Summary and Analysis of Public Comments for: Proposed Process for Recognition of New GNSO Constituencies
Summary and Analysis of Public Comments for: Proposed Process for Recognition of New GNSO Constituencies Comment period: 2 February 2010 – 4 March 2011 [Extended to 3 April 2011] Summary published: 12 April 2011 Prepared by: Robert Hoggarth, Senior Policy Director, ICANN Staff I. BACKGROUND In June 2008, the ICANN Board of Directors endorsed a series of recommendations concerning how to improve the GNSO's structures and operations. A significant underpinning of those recommendations was an interest in maximizing participation in the GNSO and its policy development processes. Among the recommendations endorsed by the Board was that ICANN take steps to clarify and promote the option to self-form new GNSO Constituencies as provided in the ICANN Bylaws, Article X, Section 5(4)<http://icann.org/en/general/bylaws.htm#X-5>. Recognizing that the Bylaws do not contain specific procedural guidance concerning how an interested party might formulate a new Constituency petition, the Board directed Staff in late 2008 to assist the community by developing a set of procedures, consistent with Bylaws principles, which a prospective organizer could follow in submitting a petition to become approved as a new GNSO Constituency. That process, acknowledged by the Board in October 2008, involved submission of (1) a "Notice of Intent to Form a New GNSO Constituency" (NOIF) followed by (2) a formal Petition/Charter. To date, five prospective Constituency groups have submitted formal New GNSO Constituency petitions in accordance with the process; however, the Board has yet to approve any of those applications. To address concerns it had regarding the clarity and timing of the original New Constituency petitioning procedure, the ICANN Board’s Structural Improvements Committee (SIC) developed a replacement "Process for Recognition of New GNSO Constituencies." The proposed process significantly modifies the original procedure and is designed to accomplish four goals: 1) Optimize the considerable time and effort required to form, organize, and propose a new GNSO Constituency by prescribing a streamlined sequence of steps and associated evaluation criteria that are objective, fair, and transparent - with ample opportunity for community input; 2) Delegate more authority to each GNSO Stakeholder Group in evaluating new Constituency proposals while maintaining the Board's oversight role; 3) Manage the entire process to a flexible, but specific and limited timeframe; and 4) Provide a partial set of criteria for use during the periodic review of the GNSO. Please see the Forum Announcement<http://icann.org/en/announcements/announcement-02feb11-en.htm> for a broader discussion of the background leading to thisPublic Forum as well as a brief overview of the proposed process. Document Links: · Process for Recognition of New GNSO Constituencies (including 3 Appendices)<http://gnso.icann.org/improvements/newco-recognition-process-10jan11-en.pdf> [PDF, 206 KB] · Process Flowchart<http://gnso.icann.org/improvements/newco-recognition-flowchart-10jan11-en.pdf> [PDF, 146 KB] · Application for Candidacy (AFC) as a New GNSO Constituency<http://gnso.icann.org/improvements/newco-afc-10jan11-en.pdf> [PDF, 165 KB] · Request for Recognition (RFR) as a New GNSO Constituency<http://gnso.icann.org/improvements/newco-rfr-10jan11-en.pdf> [PDF, 261 KB] All members of the ICANN community and the public were invited to review this proposed "Process for Recognition of New GNSO Constituencies" and share their comments in this Forum through 3 April 2011. II. GENERAL COMMENTS & CONTRIBUTORS At the time this Summary and Analysis was prepared, a total of five (5) community submissions had been posted to the Forum, two by the same individual. One Staff notice extending the deadline is not included in that total. The contributors, both individuals and organizations, are listed below in chronological order by posting date with initials noted. To the extent that quotations are used in the foregoing narrative (Section III), such citations will reference the contributor’s initials. Organizations and Groups: Contributor Submitted by Initials At-Large Advisory Committee Alan Greenberg ALAC Registries Stakeholder Group of the GNSO David Maher RySG Intellectual Property Constituency of the GNSO IPC IPC Individuals: Contributor Initials Danny Younger [two separate submissions] DY III. SUMMARY & ANALYSIS General Disclaimer: This document is intended to broadly and comprehensively summarize the comments submitted to this Forum, but not to address every specific position stated by each contributor.. Staff recommends that readers interested in specific aspects of any of the summarized comments, or the full context of others, refer directly to the specific contributions at: http://forum.icann.org/lists/newco-process-recognition/. The public comments address six main areas outlined below and summarized in the corresponding sections that follow: 1) The process encompasses an inherent conflict of interest that could result in legitimate new constituency applications being not only discouraged, but ultimately thwarted; 2) The process is unnecessarily complex, cumbersome, and elongated; 3) Certain evaluation criteria as overly technical and arbitrary; 4) Specific process and procedural recommendations are offered to address concerns; 5) Several questions are identified seeking additional clarification; and 6) An additional proposal is submitted for SIC/Board consideration. 