I have a few thoughts regarding the Council’s process and timing going forward.

At present the CCWG timetable targets January 22^nd as the date on which it will submit a final Proposal to the Board for its consideration. While that could change depending on the public comments and Chartering organization positions, for now I believe we should aim to complete our work on our call of January 14^th so that we have  a firm position on record at least a week before the target submission date.

Our Role in the Process

For understanding our role it is important to note that the Proposal makes 12 separate Recommendations:

                Recommendation #1: Establishing an Empowered Community for Enforcing Community Powers

Recommendation #2: Empowering the community through consensus: engage, escalate, enforce

Recommendation #3: Redefining ICANN's Bylaws as 'Standard Bylaws' and 'Fundamental Bylaws'

Recommendation #4: Ensuring community involvement in ICANN decision-making: seven new Community Powers

Recommendation #5: Changing aspects of ICANN's Mission, Commitments and Core Values

Recommendation #6: Reaffirming ICANN's Commitment to respect internationally recognized Human Rights as it carries out its mission

Recommendation #7: Strengthening ICANN's Independent Review Process

Recommendation #8: Fortifying ICANN's Request for Reconsideration Process

Recommendation #9: Incorporation of the Affirmation of Commitments

Recommendation #10: Enhancing the accountability of Supporting Organizations and Advisory Committees

Recommendation #11: Board obligations with regards to Governmental Advisory Committee Advice (Stress Test 18)

Recommendation #12: Committing to further accountability work in Work Stream 2

The CCWG Charter sets out the role of the six Chartering Organizations (GNSO; ALAC; ccNSO; GAC; ASO; SSAC) and related procedures as follows:

SO and AC support for the Draft Proposal(s)

Following submission of the Draft Proposal(s), each of the chartering organizations shall, in accordance with their own rules and procedures, review and discuss the Draft Proposal(s) and decide whether to adopt the recommendations contained in it. The chairs of the chartering organizations shall notify the co-chairs of the WG of the result of the deliberations as soon as feasible.

Supplemental Draft Proposal

In the event that one or more of the participating SO’s or AC’s do(es) not adopt one or more of the recommendation(s) contained in the Draft Proposal(s), the Co-Chairs of the CCWG-Accountability shall be notified accordingly. This notification shall include at a minimum the reasons for the lack of support and a suggested alternative that would be acceptable, if any. The CCWG-Accountability may, at its discretion, reconsider, post for public comments and/or submit to the chartering organizations a Supplemental Draft Proposal, which takes into accounting the concerns raised.

Following submission of the Supplemental Draft Proposal, the chartering organizations shall discuss and decide in accordance with its own rules and procedures whether to adopt the recommendations contained in the Supplemental Draft Proposal. The Chairs of the chartering organizations shall notify the Co-Chairs of the CCWG-Accountability of the result of the deliberations as soon as feasible.

Submission Board Report

After receiving the notifications from all chartering organizations as described above, the Co-Chairs of the CCWG-Accountability shall, within 10 working days after receiving the last notification, submit to the Chair of the ICANN Board of Directors and Chairs of all the chartering organizations the CCWG-Accountability Board Report, which shall include at a minimum:

a)     The (Supplemental) Proposal as adopted by the CCWG-Accountability; and

b)     The notifications of the decisions from the chartering organizations

c)     Documentation of the process that was followed, including, but not limited to documenting the process of building consensus within the CCWG-Accountability and public consultations.

In the event one or more of the chartering organizations do(es) not support (parts of) the (Supplemental) Proposal(s), the Board Report shall also clearly indicate the part(s) of the (Supplemental) Final Proposal(s) which are fully supported and the parts which not, and which of the chartering organizations dissents, to the extent this is feasible. 

Board consideration and interaction with CCWG-Accountability and chartering organizations

It is assumed that after submission of the Board Report, the ICANN Board of Directors will consider the Proposal(s) contained in this Report in accordance with the  process outlined in its resolution of 16 October 2014 (see https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2.d):

Resolved (2014.10.16.17), the Board commits to following the following principles when considering the Cross Community Working Group Recommendations on Enhancing ICANN Accountability and Governance:

1. These principles apply to consensus-based recommendations from the Cross Community Working Group on Enhancing ICANN Accountability and Governance.
2. If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board.
3. The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution.
4. The CCWG will have an opportunity to address the Board's concerns and report back to the Board on further deliberations regarding the Board's concerns. The CCWG shall discuss the Board's concerns within 30 days of the Board's initiation of the dialogue.
5. If a recommendation is modified through the CCWG, it is returned back to the Board for further consideration. The CCWG is to provide detailed rationale on how the modification addresses the concerns raised by the Board.
6. If, after modification, the Board still believes the CCWG Recommendation is not in the global public interest to implement the CCWG Recommendation, the Board may send the item back to the CCWG for further consideration, again requiring a 2/3 vote of the Board for that action. Detailed rationale for the Board's action is again required. In the event the Board determines not to accept a modification, then the Board shall not be entitled to set a solution on the issue addressed by the recommendation until such time as CCWG and the Board reach agreement.

Before submitting a modified recommendation to the ICANN Board of Directors, as envisioned under 5. of the Board resolution, the CCWG-Accountability will submit a Draft Supplemental Board Report to the chartering organizations containing:

a)     The modified recommendations, and associated detailed rationale,

b)     The Board decision, and associated detailed rationale

c)     The recommendation as contained in the Board Report

Following submission of the Draft Supplemental Board Report, the chartering organizations shall discuss and decide in accordance with their own rules and procedures whether to adopt the modified recommendations contained in the report. The Chairs of the chartering organizations shall notify the co-chairs of the CCWG-Accountability of the result of the deliberations as soon as feasible.

