September 2006 - council - lists.icann.org

Regarding Item 3 of the agenda on the topic of PDP-Feb06
by Bruce Tonkin Sept. 28, 2006

Sept. 28, 2006

Hello All, Just some personal thoughts regarding item 3 of the agenda. The General Counsel's office have provided a response to the question asked by the PDP-Feb06 task force. There is no new information in this response, and I think the concepts were already covered numerous times while the terms of reference for the task force were being developed. The real issue for some time has been whether the Board should wait for the GNSO to reach consensus on a particular issue related to gTLD agreements, or whether the Board should exercise its judgement based on the arguments put forward by the parties to a gTLD agreement and the arguments put forward through the public comment process. >From my personal point of view it seems that the PDP-Feb06 task force is concerned that the work it is doing may have no material effect if the Board simply approves changes to the gTLD agreements (e.g com, net, org) that have the most material effect on the ICANN community. The task force wants the Board to wait until it has finished its work. On the other hand the Board (and the Department of Commerce with respect to the .com agreement) is in fact spending considerable time listening to the community before it makes any decisions on contracts. The Board may have the perspective that the views on particular agreements are fairly diverse, and that either there is no likelihood of consensus emerging, or that the consensus may take many months to reach. There is also possibly a concern that the current GNSO policy process is not sufficiently representative of a broad cross section of ICANN stakeholders (hence the interest in the outcomes of the GNSO review). In either case the lack of certainty around the timeline of both the PDP-Feb06 consensus development processes, and the timeline of the Board's (or Department of Commerce's) decision process is leading to ongoing tension between the operational and policy development components of ICANN's function. I recommend a compromise. I recommend that the GNSO Council ask the Board to delay making a decision on changes to the existing gTLD agreements (biz, info, org) until the Sao Paulo ICANN meeting in December 2006, and that the Board at the time, take into account the level of consensus reached around the issues being considered in the PDP-Feb 06 task force. This would then give the PDP-FEB06 task force a clear objective to focus its resources to attempt to identify areas where it can reach consensus prior to the Dec 06 meeting. Note this may not mean that the work is fully completed, but hopefully by then there will be a set of draft recommendations with a clear indication of the level of support for each of these recommendations. This would also give some certainty to the contracting parties for .biz, .info, and .org as to when a decision will be made. The decision would not be dependent on the completion of the PDP_Feb06 work. If the delay causes undue financial issues for those operators, it should be a relatively simple task to extend the current agreements under the current contractual terms for another year or even another 5 year term, with the expectation that the ICANN and the operators could re-negotiate the agreements after the Dec 06 meeting. Note that with respect to the registry service approval process, the work was already well advanced within the GNSO at the time the Board agreed to the text in the .net agreement (granted that this should have been done transparently at the time). Regards, Bruce Tonkin - speaking personally

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Apologies
by Bruce Tonkin Sept. 28, 2006

Sept. 28, 2006

Hello All, I will not be attending the GNSO Council call in around 4 hours time, so wish to offer my apologies. I have asked Philip Sheppard to chair the call instead. Regards, Bruce Tonkin

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Re: [council] Regarding Item 4: Proposed bylaws amendment to improve transparency with respect to contract approvals
by Daniel Halloran Sept. 28, 2006

