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Comments of IPC

  • To: "newco-process-recognition@xxxxxxxxx" <newco-process-recognition@xxxxxxxxx>
  • Subject: Comments of IPC
  • From: Robert Hoggarth <robert.hoggarth@xxxxxxxxx>
  • Date: Tue, 12 Apr 2011 15:16:53 -0700

On Friday April 8, 2011 the Intellectual Property Constituency of the GNSO 
submitted comments to Staff regarding the Proposed Process for Recognition of 
New GNSO Constituencies.  Those comments are copied below and a copy of the 
submission (in .doc format) is also attached to this message.

Robert Hoggarth
Senior Policy Director


Comments of the Intellectual Property Constituency (IPC)
on the Proposed Process for Recognition of New GNSO Constituencies

The IPC is pleased to provide the following comments on the proposed “Process 
for Recognition of New GNSO Constituencies” (“Proposed Process”), which ICANN 
published for public comment on February 2, 2011. 

I.      General Comments

The IPC agrees with the ICANN Board’s stated goal of maximizing participation 
in the GNSO and its policy development processes by improving the mechanism by 
which new constituencies can form themselves and be evaluated for acceptance, 
as set forth in Article X, Section 5(4) of the ICANN Bylaws.  However, we also 
recognize the need to develop objective criteria and clear guidelines for the 
Board to follow to ensure any new Constituency adequately represents, on a 
global basis, the stakeholders it seeks to represent, and that its addition 
will improve the ability of the GNSO to carry out its policy-development 
responsibilities asrequired under Article X, Section 5 of the ICANN Bylaws.

We also have certain concerns about certain proposed review mechanisms and 
evaluation criteria.   For example, some of the evaluation criteria appear to 
be overly technical and arbitrary, which could act as an artificially high 
barrier to entry for new constituents.

Moreover, we believe additional measures may be needed to counteract the risk 
that incumbent members will reject or increase the burden on prospective new 
constituents out of self-interest.  Adding new constituencies could possibly 
have an effect on the voice of existing members, and also arguably may reduce 
the availability of finite ICANN staff resources for the existing 
constituencies.  As a result, even though the ICANN By-laws permit new 
constituencies to be added, Stakeholder Group members may be hostile towards 
new constituents.  This dynamic is important to take into consideration in 
developing any process for the recognition of new constituencies.

We note, as an aside, that the Proposed Process will directly impact the 
Stakeholder Groups within the Non-Contracted Parties House (i.e. the Commercial 
and Noncommercial Stakeholder Groups), and will not directly impact Stakeholder 
Groups in the Contracted Party House because Constituencies are not recognized 
in the Contracted Party House charters.  As a result, we believe that ICANN 
should give greater weight to any comments ICANN receives from the 
Non-Contracted Parties House; consideration to comments from the Contracted 
Parties House should bear in mind that additional new Constituencies will not 
affect the structure or voting rights in the Contracted Parties House.

We would like to emphasize that our concerns should not be taken as an 
indication that we believe that formation of a new constituency should be easy. 
 Rather, the process should be thorough and the evaluation criteria should be 
objective and fair to ensure any new Constituency adequately represents, on a 
global basis, the stakeholders it seeks to represent, and that its addition 
will improve the ability of the GNSO to carry out its policy-development 
responsibilities as required under Article X, Section 5 of the ICANN Bylaws.  
Furthermore, we appreciate that ICANN has recognized that these comments are 
not intended to apply to existing applicants for new constituencies, but as 
feedback for refining the process for futureapplicants.
The following sections provide comments on the proposed evaluation criteria, 
the delegation of authority to Stakeholder Groups, and comments on the 

