Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws
For nearly three years I have represented the Business Constituency as one of its Officers and GNSO Councilors, but make these comments in my personal capacity only, as they have not been reviewed by the BC. Why is ICANN refusing to allow new constituencies in the Contracted Party SG? There are applications for two subsets of newTLD registry operators -- geoTLDs and IDN TLDs. It seems reasonable for there to be a "Resellers Constituency." These commercial entities have interests wholly aligned with those of the Contracted Parties. Indeed resellers effectively are contracted parties, and prospective registry operators will have a contract with ICANN upon making their application. Meanwhile they have an "as soon as possible" expectancy of such a contract, and then a registry contract. Yet the Board and Staff, without any explanation that I have seen, have unilaterally decided that no other entities will be allowed into the "Contracted Party" House. These entities do not belong in the Non-Contracted Party SG, as they simply would dilute the power and voice of the vast majority of entities and individuals in the world, who do not rely substantially on ICANN contracts (or the expectation of ICANN contract) for their livelihood, but are materially impacted by the policies of ICANN and its contracting parties. Resellers and prospective registry applicants (if that was their primary purpose, at least) would not be allowed in the existing or proposed Business Constituency, ISPCPC or IPC -- and should not be allowed to dilute the voices of the new Commercial SG and Non-Commercial SG. Representatives of those parties have indicated assent, however reluctantly in many cases, to this restructuring plan on the basis that parties aligned with ICANN Contracting Parties would find their voice through that House, not ours. The voices and voting power of so-called "Non-Contracting" commercial interests are already heavily diluted under this restructuring scheme, with the NCSG gaining much and the Contracting Parties losing nothing whatsoever. Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable. While those interests suffer much already in the proposed restructure, now it will be proposed that 'contracting party' interests be allowed in our House as well? The result will be an even stronger stranglehold on policy development than is already wielded by the Contracting Parties. Their two Constituencies are essentially aligned in interest on virtually all issues. Alignment will only increase if ICANN repeals restrictions on cross-ownership, which anyway do not exist with respect to ccTLDs in most cases, so we have seen registrars and registries teaming up on ventures for many years now. One of the GNSO Councilors, for the Registrar Constituency, is CEO of a registry services company. Effectively today they are one block with effective veto power over anything. The best way to cement that in place is to forbid any other voices from joining their House. Why do Contracting Parties maintain double voting? It is unwise that the Contracting Parties are allowed to continue with 'double voting' on the new Council. Is it not a main point of the restructure to increase participation and diversity on the Council? Why does this only apply to one House, and not the other? Particularly in the near future with hundreds more new TLD operators, and most likely hundreds more registrars, there is no excuse to allow just six seats in that House, while there are twelve in the other. That makes it twice as hard to persuade a single vote to "switch sides", which might make the difference in many cases. [Not sure if this is changed in their new charters, but for similar reasons it also should be forbidden that the Registry Constituency Councilors be required to vote as a block as they are today, rather than individually as in the Registrar Constituency.] ICANN should be well aware that this entire GNSO restructure has been a bitter pill for the "Non-Contracting" business community to swallow. Their power and voices will be diminished and those who have been involved know it. It has not caused such recent uproar since the newTLD process has proved to be a more immediate and distressing battle for some in that community, though by no means all. These details are also rather uninteresting for any normal person to consider, particularly anyone who has not participated on Council. From my perspective, these specific elements of the new restructure could result in a lot more bitterness in the years to come, and appear wholly contrary to the spirit and stated intention of the ICANN Board in its mandate of this effort. Moreover, they were primary facets of the compromise reached in 2008, which now appear to have been discarded by the Board and Staff, without explanation or reason. Sincerely, Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
Mike, I'm sure your passionate tirade will generate a lot of comments and there is certainly a lot to be said. One of the main points for me is the resentment you speak of. It has become clear over the past few months that there is a certain amount of dissatisfaction in the "non-contracted" side of the GNSO. Both the opinions you voice in your email and the ongoing "NCUC controversy" are obvious signs of that. It is something that, on a personal level, has me worried. I care about the GNSO and I believe in the way it brings together such diverging interests in a (nearly) homogeneous way. I think it would be a great shame for all concerned if we were not able to maintain this 'entente cordiale' in the long run. This is why I feel strongly that discussion should be encouraged on the points you raise. This despite the fact that, as the general manager of a company that is forced to have a direct contract with ICANN in order to do business, I feel that a lot of what you say borders on propaganda and certainly paints a slanted picture of the real situation. I resent what I feel is an attempt to stigmatise the contracted parties. In your assessment of the situation, I don't think you should forget that the contracted parties find themselves in the unique situation of having to negotiate their key business contracts in a forum that includes other parties in addition to the two contracting parties involved. I'm not sure that when your law firm negotiates a contract with a customer, it discusses the details of that contract with third parties and even allows them to vote on certain aspects of that contract... I think if we can all strive for a little understanding of the other entities' points of view, we can move forward in a positive way with the restructuring effort. And address what are very clear and very real feelings of resentment which, I fully agree, must be addressed. Thanks, Stéphane Le 24/08/09 18:25, « Mike Rodenbaugh » <icann@rodenbaugh.com> a écrit :
For nearly three years I have represented the Business Constituency as one of its Officers and GNSO Councilors, but make these comments in my personal capacity only, as they have not been reviewed by the BC.
Why is ICANN refusing to allow new constituencies in the Contracted Party SG?
There are applications for two subsets of newTLD registry operators -- geoTLDs and IDN TLDs. It seems reasonable for there to be a "Resellers Constituency." These commercial entities have interests wholly aligned with those of the Contracted Parties. Indeed resellers effectively are contracted parties, and prospective registry operators will have a contract with ICANN upon making their application. Meanwhile they have an "as soon as possible" expectancy of such a contract, and then a registry contract. Yet the Board and Staff, without any explanation that I have seen, have unilaterally decided that no other entities will be allowed into the "Contracted Party" House.
These entities do not belong in the Non-Contracted Party SG, as they simply would dilute the power and voice of the vast majority of entities and individuals in the world, who do not rely substantially on ICANN contracts (or the expectation of ICANN contract) for their livelihood, but are materially impacted by the policies of ICANN and its contracting parties. Resellers and prospective registry applicants (if that was their primary purpose, at least) would not be allowed in the existing or proposed Business Constituency, ISPCPC or IPC -- and should not be allowed to dilute the voices of the new Commercial SG and Non-Commercial SG. Representatives of those parties have indicated assent, however reluctantly in many cases, to this restructuring plan on the basis that parties aligned with ICANN Contracting Parties would find their voice through that House, not ours.
