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RE: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"
- To: "Marika Konings" <marika.konings@xxxxxxxxx>
- Subject: RE: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"
- From: "James M. Bladel" <jbladel@xxxxxxxxxxx>
- Date: Mon, 21 Feb 2011 13:07:23 -0700
<html><body><span style="font-family:Arial; color:#000000;
font-size:10pt;"><div>At risk of blowing up this list, may I ask which version
went
out?</div><div><br></div><div>:)</div><div><br></div><div>J.</div><div><br></div>
<blockquote id="replyBlockquote" webmail="1" style="border-left: 2px solid
blue; margin-left: 8px; padding-left: 8px; font-size: 10pt; color: black;
font-family: verdana;">
<div id="wmQuoteWrapper">
-------- Original Message --------<br>
Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of<br>
"act"<br>
From: Marika Konings <<a
href="mailto:marika.konings@xxxxxxxxx";>marika.konings@xxxxxxxxx</a>><br>
Date: Mon, February 21, 2011 2:02 pm<br>
To: "Neuman, Jeff" <<a
href="http://Jeff.Neuman@xxxxxxxxxx>";>Jeff.Neuman@xxxxxxxxxx></a>;, Avri
Doria <avri@xxxxxxx>,<br>
"<a href="mailto:Gnso-ppsc-pdp@xxxxxxxxx";>Gnso-ppsc-pdp@xxxxxxxxx</a>"
<<a href="mailto:gnso-ppsc-pdp@xxxxxxxxx";>gnso-ppsc-pdp@xxxxxxxxx</a>><br>
<br>
<br>
Apologies, but I have already submitted the report for publication, so no<br>
further changes are possible.<br>
<br>
Marika<br>
<br>
On 21/02/11 20:58, "Neuman, Jeff" <<a
href="http://Jeff.Neuman@xxxxxxxxxx>";>Jeff.Neuman@xxxxxxxxxx></a>;
wrote:<br>
<br>
><br>
>Avri,<br>
><br>
>The wording you have used prejudges that the bylaws allow something to
be<br>
>declared consensus policies with only a majority, which is arguably more<br>
>prejudicial. If it is not too late, I would be fine with a factual<br>
>statement such that just recites what the provision states:<br>
><br>
>"In any case in which the Council is not able to reach GNSO
Supermajority<br>
>vote, a majority vote of the Board will be sufficient to act."<br>
><br>
>I understand your passion for this issue, but remember that those on the<br>
>other side are just as passionate.<br>
><br>
>Jeffrey J. Neuman <br>
>Neustar, Inc. / Vice President, Law & Policy<br>
><br>
><br>
>The information contained in this e-mail message is intended only for
the<br>
>use of the recipient(s) named above and may contain confidential and/or<br>
>privileged information. If you are not the intended recipient you have<br>
>received this e-mail message in error and any review, dissemination,<br>
>distribution, or copying of this message is strictly prohibited. If you<br>
>have received this communication in error, please notify us immediately<br>
>and delete the original message.<br>
><br>
><br>
><br>
>-----Original Message-----<br>
>From: <a
href="mailto:owner-gnso-ppsc-pdp@xxxxxxxxx";>owner-gnso-ppsc-pdp@xxxxxxxxx</a><br>
>[<a
href="mailto:owner-gnso-ppsc-pdp@xxxxxxxxx";>mailto:owner-gnso-ppsc-pdp@xxxxxxxxx</a>]
On Behalf Of Avri Doria<br>
>Sent: Monday, February 21, 2011 2:48 PM<br>
>To: <a href="mailto:Gnso-ppsc-pdp@xxxxxxxxx";>Gnso-ppsc-pdp@xxxxxxxxx</a><br>
>Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"<br>
><br>
><br>
>Dear Jeff,<br>
><br>
>Oh course, I just want to _insist_ that the highlighting is done fairly<br>
>and properly. This is an issue I feel very strongly about and is an<br>
>issue that I seen crop up in a couple of places now and one I feel I
must<br>
>be very clear about.<br>
><br>
>For example, in recommendation 42, I find that differentiation along the<br>
>lines of narrow and broad is prejudicial. i also fined the explanation<br>
>to be in error. It is not the case that the "even if it was not
approved<br>
>by the required GNSO voting threshold" but rather that "even if it was<br>
>approved by a required majority GNSO voting threshold as allowed in the<br>
>current By-laws instead of the supermajority threshold as also allowed
in<br>
>the current By-laws). I apologize for not having pointed this out<br>
>earlier, but until this discussio, I did not fully realize the prejudice<br>
>contained in the current wording. Ie. the discussion made me study it<br>
>more closely. and I thank you for that.<br>
><br>
><br>
>Note: while looking for the text in questions, which I never found i<br>
>found the following<br>
><br>
>> Recommendation 1.<br>
>> <br>
>> The PDP-WT discussed whether the voting thresholds currently n
