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

[Avri Doria <avri@xxxxxxx>]

Hi,

No problem.  I know I should have raised this before but as I said only because 
became acutely aware of the inaccuracy and prejudicial language as we discussed 
it further.  I will comment on this during the comment period.

At least now I am all fired up on the topic and know what needs to be said.

thanks
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.
>>>>> 
>>>>> 
>>>>> 
>>>> 
>>>> 
>>> 
>>> 
>>> 
>> 
>> 
>> 
> 
>