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Re: [gnso-dt-wg] Rework of motion

  • To: gnso-dt-wg@xxxxxxxxx
  • Subject: Re: [gnso-dt-wg] Rework of motion
  • From: Avri Doria <avri@xxxxxxx>
  • Date: Fri, 22 Feb 2008 14:50:24 -0500


Two quick comments:

- The issue of whether this would or would not be a consensus policy is one for legal counsel. I can certainly check with legal counsel to find out the status of a decision according to 13f.

- We are already in a PDP. As opposed to trying to begin yet another PDP, I would would think a suggestion for an open WG to come up with a solution that could get a supermajority would be a more feasible route. Assuming others in the DT and the council, agree with you. If this is the path the DT suggests, it would be good for the DT to propose the charter and timings.


On 22 Feb 2008, at 13:45, Neuman, Jeff wrote:

A couple of notes:

1. A majority of the Council as opposed to Supermajority is not "deemed
to reflect the view of the Council".  See Section 12.

2.  Yes, the Board can act, but again, that Board decision, in my view
(and in the view of the other registries) would not be binding on the
gTLD Registry Operators because that would not be viewed as "consensus
of Internet stakeholders". After all, if a majority is not even deemed
to reflect the view of the Council, then how can it represent a
Consensus of Internet stakeholder.

3.  The reason I am using the phrase "consensus of Internet
stakeholders" is because that is the phrase that is used in the gTLD
contracts. See below which is taken from Section 3.1(b)(iv) of the .com
agreement (See
http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06 .
htm) which states:

"Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet
stakeholders, including the operators of gTLDs.  Consensus Policies
shall relate to one or more of the following: (1) issues for which
uniform or coordinated resolution is reasonably necessary to facilitate interoperability, Security and/or Stability of the Internet or DNS; (2) functional and performance specifications for the provision of Registry
Services (as defined in Section 3.1(d)(iii) below); (3) Security and
Stability of the registry database for the TLD; (4) registry policies
reasonably necessary to implement Consensus Policies relating to
registry operations or registrars; or (5) resolution of disputes
regarding the registration of domain names (as opposed to the use of
such domain names).  Such categories of issues referred to in the
preceding sentence shall include, without limitation:

Particularly important is the phrase "including the operators of gTLDs".
Now before you try to argue that it is modified by the phrase "to the
extent possible", let me state that the following:

1. "To the extent possible" does not mean that if the registries are on
the losing side of the vote it is not "possible" to achieve gTLD
operator support for a proposal on domain tasting.

2. The gTLD Registries have indicated on a number of occassions that we
do believe a proposal to eliminate tasting (in TLDs where tasting has
occurred) can garner the registry operators support.  We are committed
to working with you to achieve that.  We just need to find a solution
that takes into consideration the differences of each of the registries.

Now if we are done talking about process, lets get down to business:

1.  There is a proposed solution on the table; namely I believe the
NeuStar/Afilias proposal (which by the way should be officially posted
for public comment today).

2.  My recommendation is to take those proposals, get the GNSO Council
to initiate a PDP, and launch a Task Force (or Working Group) open to
the community whose sole purpose and charter is to study the
implications of this proposal.  I would gladly help ICANN staff in the
drafting of that charter.

3.  We follow the strict timing in the Bylaws on the formation of the
Task Force/Working Group, elect a chair, and get constituency statements getting them to focus solely on the proposal. This should be very easy,
quick and painless.

4.  Have a Task Force report that analyzes the constituency statements
and public input and modifies the proposal (if necessary). Put that out
for comment and draft the final report (all included in the Bylaws).

If we follow the strict timing in the Bylaws, which I believe we can, we can have this done, wrapped up and to the Board within 90 days and still
before the Paris meeting.

This will require some diligent efforts, but let's show that this is

Jeffrey J. Neuman, Esq.
Sr. Director, Law, Advanced Services  &

Business Development

NeuStar, Inc.
e-mail: Jeff.Neuman@xxxxxxxxxx

-----Original Message-----
From: owner-gnso-dt-wg@xxxxxxxxx [mailto:owner-gnso-dt-wg@xxxxxxxxx] On
Behalf Of Avri Doria
Sent: Friday, February 22, 2008 12:15 PM
To: gnso-dt-wg@xxxxxxxxx
Subject: Re: [gnso-dt-wg] Rework of motion

On 22 Feb 2008, at 11:41, Rosette, Kristina wrote:

eff, good question.  I'd appreciate clarification of that, too, to
sure we're all on the same page.  The transcripts of the GNSO Council
meeting and Thursday wrap-up are far from crystal clear.  As for your
other point, I had understood that the bylaws do not require
supermajority support of Council before Board can vote.  If there's
language elsewhere that controls, I'd appreciate if you would point me
in the right direction so that I'm working from the same baseline.