place<br>
><br>
>should be 'in place'<br>
><br>
><br>
>a.<br>
><br>
><br>
>On 21 Feb 2011, at 20:05, Neuman, Jeff wrote:<br>
><br>
>> Avri,<br>
>> <br>
>> As I said in my earlier e-mail, the issue should be highlighted and
we<br>
>>should get public input. That should be the key take away from my
point<br>
>>in the last e-mail.<br>
>> <br>
>> <br>
>> Jeffrey J. Neuman<br>
>> Neustar, Inc. / Vice President, Law & Policy<br>
>> <br>
>> <br>
>> The information contained in this e-mail message is intended only
for<br>
>>the use of the recipient(s) named above and may contain confidential<br>
>>and/or privileged information. If you are not the intended recipient
you<br>
>>have received this e-mail message in error and any review,<br>
>>dissemination, distribution, or copying of this message is strictly<br>
>>prohibited. If you have received this communication in error, please<br>
>>notify us immediately and delete the original message.<br>
>> <br>
>> <br>
>> <br>
>> -----Original Message-----<br>
>> From: <a
href="mailto:owner-gnso-ppsc-pdp@xxxxxxxxx";>owner-gnso-ppsc-pdp@xxxxxxxxx</a><br>
>>[<a
href="mailto:owner-gnso-ppsc-pdp@xxxxxxxxx";>mailto:owner-gnso-ppsc-pdp@xxxxxxxxx</a>]
On Behalf Of Avri Doria<br>
>> Sent: Monday, February 21, 2011 1:58 PM<br>
>> To: <a
href="mailto:Gnso-ppsc-pdp@xxxxxxxxx";>Gnso-ppsc-pdp@xxxxxxxxx</a><br>
>> Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of
"act"<br>
>> <br>
>> <br>
>> Hi,<br>
>> <br>
>> I am sure you are right. But we should make sure that the opposite<br>
>>sides of the issues are well outlined as opposed to only one side
being<br>
>>discussed or just leaving the issues undiscussed.<br>
>> <br>
>> And I see ABSOLUTELY NO REASON why this should be a issue discussed
in<br>
>>private between Contracted Parties and Staff. This is policy and is
the<br>
>>business of us all, especially the GNSO Non Contracted Parties.
Your<br>
>>contracts are our business, as the community is ICANN. the staff is
not<br>
>>ICANN, it is just one part of ICANN. This is a fundamental point of
the<br>
>>PDP and should not be lost in any chair level presumptions about<br>
>>different avenues of recourse!<br>
>> <br>
>> a.<br>
>> <br>
>> On 21 Feb 2011, at 18:04, Neuman, Jeff wrote:<br>
>> <br>
>>> All,<br>
>>> <br>
>>> We are not going to agree on this issue as a group before
publishing.<br>
>>>Let's make sure the issue is reflected and goes out for comment.
I<br>
>>>would like to see comment from the community as well as ICANN
(which<br>
>>>may be a first).<br>
>>> <br>
>>> In the end it may not matter what we (the work team) say as it
may be<br>
>>>fought out between ICANN staff/board and the contracted parties as
this<br>
>>>goes to the heart of the contracts. But the issue should be<br>
>>>highlighted.<br>
>>> Jeffrey J. Neuman, Esq.<br>
>>> Vice President, Law & Policy<br>
>>> NeuStar, Inc.<br>
>>> <a
href="http://Jeff.Neuman@xxxxxxxxxxx";>Jeff.Neuman@xxxxxxxxxxx</a><br>
>>> <br>
>>> <br>
>>> <br>
>>> ----- Original Message -----<br>
>>> From: Avri Doria [<a
href="mailto:avri@xxxxxxx";>mailto:avri@xxxxxxx</a>]<br>
>>> Sent: Monday, February 21, 2011 11:58 AM<br>
>>> To: <a
href="mailto:Gnso-ppsc-pdp@xxxxxxxxx";>Gnso-ppsc-pdp@xxxxxxxxx</a> <<a
href="mailto:gnso-ppsc-pdp@xxxxxxxxx";>gnso-ppsc-pdp@xxxxxxxxx</a>><br>
>>> Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning
of<br>
>>>"act"<br>
>>> <br>
>>> <br>
>>> Hi,<br>
>>> <br>
>>> I would never presume to say you, or anyone else, was not<br>
>>>understanding something, so please do not take my response as
trying to<br>
>>>explain something you don't already understand.<br>
>>> <br>
>>> What I take from what is in the current Bylaws and what I
support<br>
>>>keeping, is that approval of a consensus policy has two
thresholds.<br>
>>> <br>
>>> 1. If the GNSO has consensus, ie. supermajority, then the Board
really<br>
>>>can't refuse the policy unless they have a contravening
supermajority.<br>
>>>That is a very powerful ability to give the GNSO - the right to
force<br>
>>>the requirement for a supermajority vote and essentially force
the<br>
>>>Board's hand on creating a policy.<br>
>>> <br>
>>> 2. On the other hand, if just a democratically reached majority in
the<br>
>>>GNSO approves of the policy then the Board's hand is not forced
and<br>
>>>they only need a majority of the Board to decide whether something
is<br>
>>>the right policy for ICANN.<br>