The voices and voting power of so-called "Non-Contracting" commercial interests are already heavily diluted under this restructuring scheme, with the NCSG gaining much and the Contracting Parties losing nothing whatsoever. Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable. While those interests suffer much already in the proposed restructure, now it will be proposed that 'contracting party' interests be allowed in our House as well?
The result will be an even stronger stranglehold on policy development than is already wielded by the Contracting Parties. Their two Constituencies are essentially aligned in interest on virtually all issues. Alignment will only increase if ICANN repeals restrictions on cross-ownership, which anyway do not exist with respect to ccTLDs in most cases, so we have seen registrars and registries teaming up on ventures for many years now. One of the GNSO Councilors, for the Registrar Constituency, is CEO of a registry services company. Effectively today they are one block with effective veto power over anything. The best way to cement that in place is to forbid any other voices from joining their House.
Why do Contracting Parties maintain double voting?
It is unwise that the Contracting Parties are allowed to continue with 'double voting' on the new Council. Is it not a main point of the restructure to increase participation and diversity on the Council? Why does this only apply to one House, and not the other? Particularly in the near future with hundreds more new TLD operators, and most likely hundreds more registrars, there is no excuse to allow just six seats in that House, while there are twelve in the other. That makes it twice as hard to persuade a single vote to "switch sides", which might make the difference in many cases. [Not sure if this is changed in their new charters, but for similar reasons it also should be forbidden that the Registry Constituency Councilors be required to vote as a block as they are today, rather than individually as in the Registrar Constituency.]
ICANN should be well aware that this entire GNSO restructure has been a bitter pill for the "Non-Contracting" business community to swallow. Their power and voices will be diminished and those who have been involved know it. It has not caused such recent uproar since the newTLD process has proved to be a more immediate and distressing battle for some in that community, though by no means all. These details are also rather uninteresting for any normal person to consider, particularly anyone who has not participated on Council. From my perspective, these specific elements of the new restructure could result in a lot more bitterness in the years to come, and appear wholly contrary to the spirit and stated intention of the ICANN Board in its mandate of this effort. Moreover, they were primary facets of the compromise reached in 2008, which now appear to have been discarded by the Board and Staff, without explanation or reason.
Sincerely,
Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
I frequently hear members of the contracted parties telling everyone that they "find themselves in the unique situation of having to negotiate their key business contracts in a forum that includes other parties in addition to the two contracting parties involved." What they never say is that the alternative of having to live in a regulated environment where governments/regulators DICTATE the terms and conditions under which they operate, is even more untenable. That is the reality now that the Internet is recognised as a critical resource for the world's economic, cultural and social development. A point underlined by the level of importance with which the world's governements view the Internet. So can we please stop being preached to and told how difficult life is. If you've ever worked in an environment that's heavily regulated you'd welcome being able to negotiate contracts, even if it was on a level playing field (50/50) with all the other parties. Tony -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Stéphane Van Gelder Sent: 24 August 2009 18:00 To: icann@rodenbaugh.com; gnso-council-draft2@icann.org Cc: 'Council GNSO' Subject: Re: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws Mike, I'm sure your passionate tirade will generate a lot of comments and there is certainly a lot to be said. One of the main points for me is the resentment you speak of. It has become clear over the past few months that there is a certain amount of dissatisfaction in the "non-contracted" side of the GNSO. Both the opinions you voice in your email and the ongoing "NCUC controversy" are obvious signs of that. It is something that, on a personal level, has me worried. I care about the GNSO and I believe in the way it brings together such diverging interests in a (nearly) homogeneous way. I think it would be a great shame for all concerned if we were not able to maintain this 'entente cordiale' in the long run. This is why I feel strongly that discussion should be encouraged on the points you raise. This despite the fact that, as the general manager of a company that is forced to have a direct contract with ICANN in order to do business, I feel that a lot of what you say borders on propaganda and certainly paints a slanted picture of the real situation. I resent what I feel is an attempt to stigmatise the contracted parties. In your assessment of the situation, I don't think you should forget that the contracted parties find themselves in the unique situation of having to negotiate their key business contracts in a forum that includes other parties in addition to the two contracting parties involved. I'm not sure that when your law firm negotiates a contract with a customer, it discusses the details of that contract with third parties and even allows them to vote on certain aspects of that contract... I think if we can all strive for a little understanding of the other entities' points of view, we can move forward in a positive way with the restructuring effort. And address what are very clear and very real feelings of resentment which, I fully agree, must be addressed. Thanks, Stéphane Le 24/08/09 18:25, « Mike Rodenbaugh » <icann@rodenbaugh.com> a écrit :
For nearly three years I have represented the Business Constituency as one of its Officers and GNSO Councilors, but make these comments in my personal capacity only, as they have not been reviewed by the BC.
Why is ICANN refusing to allow new constituencies in the Contracted Party SG?
There are applications for two subsets of newTLD registry operators -- geoTLDs and IDN TLDs. It seems reasonable for there to be a "Resellers Constituency." These commercial entities have interests wholly aligned with those of the Contracted Parties. Indeed resellers effectively are contracted parties, and prospective registry operators will have a contract with ICANN upon making their application. Meanwhile they have an "as soon as possible" expectancy of such a
contract, and then a registry contract.
Yet the Board and Staff, without any explanation that I have seen, have unilaterally decided that no other entities will be allowed into the "Contracted Party" House.
These entities do not belong in the Non-Contracted Party SG, as they simply would dilute the power and voice of the vast majority of entities and individuals in the world, who do not rely substantially on ICANN contracts (or the expectation of ICANN contract) for their livelihood, but are materially impacted by the policies of ICANN and its contracting parties. Resellers and prospective registry applicants (if that was their primary purpose, at least) would not be allowed in the existing or proposed Business Constituency, ISPCPC or IPC -- and should not be allowed to dilute the voices of the new Commercial SG and Non-Commercial SG. Representatives of those parties have indicated assent, however reluctantly in many cases, to this restructuring plan on the basis that parties aligned with ICANN Contracting Parties would find their voice through that House, not ours.
The voices and voting power of so-called "Non-Contracting" commercial interests are already heavily diluted under this restructuring scheme, with the NCSG gaining much and the Contracting Parties losing nothing whatsoever. Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable. While those interests suffer much already in the proposed restructure, now it will be proposed that 'contracting party' interests be allowed in our House as well?