II.    Specific Comments
A.   Evaluation Criteria a Welcome Improvement; Some are Arbitrary and Lack 
The process currently used to evaluate new constituencies is a two-step 
process, beginning with the submission of a “Notice of Intent to Form New 
Constituency.”  After submission of the Notice, the Board notifies the 
petitioner whether it is invited to move to Step 2, involving the submission of 
a “New Constituency Petition and Charter” form.  To date, only five groups have 
applied for constituency status, but none have yet been accepted.
The current process can be improved in a number of areas.  For example, it is 
questionable whether the Board receives sufficient information in Step 1 to 
adequately review the petition.  On the other hand, Step 2 requires a 
petitioner to prepare a complete draft charter even though the Board may well 
still deny the petition.  Also, there is a lack of clear published criteria and 
a timetable.  One petition apparently has been pending for nearly two years.  
Finally, the process lacks transparency.
The Proposed Process recasts the consideration of new constituencies into an 
“Applicant” and “Candidate” phase, and sets clear evaluation criteria and some 
time limits.  The detailed process and evaluation criteria bring needed 
transparency and accountability to the Proposed Process.  Stated goals of the 
process include reducing the early-stage burden on applicants, streamlining the 
process, providing specified qualifying criteria and transparency, and 
establishing more limited (yet flexible) time frames. The IPC agrees with these 
The IPC likewise agrees that minimum quorum and geographic diversity 
requirements should be placed on both Applicants and Candidates.  There should 
be some threshold requirements for potential new constituents to Stakeholder 
Groups because adding constituencies has potentially long-reaching implications 
for each Stakeholder Group’s existing structure and, consequently, its 
stability.  Establishing both geographic diversity and significant community 
support is necessary to ensure that the new Constituency represents a 
sufficiently significant representative voice within the Internet community. 
However, we believe that some of the standards set forth in the Proposed 
Process are arbitrary and undermine the integrity of the process. The following 
suggestions address specific concerns about the evaluation criteria:
·      Eliminate Arbitrary Requirements for Support from Specific Number of 
“Large” and “Small” Organizations (Appendix 1, No. 4)

Under the Proposed Process, an Applicant comprised primarily of organizations 
must submit letters of support from two large and eight small organizations.  
This seems to be an arbitrary line lacking any logic or policy rationale.  An 
Applicant who instead claims letters of support from eight large and two small 
organizations and thousands of individuals could not become candidates because 
they fail to meet the magic formula.  As an alternative, we recommend setting a 
minimum number of letters of support for all members and eliminating the 
distinction between “Large” and “Small” organizations.

·      Abolish Distinction between Constituencies (Appendix 1, No. 4; Appendix 
2, No. 5)

We also recommend abolishing the different standards set forth for 
constituencies composed “primarily” of organizations and those composed 
“primarily” of individuals.

·      Representational Focus (Appendix 1, No. 3)

The Proposed Process requires that membership of the proposed constituency be 
limited to a “segment” (or logically related segments) as defined in a 
recognized classification system (three are listed as examples).  
Alternatively, the applicant may propose arevamping of the SG into which it 
seeks membership to provide for an “alternative construct.”

The first part of this requirement is overly technical and has no logical or 
policy basis.  The only thing it accomplishes is to introduce a formalistic 
technical criterion that is not needed, and thatcould act as a barrier to 
entry.  Given the very few number of expected applicants, based on the ICANN 
experience to date, we believe such a rigid system is completely unnecessary.  
The second part of this requirement is not an antidote to the first part, 
because it seems highly unlikely that there will be another restructuring of 
the Stakeholder Groups anytime soon.  If that does occur, it will not be as a 
result of an initiative by an applicant for admission as a new constituency.

·      Authorized Letters of Support (Appendix 1, No. 4, Appendix 2, No. 5)

Under the Proposed Process, the Applicant/Candidate must provide authorized 
letters of support from members of the community.  While we support requiring 
documented support, requiring an Applicant to supply ratified letters from 
Board of Directors committing to participate in the new Constituency is too 
high of a barrier - few companies will commit to becoming a member of a 
Constituency that has not yet formed, whose future is uncertain, and whose 
Charter has not been created.  We recommend specifying what is and is not 
necessary to be included in letters of support and ensuring the bar is 
reasonable and not set too high.

