RE: [gnso-iocrc-dt] RE: Explanation of the Dates in the Public Comment Forum

["Shatan, Gregory S." <GShatan@xxxxxxxxxxxxx>]

On one level, it matters a great deal if this is policy or implementation.  If 
this were policy, we would need to follow the GNSO PDP, including the required 
public comment periods.  If it is implementation, we would not.  There is 
nothing I can see inthe ICANN playbook that requires a DT advising the GNSO on 
responding to a GAC request for comments on a GAC proposal to open a public 
comment period.  Even more so, when this is an interim response from the chair 
of the DT.  Even though we have been treating this as implementation, the sense 
of the call last week was to maximize transparency by putting the top level 
proposal out for public comment.
 
It is entirely appropriate for implementation to be run through different 
structures and timeframes than policy.  Policy unfolds over a lengthy, 
multistage process.  Implementation needs to be nimble.  The timeframes for 
policy are not suitable for implementation and vice versa.
 
In retrospect, and in reading the transcript of the call, I don't think we 
appreciated the apparent rigidity of the public comment rules.  And here you 
may be right -- whether policy or implemention, whether required or 
self-imposed, whether part of the "bottom-up" process or sua sponte (see, e.g., 
the Board's "defensive applications" comment period) -- all requests for 
comment put into the "public comments" system ust apparently follow the same 
rigid structure.  On the call, after Margie described the public comment 
process, there was disagreement about whether the rules described by Margie 
should apply in this circumstance.  However, that probably did not frame the 
question correctly.  The question should have been, given the minimum comment 
periods required by the formal public comment periods and the fact that a 
formal public comment period is not required, how can we maximize feedback and 
transparency without compromising the timeline of our work?  Instead, we 
stepped into the public comment process thinking there was flexibility, where 
there apparently is none.
 
On another level, it also matters whether this is implementation or policy.  
You ask "what really stops other ICANN policy groups from using other or 
similar justifications to 'adjust' the public comment period timeframe?"  If 
this is implementation, your question is based on a false premise -- since we 
are not a "policy group," nothing we do serves as precedent for the actions of 
policy groups.  In any event, I believe the answer to your question is the GNSO 
PDP.
 
The horse has already left the barn on whether these two organizations are 
receiving special protection.  It is in the AGB.  The question we have been 
grappling with for the last several months is whether the absolute prohibition 
against delegation at the top level (even as to the organizations themselves) 
is the appropriate or intended protection  The rough consensus of the group is 
that it is not the appropriate protection, and the feedback that we have 
received from those involved in the process whereby that prohibition ended up 
in the AGB is that it was not the intended protection.  The proposal the group 
fashioned dealt with modifying this protection.
 
Finally, if the test for "bad precedent" is putting something in place when 
there are "valid questions as to whether it is necessary," I would submit that 
the entire New gTLD Program is the "poster child" for bad precedent.
 
Thank you.
 
Greg
________________________________

From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx] On 
Behalf Of Konstantinos Komaitis
Sent: Tuesday, March 06, 2012 5:17 AM
To: 'Thomas Rickert'; Gomes, Chuck
Cc: Margie Milam; Neuman, Jeff; 'gnso-iocrc-dt@xxxxxxxxx'; 'Stéphane Van Gelder'
Subject: RE: [gnso-iocrc-dt] RE: Explanation of the Dates in the Public Comment 
Forum



Thanks for this clarification Margie. It is very helpful.

 

It is important we follow here the GNSO rules and, in particular, if these 
rules reflect the need to comply with the ATRT recommendations. We may call it 
‘policy’ or ‘implementation’ – it doesn’t really matter. Here there is a clear 
rule that we are attempting to ‘amend due to exceptional circumstances’. And, 
this is a slippery slope. If we do so, what really stops other ICANN policy 
groups from using other or similar justifications to ‘adjust’ the public 
comment period timeframe? There are some of us who believe that a bad precedent 
is already being set here (by seeking to provide special protection for these 
two organizations when there are really valid questions as to whether it is 
necessary) and through our attempts to minimize the time of the public comment 
period, I believe we are encouraging an additional one.  The fact that this 
timeframe was established according to the ATRT recommendations and this should 
be sufficient for us; even the GAC has put a lot of emphasis on the ATRT 
recommendations.