1. Conflict of Interest With respect to the conflict of interest concern, DY believes that existing Stakeholder Groups have little or no incentive to invite new organizational entrants because it would lead to a dilution of power. DY cites a few examples of such unwelcoming behavior from the DNSO era to the present and advises, “we cannot trust any constituency’s private self-interest to willingly subordinate itself to the public interest…they will always act to protect their ‘power.’ DY continues, “conferring upon the executive committees the right to reject another constituency’s application is a decidedly exclusionary approach that is ripe for abuse.” DY advises that constituency applications “not be vetted by those with competing interests, but…subject only to a determination by the Board itself after a suitable period of public comment.” IPC agrees that the conflict of interest “dynamic is important to take into consideration” and counsels the SIC/Board that “Stakeholder Group members may be hostile towards new constituents.” IPC supports the view that 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.” IPC advises that “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.” IPC proposes an alternative review mechanism (see Section 4-f below) to reduce the inherent risk that an SG could “dominate the new constituency process by rejecting applicants who fail to meet existing policy objectives while promoting those that align with their own self-interests.” RySG also questions whether it is wise to give SG’s too much control over approval of new constituencies, “We definitely support SG input into the approval process, but we question whether SG’s should be able to stop new constituencies from being approved if those constituencies meet documented requirements.” Recognizing the Board’s override capability, the ALAC “fully supports the intent of the draft process, specifically to give the Stakeholder Group the prime responsibility for reviewing and approving new Constituencies, while preserving the Board’s right to act counter to the Stakeholder Group advice if it feels that this serves ICANN’s greater needs.” 2. Process Complexity and Timing All of the Forum commenters are concerned about the overall complexity of the process and the potential for elongation of the timeframes. ALAC registers the concern that, “…the process proposed is overly cumbersome, inefficient, and will discourage participation.” Even though ALAC recognizes “important checks and balances” in the procedure, ALAC calculates that “the process will take far longer than is necessary or is acceptable.” ALAC notes, “in a best-case scenario, it will take at least 9-10 months from initial application to final recognition.” ALAC further computes that, if reconsideration is required, “the worst case scenario grows to over 2.5 years.” According to ALAC’s interpretation, “A significant part of this elongated procedure is attributed to the long gap between the specified ‘regularly scheduled Board meetings,’ which according to current schedules are held only during ICANN meetings.” By way of contrast, DY cites a concise draft constituency application (ccTLD) from over a decade ago. DY observes, “Simplicity worked well enough in 1999. There was no need for other constituent groups to vote upon the worthiness of the application. There was no need for a probationary period with mandated activity reports. There was no need for a Staff charter analysis nor was there a need for repeated rounds of public comment.” IPC believes that there should be stricter requirements on the Board to make a decision within set timeframes. IPC notes, “The SIC’s proposal only requires that the Board ‘shall strive’ to ratify or reject the SGEx’s decision within a set timeframe.” IPC finds that proposed language “vague” and its open-endedness “contradicts ICANN’s third goal [see Background above] for the Recognition of GNSO Constituencies.” IPC notes that one Constituency petition has been “pending” for two years and that, in the absence of stricter time limits, the Board remains vulnerable to “…accusations that it unduly delayed making a decision which prejudiced the Constituency.” RySG wonders how certain of the procedures, e.g., “…the SGEx may engage in a dialogue as appropriate with the ICANN Board” can occur in a timely manner, practically, given that these groups meet infrequently and cannot always speak for the entire body. A similar timing concern exists with the provision, “the SGEx may…consult with the SG community, including the GNSO Council.” For all such inter-group communications, RySG adds, “it seems essential that a specific procedure with its own time limits be defined in the document.” Overall, DY concludes, “The process proposed by the SIC should be roundly rejected as inappropriate, cumbersome, inefficient and likely to discourage participation.” DY observes that the process used to be much simpler: “1) Parties would meet and decide to form a constituency; 2) A formation document would be drafted; 3) The draft was submitted to the ICANN Board for approval; and 4) The Board would arrive at a decision.” 