·      “Active” Participation Is a Two-Way Street (Appendix 2, Nos. 2, 4)

We agree that the Candidate must be willing to attend scheduled meetings, but 
that it may be difficult for new candidates to break into established Working 
Groups.  We recommend either requiring Working Groups to actively participate 
with new Candidates, or acknowledge that an exception could be made for 
Candidates that do show up but through no fault of their own are blocked from 
participating by the established Working Group and/or Stakeholder Group.

B.    Delegation of Authority to SGEx Requires Additional Checks on SGEx Power
The proposal delegates a considerable and powerful evaluation and 
decision-making role to the affected GNSO Stakeholder Group at both stages of 
the process.  Under the Proposed Process, an Application will be submitted to 
one of the two Stakeholder Group Executive Committees (SGEx) in the 
Non-Contracting Party House – not the Board.  The Board must then review and 
then ratify or reject the SGEx’s decision.
Although SGEx decisions are subject to Board review, IPC is concerned about the 
extent to which the review is being delegated to the Stakeholder Group.  A 
Stakeholder Group’s input is appropriate and important.  However, in view of 
the self-interest involved (e.g., the potential dilution of influence and 
voting power if new constituencies are approved), we question whether the 
incumbent Stakeholder Group leadership is the appropriate gate-keeper.
We also note that adding new Constituents has different effects on different 
Stakeholder Groups.  The Commercial Stakeholder Group currently allocates two 
votes to each of three Constituents.  It is not clear how the votes should be 
allocated if a new constituent is accepted, presumably the burden shifts to the 
new constituent to design an acceptable voting scheme and amend the Charter.
The following proposals are designed to help curb the danger that the SGEx 
could dominate the new constituency process by rejecting applicants who fail to 
meet existing policy objectives while promoting those that align with their own 

 *   Create a Separate Committee to Review Applications
    *   Board – SG Committee  Rather than delegate the review of applications 
for new constituencies solely to the affected Stakeholder Group, we propose 
that the Board establish a special committee for this purpose.  The committee 
should include representatives of the applicable Stakeholder Group, but should 
also include an equal number of committee  members from outside the Stakeholder 
Group, but within the Non-Contracted Party House.  We believe this will result 
in a broader, more objective initial review.
    *   Alternative – Board & Combined SG Committee  As an alternative 
proposal, we suggest including members from leadership of the other SG group to 
review the applications, for example, have three members from the affected SG, 
two from the other SG, and one non-SG board member (who is not affiliated with 
a contracted party or the affected SG).
 *   Allow Applicant/Candidate Public Response to Committee Decisions Prior to 
Board Consideration
    *   Formal Rebuttal of SGEx Statements  Any Applicant or Candidate that is 
initially rejected by the committee should have the opportunity to formally 
rebut the reasons for the rejection and seek Board review of the decision.  
There should be a process for the Applicant or Candidate to appeal or rebut the 
SGEx’s evaluation, the Board’s decision, the SGEx’s reconsideration, or the 
Board’s decision on the SGEx’s reconsideration. Doing so would not only 
increase the fairness and transparency of the process, in accordance with 
ICANN’s stated goals[1], but would also give the Constituency the opportunity 
to rebut any issues the SGEx and/or the Board may have with the AFC or RNR that 
if addressed, would result in the Constituency being approved to the benefit of 
ICANN and its stakeholders.
 *   Increase Board Oversight
    *   Make Board Analysis Publicly Available.  All of the Board’s decisions 
regarding the rejection or approval of an Applicant or Constituency, including 
a decision on the SGEx’s re-evaluation, should be written and publicly 
available. Such written, publicly available decisions would further ICANN’s 
goal of transparency for the GNSO Constituency recognition process[2] and be 
consistent with the public availability of the SGEx’s decisions regarding the 
Constituency’s candidacy.
    *   Place Stricter Requirements on the Board to Make a Decision.  The SIC’s 
proposal only requires that the Board “shall strive” to ratify or reject the 
SGEx’s decision within a set timeframe.   We recommend instead that the Board 
should be required to ratify or reject any SG’s decision regarding the 
Constituency, or make a determination to accept or reject the Request for 
Recognition (RFR), within two (2) regular meetings after receiving the SGEx’s 
decision on the RFR. The language that the Board “shall strive to take action” 
(pages 5 and 6) is vague and does not provide a limited timeframe for the Board 
to make a decision on the RNR, which contradicts ICANN’s third goal for the 
Recognition of GNSO Constituencies[3] - a specific but limited timeframe for 
the recognition of new GNSO Constituencies. Undue delay can potentially 
prejudice a proposed Constituency when there are time sensitive issues that 
could affect the Constituency’s stakeholders, especially given the fact that 
ICANN’s regular board meetings do not fall on set dates. Further, establishing 
a set time for making a decision on the SG’s decision or the RNR, as the case 
may be, could insulate the Board from accusations that it unduly delayed making 
a decision which prejudiced the Constituency.
C.    Comments on Forms/Tools

