Rita, I, and I suspect others on the Council, would appreciate your view of the position stated below by Jeff Neuman, as you are an exceptional attorney who assisted in drafting the PDP provisions, have been nominated by the Registry Constituency, and are a member of ICANN's Board Governance Committee (including GNSO Reform subcommittee) and the Board's Executive Committee. Oh yes, and we are all asked to vote on your reappointment very shortly :) Thanks, Mike Rodenbaugh -----Original Message----- From: Mike Rodenbaugh [mailto:mxrodenbaugh@yahoo.com] Sent: Sunday, February 24, 2008 9:11 PM To: 'Council GNSO' Subject: FW: [gnso-dt-wg] Rework of motion I think it important for the entire Council to see the reasoning of the Registry Constituency representative to the domain tasting 'design team', as it applies to any policy development work of the Council. Essentially I think this boils down to a position that the ICANN Board cannot enforce any Consensus Policy unless the Registry Constituency has agreed to it. This came as a surprise to me. Perhaps I am misinterpreting and will be corrected by Jeff or another RyC representative. Perhaps we should have an opinion of ICANN Counsel on this issue as well? -Mike Rodenbaugh -----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Neuman, Jeff Sent: Friday, February 22, 2008 10:45 AM To: Avri Doria; gnso-dt-wg@icann.org Subject: RE: [gnso-dt-wg] Rework of motion A couple of notes: 1. A majority of the Council as opposed to Supermajority is not "deemed to reflect the view of the Council". See Section 12. 2. Yes, the Board can act, but again, that Board decision, in my view (and in the view of the other registries) would not be binding on the gTLD Registry Operators because that would not be viewed as "consensus of Internet stakeholders". After all, if a majority is not even deemed to reflect the view of the Council, then how can it represent a Consensus of Internet stakeholder. 3. The reason I am using the phrase "consensus of Internet stakeholders" is because that is the phrase that is used in the gTLD contracts. See below which is taken from Section 3.1(b)(iv) of the .com agreement (See http://www.icann.org/tlds/agreements/verisign/registry-agmt-com-01mar06. htm) which states: "Consensus Policies and the procedures by which they are developed shall be designed to produce, to the extent possible, a consensus of Internet stakeholders, including the operators of gTLDs. Consensus Policies shall relate to one or more of the following: (1) issues for which uniform or coordinated resolution is reasonably necessary to facilitate interoperability, Security and/or Stability of the Internet or DNS; (2) functional and performance specifications for the provision of Registry Services (as defined in Section 3.1(d)(iii) below); (3) Security and Stability of the registry database for the TLD; (4) registry policies reasonably necessary to implement Consensus Policies relating to registry operations or registrars; or (5) resolution of disputes regarding the registration of domain names (as opposed to the use of such domain names). Such categories of issues referred to in the preceding sentence shall include, without limitation: Particularly important is the phrase "including the operators of gTLDs". Now before you try to argue that it is modified by the phrase "to the extent possible", let me state that the following: 1. "To the extent possible" does not mean that if the registries are on the losing side of the vote it is not "possible" to achieve gTLD operator support for a proposal on domain tasting. 2. The gTLD Registries have indicated on a number of occassions that we do believe a proposal to eliminate tasting (in TLDs where tasting has occurred) can garner the registry operators support. We are committed to working with you to achieve that. We just need to find a solution that takes into consideration the differences of each of the registries. Now if we are done talking about process, lets get down to business: 1. There is a proposed solution on the table; namely I believe the NeuStar/Afilias proposal (which by the way should be officially posted for public comment today). 2. My recommendation is to take those proposals, get the GNSO Council to initiate a PDP, and launch a Task Force (or Working Group) open to the community whose sole purpose and charter is to study the implications of this proposal. I would gladly help ICANN staff in the drafting of that charter. 3. We follow the strict timing in the Bylaws on the formation of the Task Force/Working Group, elect a chair, and get constituency statements getting them to focus solely on the proposal. This should be very easy, quick and painless. 4. Have a Task Force report that analyzes the constituency statements and public input and modifies the proposal (if necessary). Put that out for comment and draft the final report (all included in the Bylaws). If we follow the strict timing in the Bylaws, which I believe we can, we can have this done, wrapped up and to the Board within 90 days and still before the Paris meeting. This will require some diligent efforts, but let's show that this is possible. Jeffrey J. Neuman, Esq. Sr. Director, Law, Advanced Services & Business Development NeuStar, Inc. e-mail: Jeff.Neuman@Neustar.us -----Original Message----- From: owner-gnso-dt-wg@icann.org [mailto:owner-gnso-dt-wg@icann.org] On Behalf Of Avri Doria Sent: Friday, February 22, 2008 12:15 PM To: gnso-dt-wg@icann.org Subject: Re: [gnso-dt-wg] Rework of motion On 22 Feb 2008, at 11:41, Rosette, Kristina wrote:

eff, good question. I'd appreciate clarification of that, too, to make sure we're all on the same page. The transcripts of the GNSO Council meeting and Thursday wrap-up are far from crystal clear. As for your other point, I had understood that the bylaws do not require supermajority support of Council before Board can vote. If there's language elsewhere that controls, I'd appreciate if you would point me in the right direction so that I'm working from the same baseline.

