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

[Avri Doria <avri@xxxxxxx>]

Hi,

My apologies Marika, you did what you needed to do to make the delivery date.

I should have noticed this before.  It was only the recent conversation that 
pointed out to to me the real hazards and slant of the the language we are 
putting out, which frankly I had missed earlier.

I will just be sure to comment on the issue during the comment period.  At 
least now I know what I need to say, starting with the fact that the language 
we released is improperly slanted in favor of a Contracted Parties House 
interpretation in keeping with limits they wish to put on the PDP process that 
I believe would be disadvantageous to the interests represented by the Non 
Contracted Parties and to the rest of the ICANN community.

a.

On 21 Feb 2011, at 21:02, Marika Konings wrote:

> Apologies, but I have already submitted the report for publication, so no
> further changes are possible.
> 
> Marika
> 
> On 21/02/11 20:58, "Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx> wrote:
> 
>> 
>> Avri,
>> 
>> The wording you have used prejudges that the bylaws allow something to be
>> declared consensus policies with only a majority, which is arguably more
>> prejudicial.  If it is not too late, I would be fine with a factual
>> statement such that just recites what the provision states:
>> 
>> "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 understand your passion for this issue, but remember that those on the
>> other side are just as passionate.
>> 
>> Jeffrey J. Neuman 
>> Neustar, Inc. / Vice President, Law & Policy
>> 
>> 
>> The information contained in this e-mail message is intended only for the
>> use of the recipient(s) named above and may contain confidential and/or
>> privileged information. If you are not the intended recipient you have
>> received this e-mail message in error and any review, dissemination,
>> distribution, or copying of this message is strictly prohibited. If you
>> have received this communication in error, please notify us immediately
>> and delete the original message.
>> 
>> 
>> 
>> -----Original Message-----
>> From: owner-gnso-ppsc-pdp@xxxxxxxxx
>> [mailto:owner-gnso-ppsc-pdp@xxxxxxxxx] On Behalf Of Avri Doria
>> Sent: Monday, February 21, 2011 2:48 PM
>> To: Gnso-ppsc-pdp@xxxxxxxxx
>> Subject: Re: [gnso-ppsc-pdp] Questions / comments - the meaning of "act"
>> 
>> 
>> Dear Jeff,
>> 
>> Oh course, I just want to _insist_ that the highlighting is done fairly
>> and properly.  This is an issue I feel very strongly about and is an
>> issue that I seen crop up in a couple of places now and one I feel I must
>> be very clear about.
>> 
>> For example, in recommendation 42, I find that differentiation along the
>> lines of narrow and broad is prejudicial.  i also fined the explanation
>> to be in error.  It is not the case that the "even if it was not approved
>> by the required GNSO voting threshold"  but rather that "even if it was
>> approved by a required majority GNSO voting threshold as allowed in the
>> current By-laws instead of the supermajority threshold as also allowed in
>> the current By-laws).    I apologize for not having pointed this out
>> earlier, but until this discussio, I did not fully realize the prejudice
>> contained in the current wording.  Ie. the discussion made me study it
>> more closely.  and I thank you for that.
>> 
>> 
>> Note:   while looking for the text in questions, which I never found i
>> found the following
>> 
>>> Recommendation 1.
>>> 
>>> The PDP-WT discussed whether the voting thresholds currently n place
>> 
>> should be 'in place'
>> 
>> 
>> a.
>> 
>> 
>> On 21 Feb 2011, at 20:05, Neuman, Jeff wrote:
>> 
>>> 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
>>> 
>>> 
>>> The information contained in this e-mail message is intended only for
>>> the use of the recipient(s) named above and may contain confidential
>>> and/or privileged information. If you are not the intended recipient you
>>> have received this e-mail message in error and any review,
>>> dissemination, distribution, or copying of this message is strictly
>>> prohibited. If you have received this communication in error, please
>>> notify us immediately and delete the original message.
>>> 
>>> 
>>> 
>>> -----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.
>>>>> 
>>>>> 
>>>>> 
>>>> 
>>>> 
>>> 
>>> 
>>> 
>> 
>> 
>> 
> 
>