Comment ccNSOAG3:

["Stephan Welzel/Denic" <welzel@xxxxxxxx>]

On behalf of DENIC, the registry for .de, I submit the following comments on 
the ccSO Assistance Group's Preliminary Recommendation on Policy-Development 
Process (PDP):

Foremost, and albeit it is understood that the Recommendation does not deal 
with this issue, it has to be emphasized that the scope of the ccSO needs 
to be carefully defined and with that, from DENIC's point of view, rather 
narrowly restricted to the core IANA function. Only after this, it will be 
possible to finally design any PDP matching the ccSO's scope. Moreover, a 
once defined PDP must not - different from what the Recommendation's 
preamble seems to suggest - be subject to modifications by the ICANN Board 
without any according recommendation by the ccSO itself.

Regardless of these more general reservations, DENIC does not agree with 
some vital points of the Recommendation and would therefore not subscribe 
to a PDP as currently outlined therein.

Most worrisome is the notion to let an Issue Manager steer the whole PDP, 
even more so since the Recommendation does not reveal who it envisages to 
fill in this position (even though clause 6. suggests that it will be an 
ICANN representative, i. e. most probably an ICANN staff member). It is 
uncomprehensible why such an institution without any legitimation should 
be given the factual power to define the goal of the PDP (by writing the 
Issue Report) and highly influence (to say the least) its outcome (by 
receiving the region's statements, reviewing public comments and writing 
the Final as well as the Board Report).

Furthermore, with regard to the initiation of a PDP, particularly the 
definition of the necessary majority within the Council appears as somewhat 
strange:

   Firstly, there seems to be no quorum outlined; clause 3.b) just speaks 
   of a majority of 50 per cent of the Council members present.  Since 
   e-mail-voting allows easy participation of every Council member there 
   is no need to limit the necessary majority to a certain percentage of 
   members being present. Instead it would be reasonable to define the 
   majority in relation to the total number of Council members regardless 
   of how many are present or participate in the ballot. Besides, a 50 per 
   cent majority is clearly insufficient.

   Secondly, the alternative majority referring to regions is insofar 
   unsatisfactory as it is not defined as a majority of at least three of 
   the five regions. Taking into account the importance of the regions it 
   is actually even highly desirable to make sure that in any case a PDP 
   cannot be initiated against the vote of more than one region.

   Thirdly, the Recommendation leaves it undefined what a "supermajority" 
   is supposed to be. Regardless of this, the Council must not be able to 
   initiate a PDP with regard to an issue outside the ccSO's scope anyway. 
   Therefore, the PDP should rather lay out a process as to how a dispute 
   on whether a certain issue falls within the ccSO's scope will be 
   resolved.

No less important is, at the end of a PDP, the final procedure within the 
Council and thereafter the ICANN Board (as described in clauses 11. and 13.). 
Unfortunately, the Recommendation comprises some unsatisfactory elements 
there as well:

   Firstly, it is again not being defined what the required "supermajority" 
   should be and it is again not being ensured that no more than one region 
   can be outvoted.

   Secondly, to prohibit abstentions neither appears to be overly democratic 
   nor does it make much sense because then Council members wishing to 
   abstain will just not participate in the voting.

   Thirdly, if the necessary majority is not being reached the PDP has 
   obviously come to its end and there is no need to bring the concerned 
   issue to the ICANN board anymore, let alone to have the ICANN Board vote 
   on it.

   Fourthly, albeit depending on what the ccSO's exact scope will be, 
   there is at least not necessarily a reason recognisable why the ICANN 
   Board should be forced to adopt the recommended policy. Rather the other 
   way around, the ccTLDs need certainty that the ICANN Board will neither 
   adopt nor implement a policy which the ccSO has not recommended or even 
   explicitely rejected. Therefore it needs to be stated clearly that the 
   ICANN Board cannot bypass or outvote a negative decision by the Council 
   nor adopt any policy affecting ccTLDs without an according recommendation 
   by the Council. Besides, it appears as superfluous to state in clause 
   13.c) that the ICANN Board shall adopt the policy unless more than 50 
   per cent are against it because if more than 50 per cent are against 
   there is no majority in favour of the policy anyway.  

Additionally, the procedure between initiation and closure of a PDP as 
outlined in the Recommendation brings up some important questions: For 
example it remains unclear who determines whether a representative meets 
the criteria mentioned in clause 5.b) and whether (and if so, by whom) a 
representative can be rejected on the grounds of not meeting the criteria. 
Also, it seems to be uncomprehensible why the Recommendation does not leave 
it up to the regions to bear the risk that their representatives do not meet 
the criteria. Additionally, the Recommendation does not outline how the 
regions select their representatives and what happens if a region fails to 
meet the ten days deadline.

Finally, clause 7.d) which deals with the information that the Task Force 
should collect and take into account, misses out the potentially most 
important point: In any case it has to be examined at some point in a PDP's 
course (or rather even before its initiation) whether or to what extent the 
policy in question is legally feasible.

Regardless of these points of criticism, DENIC welcomes and continues to 
support the Assistance Group's efforts not only to define a reasonable PDP 
but also to develop a framework for a ccSO that will meet the ccTLD 
community's needs. At the same time, DENIC is confident that the 
Assistance Group, taking into account all comments on its current 
Recommendation, will finally reach a satisfactory conclusion.

Stephan Welzel
Attorney-at-Law
Head of Legal Department
DENIC eG