The result will be an even stronger stranglehold on policy development than is already wielded by the Contracting Parties. Their two Constituencies are essentially aligned in interest on virtually all issues. Alignment will only increase if ICANN repeals restrictions on cross-ownership, which anyway do not exist with respect to ccTLDs in most cases, so we have seen registrars and registries teaming up on ventures for many years now. One of the GNSO Councilors, for the Registrar Constituency, is CEO of a registry services company. Effectively today they are one block with effective veto power over anything. The best way to cement that in place is to forbid any other voices from joining their House.
Why do Contracting Parties maintain double voting?
It is unwise that the Contracting Parties are allowed to continue with 'double voting' on the new Council. Is it not a main point of the restructure to increase participation and diversity on the Council? Why does this only apply to one House, and not the other? Particularly in the near future with hundreds more new TLD operators, and most likely hundreds more registrars, there is no excuse to allow just six seats in that House, while there are twelve in the other. That makes it twice as hard to persuade a single vote to "switch sides", which might make the difference in many cases. [Not sure if this is changed in their new charters, but for similar reasons it also should be forbidden that the Registry Constituency Councilors be required to vote as a block as they are today, rather than individually as in the Registrar Constituency.]
ICANN should be well aware that this entire GNSO restructure has been a bitter pill for the "Non-Contracting" business community to swallow. Their power and voices will be diminished and those who have been involved know it. It has not caused such recent uproar since the newTLD process has proved to be a more immediate and distressing battle for some in that community, though by no means all. These details are also rather uninteresting for any normal person to consider, particularly anyone who has not participated on Council. From my perspective, these specific elements of the new restructure could result in a lot more bitterness in the years to come, and appear wholly contrary to the spirit and stated intention of the ICANN Board in its mandate of this effort. Moreover, they were primary facets of the compromise reached in 2008, which now appear to have been discarded by the Board and Staff, without explanation or reason.
Sincerely,
Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
I inserted a few comments below. Chuck
Le 24/08/09 18:25, « Mike Rodenbaugh » <icann@rodenbaugh.com> a écrit :
For nearly three years I have represented the Business
Constituency as
one of its Officers and GNSO Councilors, but make these comments in my personal capacity only, as they have not been reviewed by the BC.
Why is ICANN refusing to allow new constituencies in the Contracted Party SG?
CG: They are allowed under a different name, Interest Groups.
There are applications for two subsets of newTLD registry
operators --
geoTLDs and IDN TLDs.
CG: First a correction: as I understand it the IDN TLD constituency application was for the CSG, not the RySG or RrSG. Regardless though, a geoTLD (or City TLD) and an IDN TLD Interest Group can form and become part of the Contracted party House in either or both SGs. In fact, it is easier to do than becoming a constituency in the Noncontracted Party House because it does not require Board approval.
It seems reasonable for there to be a
"Resellers Constituency." These commercial entities have interests wholly aligned with those of the Contracted Parties. Indeed resellers effectively are contracted parties, and prospective registry operators will have a contract with ICANN upon making their application. Meanwhile they have an "as soon as possible" expectancy of such a contract, and then a registry contract. Yet the Board and Staff, without any explanation that I have seen, have unilaterally decided that no other entities will be allowed into the "Contracted Party" House.
CG: Not true as stated above.
These entities do not belong in the Non-Contracted Party
SG, as they
simply would dilute the power and voice of the vast majority of entities and individuals in the world, who do not rely substantially on ICANN contracts (or the expectation of ICANN contract) for their livelihood, but are materially impacted by the policies of ICANN and its contracting parties. Resellers and prospective registry applicants (if that was their primary purpose, at least) would not be allowed in the existing or proposed Business Constituency, ISPCPC or IPC -- and should not be allowed to dilute the voices of the new Commercial SG and Non-Commercial SG. Representatives of those parties have indicated assent, however reluctantly in many cases, to this restructuring plan on the basis that parties aligned with ICANN Contracting Parties would find their voice through that House, not ours.
CG: Any parties planning to become a contracted party are welcome in the Contracted Party SGs as observers until such time that they execute a contract. As observers, they may participate actively but do not have a vote.
The voices and voting power of so-called "Non-Contracting"
commercial
interests are already heavily diluted under this restructuring scheme, with the NCSG gaining much and the Contracting Parties losing nothing whatsoever. Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable. While those interests suffer much already in the proposed restructure, now it will be proposed that 'contracting party' interests be allowed in our House as well?
CG: I personally think that it is not my place to decide who should be allowed in other SGs as long as the Charters are approved by the Board.
The result will be an even stronger stranglehold on policy
development
than is already wielded by the Contracting Parties. Their two Constituencies are essentially aligned in interest on virtually all issues.
CG: This is just plain false. We have not been aligned on many issues: Whois, registry-registrar cross ownership, registry contract approvals, PEDNR, just to cite four.
Alignment will only increase if ICANN repeals restrictions on
cross-ownership, which anyway do not exist with respect to ccTLDs in most cases, so we have seen registrars and registries teaming up on ventures for many years now. One of the GNSO Councilors, for the Registrar Constituency, is CEO of a registry services company. Effectively today they are one block with effective veto power over anything.
CG: Wrong again. I already pointed out four examples of important policy issues where we have not voted as a block. Secondly, the contracted parties do not have veto power today or in the new bicameral model. Contracted and Noncontracted parties have equal voting power but not veto power. In the new model, the thresholds were carefully designed to avoid giving veto power to one house if it was not given to the other house also.
The best way to cement that in place is to forbid any other voices from joining their House.
Why do Contracting Parties maintain double voting?
CG: There is no double voting but it true that most of the voting thresholds require some level of approval by both houses.
It is unwise that the Contracting Parties are allowed to
continue with
'double voting' on the new Council. Is it not a main point of the restructure to increase participation and diversity on the Council? Why does this only apply to one House, and not the other? Particularly in the near future with hundreds more new TLD operators, and most likely hundreds more registrars, there is no excuse to allow just six seats in that House, while there are twelve in the other. That makes it twice as hard to persuade a single vote to "switch sides", which might make the difference in many cases. [Not sure if this is changed in their new charters, but for similar reasons it also should be forbidden that the Registry Constituency Councilors be required to vote as a block as they are today, rather than individually as in the Registrar Constituency.]