Sept. 28, 2006

Bruce, Attached is a draft proposal for consideration by the GNSO Council in response to the Council's request to "improve transparency with respect to contract approvals." In preparing this language our goal was to attempt to meet the GNSO's needs, while not (inadvertently) requiring the Board to post every consulting contract or grammar correction to a registry agreement, etc. This proposed new Bylaws provision would require ICANN to notify the GNSO Council and allow for at least a 21-day public comment period before approving any GTLD (sponsored or unsponsored) registry or registrar agreement that is substantially different from other past ICANN agreements: > "With respect to any proposed GTLD registry or registrar agreement > that includes material contractual provisions that substantially > differ from other past ICANN agreements, ICANN will notify the GNSO > Council and post the proposed agreement with a public comment forum > on the ICANN website at least twenty-one days (and if practical, > longer) prior to any final approval of the agreement." I look forward to working with you in order to finalize this effort as quickly as possible. Please feel free to let me know if you have any questions or if I can be of any other assistance. Best Regards, Daniel Halloran Deputy General Counsel ICANN On 14 Sep 2006, at 02:20, Bruce Tonkin wrote: > Hello All, > > With respect to the agenda topic: > >> >> >> Item 4: Proposed bylaws amendment to improve transparency >> with respect to contract approvals >> >> - update from General Counsel on action with respect to the >> GNSO request of 18 August 05 regarding proposed changes to >> ICANN bylaws to improve transparency with respect to contract >> approvals > > > I had a phone conference with John Jeffrey and Dan Halloran of the > General Counsel's office, along with Denise Michel regarding this > agenda > item. > > John agreed to create some draft wording in response to the original > suggestion from the GNSO Council, and will send to the Council for > comment. John also noted that the Board had been complying with the > spirit of the recommendation with respect to putting out gTLD > contracts > for public comment. > > Regards, > Bruce Tonkin

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Re: [council] Regarding Item 3: Correspondence - Clarification sought by PDP-Feb06 task force
by Daniel Halloran Sept. 28, 2006

Sept. 28, 2006

Bruce, As discussed in your message below, attached is a memo from the ICANN General Counsel to the GNSO Council regarding "Clarification sought by PDP-Feb06 task force." Thank you for your attention. I will be available on tomorrow's Council call to listen to any feedback or questions. Best Regards, Daniel Halloran Deputy General Counsel ICANN Begin forwarded message: > From: "Bruce Tonkin" <Bruce.Tonkin(a)melbourneit.com.au> > Date: 14 September 2006 200609140244 > To: "Council GNSO" <council(a)gnso.icann.org> > Subject: [council] Regarding Item 3: Correspondence - Clarification > sought by PDP-Feb06 task force > > Hello All, > > With respect to the agenda topic: > >> >> Item 3: Correspondence >> >> - Clarification sought by PDP-Feb06 task force on whether the >> outcomes of the PDP would affect gTLD contracts in existence >> at the time the >> Board approves the policy. See >> http://www.gnso.icann.org/correspondence/cubberley-to-tonkin-2 >> 5aug06.pdf >> > > I had a phone conference with John Jeffrey and Dan Halloran of the > General Counsel's office, along with Denise Michel regarding this > agenda > item. > > John agreed to provide a written response to this request for > discussion > at our next Council call. > > I think there are really two quite separate issues that underlie the > question from the PDP-Feb06 task force. > > (1) Legally is a registry operator obligated to comply when the ICANN > Board approves a recommendation resulting from the PDP-Feb06 work. > Note that ICANN can only require businesses to comply with a policy > recommendation through its contracts with those businesses. These > contracts have limitations on what recommendations a business must > comply with. > > (2) Will the ICANN Board wait until the GNSO completes its work in > PDP-Feb 06 before approving anymore contracts. > > > I think it is reasonable for the General Counsel's office to provide > advice with respect to point (1). The current contracts may make it > difficult to apply or implement some new ICANN policies. It is > certainly a requirement under Annex A, clause 2 (e)(3) of the bylaws > that the GNSO consider policies that have "applicability". > > With respect to point (2) this is probably a discussion that needs to > happen with the ICANN Board. The GNSO did request that the Board wait > until approving the proposed .com agreement until the GNSO had a > chance > to consider all the issues through a PDP, and the Board decided to > approve the agreement. We are now in the same position again with > respect to biz, info, and org agreements. > > > Regards, > Bruce Tonkin

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Revised wording to Council agenda item 7
by Philip Sheppard Sept. 26, 2006