 

Thanks

 

Konstantinos

 

Dr. Konstantinos Komaitis,

 

Senior Lecturer,

Director of Postgraduate Instructional Courses

Director of LLM Information Technology and Telecommunications Law

University of Strathclyde,

The Law School,

Graham Hills building, 

50 George Street, Glasgow G1 1BA 

UK

tel: +44 (0)141 548 4306

http://www.routledgemedia.com/books/The-Current-State-of-Domain-Name-Regulation-isbn9780415477765

Selected publications: http://hq.ssrn.com/submissions/MyPapers.cfm?partid=501038

Website: www.komaitis.org

 

From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-dt@xxxxxxxxx] On 
Behalf Of Thomas Rickert
Sent: Δευτέρα, 5 Μαρτίου 2012 5:55 μμ
To: Gomes, Chuck
Cc: Margie Milam; Neuman, Jeff; 'gnso-iocrc-dt@xxxxxxxxx'; 'Stéphane Van Gelder'
Subject: Re: [gnso-iocrc-dt] RE: Explanation of the Dates in the Public Comment 
Forum

 

Dear all,

IMHO we are currently trying to find ways to _implement_ a decision that has 
already been made by the board. The situation is completely different to the 
GNSO developing policy. 

 

As far as I can remember, we made this clear during our previous calls and in 
particular in the call with the GAC. The proposal that has been circulated only 
affects the first round and is subject to a review, if needed. 

 

As a consequence of the aforesaid and with the time pressure given, it can 
easily be explained why procedures are not adhered to as the GNSO usually 
would. 

 

The risk of failing to deliver on this matter is far higher than to be 
criticized for formal aspects. 

 

Thomas

 

Am 05.03.2012 um 18:44 schrieb Gomes, Chuck:






Thanks Margie.  What was clearly explained on Friday's call?  Did you state 
that there must be 21 + 21 comment period and explain why?

With regard to GNSO comment periods, the Council should have the right to make 
exceptions when needed as long as justification is provided.  Is only the Board 
able to make exceptions?

Chuck




-----Original Message-----

        From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-

        dt@xxxxxxxxx] On Behalf Of Margie Milam

        Sent: Monday, March 05, 2012 12:23 PM

        To: Neuman, Jeff; 'gnso-iocrc-dt@xxxxxxxxx'

        Cc: 'Stéphane Van Gelder'

        Subject: [gnso-iocrc-dt] Explanation of the Dates in the Public Comment

        Forum

         

         

        Dear All,

         

        I wanted to provide some clarification with regard to the new public

        comment policy as it affects the IOC/RC DT’s posting.

         

        In order to get the comment period opened on Friday, the dates were

        changed to match the new policy—see:

        http://www.icann.org/en/news/public-comment.

         

        This Board mandated public comment policy was adopted as part of the

        adoption of the ATRT recommendations, and has been in effect since the

        beginning of the year.  It applies to all public comments, regardless

        of whether the comment originates in a PDP or from other types of work.

         

        The policy states that:

         

        Each public comment topic (opened from 1 January 2012) is subject to a

        Comment and a Reply period as follows:

        •           The official minimum Comment period is 21 days.

        •           The official minimum Reply period is 21 days.

        •           If no substantive comments are received during the Comment

        period, then there will be no   Reply period.

        •           During the Reply period, participants should address 
previous

        comments submitted; new posts         concerning the topic should not be

        introduced. When constructing Replies, contributors are       asked to

        cite the original poster's name, comment date, and any particular text

        that is pertinent.

         

        This was clearly explained on Friday’s call.  I thought it best to get

        it posted ASAP, since I do not have the ability to override the Boards’

        policy, rather than miss the opportunity to post on Friday.