3. Evaluation Criteria IPC concurs that the “detailed process and evaluation criteria bring needed transparency and accountability to the Proposed Process;” however, INTA raises a number of concerns about the Applicant and Candidate evaluation criteria concluding, “we believe that some of the standards set forth in the Proposed Process are arbitrary and undermine the integrity of the process.” The following bullets summarize the INTA’s concerns about five (5) of the proposed criteria covering both the Applicant (4) and Candidate (1) phases: · Requirement for Support from Specific Number of “Large” and “Small” Organizations (Appendix 1, No. 4) IPC believes that the requirement to submit a specific number of Large and Small organization support letters “seems to be an arbitrary line lacking any logic or policy rationale.” IPC observes that 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, IPC recommends “setting a minimum number of letters of support for all members and eliminating the distinction between ‘Large’ and ‘Small’ organizations.” · Distinction between Constituencies (Appendix 1, No. 4; Appendix 2, No. 5) Although no rationale is provided, IPC “recommend[s] abolishing the different standards set forth for constituencies composed ‘primarily’ of organizations and those composed ‘primarily’ of individuals.” · Representational Focus (Appendix 1, No. 3) IPC does not support the use of external industry classifications such as the three systems cited and considers them to be “overly technical” with “no logical or policy basis” and their application “could act as a barrier to entry.” With respect to an Applicant being permitted to recommend its own alternative reorganization, IPC adds, “it seems highly unlikely that there will be another restructuring of the Stakeholder Groupsanytime soon. If that does occur, it will not be as a result of an initiative by an applicant for admission as a new constituency.” With respect to the industry classification systems proposed, RySG recommends only that the acronyms “NAICS, ISIC, or NTEE-CC” be defined and that applicable references be included to their classification systems. [Staff notes that URL hyperlinks were embedded for each term; however, it may be that some PDF readers do not display them properly.] · Authorized Letters of Support (Appendix 1, No. 4, Appendix 2, No. 5) Although IPC supports the concept of requiring documented support for a new Constituency, “requiring an Applicant to supply ratified letters from Board of Directors committing to participate in the new Constituency is too high of a barrier.” IPC adds that, “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.” IPC recommends “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) IPC agrees that prospective Constituencies should be willing to attend scheduled meetings; however, “it may be difficult for new candidates to break into established Working Groups.” IPC recommends “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.” RySG observes that the requirement of a Candidate Constituency to participate in at least two committees “might not be possible in the RySG because we only rarely form committees.” RySG suggests elimination of that requirement in favor of the following, “attending at least 50% of the scheduled meetings and participating in at least two SG statement development processes.” 4. Procedural Recommendations a) In terms of streamlining the Board’s review steps, ALAC suggests that “…the norm should be to address Constituency recognition issues at its next [emphasis added] meeting. The process already includes provisions if a decision within two meetings is not possible.” IPC would add an additional constraint that “the Board should be required [emphasis added] to ratify or reject any SG decision regarding the Constituency…within two (2) regular meetings.” b) Concerning applicability and scope, both ALAC and IPC call attention to the fact that the proposed process only applies to groups wishing to form Constituencies within the Commercial and Non-Commercial Stakeholder Groups and not within the Contracted Parties Stakeholder Groups. ALAC recommends, “The document should state this explicitly and unambiguously to ensure that expectations of potential applicants are set appropriately.” [Staff notes that the Bylaws, Article X, Section 5(4)<http://icann.org/en/general/bylaws.htm#X-5>, do not provide for new Constituencies within the Contracted Parties SGs.] c) Under the “Unique and Representational Focus” criterion