After receiving the notifications from all chartering organizations, the co-Chairs of the CCWG-Accountability shall, within 10 working days after receiving the last notification, submit to the Chair of the ICANN Board of Directors and Chairs of all the chartering organizations the CCWG-Accountability Supplemental Board Report, which shall include at a minimum:

a)     The modified recommendations, and associated detailed rationale.

b)     The notifications of the decisions from the chartering organizations.

c)     Documentation of the process that was followed, including, but not limited to documenting the process of building consensus within the CCWG-Accountability and consultations with the chartering organizations.

If, in accordance with 6., the Board determines not to accept a modified recommendation, the CCWG-Accountability shall follow the procedure regarding the Supplemental Board Report, as just described, to reach agreement with the Board. (Emphasis added)

In my view three important things stand out after reviewing the Charter:

·         The GNSO, as a Chartering Organization, could well be involved in this process past the date of initial submission to the Board in a variety of potential scenarios.

·         We are tasked with examining, and expressing a view upon, each of the 12 separate Recommendations.

·         The Board has a very different and influential role in this process. The Board filed comments on December 14^th that express “greater concern” about six important areas—

Areas of greater concern are on scope and implementation of inspection rights (a part of Recommendation 1); veto of the IANA budget (a part of Recommendation 4); contractual enforcement in the Mission statement (a part of Recommendation 5), integration of human rights considerations (Recommendation 6), and specifics for WS2 (a part of Recommendation 12).

Given that the CCWG may feel under pressure to accede to the Board recommendations on these areas, and that if it does not the Board may declare that one or more of the recommendations is “not in the global public interest”, thereby triggering a dialogue with the CCWG, I would propose that the Subteam and Council give particular scrutiny to the Board position beyond that accorded to other comments.

The actual amount of time available to complete the process

The January 22^nd target date for Board submission was set by the CCWG by working backwards from the September 30, 2016 expiration date of the current IANA contract and factoring in the NTIA’s estimate of 60-90 days for executive branch interagency review prior to submitting the transition plan for Congressional review; the 30 legislative days Congressional review requirement written into the DOTCOM Act (which translates into two months-plus in mid-2016 given how often the House and Senate will be out of session); and the estimated implementation time, including Bylaws drafting, within ICANN between Board receipt and acceptance of a Proposal and the time that ICANN would be ready to submit it for NTIA review.

As I wrote last week, the 2016 Appropriations bill extended the spending freeze on NTIA completion of the IANA transition until September 30, 2016 but did not include the DOTCOM Act. That bill was enacted two days ago.

I could be wrong, but my view is that inclusion in the Appropriations bill was probably the DOTCOM’s Act last chance for enactment in this Congress, and that it is highly unlikely it will be brought to the Senate floor in 2016 either as a free-standing bill or an amendment to another bill. Sen. Ted Cruz, who is running 1^st or 2^nd in some current polls of the Republican Presidential field, has a hold on the bill and has made clear that he wishes to offer the same amendment that failed in the Commerce Committee, requiring affirmative Congressional approval before the transition can be completed, if the bill is considered by the Senate. Senate leadership is not fond of Sen. Cruz and is unlikely to provide him with the opportunity to win on the Senate floor, or to stage a filibuster if his amendment loses or is tabled  (set aside), while the Republican nomination remains in play. And, DOTCOM bill aside, Congress has already given itself until September 30, 2016 to hold hearings on and review the transition plan by extending the funding freeze.

I hope that was not too much inside baseball regarding Congress, but if DOTCOM is not enacted that actually eases up the time pressure a bit while still allowing a transition to occur on October 1^st next year.

A colleague who is very active in ICANN surveyed the Congressional calendar and, assuming that ICANN could complete its implementation work within 60 days after Board acceptance, and that  the NTIA could lead an interagency review that also concluded within 60 days (although NTIA has said it might go as long as 90), provided the following estimates of time available:

A. If NTIA gets CCWG proposal by 11-Feb, it delivers to Congress on 11-Apr.  30 Congressional Days ends 14-Jun-2016.

B. If NTIA gets CCWG proposal by 11-Mar, it delivers to Congress on 11-May.  30 Congressional Days ends 14-Jul-2016.

C. If NTIA gets CCWG proposal by 11-Apr, it delivers to Congress on 11-Jun.  30 Congressional Days ends 27-Sep-2016.

D. If NTIA gets CCWG proposal by 11-May, it delivers to Congress on 11-Jul.  30 Congressional Days ends 6-Dec-2016.

If the DOTCOM Act is not enacted you can ignore the second part of each of those estimates, starting with “30 Congressional days”. As you can see, even if the Board does not accept a final proposal by March 10 (the final day of the Marrakech meeting) it would still allow delivery to Congress from the N TIA by May 11. In a May 6, 2015 letter to the Co-Chairs of the CCWG, Secretary Strickling said “all work items identified… as prerequisites will  need to be implemented prior to the ending of the contract”; I read that as meaning that ICANN can deliver the final Proposal to NTIA before internal implementation is completed.  A March 11^th transmission to NTIA would give Congress sufficient time to hold oversight hearings in late spring/early summer, but not too much time that could lead to political mischief.

Again, my starting position is that we need to target January 14^th as the date we adopt a position on the current Proposal, and that everyone within ICANN should work to get a final proposal to the NTIA as soon as feasible. I just wanted to point out that the internal discussion can if necessary continue up to Marrakech and still permit the transition to occur on October 1, 2016.

I hope all of that is helpful to fellow Council members, and I welcome feedback.

Best regards,

Philip

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