups." She says, "As this language differs from all other language in this article it seems to be making a political point that is superfluous and inappropriate to the article." She adds, "Yes, it is true that the NCUC contains many consumer groups and civil society groups. It does not, however, seem appropriate that it should single out just two groups from within the NCUC as being qualified to serve on the Nomcom." She asks, "Does this rule mean to exclude the academics or any of the individuals who are currently members of the NCUC? Must one be a member of a specific kind of group to be chosen for the Nomcom? This seems wrong." She says, "This clause should be revised and framed in exactly the same form as it is framed for the other constituencies: f. One delegate selected from the Non-Commercial Users Constituency." B. GNSO Organizational Issues: The NCUC registered its objection to Article X, Section 2, "because it does not allow individuals or organizations to join the Noncommercial Stakeholder Group (NCSG) and then decide which constituency is most appropriate for them to join subsequently." The NCUC says the proposal, "will discourage individuals and organizations from joining the NCSG since they are forced to pick an existing constituency upon joining, or undertake staff's burdensome procedure to create a new constituency." The NCUC says it "strongly objects to this gating mechanism" and that "ICANN should be making it easy for Internet users to become involved in Internet policy - especially those without an economic interest, but those who are concerned with the public interest." C. GNSO Council - Non Commercial Stakeholder Group Seats AIM and Mr. Metalitz note that the Bylaws amendments package does not resolve the issue of the additional 3 Council seats allocated to the NCSG. AIM says it supported the placeholder concept for these seats to be nominated by the ICANN Board for the first 2-year term. AIM says within this term one or more seats could be elected "if the NCSG can demonstrate evidence of substantial representational change." AIM says, "Lack of such evidence should mean these seats remain unfilled after the initial two-year term." Mr. Metalitz says the issue of the NCSG seats has been "clearly settled" but that amendments are "quite ambiguous" about the matter. He says, as drafted, the Bylaws "can be read to say that they are to be filled by the non-commercial users constituency (section 5(d), page 23), or as specified in the 'Restructure Implementation Plan' of the GNSO council (section 6, page 24). However, neither reading reflects reality: the Board has decided that it will fill these slots. That should be clearly stated in the transition article of the by-laws." "Furthermore," he says, "any change in this manner of filling these slots should be dependent upon a Board finding, after a transparent review, that the NCSG has developed to fulfill pre-established objective criteria for diversity and representativeness." Ms. Chicoine says she shares the perspectives offered by AIM and SM. She says, "In particular, the fact that the interim NCSG representative seating solution is only reflected in the NCSG Charter and is not included in the new by-laws is a recipe for disaster. Given that the Board has decided that it will fill these slots, it should be clearly stated in the transition article of the by-laws." Ms. Chicoine adds, "I also share the concern that any change in the manner that these slots should be filled should be dependent upon a Board finding, after a transparent review, that the NCSG has pre-established objective criteria for diversity and representativeness to ensure that it represents much more than simply the existing NCUC." NCUC says, "We note with disappointment that leaders of commercial and IPR constituencies have commented that permanent GNSO Bylaws be re-written to reflect the board's decision to temporarily appoint 3 new NCSG GNSO Councilors and we disagree that it should be written into the permanent GNSO Bylaws and certainly not without a fixed length. There is no reason to write transitionary [sic] provisions into permanent bylaws, unless of course the intent is to make the transition 'permanent', which is why the leaders of the commercial constituencies have been requesting this redrafting in this comment period." The NCUC says, "it is inappropriate to use non-contentious bylaw revisions as an attempt to make transitionary [sic] policy permanent as proposed by the commercial constituencies." D. GNSO Council - Voting Thresholds: Mr. Metalitz is concerned with new provision Article X, Section 3(11)(f). He says "new paragraph 11(f) seeks to solve a contract problem with a by-laws amendment. If contracts now require a 'two-thirds vote of the council' in