CG: RyC Councilors and in the future RySG Councilors are not required to vote as a block. They are required to vote as directed by the RyC/RySG. That often results in all three Councilors voting alike because the RyC has reached a consensus position. But our present and future charters allow for non-block votes. In fact on an issue that may be acted on in the next Council meeting, we are actually considering a mixed vote because there is not consensus in the RyC.
ICANN should be well aware that this entire GNSO
restructure has been
a bitter pill for the "Non-Contracting" business community to swallow. Their power and voices will be diminished and those who have been involved know it. It has not caused such recent uproar since the newTLD process has proved to be a more immediate and distressing battle for some in that community, though by no means all. These details are also rather uninteresting for any normal person to consider, particularly anyone who has not participated on Council. From my perspective, these specific elements of the new restructure could result in a lot more bitterness in the years to come, and appear wholly contrary to the spirit and stated intention of the ICANN Board in its mandate of this effort. Moreover, they were primary facets of the compromise reached in 2008, which now appear to have been discarded by the Board and Staff, without explanation or reason.
Sincerely,
Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
Chuck: I'm confused. I read your reference below to suggest that Interest Groups can be formed by entities that aren't members of the RySG. However, I read the Registries SG Charter to limit participation in Interest Groups to RySG members. Would you please clarify which is correct? All: Here's what I have trouble with. All of the relevant documents (SG charters, constituency by-laws, ICANN bylaws) focus on the common "interests" or "views" of the particular stakeholder (lower case s) group. What ultimately unites the members of that group are those commmon interests or views. It seems very bizarre to me that such an important distinction as to where the group's voice "belongs" is being based on events over which the potential stakeholder (again, lower case s) group members do not have full control. The members of the potential City TLD or IDN TLD constituencies do not have full control over when (or if) they each enter into Registry Agreements. (I'm characterizing the ability of those members to file - eventually - gTLD applications and determine when those are filed within the window, how complete they are, etc. as providing some, albeit indirect, control.) Similarly, if there were to be consensus policy developed relating to whether resellers must have contracts with ICANN, the resellers do not have full control over that possibility. Yet, both groups have interests and views far more aligned with the contracted parties than the non-contracted parties I'm struck by the seeming randomness of the "triggering" events that determine Stakeholder (upper case) group placement. With apologies for the analogy (I've been attending a number of birthday parties for 5-year-old girls and Cinderella is quite popular with that set), it strikes me as absurd to assume that signing a contract with ICANN has the equivalent effect on a City TLD applicant as Cinderella's fairy godmother waiving her magic wand. No magical transformation occurs. That applicant's interests have always been more aligned with interests of the members of the RyC. Simply getting a contract doesn't change that. So why is it being treated as such a dispositive event? -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Gomes, Chuck Sent: Tuesday, August 25, 2009 10:14 AM To: Stéphane Van Gelder; icann@rodenbaugh.com; gnso-council-draft2@icann.org Cc: Council GNSO Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws I inserted a few comments below. Chuck
Le 24/08/09 18:25, « Mike Rodenbaugh » <icann@rodenbaugh.com> a écrit :
For nearly three years I have represented the Business
Constituency as
one of its Officers and GNSO Councilors, but make these comments in my personal capacity only, as they have not been reviewed by the BC.
Why is ICANN refusing to allow new constituencies in the Contracted Party SG?
CG: They are allowed under a different name, Interest Groups.
There are applications for two subsets of newTLD registry
operators --
geoTLDs and IDN TLDs.
CG: First a correction: as I understand it the IDN TLD constituency application was for the CSG, not the RySG or RrSG. Regardless though, a geoTLD (or City TLD) and an IDN TLD Interest Group can form and become part of the Contracted party House in either or both SGs. In fact, it is easier to do than becoming a constituency in the Noncontracted Party House because it does not require Board approval.
It seems reasonable for there to be a
"Resellers Constituency." These commercial entities have interests wholly aligned with those of the Contracted Parties. Indeed resellers effectively are contracted parties, and prospective registry operators will have a contract with ICANN upon making their application. Meanwhile they have an "as soon as possible" expectancy of such a contract, and then a registry contract. Yet the Board and Staff, without any explanation that I have seen, have unilaterally decided that no other entities will be allowed into the "Contracted Party" House.
CG: Not true as stated above.
These entities do not belong in the Non-Contracted Party
SG, as they
simply would dilute the power and voice of the vast majority of entities and individuals in the world, who do not rely substantially on ICANN contracts (or the expectation of ICANN contract) for their livelihood, but are materially impacted by the policies of ICANN and its contracting parties. Resellers and prospective registry applicants (if that was their primary purpose, at least) would not be allowed in the existing or proposed Business Constituency, ISPCPC or IPC -- and should not be allowed to dilute the voices of the new Commercial SG and Non-Commercial SG. Representatives of those parties have indicated assent, however reluctantly in many cases, to this restructuring plan on the basis that parties aligned with ICANN Contracting Parties would find their voice through that House, not ours.
CG: Any parties planning to become a contracted party are welcome in the Contracted Party SGs as observers until such time that they execute a contract. As observers, they may participate actively but do not have a vote.
The voices and voting power of so-called "Non-Contracting"
commercial
interests are already heavily diluted under this restructuring scheme, with the NCSG gaining much and the Contracting Parties losing nothing whatsoever. Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable. While those interests suffer much already in the proposed restructure, now it will be proposed that 'contracting party' interests be allowed in our House as well?
CG: I personally think that it is not my place to decide who should be allowed in other SGs as long as the Charters are approved by the Board.
The result will be an even stronger stranglehold on policy
development
than is already wielded by the Contracting Parties. Their two Constituencies are essentially aligned in interest on virtually all issues.
CG: This is just plain false. We have not been aligned on many issues: Whois, registry-registrar cross ownership, registry contract approvals, PEDNR, just to cite four.
Alignment will only increase if ICANN repeals restrictions on
cross-ownership, which anyway do not exist with respect to ccTLDs in most cases, so we have seen registrars and registries teaming up on ventures for many years now. One of the GNSO Councilors, for the Registrar Constituency, is CEO of a registry services company. Effectively today they are one block with effective veto power over anything.
CG: Wrong again. I already pointed out four examples of important policy issues where we have not voted as a block. Secondly, the contracted parties do not have veto power today or in the new bicameral model. Contracted and Noncontracted parties have equal voting power but not veto power. In the new model, the thresholds were carefully designed to avoid giving veto power to one house if it was not given to the other house also.
The best way to cement that in place is to forbid any other voices from joining their House.
Why do Contracting Parties maintain double voting?
