RE: [pdp-pcceg-feb06] Quick notes on current Draft final report

["Neuman, Jeff" <Jeff.Neuman@xxxxxxxxxx>]

This may come across as harsh, but I am trying to be objective and
factual.  The answer to your question is quite simple.  

The reason our claim of scope is different than the opinion of the Task
Force or Council, is that we (the registries) have contracts with ICANN
that defined (in certain areas) the scope of Policy Development. The
registries negotiated those contracts with ICANN, a private party.  The
contracts were based on a meeting of the minds that we the registries
had with the ICANN.    

A contract is a legal document that results after two parties have a
meeting of the minds on the subject matter of the contracts.  While it
can be interpreted by outside parties (as the task force has done in
this case), if the two parties to the contract agree on an
interpretation that is different than the view of the outside party, the
view of the two contracting parties prevail.

Thus, if both the ICANN GC and the registries believe something is out
of scope as defined by the contracts....then it is out of scope.  The
fact that a constituency or the council discussed the issue and believes
it is in scope is not relevant.

If for whatever reason the ICANN GC takes one view, and the contracting
party takes the opposite view, then that dispute must be arbitrated by
an independent legal tribune (as set out in the contracts)...not the
GNSO.

In both cases, the view of the GNSO or constituencies on scope is not
relevant and should not be reflected in the main body of the report.


Jeffrey J. Neuman, Esq. 
Sr. Director, Law, Advanced Services  & Business Development 

NeuStar, Inc. 



-----Original Message-----
From: Avri Doria [mailto:avri@xxxxxxx] 
Sent: Wednesday, March 07, 2007 2:19 PM
To: Neuman, Jeff
Cc: PDPfeb06
Subject: Re: [pdp-pcceg-feb06] Quick notes on current Draft final report

Hi,

 From an objective point of view i see little difference between your  
claim, not a fact but a claim of fact, that the PDP is out of scope  
and the claim of the council and multiple constituencies that it is  
in scope, except for the number for voices stating one and not the  
other.

Whether either of them is true fact, or juridical fact, is beyond our  
ken at the moment and therefore I believe it is inappropriate to list  
one group's opinion and not the others.

 From the chair's perspective I believe that fairness requires  
listing both claims in the report.

a.

On 7 mar 2007, at 14.06, Neuman, Jeff wrote:

> My only point, and I will make it again, is that the TF can state
> whatever it wants to state.  I am just saying factually, it is
> completely irrelevant that the Council, the Task Force or anyone else
> debated the issue of scope and made any findings.....It has no bearing
> on whether the PDP was in or out of scope.
>
> That said, the current wording of the report in 1.7 is accurate.  We
> would oppose the addition of any other language in that section.
> Putting in any language stating that other members discussed the
> registry's objections and "found that the PDP was within scope"  
> would be
> as inappropriate as saying elsewhere in the report (as an example),
> that the "registry constituency" discussed the BC positions and "found
> that the points made by the BC were not valid."
>
> Both statements above are inappropriate.
>
>
> Jeffrey J. Neuman, Esq.
> Sr. Director, Law, Advanced Services  & Business Development
>
> NeuStar, Inc.
>
>
>
> -----Original Message-----
> From: owner-pdp-pcceg-feb06@xxxxxxxxx
> [mailto:owner-pdp-pcceg-feb06@xxxxxxxxx] On Behalf Of Marilyn Cade
> Sent: Wednesday, March 07, 2007 1:44 PM
> To: 'Avri Doria'; 'Liz Williams'
> Cc: 'PDPfeb06'
> Subject: RE: [pdp-pcceg-feb06] Quick notes on current Draft final  
> report
>
> I support Avri's comments.
>
> In particular, the members of the TF had numerous conversations about
> the
> concept in 1.7. I think we talked about language that was inclusive of
> recognizing the concerns of others.... and read that into the meeting
> record... I think staff will have captured the language from our  
> working
> session. And that should be included in the report. First it is a more
> balanced portrayal and we need to strive for that balance.
>
> The objections of one constituency have been very very very well
> documented.
>
>
> Facts are our friend, after all. :-)
>
>   Marilyn
>
> -----Original Message-----
> From: owner-pdp-pcceg-feb06@xxxxxxxxx
> [mailto:owner-pdp-pcceg-feb06@xxxxxxxxx] On Behalf Of Avri Doria
> Sent: Wednesday, March 07, 2007 8:37 AM
> To: Liz Williams
> Cc: PDPfeb06
> Subject: [pdp-pcceg-feb06] Quick notes on current Draft final report
>
> Hi,
>
> Thanks Liz for the report.  I have quickly gone through the first
> part, though not the annexes in detail. Here are my notes.
>
> 1.3 - Not sure this is true.  as i read the rules, if the council has
> appointed someone to the TF with a vote, they have a vote.  And in
> fact it is an equal vote to the others on the the TF - not the
> devalued vote as has been the practice in the TF. I do agree that
> this was the process the TF worked under - which i believe was also a
> valid process.
>
> 1.4 - The definition we used included noncom voters - strong support
> = 4 or more  constituencies plus some nomcom support, support = 3
> constituencies plus some nomcom support.
>
> 1.7 - I don't think this satisfies the requirement to indicate that
> the rest of the constituencies and nomcom members did not accept the
> RyC position.  Also I thought there was supposed to be a statement
> indicating that the council had reinforced the validity of the TF and
> its ToR after the RyC issue was originally raised.  The way this is
> currently written, it looks like the RyC view predominated and the
> rest of the TF just went through the motions as opposed to the fact
> that the rest of the TF enthusiastically supported the validity of
> the ToR.
>
> 1.8 - Not sure if the reference to interim chair is a hold over from
> the past - replacement chair might be better reference.
>
> 1-9 - Not sure what value this table serves in the beginning of the
> document when the ToR hasn't even been introduced yet.  Certainly a
> useful annex.
>
> 2-1  I think it should use the language introduce earlier - i.e.
> Strong support is 4+nomcom or more.  If we are going to use the
> language of majority, would that not be super-majority for 1a1,2, 4a/
> b, 5, 6  and majorityt 1a3, 3a1, and 3b1?
>
> 7-6 you still have a note: Add in "individual participant views".
>
> In terms of the voting chart in the annex, the text of each of the
> items being voted on should be included in the annex so that it makes
> sense as a reference - it is difficult to tell what corresponds to
> the explanations in the main part of the document.
>
> thanks again
>
> a.
>
>
>
>