certain circumstances, mapping that phrase onto the bicameral structure in the bylaws may not have any impact on contracting parties. This paragraph should be dropped from the by-laws and contracts should be modified if needed, or alternatively some other mechanism should be used to bind contracting parties." E. Stakeholder Groups - Geographical Diversity Provisions: The NCUC asserts, "the CSG and the NCSG are given entirely different 'geographical' requirements for GNSO Council representation in the 'reformed' GNSO. In particular, the CSG is allowed to elect all 6 of its GNSO Councilors from only 2 geographic regions in its charter." The NCUC states, "They additionally want a 'special circumstances' exception to that already flimsy requirement in the proposed bylaws (Section 3 paragraph 2 of of Article X on the GNSO)." The NCSG says, it "is not only allowed to have more than 2 GNSO Councilors from the same geographic region, and we think that should be the requirement for the CSG also, and that it should be incorporated into the bylaws [sic]." F. Provisions Regarding Potential New Constituencies (Article X, Section 5) AIM notes, "the proposed new draft of section 5.4 is somewhat of a shock to those of us who spent the summer of 2008 negotiating a new GNSO structure." AIM criticizes the drafted language of Section 5.4 which states that "any group of individuals or entities may petition the Board for recognition as a new or separate Constituency in the Non-Contracted Parties House". AIM says the language "fundamentally destroys the intended balance in the House concept of dividing user from supplier interests." AIM says, "The House balance is already tilted toward registries and registrars. 5.4 now says in future there is a strong likelihood that interests associated with R&Rs will be able to dilute the effectiveness of the Users House." AIM says, "This is not theoretical," and notes that "there are pending constituency applications from: City TLDs (registries and would be registries) IDNs (strong registry interests) and talk of a registry operator constituency. What of a reseller constituency?" AIM says, "This proposal is unacceptable and needs removal. The Houses construct did not envisage the development of such new Constituencies and it is therefore incumbent on the Board to consider options to avoid this contradiction." AIM notes three possible alternative solutions: "1. Continue on the two Houses path but remove the straitjacket on the Contracted Parties house by changing it to a Suppliers House and a Users House, thus creating clear places for these different interests. 2. Live with the Contract Parties House and refuse all constituency applications from other supplier interests. 3. Accept that circumstances have changed and end the concept of the two Houses approach, continuing for now with the existing structure." Ms. Chicoine agrees. She says, "Finally, I share the concerns that as currently drafted, the bylaws allow new constituencies to be proposed and approved that consist significantly or predominantly of contracted parties, but mandate that such new constituencies be placed in the non-contracted parties house. As Mr. Metalitz points out, the fact that there is already pending at least one application for a new constituency that meets this description shows that this is not simply a hypothetical problem. As the elimination of the concept of weighted voting was critical to the non-contracted parties house, the creation of language that creates an immediate loophole is simply unacceptable. At the very least, specific safeguards must be put into place to prevent contracted parties from taking over the non-contracted side of the new GNSO." Mr. Holmes (TH) shared a GNSO Council dialogue regarding perceptions regarding the respective treatment of the Contracted and Non Contracted Party Houses of the GNSO. Mr. Holmes' comments seemed to support the comments of AIM and Mr. Metalitz regarding concerns about the ability of new Constituencies to join the Non Contracted Party House, but not the Contract Party House. He appended comments from Mr. van Gelder and Mr. Rodenbaugh on the issue that were not sent to the forum. Mr. Rodenbaugh started the dialogue expressing concern that new constituency petitions from "geoTLDs" and "IDN TLDs" were already pending Board action. He said, "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." Mr. Van Gelder countered that "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." The NCUC says it also has concerns about Article X, Section 5(5). The NCUC says, "We note with concern that the staff is proposing to bypass actual noncommercial users and to explicitly ask the board to create new noncommercial constituencies on its own motion, and thus, outside