Sept. 26, 2006

Reminder of revised wording for agenda item 7 of our 28 September 2006 meeting.. _____ From: owner-council(a)gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Philip Sheppard Sent: Friday, September 08, 2006 10:03 AM To: 'Council GNSO' Subject: [council] Revised wording to Council agenda item 7 Council, please find enclosed a revised wording to the proposed resolution under item 7 of the next meeting. The only change is a copy and paste from the existing bylaws of the section on what the Board does after it gets a Council PDP report. It is of course necessary to keep this part (of bylaws annex A) within the bylaws. Philip

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REMINDER: GNSO Council teleconference 28 September 2006
by GNSO.SECRETARIAT＠GNSO.ICANN.ORG Sept. 26, 2006

Sept. 26, 2006

Dear Council Members, REMINDER There will be a GNSO Council teleconference on Thursday, 28 September 2006 at 12:00 (noon) UTC. (5:00am Los Angeles, 8:00am Washington DC, 9:00 am Buenos Aires, 13:00 London, 14:00 Brussels, 19:00 Phnom Penh, 22:00 Melbourne, 00:00 Auckland) Please let me know off the list if you need the dial-in number resent. Kind regards, Glen Agenda http://gnso.icann.org/meetings/agenda-28sep06.shtml Item 1: Update any statements of interest Item 2: Approval of Minutes - 20 July 2006 - 3 Aug 2006 Item 3: Correspondence - Clarification sought by PDP-Feb06 task force on whether the outcomes of the PDP would affect gTLD contracts in existence at the time the Board approves the policy. See http://www.gnso.icann.org/correspondence/cubberley-to-tonkin-25aug06.pdf Item 4: Proposed bylaws amendment to improve transparency with respect to contract approvals - update from General Counsel on action with respect to the GNSO request of 18 August 05 regarding proposed changes to ICANN bylaws to improve transparency with respect to contract approvals Item 5: Next steps with respect to IDNs - the proposed terms of reference on an IDN PDP was reviewed in the context of the draft recommendations for new gTLD arising from the Amsterdam meeting Item 6: Next steps for improving the GNSO structure and processes Taking into account the 2004 review of the GNSO Council, the about to be released review of the GNSO by the London School of Economics, and the experience of the Council, consider the next steps to identify changes to be made, and identify any changes required in the bylaws to allow these changes. Item 7: Motion proposed by Philip Sheppard Proposed GNSO resolution on revised PDP procedures - change to ICANN by-laws Whereas: Article X section 3.4 of the ICANN bylaws states: "The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board, and further provided that, until any modifications are recommended by the GNSO Council and approved by the Board, the applicable procedures shall be as set forth in Section 6 of this Article". Article X section 6 of the bylaws states: "Initially, the policy-development procedures to be followed by the GNSO shall be as stated in Annex A to these Bylaws". Annex A of the bylaws contains procedures for the GNSO policy development process; Experience has shown that the procedures of Annex A are inappropriate for the work of the GNSO; Recommendation 5 of the 2004 GNSO Council review recommended changing the procedures; The ICANN by-laws are not the place for such procedures which may need to be re-visited frequently. The GNSO Council resolves: a) To request ICANN staff to draft a new set of procedures within 30 days reflecting the experience of previous PDPs and the recommendations of the Council review 2004; b) To request ICANN staff to submit those new procedures to Council for approval; c) To request ICANN staff to then inform the Board that the Council has adopted new procedures; d) and that therefore the Council requests the Board: - to approve its new procedures; - resolves to delete Article X section 6 and Annex A of the by-laws; - resolves to change section 3.4 to read: "The GNSO Council is responsible for managing the policy development process of the GNSO. It shall adopt such procedures as it sees fit to carry out that responsibility, provided that such procedures are approved by the Board." Item 8: Update on planning for Sao Paulo Item 9: Any other business -- Glen de Saint Géry GNSO Secretariat - ICANN gnso.secretariat[at]gnso.icann.org http://gnso.icann.org

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Dependencies on being selected for the Nominating committee and standing for election to the GNSO Council or Board
by Bruce Tonkin Sept. 22, 2006

