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NCUC Comments on Charter of Commercial Stakeholder Group (CSG)

  • To: gnso-stakeholder-charters@xxxxxxxxx
  • Subject: NCUC Comments on Charter of Commercial Stakeholder Group (CSG)
  • From: "Robin Gross" <robin@xxxxxxxxxxxxx>
  • Date: Thu, 23 Jul 2009 17:06:53 -0700

Please find attached herewith NCUC's comments regarding the proposed
Commercial Stakeholder Group (CSG) Charter.

Thank you,
Robin Gross
NCUC Chair


NCUC Comments on the Proposed CSG Charter

23 July 2009

The Non-Commercial Users Constituency (NCUC) welcomes this opportunity to
comment on the various Stakeholder Group (SG) charters that have been put
up for consideration and community discussion.  NCUC also appreciates the
fact that ICANN Staff have attempted to set some uniform standards of
transparency, openness, fairness and courtesy (among others) across all
SGs.  Nevertheless, NCUC has grave concerns regarding the adoption of the
Commercial Stakeholders Group (CSG) Charter as it currently stands. These
concerns are as follows:

(1) Approval of New Constituencies

The Charter potentially, and possibly effectively, limits membership of
the new CSG to its existing Recognized Constituencies, since it subjects
examination of whether any new constituency sufficiently represents
?commercial user interests? to the ?unanimous consent? of the existing
Recognized Constituencies .

"4.2 Membership shall also be open to any additional constituency
recognised by ICANN?s Board under its by-laws, provided that such
constituency, as determined by the unanimous consent of the signatories to
this charter, is representative of commercial user interests which for the
purposes of definition are distinct from and exclude registry and
prospective registry, registrar, re-seller or other domain name supplier
interests."  (italics added).

Provision 4.2 of the proposed CSG (drafted by existing commercial
constituencies) is untenable for the following reasons:

(i) it goes against the Board?s express desire to encourage the formation
of new constituencies and increase the growth and diversification of the
overall GNSO community, including forging a ?stronger partnership between
the international business community and ICANN? ;

(ii) it arrogates to the CSG the constituency approval function more
properly exercised by the Board of Directors (particularly for a nonprofit
organization with heightened obligations to not be driven by commercial
interests); and

(iii) in light of recent discussions within the GNSO Council and the
community as to who and what would constitute a ?commercial? interest
and/or user , the requirement of unanimous consent from all existing
commercial constituencies is extremely likely to mean that no new
constituency will be formed within the CSG for as long as its transitional
status exists.

(iv)  it treats commercial stakeholders different from noncommercial
stakeholders, with the board controlling noncommercial users, while giving
commercial users a VETO over the board?s decisions.

It is no answer to say that the CSG Charter is merely ?transitional?, as
the Charter?s own silence regarding how new constituencies can be formed
within the final CSG means that the GNSO community is left in a state of
uncertainty ? to await the CSG?s undefined ?consensus process?  regarding
what is intended to be a significant feature in the restructured GNSO. 
This uncertainty is further aggravated by the explicit acknowledgment that
how new constituencies are to be created is something that the CSG will
determine only after its transitional Charter is approved
NCUC believes that the CSG Charter, even as a transitional document,
should be amended to reflect that decisions as to the formation of new
constituencies should be made by the Board and not the Recognized
Constituencies or any other person or group within the CSG.

(2) Election of Representatives/Councilors

        The CSG Charter contemplates the selection of two (2) representatives
from each of the Recognized Constituencies, for a total of six (6)
representatives, which NCUC assumes will serve as the transitional CSG?s
Councilors to the Non-Contracting Party House. There is no provision for
transitioning these six (6) representatives to the Final CSG Charter, for
limiting or staggering their service terms, or for including
representatives of new constituencies that may form during the transition
period. Given that the timetable for fully implementing a restructured
GNSO has been rescheduled in certain respects, and may possibly be again,
NCUC believes that the lack of detail in the CSG Charter dealing with
issues of representation must be addressed before it is approved and

 (3) General Comments

        As mentioned above, the draft transitional CSG Charter is extremely
brief and gives no guidance as to how the Recognized Constituencies
intend to operate within the restructured GNSO.  NCUC invites the Board,
ICANN Staff, the CSG and other members of the community to compare the
brevity and generality of the CSG Charter to that being proposed by the
Board and ICANN Staff for the new Non-Commercial Stakeholders Group
(NCSG), the other SG making up the Non-Contracting Party House. 
Although that Charter, too, is termed a transitional document, it is far
more controlling and detailed, e.g. in describing the processes and
voting procedures within an Executive Committee (EC).  The difference in
treatment between the CSG and the NCSG as can be clearly seen in the
proposed charters is staggering, and points to ICANN?s deference to
insider-lobbying by large companies in formulating policy.

        To the extent that both proposed CSG and NCSG Charters (as put up for
public comment) are intended to be transitional in nature, and since both
the CSG and NCSG will comprise the Non-Contracting Party House, NCUC
believes that both Charters ought to reflect a similar level of detail,
particularly as regards operational details relating to the existence,
creation and representation of new Constituencies .

NCUC has been engaged in recent and extensive discussions with the Board?s
Structural Improvements Committee (SIC) regarding substantive changes to
the NCSG Charter originally proposed by NCUC, which changes (as reflected
in the ICANN Staff?s current draft available for public comment) resulted
in part from feedback provided by other GNSO Constituencies.  We request
that the Board, ICANN Staff and the GNSO Community ensure that the CSG
Charter be subject to similar scrutiny and input.
  Section 4.2 of the proposed CSG Charter available at:

  See p. 32, Board Governance Committee Working Group (BGC WG) Report on
GNSO Improvements.

  E.g. the question of which of the two SGs in the Non-Contracting Party
House new groups such as the proposed new IDNgTLD constituency should
belong to.

  Section 8.2.

  Section 9.
  See, e.g. Board Resolution #7(b) from its May 2009 meeting, calling for
the SIC and ICANN Staff to revise ?most? Charters to ?ensure equitable
participation and representation by new constituencies?. To the extent
that the SIC and ICANN Staff have attempted to revise the original
proposed NCSG Charter to do so, NCUC believes that a similar exercise
should be undertaken with respect to the CSG Charter.

Attachment: NCUC_Comments_CSG_Charter.pdf
Description: Adobe PDF document

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