in STEP 1 (A.3.a), “proponents may recommend a restructure of the SG’s membership and/or the representational elements of one or more existing (or proposed) Constituencies.” The RySG believes that “proponents should be encouraged to discuss possible restructure options with the applicable SG…[which] would hopefully improve the probability of the recommended restructure being acceptable to the SG.” d) The RySG noted that its Executive Committee is not empowered to act on behalf of the entire membership as implied by the following provision (see III-Procedures introduction), “At the end of each of step, an evaluation will be conducted by the applicable Stakeholder Group Executive Committee (SGEx), which will determine whether the application is approved to proceed to the next phase subject to Board ratification.” The RySG notes that, if the process is adopted, its Charter will have to be modified or, alternatively, the procedure could be amended such that it permits either a SG or SGEx to make decisions, as applicable. In the procedures section, RySG “suggest[s] that a discussion about the requirement for SG charter revision be added.” [Staff notes that, the procedural recommendation in 4-b above would eliminate this concern for both the Registries and Registrars Stakeholder Groups.] e) IPC would like to see the process allow public response to SG decisions prior to Board consideration. In addition, to enhance the “fairness and transparency” of the process, IPC recommends, “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.” As a further transparency improvement, IPC urges that “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.” f) To address the conflict of interest concern and to create a “broader, more objective initial review,” IPC proposes that the establishment of a special evaluation committee including representatives from the applicable Stakeholder Group and an equal number of committee members from outside the SG group, but within the Non-Contracted Parties House . 5. Questions for Clarification a) In Appendix 1 (#4) and Appendix 2 (#5), the following language appears: “For Constituencies comprised primarily of organizations, criterion (a) will apply. For Constituencies comprised primarily of individuals, criterion (b) will apply.” RySG asks, “What happens when a constituency is a mix of both organizations and individuals?” b) Appendix 1 (#4-b) ends with this sentence: “Seven of these individuals must be located in each of at least four ICANN Geographic Regions or at least four individuals from all five Geographic Regions.” RySG inquires, “How is it possible to have “four individuals from all five Geographic Regions”? c) Appendix 2 (#5-b) states, “Show a membership count of seventy (70) individual members with fourteen individuals located in each of at least four ICANN Geographic Regions or at least seven individuals from all five ICANN Geographic Regions.” RySG asks if that sentence should be rewritten as, “Show a membership count of seventy (70) individual members with fourteen individuals located in each of at least four ICANN Geographic Regions or at least seven individuals from each of all five ICANN Geographic Regions.” d) RySG notes that the requirements in Appendix 2 (#5) “seem to disallow a constituency if it did not have members in at least four of ICANN’s geographic regions.” RySG questions, “If this was the [SIC’s] intent, we believe that these requirements may preclude some constituencies that otherwise would be legitimate. For example, what if a group of Latin American businesses wanted to form a constituency of the CSG? Would that be a bad idea if they met all other criteria except the geographical diversity requirements?” 6. Additional Proposal To encourage greater unaffiliated participation within the GNSO and to facilitate the process of forming new constituencies, DY offers the following suggestion: “1) Allow members of the public that want to participate in the work of the GNSO to join the GNSO. 2) Have the Board create a new constituency, on its own motion (per the bylaws), of such new GNSO members that are not affiliated with any current GNSO constituency – a catch-all constituency.” DY recommends that the form of such participation could be “a new ‘General Assembly’…wherein and whereby newcomers to the GNSO could articulate their views and contribute meaningfully to the GNSO’s policy development processes.” DY advocates forming a “President’s Committee to thoroughly investigate this option and to fashion a suitable new construct…populated by former General Assembly Chairs and by former DNSO and GNSO Council Chairs.” DY offers an opinion that the “SIC could certainly postpone a decision to ratify new constituency formation procedures until such time as this possible structural improvement is fully considered.” IV. NEXT STEPS The ICANN Board will evaluate the proposed "Process for Recognition of New GNSO Constituencies" along with community’s comments, consistent with the ICANN Bylaw principles.
Summary and Analysis-New Constituency Recognition Process (FINAL).doc