of a true bottom- up fashion. We note that such a procedure is ripe for abuse and manipulation by ICANN staff and board in the management of noncommercial interests at ICANN." G. Allocation of Board Seats #13 and #14 - Article X, Section 3(6) Mr. Gomes says the amendment language regarding the respective selection of the GNSO Board members filling seats #13 and #14 is "appropriate." He notes three reasons for this including (1) It is the order approved by the GNSO Restructure Committee formed by the Board. Some participants in that Committee would have not approved the proposed restructure recommendations if the order was reversed; (2) Seat 13 is currently filled by a Director who is from the Contracted Party House; and (3) Seat 14 was filled by a unanimous vote of the Council, thereby demonstrating that weighted voting had little if any impact on the selection process. H. Comments on Annex A: As noted in the Staff paper accompanying the Bylaws amendments package, the GNSO/PPSC Policy development Process Work Team (PDPT) is currently conducting an extensive evaluation of the Policy Development Process and will be producing a new Annex A upon completion of its work. However, certain Bylaws amendments were necessary due to the establishment of a bicameral house structure with new voting thresholds that are inconsistent with the voting thresholds currently included in Annex A. The paper says in preparing the amendments, the Staff attempted to preserve the current procedures wherever possible, and to minimize the number of revisions to only those that are necessary to clear up inconsistencies or errors. A more substantive revision to the Annex A will be necessary once the PDPT has produced its recommendations for a new Policy Development Process. Nevertheless, a number of comments were provided regarding the Annex section. The NCUC says, "We are concerned about Section 7 (Task Forces) of Annex A (paragraph 7d). We believe in the "collection of information" for a Constituency Statement that (iv) should be amended to include "other" impacts besides financial impacts on a constituency. Since NCUC is not working for an economic interest, most often our concerns are not "financial impacts" so a constituency statement should be allowed to consider those other impacts and not discouraged from considering non- financial impacts as the proposed text implies. Therefore, we propose 7d. (iv) be re-written as: "An analysis of how the issue would affect the constituency or Stakeholder Group, including any financial or other impact on the constituency or Stakeholder Group;". NCUC says the same concern applies equally to Annex Section 11 (Council Report to the Board) paragraph (d) and the NCUC suggests it be re-worded as follows: "An analysis of how the issue would affect each constituency or Stakeholder Group, including any financial or other impact on the constituency or Stakeholder Group." The NCUC says, "We object to the low voting threshold created by Section 12 (Agreement of the Council) of the Annex that approves GNSO Council recommendations with only a 50.1% majority of each house and only 3 of the 4 stakeholder groups needed support the action. Since this vote is 'deemed to reflect the view of council' it seems unfair that an entire stakeholder group's concerns can be left behind and still call the vote "the view of council." Mr. Metalitz notes, "This draft introduces into the current PDP the concept of a "Successful GNSO Vote," which is defined by reference to section 3(11) of Article X of the bylaws." He says, "This new concept is ambiguous. If it is meant to refer to an affirmative vote that meets the relevant voting thresholds set forth in the referenced bylaws provision, that should be clearly stated." I. Additional Suggestions: Mr. Gomes also noted a number of specific language changes to improve the clarity and accuracy of the Bylaws references. He made suggestions regarding Article X, Section (3)(1) to clarify the applicability of the bicameral house voting methodology. He also suggested clarifying language changes to Annex A Section 3 (initiation of the PDP) and Section 7 (Task Forces). IV. NEXT STEPS The Board is likely to consider all the relevant community input and move forward with decisions regarding the proposed amendments as soon as practicably possible. Another round of Bylaws amendments will likely be conducted as the GNSO community continues its work with respect to developing modifications to the Policy Development Process (currently in Annex A of the Bylaws) and regarding the development of a new Working Group model for policy development. Attachment:
Summary-Analysis of Community Comments On Bylaws Amendments Related To GNSO Council Restructuring (Version 2) - 2009 August Final.doc |