RE: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

Avri,

As I said in my earlier e-mail, the issue should be highlighted and we should 
get public input.  That should be the key take away from my point in the last 
e-mail.


Jeffrey J. Neuman 
Neustar, Inc. / Vice President, Law & Policy


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-----Original Message-----
From: owner-gnso-ppsc-pdp@xxxxxxxxx [mailto:owner-gnso-ppsc-pdp@xxxxxxxxx] On 
Behalf Of Avri Doria
Sent: Monday, February 21, 2011 1:58 PM
To: Gnso-ppsc-pdp@xxxxxxxxx
Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"


Hi,

I am sure you are right.  But we should make sure that the opposite sides of 
the issues are well outlined as opposed to only one side being discussed or 
just leaving the issues undiscussed.

And I see ABSOLUTELY NO REASON why this should be a issue discussed in private 
between Contracted Parties and Staff.  This is policy and is the business of us 
all, especially the GNSO Non Contracted Parties.  Your contracts are our 
business, as the community is ICANN.  the staff is not ICANN, it is just one 
part of ICANN.  This is a fundamental point of the PDP and should not be lost 
in any chair level presumptions about different avenues of recourse!

a.

On 21 Feb 2011, at 18:04, Neuman, Jeff wrote:

> All,
> 
> We are not going to agree on this issue as a group before publishing.  Let's 
> make sure the issue is reflected and goes out for comment.  I would like to 
> see comment from the community as well as ICANN (which may be a first).  
> 
> In the end it may not matter what we (the work team)  say as it may be fought 
> out between ICANN staff/board and the contracted parties as this goes to the 
> heart of the contracts.  But the issue should be highlighted.
> Jeffrey J. Neuman, Esq.
> Vice President, Law & Policy
> NeuStar, Inc.
> Jeff.Neuman@xxxxxxxxxxx
> 
> 
> 
> ----- Original Message -----
> From: Avri Doria [mailto:avri@xxxxxxx]
> Sent: Monday, February 21, 2011 11:58 AM
> To: Gnso-ppsc-pdp@xxxxxxxxx <gnso-ppsc-pdp@xxxxxxxxx>
> Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"
> 
> 
> Hi,
> 
> I would never presume to say you, or anyone else, was not understanding 
> something, so please do not take my response as trying to explain something 
> you don't already understand.
> 
> What I take from what is in the current Bylaws and what I support keeping, is 
> that approval of a consensus policy has two thresholds.
> 
> 1. If the GNSO has consensus, ie. supermajority, then the Board really can't 
> refuse the policy unless they have a contravening supermajority.  That is a 
> very powerful ability to give the GNSO - the right to force the requirement 
> for a supermajority vote and essentially force the Board's hand on creating a 
> policy.
> 
> 2. On the other hand, if just a democratically reached majority in the GNSO 
> approves of the policy then the Board's hand is not forced and they only need 
> a majority of the Board to decide whether something is the right policy for 
> ICANN.
> 
> And the reason to have this sort of mechanism is that it prevents any one SG 
> from creating a roadblock that would prevent a policy they found unfavorable.
> 
> I actually think it is a clever way of handling the situation and removing it 
> would create all sorts of roadblock scenarios that could deadlock ICANN on 
> important issues.
> 
> a.
> 
> 
> 
> On 21 Feb 2011, at 17:43, James M. Bladel wrote:
> 
>> 
>> "I would also note that not meeting the higher threshold does not mean
>> rejected, it just means accepted at a lower threshold. "
>> 
>> So, what's the purpose of defining two thresholds?  What I am I not
>> understanding on this?
>> 
>> Thanks--
>> 
>> J.
>> 
>> -------- Original Message --------
>> Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of
>> "act"
>> From: Avri Doria <avri@xxxxxxx>
>> Date: Mon, February 21, 2011 10:41 am
>> To: "Gnso-ppsc-pdp@xxxxxxxxx" <gnso-ppsc-pdp@xxxxxxxxx>
>> 
>> 
>> 
>> On 21 Feb 2011, at 14:30, James M. Bladel wrote:
>> 
>>> + Wouldn't the proposed addition of "If approved by the Council by
>>> the required thresholds" to section 1 (required elements of a PDP) of
>>> the new Annex A, prejudge the outcome of the outstanding discussion on
>>> whether the Board can act on recommendations that have not been approved
>>> by the required GNSO voting threshold? Would it be better to leave this
>>> proposed addition out for now and consider this following the outcome of
>>> the discussion on the Board can 'act'?
>>> 
>>> JMB: I support Jeff's addition. The Board can "act" on GNSO-rejected
>>> recommendations by initiating a PDP/Issues Report of their own.
>> 
>> 
>> On this one, I am still of the opinion that the Board can act means they
>> can approve as consensus policy that only got a majority vote in the
>> council by a supermajority vote.
>> 
>> 
>>> f. In any case in which the Council is not able to reach GNSO Supermajority 
>>> vote, a majority vote of the Board will be sufficient to act.
>> 
>> I contend that the word 'act' is defined in the same as 'act; is in:
>> 
>>> c. In the event that the Board determines not to act in accordance with the 
>>> GNSO 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.
>> 
>> And that this means that in the event the GNSO only agrees by a majority
>> on a policy recommendation the Board can decide to approve it with a
>> majority or to disapprove it with a majority.
>> 
>> Of course I am not a lawyer and may be missing some important modality
>> of legal exegesis in my interpretation, but i do think that the same
>> word used in two sentences in the same paragraph would normally have the
>> same meaning in both sentences.
>> 
>> I also would add that I do not think this is something that should be
>> changed. I certainly expect the Board would take the majority only
>> opinion into account, would read the explanations and the reasons
>> against and make an informed decision.
>> 
>> Also, I do not think they need to initiate another PDP in this case. At
>> least not as a general rule, though of course I do not suggest making a
>> rule that would prevent them from doing so, should they desire.
>> 
>> I would also note that not meeting the higher threshold does not mean
>> rejected, it just means accepted at a lower threshold.
>> 
>> 
>> a.
>> 
>> 
>> 
> 
>