CG: There is no double voting but it true that most of the voting thresholds require some level of approval by both houses.
It is unwise that the Contracting Parties are allowed to
continue with
'double voting' on the new Council. Is it not a main point of the restructure to increase participation and diversity on the Council? Why does this only apply to one House, and not the other? Particularly in the near future with hundreds more new TLD operators, and most likely hundreds more registrars, there is no excuse to allow just six seats in that House, while there are twelve in the other. That makes it twice as hard to persuade a single vote to "switch sides", which might make the difference in many cases. [Not sure if this is changed in their new charters, but for similar reasons it also should be forbidden that the Registry Constituency Councilors be required to vote as a block as they are today, rather than individually as in the Registrar Constituency.]
CG: RyC Councilors and in the future RySG Councilors are not required to vote as a block. They are required to vote as directed by the RyC/RySG. That often results in all three Councilors voting alike because the RyC has reached a consensus position. But our present and future charters allow for non-block votes. In fact on an issue that may be acted on in the next Council meeting, we are actually considering a mixed vote because there is not consensus in the RyC.
ICANN should be well aware that this entire GNSO
restructure has been
a bitter pill for the "Non-Contracting" business community to swallow. Their power and voices will be diminished and those who have been involved know it. It has not caused such recent uproar since the newTLD process has proved to be a more immediate and distressing battle for some in that community, though by no means all. These details are also rather uninteresting for any normal person to consider, particularly anyone who has not participated on Council. From my perspective, these specific elements of the new restructure could result in a lot more bitterness in the years to come, and appear wholly contrary to the spirit and stated intention of the ICANN Board in its mandate of this effort. Moreover, they were primary facets of the compromise reached in 2008, which now appear to have been discarded by the Board and Staff, without explanation or reason.
Sincerely,
Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
Kristina, You are correct that Interest Groups are formed by members who by definition have contracts with ICANN. But their potential members could participate as observers in the meantime and there would be nothing to prevent them from organization their pre-member participation as they wish. It is not terribly different than noncontracted party pending constituencies who cannot become official until they are approved by the Board. I don't think your cinderella analogy fits well but I am not going to argue points again that I have stated many times before. Chuck
-----Original Message----- From: Rosette, Kristina [mailto:krosette@cov.com] Sent: Tuesday, August 25, 2009 11:04 AM To: Gomes, Chuck; Stéphane Van Gelder; icann@rodenbaugh.com; gnso-council-draft2@icann.org Cc: Council GNSO Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws
Chuck: I'm confused. I read your reference below to suggest that Interest Groups can be formed by entities that aren't members of the RySG. However, I read the Registries SG Charter to limit participation in Interest Groups to RySG members. Would you please clarify which is correct?
All: Here's what I have trouble with. All of the relevant documents (SG charters, constituency by-laws, ICANN bylaws) focus on the common "interests" or "views" of the particular stakeholder (lower case s) group. What ultimately unites the members of that group are those commmon interests or views. It seems very bizarre to me that such an important distinction as to where the group's voice "belongs" is being based on events over which the potential stakeholder (again, lower case s) group members do not have full control. The members of the potential City TLD or IDN TLD constituencies do not have full control over when (or if) they each enter into Registry Agreements. (I'm characterizing the ability of those members to file - eventually - gTLD applications and determine when those are filed within the window, how complete they are, etc. as providing some, albeit indirect, control.) Similarly, if there were to be consensus policy developed relating to whether resellers must have contracts with ICANN, the resellers do not have full control over that possibility. Yet, both groups have interests and views far more aligned with the contracted parties than the non-contracted parties
I'm struck by the seeming randomness of the "triggering" events that determine Stakeholder (upper case) group placement. With apologies for the analogy (I've been attending a number of birthday parties for 5-year-old girls and Cinderella is quite popular with that set), it strikes me as absurd to assume that signing a contract with ICANN has the equivalent effect on a City TLD applicant as Cinderella's fairy godmother waiving her magic wand. No magical transformation occurs. That applicant's interests have always been more aligned with interests of the members of the RyC. Simply getting a contract doesn't change that. So why is it being treated as such a dispositive event?
-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Gomes, Chuck Sent: Tuesday, August 25, 2009 10:14 AM To: Stéphane Van Gelder; icann@rodenbaugh.com; gnso-council-draft2@icann.org Cc: Council GNSO Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws
I inserted a few comments below.
Chuck
Le 24/08/09 18:25, « Mike Rodenbaugh » <icann@rodenbaugh.com> a écrit :
For nearly three years I have represented the Business
Constituency as
one of its Officers and GNSO Councilors, but make these comments in my personal capacity only, as they have not been reviewed by the BC.
Why is ICANN refusing to allow new constituencies in the Contracted Party SG?
CG: They are allowed under a different name, Interest Groups.
There are applications for two subsets of newTLD registry
operators --
geoTLDs and IDN TLDs.
CG: First a correction: as I understand it the IDN TLD constituency application was for the CSG, not the RySG or RrSG. Regardless though, a geoTLD (or City TLD) and an IDN TLD Interest Group can form and become part of the Contracted party House in either or both SGs. In fact, it is easier to do than becoming a constituency in the Noncontracted Party House because it does not require Board approval.
It seems reasonable for there to be a
"Resellers Constituency." These commercial entities have interests wholly aligned with those of the Contracted Parties. Indeed resellers effectively are contracted parties, and prospective registry operators will have a contract with ICANN upon making their application. Meanwhile they have an "as soon as possible" expectancy of such a contract, and then a registry contract. Yet the Board and Staff, without any explanation that I have seen, have unilaterally decided that no other entities will be allowed into the "Contracted Party" House.
CG: Not true as stated above.
These entities do not belong in the Non-Contracted Party
SG, as they
simply would dilute the power and voice of the vast majority of entities and individuals in the world, who do not rely substantially on ICANN contracts (or the expectation of ICANN contract) for their livelihood, but are materially impacted by the policies of ICANN and its contracting parties. Resellers and prospective registry applicants (if that was their primary purpose, at least) would not be allowed in the existing or proposed Business Constituency, ISPCPC or IPC -- and should not be allowed to dilute the voices of the new Commercial SG and Non-Commercial SG. Representatives of those parties have indicated assent, however reluctantly in many cases, to this restructuring plan on the basis that parties aligned with ICANN Contracting Parties would find their voice through that House, not ours.
CG: Any parties planning to become a contracted party are welcome in the Contracted Party SGs as observers until such time that they execute a contract. As observers, they may participate actively but do not have a vote.