As I read the by-laws, appended below, the Council does not need to
achieve a supermajority in order to forward on a decision (note 11b).
A non supermajority view, though, is treated differently by the board
(13b vs. 13f).

In terms of this DT, the purpose is still to present a way forward for
the council to discuss.  That can be a motion, a motion plus update of
constituency statements, or a WG charter.  The motion can be based on
the reworked version Alan has presented, or another motion all
together, e.g. the elimination of a required AGP as was suggested by
many of the comments or some other motion.

I think it is best if the way forward leads to a supermajority
position.  If we can't get a motion that would be able to garner
supermajority support, then perhaps we need to do more work and a WG
charter might be the right way forward.


from the by-laws

11. Council Report to the Board

The Staff Manager will be present at the final meeting of the Council,
and will have five (5) calendar days after the meeting to incorporate
the views of the Council into a report to be submitted to the Board
(the "Board Report"). The Board Report must contain at least the

    a. A clear statement of any Supermajority Vote recommendation of
the Council;

    b. If a Supermajority Vote was not reached, a clear statement of
all positions held by Council members. Each statement should clearly
indicate (i) the reasons underlying each position and (ii) the
constituency(ies) that held the position;

    c. An analysis of how the issue would affect each constituency,
including any financial impact on the constituency;

    d. An analysis of the period of time that would likely be
necessary to implement the policy;

    e. The advice of any outside advisors relied upon, which should
be accompanied by a detailed statement of the advisor's (i)
qualifications and relevant experience; and (ii) potential conflicts
of interest;

    f. The Final Report submitted to the Council; and

    g. A copy of the minutes of the Council deliberation on the
policy issue, including the all opinions expressed during such
deliberation, accompanied by a description of who expressed such

12. Agreement of the Council

A Supermajority Vote of the Council members will be deemed to reflect
the view of the Council, and may be conveyed to the Board as the
Council's recommendation. Abstentions shall not be permitted; thus all
Council members must cast a vote unless they identify a financial
interest in the outcome of the policy issue. Notwithstanding the
foregoing, as set forth above, all viewpoints expressed by Council
members during the PDP must be included in the Board Report.

13. Board Vote

    a. The Board will meet to discuss the GNSO Council recommendation
as soon as feasible after receipt of the Board Report from the Staff

    b. In the event that the Council reached a Supermajority Vote,
the Board shall adopt the policy according to the Council
Supermajority Vote recommendation unless by a vote of more than sixty-
six (66%) percent of the Board determines that such policy is not in
the best interests of the ICANN community or ICANN.

    c. In the event that the Board determines not to act in
accordance with the Council Supermajority Vote recommendation, the
Board shall (i) articulate the reasons for its determination in a
report to the Council (the "Board Statement"); and (ii) submit the
Board Statement to the Council.

    d. The Council shall review the Board Statement for discussion
with the Board within twenty (20) calendar days after the Council's
receipt of the Board Statement. The Board shall determine the method
(e.g., by teleconference, e-mail, or otherwise) by which the Council
and Board will discuss the Board Statement.

    e. At the conclusion of the Council and Board discussions, the
Council shall meet to affirm or modify its recommendation, and
communicate that conclusion (the "Supplemental Recommendation") to the
Board, including an explanation for its current recommendation. In the
event that the Council is able to reach a Supermajority Vote on the
Supplemental Recommendation, the Board shall adopt the recommendation
unless more than sixty-six (66%) percent of the Board determines that
such policy is not in the interests of the ICANN community or ICANN.

    f. In any case in which the Council is not able to reach
Supermajority, a majority vote of the Board will be sufficient to act.

    g. When a final decision on a GNSO Council Recommendation or
Supplemental Recommendation is timely, the Board shall take a
preliminary vote and, where practicable, will publish a tentative
decision that allows for a ten (10) day period of public comment prior
to a final decision by the Board.

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