The Proposed Process contains several Forms/Tools to assist potential new GNSO 
Constituency Applicant’s/Candidate’s navigate the proposed two-step process.  
These Tools/Forms include:

1.     GNSO Constituency Charter Elements Checklist (Appendix 3);

2.     GNSO New Constituency Recognition Flowchart;

3.     Application for Candidacy (AFC) as a New GNSO Constituency; and

4.     Request for Recognition (RFR) as a New GNSO Constituency and Charter 

All of these documents are generally straightforward, easy to understand, lay 
out a framework of what appear to be objective criteria, and appear to conform 
with the By-laws and Stated Goals.  The format and content of the Tools and 
Forms are also consistent with the requirements and process laid out in the 
Proposed Process.

We note that the new Application for Candidacy form is an improvement over 
theexisting Notice of Intent form, because it seeks more information and allows 
for a more thorough initial review.  The new Request for Recognition form, on 
the other hand, seems very similar to the existing New Constituency Petition, 
and still requires a draft charter.  However since this will be prepared only 
after a more thorough initial review, it may be appropriate.

The GNSO Constituency Charter Elements Checklist (Appendix 3), the Application 
for Candidacy (AFC) as a New GNSO Constituency, and Request for Recognition 
(RFR) as a New GNSO Constituency and Charter Template will be helpful resources 
to prompt and assist an Applicant Constituency (or Candidate Constituency) to 
consider and take all necessary steps to comply with the criteria for each step 
set forth in the Proposed Process.

The GNSO New Constituency Recognition Flowchart is a bit dense, but provides a 
useful 1 page visual “snapshot” depiction of the entire Proposed Process from 
start to finish, with an articulation of timelines and who is responsible for 
each step.
III.  Conclusion

We agree with ICANN that there is a need to improve the current process for 
forming new constituencies, and applaud the efforts of the SIC.  The evaluation 
criteria are important to combat the lack of transparency in the existing 
process.  However, we believe the process must be thorough and the evaluation 
criteria should be objective and fair to ensure any new Constituency adequately 
represents, on a global basis, the stakeholders it seeks to represent, and that 
its addition will improve the ability of the GNSO to carry out its 
policy-development responsibilities as required under Article X, Section 5 of 
the ICANN Bylaws. Thank you for considering the IPC’s views on this important 


[1] Ibid.

[2] Ibid., goal 1.

[3] http://www.icann.org/en/announcements/announcement-02feb11-en.htm.

Attachment: bin5HxJrgmKyT.bin
Description: application/applefile

Attachment: IPC Comments on Prop#BA6A71.doc
Description: IPC Comments on Proposed Process for Recognition of New GNSO Constituencies - Final.doc

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