Dear SOAC Leaders,

Please see the message below from Russ as well as the attached draft proposals for a Bylaws amendment relating to reviews. Thank you, we are looking forward to welcoming you all to ICANN84 in Dublin and our discussions there!

As I committed to doing in the note I sent to you on Monday 13 October, I am attaching a document with two alternative proposals for a Bylaws amendment that we’d like to explore with the community. We hope that you will view these as a strong starting point for further community discussion on how to ensure that ICANN adheres to its obligations under Sections 4.4 and 4.6 of the Bylaws, while the Review of Reviews Cross Community Working Group is working concurrently to address the question of how Bylaws-mandated reviews should be considered in the future.

The two alternatives, as outlined below, were drafted to achieve the overarching principle that any relief of ICANN’s obligations to conduct Specific Reviews should only last for a fixed period of time, and not require special action by ICANN or the community to restart. The difference between the two is that one sets forth a shorter timeframe for the relief in question and defines the conditions for which the ICANN community could agree that more time is needed to conduct their work, while still defining a maximum duration for the pause. The second alternative is more straightforward, and sets out a single, unextendible duration for the pause, based upon the same maximum duration set out in the first alternative.

In both alternatives, the proposed addition of a Transition Article would be a Standard Bylaws Amendment. 

We are interested in hearing your thoughts on what might be a reasonable and successful path forward. We hope that the Roundtable next week in Dublin can provide an opportunity to begin this discussion. Some of the questions we may wish to discuss could be:

• Do either or both of the proposals address the community’s concern in bringing ICANN back into compliance with its Bylaws obligations?
• If not, what are the issues that are not addressed? What ideas and alternatives do you suggest for addressing these issues?
• What is the likely period of time that the community and ICANN will need to complete the work to get to a new form of reviews? What is a reasonable duration for the pause?
• Is a shorter period for a pause that is coupled with the ability to extend preferable to a single, longer period?
• If we proceed with the shorter pause, have we captured the right conditions for allowing an extension?
• What level of socialization do you think is needed with your groups prior to moving to a formal Bylaws amendment process?

To help prepare for our discussion, we have included further rationale for each of the proposed alternatives.

The Proposals: Common Elements

Both alternatives have the following common factors:

1. Use a Transition Article to pause, for a defined period of time, ICANN’s obligation to conduct the Specific Reviews as defined through Article 4, Section 4.6; 
2. Set a workable schedule for reviews to be re-initiated under Article 4, Section 4.6 in a manner that will not replicate the overlap of reviews that led in part to the issues ICANN currently experiences with reviews; and
3. Do not define the one-time process of the Reviews CCG as the mechanism through which updates to Specific Reviews must be achieved.

For both alternatives:

1. The defined time for the pause would not go into effect until the Bylaws Amendment has been approved by the ICANN Board and the Empowered Community process has been completed. This is estimated to be approximately four months from the time the Board initiates a Standard Bylaws Amendment Process. 
2. As soon as the relevant Bylaws regarding reviews are amended, the pause ends because ICANN’s obligations regarding reviews will have changed.

In each case, the Transition Article includes a  re-initiation of the Bylaws-mandated reviews in the event that no changes are made during the pause. 

Another discussion point relates to the restarting of the Competition, Consumer Trust and Consumer Choice (CCT) review. In each alternative, we propose a different trigger for the initiation of that review than is currently found in the Bylaws. The proposed language is “when the next round of new gTLDs has been in operation for two years, such operation being measured from the time that 500 gTLDs applied for within that round have been delegated into the root zone.” This reflects the ATRT3 recommendation that the timing for the next CCT review be extended from one to two years from the round being in operation. In addition, and based on the evolution of the domain name market as a result of the 2012 Round, ICANN org is concerned that triggering the data collection activities to measure the impact on the operation of a new gTLD round based on a single new gTLD delegation will not collect or measure enough data about the impact of that round. We therefore propose that a more significant sample be required. We are happy to discuss the appropriate number of delegated TLDs that should be required to be in the root before the initiation of the CCT review.

Alternative 1: Pause with ability to extend 

1. Includes bracketed alternatives for discussion regarding the appropriate duration of a pause (e.g., should it be for 12 months, extendable to 24 months, or for 18 months, extendable to 30 months? Are different timeframes appropriate?) 
2. Sets out a few conditions for the extension of the pause, including:
   1. ICANN Board acceptance of a community recommendation on the modification of Specific Reviews, which is proceeding to implementation; 
   2. A pending Bylaws amendment process to update or replace Article 4, Section 4.6 of the ICANN Bylaws; or
   3. Four of the seven SOs and ACs issue a statement supporting a further pause of Specific Reviews.
3. Defines a staged schedule if the Specific Reviews are not changed to address the issue of overlapping reviews, with 18 months proposed between the initiation of each new review, and an updated requirement for kicking off the CCT (as discussed above).

Alternative 2: The “Simple” Version

Alternative 2 sets out a pause of 24 or 30 months, with no ability to extend the pause. Alternative 2 takes the maximum pause as proposed within Alternative 1, and sets that as the baseline.

If ICANN’s obligations to conduct reviews have not changed by the end of the pause, then the Specific Reviews will proceed based on the same staggered schedule presented within the Alternative 1. This creates a simple, straightforward pause with no need to identify if conditions exist to extend the pause. 

Best regards,

Russ

Dear SOAC Leaders

I hope this finds you well.  As we discussed in the several meetings following ICANN83 related to reviews, the Org would work with this group and the Board on a proposal to amend the Bylaws to bring to the community for consideration.  The objective of the proposal is to address the ICANN community’s request to bring ICANN back into compliance with its Bylaws obligations on conducting Specific Reviews while the Review of Reviews Cross Community Working Group (Reviews CCG) is addressing the question of how reviews should be considered in the future.

I am pleased to report, we have made good progress on the drafting.  As noted in Tripti’s recent blog about the Board’s workshop in Madrid, the Board discussed and provided feedback on a proposal from staff.  We have made updates to address the feedback and are socializing the updated proposal with the Board.  I must caveat, this socialization with the Board is to ensure they are comfortable with the proposal, but not a commitment that they would approve it.  

From a procedural perspective the process would follow the requirements set out in the Bylaws, Article 25 Section 25.1: 

·         Board Action to Initiate the Bylaws Amendment

·         Public Comment

·         Summary & Analysis of Comments

·         Updates to the proposal as needed

·         Board Action

·         Empowered Community Rejection Action Period

As we have previously shared, particularly with the December holidays intervening, we anticipate that these steps could be completed and come into effect in as quickly as ~ 4 months. We suggest that ensuring alignment with the SOAC leaders that the proposal addresses the spirit of the community’s original request and generally meets expectations before proceeding to the formal process above will help us meet or beat this 4 month timeline.   

As a next step we plan to provide the proposal to the SOAC leadership by end of my day 16 October. We suggest discussing it at the SOAC leadership roundtable in Dublin to gather any additional feedback and ensure alignment.  When it is shared, we will provide more context for how and why the proposal is organized and designed in relation to the community’s requests.