Sept. 22, 2006

Hello All, To avoid any embarrassing situations, members of GNSO constituencies should be aware that if they are appointed to the Nominating Committee - this can affect their eligibility to stand for election through the normal GNSO process for the GNSO Council. The bylaws state: "No person who serves on the Nominating Committee in any capacity shall be eligible for selection by any means to any position on the Board or any other ICANN body having one or more membership positions that the Nominating Committee is responsible for filling, until the conclusion of an ICANN annual meeting that coincides with, or is after, the conclusion of that person's service on the Nominating Committee." So: No one who serves on the 2006 Nominating Committee is eligible for selection by any means to the ICANN Board or the GNSO Council until after the conclusion of the Sao Paulo meeting, and anyone who serves on the 2007 NomCom won't be eligible for selection to the Board or Council until the conclusion of ICANN's Annual Meeting in 2007. Regards, Bruce Tonkin

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Regarding LSE Briefing on GNSO Review 3 October 2006 at 11:00 UTC
by Bruce Tonkin Sept. 22, 2006

Sept. 22, 2006

Hello All, Just a note to advise that I will not be able to chair the LSE briefing for the GNSO Council and GNSO Constituency leaders on 3 October 2006. I have asked Philip Sheppard, as the past chair of the DNSO, to chair this meeting. Regards, Bruce Tonkin

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2007 ICANN Nominating Committee
by Bruce Tonkin Sept. 21, 2006

Sept. 21, 2006

-----Original Message----- From: Donna Austin Subject: 2007 ICANN Nominating Committee Dear All I am writing to you on behalf of the Chair of ICANN's 2006 Nominating Committee, in preparation for the formation of the 2007 Nominating Committee, for which a Chair is in the process of being chosen. The work of the 2006 Nominating Committee is nearing completion and I would like to recognize the efforts of the representatives from each of your constituencies who served on this year's committee. This is not an easy task and I was very pleased with the work of the committee and the commitment of those involved. It is my hope that the Chair of next year's committee will be announced in the next few weeks and that preparation can commence toward assembling the 2007 Nominating Committee. With now two years experience with the NomCom I cannot stress enough the importance of having the Committee in place as early in the process as possible. With this in mind, I would ask that you give consideration to potential delegates and liaisons for the 2007 NomCom. Voting delegates can serve a maximum of two years and non-voting liaisons are not term limited. You may wish to approach your representatives from this year's process to re-commit to another year's service. I anticipate that the first face-to-face meeting of the 2007 Nominating Committee will take place immediately after the close of the Annual General Meeting in Sao Paulo. The Committee will meet on Friday afternoon and evening as well as all day Saturday. These dates will be confirmed as soon as the 2007 Nominating Committee Chair has been appointed. Members of the new Committee will be expected to come to Sao Paulo for the Annual General Meeting, and to stay in Sao Paulo through Saturday evening, December 9th, to participate fully in this first face to face meeting. Although this schedule puts substantial time pressure on all of us in the near term, the benefits that will accrue the work of the Nominating Committee, as well as to ICANN as a whole, are very significant. I would appreciate acknowledgement of this message along with an indication of how long it will take you to identify a representative to serve on the 2007 NomCom. I appreciate that each of you have various processes for filling these positions and I hope that this early note will enable you to fulfill these positions to meet the timeframe outlined above. Regards Donna Donna Austin Coordinator On behalf of George Sadowsky Chair 2006 Nominating Committee

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LSE report
by Philip Sheppard Sept. 20, 2006

Sept. 20, 2006

In light of the offers from the LSE to discuss the report with Council and Constituencies it would seem a practical idea if we could ask Glen to arrange maybe one or two calls centrally (at times to suit different time zones) which would be open to all interested Council and Constituency members. There is only a certain value in further discussion with the authors of a final report. (This option would not preclude any enthusiastic constituency having its own call of course!). Philip

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