         

        Best Regards,

         

        Margie

         

        -----Original Message-----

        From: Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx]

        Sent: Monday, March 05, 2012 4:43 AM

        To: Margie Milam; 'gnso-iocrc-dt@xxxxxxxxx'

        Cc: 'Stéphane Van Gelder'

        Subject: RE: [gnso-iocrc-dt] RE: Draft Public Comment For Review- Final

        Version

         

        All,

         

        I just wanted everyone to know that despite the conversation on the

        list and the fact that i edited the comment period description to end

        the day before the Council meeting, ICANN staff decided to have the

        public comment period end March 23, and this new "reply period" to end

        on April 14th (2 days after the application window closes).  I wanted

        to bring this to everyone's attention because I fully expect Icann

        staff to defend their letter of the status quo for round 1 based solely

        on the fact that the public comment period ends after the window

        closes.  I am extremely disappointed In yet another attempt to

        circumvent our process and the work we are doing and would like to add

        this to the list of questions for Icann staff.  I also expect criticism

        from the community if we ask the gnso to act before the public comment

        period ends.  I have already have 2 reporters point this out to me and

        ask if that meant that the notion of changes were "killed".  (I did not

        respond).

         

        I would like to ask for those dates to be revised so as to not create

        confusion or the perception that neither the gnso council or the

        stafford can act before the comment period is up.

         

         

         

        Sent with Good (www.good.com)

         

         

        -----Original Message-----

        From:   Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx]

        Sent:    Friday, March 02, 2012 08:44 PM Eastern Standard Time

        To:       'Margie Milam'; 'gnso-iocrc-dt@xxxxxxxxx'

        Subject:           RE: [gnso-iocrc-dt] RE: Draft Public Comment For 
Review-

        Final Version

         

         

        Thanks Margie.  We really appreciate the quick turnaround,

         

         

         

        Sent with Good (www.good.com)

         

         

        -----Original Message-----

        From:   Margie Milam [mailto:Margie.Milam@xxxxxxxxx]

        Sent:    Friday, March 02, 2012 05:40 PM Eastern Standard Time

        To:       gnso-iocrc-dt@xxxxxxxxx

        Subject:           [gnso-iocrc-dt] RE: Draft Public Comment For Review- 
 Final

        Version

         

        Dear All,

         

         

         

        I accepted Jeff’s revisions and caught a few typos.   The proposal is

        untouched, except to add a footnote with the date.

         

         

         

        Since there don’t appear to be any more comments,  this will be

        forwarded for posting.

         

         

         

        Best regards,

         

         

         

        Margie

         

         

         

         

         

         

         

        From: Neuman, Jeff [mailto:Jeff.Neuman@xxxxxxxxxx]

        Sent: Friday, March 02, 2012 1:32 PM

        To: Margie Milam; gnso-iocrc-dt@xxxxxxxxx

        Subject: RE: Draft Public Comment For Review

         

         

         

        Sorry for the delay, but this looks right to me.

         

         

         

        Jeffrey J. Neuman

        Neustar, Inc. / Vice President, Business Affairs

         

         

         

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        From: owner-gnso-iocrc-dt@xxxxxxxxx [mailto:owner-gnso-iocrc-

        dt@xxxxxxxxx] On Behalf Of Margie Milam

        Sent: Friday, March 02, 2012 2:32 PM

        To: gnso-iocrc-dt@xxxxxxxxx

        Subject: [gnso-iocrc-dt] RE: Draft Public Comment For Review

        Importance: High

         

         

         

        Dear All,

         

         

         

        Attached for your review is the DT Proposal to be posted with the

        Public Comment announcement discussed in below.   I have also attached

        a redline indicating the changes from the Status Report.

         

         

         

        Please let me know ASAP if you have any suggested changes or revisions

        to this document.

         

         

         

        All the best,

         

         

         

        Margie

         

         

         

         

         

        From: Margie Milam

        Sent: Friday, March 02, 2012 12:03 PM

        To: 'gnso-iocrc-dt@xxxxxxxxx'

        Subject: Draft Public Comment For Review

        Importance: High

         

         

         

        Dear All,

         

         

         

        As discussed on today’s call, please find attached for your review the

        announcement of the opening of a public comment on the proposed

        solution. I will circulate the proposal document separately.

         

         

         

        Please provide any comments ASAP.  I  plan to forward to the web admin

        team, per the DT’s instructions, this afternoon, at 4:00pm PST.

         

         

         

        All the best,

         

         

         

        Margie

         

         

 

 

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