>>> <br>
>>> And the reason to have this sort of mechanism is that it prevents
any<br>
>>>one SG from creating a roadblock that would prevent a policy they
found<br>
>>>unfavorable.<br>
>>> <br>
>>> I actually think it is a clever way of handling the situation
and<br>
>>>removing it would create all sorts of roadblock scenarios that
could<br>
>>>deadlock ICANN on important issues.<br>
>>> <br>
>>> a.<br>
>>> <br>
>>> <br>
>>> <br>
>>> On 21 Feb 2011, at 17:43, James M. Bladel wrote:<br>
>>> <br>
>>>> <br>
>>>> "I would also note that not meeting the higher threshold does
not mean<br>
>>>> rejected, it just means accepted at a lower threshold. "<br>
>>>> <br>
>>>> So, what's the purpose of defining two thresholds? What I am
I not<br>
>>>> understanding on this?<br>
>>>> <br>
>>>> Thanks--<br>
>>>> <br>
>>>> J.<br>
>>>> <br>
>>>> -------- Original Message --------<br>
>>>> Subject: Re: [gnso-ppsc-pdp] Questions / comments - the
meaning of<br>
>>>> "act"<br>
>>>> From: Avri Doria <<a
href="mailto:avri@xxxxxxx";>avri@xxxxxxx</a>><br>
>>>> Date: Mon, February 21, 2011 10:41 am<br>
>>>> To: "<a
href="mailto:Gnso-ppsc-pdp@xxxxxxxxx";>Gnso-ppsc-pdp@xxxxxxxxx</a>" <<a
href="mailto:gnso-ppsc-pdp@xxxxxxxxx";>gnso-ppsc-pdp@xxxxxxxxx</a>><br>
>>>> <br>
>>>> <br>
>>>> <br>
>>>> On 21 Feb 2011, at 14:30, James M. Bladel wrote:<br>
>>>> <br>
>>>>> + Wouldn't the proposed addition of "If approved by the
Council by<br>
>>>>> the required thresholds" to section 1 (required elements
of a PDP) of<br>
>>>>> the new Annex A, prejudge the outcome of the outstanding
discussion<br>
>>>>>on<br>
>>>>> whether the Board can act on recommendations that have not
been<br>
>>>>>approved<br>
>>>>> by the required GNSO voting threshold? Would it be better
to leave<br>
>>>>>this<br>
>>>>> proposed addition out for now and consider this following
the<br>
>>>>>outcome of<br>
>>>>> the discussion on the Board can 'act'?<br>
>>>>> <br>
>>>>> JMB: I support Jeff's addition. The Board can "act" on
GNSO-rejected<br>
>>>>> recommendations by initiating a PDP/Issues Report of their
own.<br>
>>>> <br>
>>>> <br>
>>>> On this one, I am still of the opinion that the Board can act
means<br>
>>>>they<br>
>>>> can approve as consensus policy that only got a majority vote
in the<br>
>>>> council by a supermajority vote.<br>
>>>> <br>
>>>> <br>
>>>>> f. In any case in which the Council is not able to reach
GNSO<br>
>>>>>Supermajority vote, a majority vote of the Board will be
sufficient<br>
>>>>>to act.<br>
>>>> <br>
>>>> I contend that the word 'act' is defined in the same as 'act;
is in:<br>
>>>> <br>
>>>>> c. In the event that the Board determines not to act in
accordance<br>
>>>>>with the GNSO Supermajority Vote recommendation, the Board
shall (i)<br>
>>>>>articulate the reasons for its determination in a report to
the<br>
>>>>>Council (the "Board Statement"); and (ii) submit the Board
Statement<br>
>>>>>to the Council.<br>
>>>> <br>
>>>> And that this means that in the event the GNSO only agrees by
a<br>
>>>>majority<br>
>>>> on a policy recommendation the Board can decide to approve it
with a<br>
>>>> majority or to disapprove it with a majority.<br>
>>>> <br>
>>>> Of course I am not a lawyer and may be missing some important
modality<br>
>>>> of legal exegesis in my interpretation, but i do think that
the same<br>
>>>> word used in two sentences in the same paragraph would
normally have<br>
>>>>the<br>
>>>> same meaning in both sentences.<br>
>>>> <br>
>>>> I also would add that I do not think this is something that
should be<br>
>>>> changed. I certainly expect the Board would take the majority
only<br>
>>>> opinion into account, would read the explanations and the
reasons<br>
>>>> against and make an informed decision.<br>
>>>> <br>
>>>> Also, I do not think they need to initiate another PDP in this
case.<br>
>>>>At<br>
>>>> least not as a general rule, though of course I do not suggest
making<br>
>>>>a<br>
>>>> rule that would prevent them from doing so, should they
desire.<br>
>>>> <br>
>>>> I would also note that not meeting the higher threshold does
not mean<br>
>>>> rejected, it just means accepted at a lower threshold.<br>
>>>> <br>
>>>> <br>
>>>> a.<br>
>>>> <br>
>>>> <br>
>>>> <br>
>>> <br>
>>> <br>
>> <br>
>> <br>
>> <br>
><br>
><br>
><br>
<br>
<br>
</div>
</blockquote></span></body></html>
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