The voices and voting power of so-called "Non-Contracting"
commercial
interests are already heavily diluted under this restructuring scheme, with the NCSG gaining much and the Contracting Parties losing nothing whatsoever. Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable. While those interests suffer much already in the proposed restructure, now it will be proposed that 'contracting party' interests be allowed in our House as well?
CG: I personally think that it is not my place to decide who should be allowed in other SGs as long as the Charters are approved by the Board.
The result will be an even stronger stranglehold on policy
development
than is already wielded by the Contracting Parties. Their two Constituencies are essentially aligned in interest on virtually all issues.
CG: This is just plain false. We have not been aligned on many issues: Whois, registry-registrar cross ownership, registry contract approvals, PEDNR, just to cite four.
Alignment will only increase if ICANN repeals restrictions on
cross-ownership, which anyway do not exist with respect to ccTLDs in most cases, so we have seen registrars and registries teaming up on ventures for many years now. One of the GNSO Councilors, for the Registrar Constituency, is CEO of a registry services company. Effectively today they are one block with effective veto power over anything.
CG: Wrong again. I already pointed out four examples of important policy issues where we have not voted as a block. Secondly, the contracted parties do not have veto power today or in the new bicameral model. Contracted and Noncontracted parties have equal voting power but not veto power. In the new model, the thresholds were carefully designed to avoid giving veto power to one house if it was not given to the other house also.
The best way to cement that in place is to forbid any other voices from joining their House.
Why do Contracting Parties maintain double voting?
CG: There is no double voting but it true that most of the voting thresholds require some level of approval by both houses.
It is unwise that the Contracting Parties are allowed to
continue with
'double voting' on the new Council. Is it not a main point of the restructure to increase participation and diversity on the Council? Why does this only apply to one House, and not the other? Particularly in the near future with hundreds more new TLD operators, and most likely hundreds more registrars, there is no excuse to allow just six seats in that House, while there are twelve in the other. That makes it twice as hard to persuade a single vote to "switch sides", which might make the difference in many cases. [Not sure if this is changed in their new charters, but for similar reasons it also should be forbidden that the Registry Constituency Councilors be required to vote as a block as they are today, rather than individually as in the Registrar Constituency.]
CG: RyC Councilors and in the future RySG Councilors are not required to vote as a block. They are required to vote as directed by the RyC/RySG. That often results in all three Councilors voting alike because the RyC has reached a consensus position. But our present and future charters allow for non-block votes. In fact on an issue that may be acted on in the next Council meeting, we are actually considering a mixed vote because there is not consensus in the RyC.
ICANN should be well aware that this entire GNSO
restructure has been
a bitter pill for the "Non-Contracting" business community to swallow. Their power and voices will be diminished and those who have been involved know it. It has not caused such recent uproar since the newTLD process has proved to be a more immediate and distressing battle for some in that community, though by no means all. These details are also rather uninteresting for any normal person to consider, particularly anyone who has not participated on Council. From my perspective, these specific elements of the new restructure could result in a lot more bitterness in the years to come, and appear wholly contrary to the spirit and stated intention of the ICANN Board in its mandate of this effort. Moreover, they were primary facets of the compromise reached in 2008, which now appear to have been discarded by the Board and Staff, without explanation or reason.
Sincerely,
Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
Mike, Thanks for the "shout out". I'm honoured (correct Australian spelling!). I appreciate your "personal" comments. One quick question; When you refer to the following "Effectively today they are one block with effective veto power over anything", what do you mean? Either we do or we don't which is it? Adrian Kinderis Chief Executive Officer Registrar, Registry Services Provider oh.. and I own a few names, so throw in Registrant. -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Tuesday, 25 August 2009 2:25 AM To: gnso-council-draft2@icann.org Cc: 'BC List'; 'Council GNSO' Subject: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws For nearly three years I have represented the Business Constituency as one of its Officers and GNSO Councilors, but make these comments in my personal capacity only, as they have not been reviewed by the BC. Why is ICANN refusing to allow new constituencies in the Contracted Party SG? There are applications for two subsets of newTLD registry operators -- geoTLDs and IDN TLDs. It seems reasonable for there to be a "Resellers Constituency." These commercial entities have interests wholly aligned with those of the Contracted Parties. Indeed resellers effectively are contracted parties, and prospective registry operators will have a contract with ICANN upon making their application. Meanwhile they have an "as soon as possible" expectancy of such a contract, and then a registry contract. Yet the Board and Staff, without any explanation that I have seen, have unilaterally decided that no other entities will be allowed into the "Contracted Party" House. These entities do not belong in the Non-Contracted Party SG, as they simply would dilute the power and voice of the vast majority of entities and individuals in the world, who do not rely substantially on ICANN contracts (or the expectation of ICANN contract) for their livelihood, but are materially impacted by the policies of ICANN and its contracting parties. Resellers and prospective registry applicants (if that was their primary purpose, at least) would not be allowed in the existing or proposed Business Constituency, ISPCPC or IPC -- and should not be allowed to dilute the voices of the new Commercial SG and Non-Commercial SG. Representatives of those parties have indicated assent, however reluctantly in many cases, to this restructuring plan on the basis that parties aligned with ICANN Contracting Parties would find their voice through that House, not ours. The voices and voting power of so-called "Non-Contracting" commercial interests are already heavily diluted under this restructuring scheme, with the NCSG gaining much and the Contracting Parties losing nothing whatsoever. Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable. While those interests suffer much already in the proposed restructure, now it will be proposed that 'contracting party' interests be allowed in our House as well? The result will be an even stronger stranglehold on policy development than is already wielded by the Contracting Parties. Their two Constituencies are essentially aligned in interest on virtually all issues. Alignment will only increase if ICANN repeals restrictions on cross-ownership, which anyway do not exist with respect to ccTLDs in most cases, so we have seen registrars and registries teaming up on ventures for many years now. One of the GNSO Councilors, for the Registrar Constituency, is CEO of a registry services company. Effectively today they are one block with effective veto power over anything. The best way to cement that in place is to forbid any other voices from joining their House. Why do Contracting Parties maintain double voting? It is unwise that the Contracting Parties are allowed to continue with 'double voting' on the new Council. Is it not a main point of the restructure to increase participation and diversity on the Council? Why does this only apply to one House, and not the other? Particularly in the near future with hundreds more new TLD operators, and most likely hundreds more registrars, there is no excuse to allow just six seats in that House, while there are twelve in the other. That makes it twice as hard to persuade a