Hi, As I read the by-laws, appended below, the Council does not need to achieve a supermajority in order to forward on a decision (note 11b). A non supermajority view, though, is treated differently by the board (13b vs. 13f). In terms of this DT, the purpose is still to present a way forward for the council to discuss. That can be a motion, a motion plus update of constituency statements, or a WG charter. The motion can be based on the reworked version Alan has presented, or another motion all together, e.g. the elimination of a required AGP as was suggested by many of the comments or some other motion. I think it is best if the way forward leads to a supermajority position. If we can't get a motion that would be able to garner supermajority support, then perhaps we need to do more work and a WG charter might be the right way forward. a. from the by-laws ----------------------- 11. Council Report to the Board The Staff Manager will be present at the final meeting of the Council, and will have five (5) calendar days after the meeting to incorporate the views of the Council into a report to be submitted to the Board (the "Board Report"). The Board Report must contain at least the following: a. A clear statement of any Supermajority Vote recommendation of the Council; b. If a Supermajority Vote was not reached, a clear statement of all positions held by Council members. Each statement should clearly indicate (i) the reasons underlying each position and (ii) the constituency(ies) that held the position; c. An analysis of how the issue would affect each constituency, including any financial impact on the constituency; d. An analysis of the period of time that would likely be necessary to implement the policy; e. The advice of any outside advisors relied upon, which should be accompanied by a detailed statement of the advisor's (i) qualifications and relevant experience; and (ii) potential conflicts of interest; f. The Final Report submitted to the Council; and g. A copy of the minutes of the Council deliberation on the policy issue, including the all opinions expressed during such deliberation, accompanied by a description of who expressed such opinions. 12. Agreement of the Council A Supermajority Vote of the Council members will be deemed to reflect the view of the Council, and may be conveyed to the Board as the Council's recommendation. Abstentions shall not be permitted; thus all Council members must cast a vote unless they identify a financial interest in the outcome of the policy issue. Notwithstanding the foregoing, as set forth above, all viewpoints expressed by Council members during the PDP must be included in the Board Report. 13. Board Vote a. The Board will meet to discuss the GNSO Council recommendation as soon as feasible after receipt of the Board Report from the Staff Manager. b. In the event that the Council reached a Supermajority Vote, the Board shall adopt the policy according to the Council Supermajority Vote recommendation unless by a vote of more than sixty- six (66%) percent of the Board determines that such policy is not in the best interests of the ICANN community or ICANN. c. In the event that the Board determines not to act in accordance with the Council Supermajority Vote recommendation, the Board shall (i) articulate the reasons for its determination in a report to the Council (the "Board Statement"); and (ii) submit the Board Statement to the Council. d. The Council shall review the Board Statement for discussion with the Board within twenty (20) calendar days after the Council's receipt of the Board Statement. The Board shall determine the method (e.g., by teleconference, e-mail, or otherwise) by which the Council and Board will discuss the Board Statement. e. At the conclusion of the Council and Board discussions, the Council shall meet to affirm or modify its recommendation, and communicate that conclusion (the "Supplemental Recommendation") to the Board, including an explanation for its current recommendation. In the event that the Council is able to reach a Supermajority Vote on the Supplemental Recommendation, the Board shall adopt the recommendation unless more than sixty-six (66%) percent of the Board determines that such policy is not in the interests of the ICANN community or ICANN. f. In any case in which the Council is not able to reach Supermajority, a majority vote of the Board will be sufficient to act. g. When a final decision on a GNSO Council Recommendation or Supplemental Recommendation is timely, the Board shall take a preliminary vote and, where practicable, will publish a tentative decision that allows for a ten (10) day period of public comment prior to a final decision by the Board.