single vote to "switch sides", which might make the difference in many cases. [Not sure if this is changed in their new charters, but for similar reasons it also should be forbidden that the Registry Constituency Councilors be required to vote as a block as they are today, rather than individually as in the Registrar Constituency.] ICANN should be well aware that this entire GNSO restructure has been a bitter pill for the "Non-Contracting" business community to swallow. Their power and voices will be diminished and those who have been involved know it. It has not caused such recent uproar since the newTLD process has proved to be a more immediate and distressing battle for some in that community, though by no means all. These details are also rather uninteresting for any normal person to consider, particularly anyone who has not participated on Council. From my perspective, these specific elements of the new restructure could result in a lot more bitterness in the years to come, and appear wholly contrary to the spirit and stated intention of the ICANN Board in its mandate of this effort. Moreover, they were primary facets of the compromise reached in 2008, which now appear to have been discarded by the Board and Staff, without explanation or reason. Sincerely, Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
Hi Adrian, Of course I am not ignoring you, I've had a busy work week. And of course I was not criticizing you personally, only pointing out the fact that there is much amalgamation between registrars and registries, as has been demonstrated by their Council reps. I could also have referred to another registrar Councilor whose company is actively engaged in ccTLD registry businesses. (Hi Tim! ... but he's not a CEO yet, so not quite as sexy an example.) I refer to the Contracting Parties' "effective stranglehold/veto" because under the current and future system, the Contracting Parties have much more alignment in their interests and in their positions than do the Commercial Users and the Non-Commercial Users. It obviously has been far harder for the non-contracting parties to come to any agreement among themselves, than for the contracting parties, on almost every issue in the history of ICANN. Hopefully, that will decrease as NCUC becomes more diverse in their representation and interests, and the balance of power between commercial and non-commercial interests is evened -- but that remains to be seen. Based on the very clear trend over the past few years, the contracting parties are likely to become more aligned in the future rather than less. When they vote together, there is little anyone can do to stop whatever they want, except with unanimous opposition among fragmented and historically unaligned parties. The "double voting" compounds this as contract parties need to get just six people to a vote, while the non-contracting parties have to get twelve unanimous votes just to counter them -- which I believe has never happened before, and probably will be less likely to ever happen in the future given the shift in power in that "House," from 9/3 to 6/6. Chuck mentioned a few examples that he says show unaligned interests among Contracting Parties, but I do not agree with several of those, including WHOIS and PEDNR. Perhaps I need to understand better, and would love to hear any further explanation. Perhaps RrC and RyC have voted differently a few specific times, but generally their interests are aligned on almost all issues. If policy development might conceivably change the way contract parties do business, they generally fight like hell, together, to prevent it. I've seen it too many times to count. We've had exactly one policy development in three years that changed business methods -- wrt domain tasting. I also think any "unaligned" instances will become much fewer and farther between, under the new system and as industry amalgamation between registrars and registries likely increases. I also do not recall a single example of the RyC Councilors ever voting individually rather than in a block, though Chuck says an instance may be coming, and I'm sure he'll remind me if I'm forgetting something else. The new RyC charter, by Chuck's description, sounds unacceptable on this point since the RyC can still force its Councilors to vote in a block, and typically always has done so in the past. Yet I would be remiss to not point out that the BC has had the same rule forever, and we have not changed it in our new Charter. But we have not and will not have anywhere near the level of power as the RyC, we will have 1/3 their power. Also we have voted differently in the past when there was not an adopted BC position on point. Also, I would prefer we eliminated that requirement in the BC, for the same reasons I think it should be eliminated in the RyC or anywhere else. It is important for the Contracting Parties to have the same number of Councilors as the Non-Contracting Parties, so there is more hope of greater diversity of opinion, demographics and geography, as well as ultimate consensus. Avri, I don't have facts to back up that assertion about individual vs. commercial reg fees. But commercial interests include domainers and brandholders, who average several hundred (more likely, well over a thousand) domain names apiece. I know at least a dozen domainers (including a bunch of ICANN accredited registrars) that have over 100,000 registrations each. I know at least 25 major brands that have over 20,000 registrations each. And that's just people I know personally. I don't know any individuals who own more than two, and I know of dozens of free hosting sites, social networks, communication tools and other ways that individuals communicate online without need of a domain name. Also, we're talking gTLDs, and many individuals must gravitate towards ccTLDs because the good gTLD names have consistently been snagged by commercial interests (and registrars) for many years now. Stats in this area would be useful for policy development, particularly PEDNR, IRTP and WHOIS, but relevant data could only come from the Registrars (or some sort of big ICANN study), so I will not hold my breath waiting for it to appear. I am happy we are having this discussion. I am not trying to "tirade", but merely put my beliefs into the open as you all know I have a habit of doing (perhaps sometimes too directly) -- as I feel I've been elected to do. Thanks, Mike Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Adrian Kinderis Sent: Tuesday, August 25, 2009 2:09 AM To: icann@rodenbaugh.com; gnso-council-draft2@icann.org Cc: 'BC List'; 'Council GNSO' Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws Mike, Thanks for the "shout out". I'm honoured (correct Australian spelling!). I appreciate your "personal" comments. One quick question; When you refer to the following "Effectively today they are one block with effective veto power over anything", what do you mean? Either we do or we don't which is it? Adrian Kinderis Chief Executive Officer Registrar, Registry Services Provider oh.. and I own a few names, so throw in Registrant. -----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Tuesday, 25 August 2009 2:25 AM To: gnso-council-draft2@icann.org Cc: 'BC List'; 'Council GNSO' Subject: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws For nearly three years I have represented the Business Constituency as one of its Officers and GNSO Councilors, but make these comments in my personal capacity only, as they have not been reviewed by the BC. Why is ICANN refusing to allow new constituencies in the Contracted Party SG? There are applications for two subsets of newTLD registry operators -- geoTLDs and IDN TLDs. It seems reasonable for there to be a "Resellers Constituency." These commercial entities have interests wholly aligned with those of the Contracted Parties. Indeed resellers effectively are contracted parties, and prospective registry operators will have a contract with ICANN upon making their application. Meanwhile they have an "as soon as possible" expectancy of such a contract, and then a registry contract. Yet the Board and Staff, without any explanation that I have seen, have unilaterally decided that no other entities will be allowed into the "Contracted Party" House. These entities do not belong in the Non-Contracted Party SG, as they simply would dilute the power and voice of the vast majority of entities and individuals in the world, who do not rely substantially on ICANN contracts (or the expectation of ICANN contract) for their livelihood, but are materially impacted by the policies of ICANN and its contracting parties. Resellers and prospective registry applicants (if that was their primary purpose, at least) would not be allowed in the existing or proposed Business Constituency, ISPCPC or IPC -- and should not be allowed to dilute the voices of the new Commercial SG and Non-Commercial SG. Representatives of those parties have indicated assent, however reluctantly in many cases, to this restructuring plan on the basis that parties aligned with ICANN Contracting Parties would find their voice through that House, not ours. The voices and voting power of so-called "Non-Contracting" commercial interests are already heavily diluted under this restructuring scheme, with the NCSG gaining much and the Contracting Parties losing nothing whatsoever. Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable. While those interests suffer much already in the proposed restructure, now it will be proposed that 'contracting party' interests be allowed in our House as well? The result will be an even stronger stranglehold on policy development than is already wielded by the Contracting Parties. Their two Constituencies are essentially aligned in interest on virtually all issues. Alignment will only increase if ICANN repeals restrictions on cross-ownership, which anyway do not exist with respect to ccTLDs in most cases, so we have seen registrars and registries teaming up on ventures for many years now. One of the GNSO Councilors, for the Registrar Constituency, is CEO of a registry services company. Effectively today they are one block with effective veto power over anything. The best way to cement that in place is to forbid any other voices from joining their House. Why do Contracting Parties maintain double voting? It is unwise that the Contracting Parties are allowed to continue with 'double voting' on the new Council. Is it not a main point of the restructure to increase participation and diversity on the Council? Why does this only apply to one House, and not the other? Particularly in the near future with hundreds more new TLD operators, and most likely hundreds more registrars, there is no excuse to allow just six seats in that House, while there are twelve in the other. That makes it twice as hard to persuade a single vote to "switch sides", which might make the difference in many cases. [Not sure if this is changed in their new charters, but for similar reasons it also should be forbidden that the Registry Constituency Councilors be required to vote as a block as they are today, rather than individually as in the Registrar Constituency.] ICANN should be well aware that this entire GNSO restructure has been a bitter pill for the "Non-Contracting" business community to swallow. Their power and voices will be diminished and those who have been involved know it. It has not caused such recent uproar since the newTLD process has proved to be a more immediate and distressing battle for some in that community, though by no means all. These details are also rather uninteresting for any normal person to consider, particularly anyone who has not participated on Council. From my perspective, these specific elements of the new restructure could result in a lot more bitterness in the years to come, and appear wholly contrary to the spirit and stated intention of the ICANN Board in its mandate of this effort. Moreover, they were primary facets of the compromise reached in 2008, which now appear to have been discarded by the Board and Staff, without explanation or reason. Sincerely, Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
Mike, Happy to discuss details with you anytime you like but it is probably more effective in a mode other than email. Chuck
-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Thursday, August 27, 2009 1:37 PM To: gnso-council-draft2@icann.org Cc: 'Council GNSO' Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws
Hi Adrian,
Of course I am not ignoring you, I've had a busy work week.
And of course I was not criticizing you personally, only pointing out the fact that there is much amalgamation between registrars and registries, as has been demonstrated by their Council reps. I could also have referred to another registrar Councilor whose company is actively engaged in ccTLD registry businesses. (Hi Tim! ... but he's not a CEO yet, so not quite as sexy an example.)
I refer to the Contracting Parties' "effective stranglehold/veto" because under the current and future system, the Contracting Parties have much more alignment in their interests and in their positions than do the Commercial Users and the Non-Commercial Users. It obviously has been far harder for the non-contracting parties to come to any agreement among themselves, than for the contracting parties, on almost every issue in the history of ICANN. Hopefully, that will decrease as NCUC becomes more diverse in their representation and interests, and the balance of power between commercial and non-commercial interests is evened -- but that remains to be seen.
Based on the very clear trend over the past few years, the contracting parties are likely to become more aligned in the future rather than less. When they vote together, there is little anyone can do to stop whatever they want, except with unanimous opposition among fragmented and historically unaligned parties. The "double voting" compounds this as contract parties need to get just six people to a vote, while the non-contracting parties have to get twelve unanimous votes just to counter them -- which I believe has never happened before, and probably will be less likely to ever happen in the future given the shift in power in that "House," from 9/3 to 6/6.
Chuck mentioned a few examples that he says show unaligned interests among Contracting Parties, but I do not agree with several of those, including WHOIS and PEDNR. Perhaps I need to understand better, and would love to hear any further explanation. Perhaps RrC and RyC have voted differently a few specific times, but generally their interests are aligned on almost all issues. If policy development might conceivably change the way contract parties do business, they generally fight like hell, together, to prevent it. I've seen it too many times to count. We've had exactly one policy development in three years that changed business methods -- wrt domain tasting. I also think any "unaligned" instances will become much fewer and farther between, under the new system and as industry amalgamation between registrars and registries likely increases.
I also do not recall a single example of the RyC Councilors ever voting individually rather than in a block, though Chuck says an instance may be coming, and I'm sure he'll remind me if I'm forgetting something else. The new RyC charter, by Chuck's description, sounds unacceptable on this point since the RyC can still force its Councilors to vote in a block, and typically always has done so in the past. Yet I would be remiss to not point out that the BC has had the same rule forever, and we have not changed it in our new Charter. But we have not and will not have anywhere near the level of power as the RyC, we will have 1/3 their power. Also we have voted differently in the past when there was not an adopted BC position on point. Also, I would prefer we eliminated that requirement in the BC, for the same reasons I think it should be eliminated in the RyC or anywhere else.
It is important for the Contracting Parties to have the same number of Councilors as the Non-Contracting Parties, so there is more hope of greater diversity of opinion, demographics and geography, as well as ultimate consensus.
Avri, I don't have facts to back up that assertion about individual vs. commercial reg fees. But commercial interests include domainers and brandholders, who average several hundred (more likely, well over a thousand) domain names apiece. I know at least a dozen domainers (including a bunch of ICANN accredited registrars) that have over 100,000 registrations each. I know at least 25 major brands that have over 20,000 registrations each. And that's just people I know personally. I don't know any individuals who own more than two, and I know of dozens of free hosting sites, social networks, communication tools and other ways that individuals communicate online without need of a domain name. Also, we're talking gTLDs, and many individuals must gravitate towards ccTLDs because the good gTLD names have consistently been snagged by commercial interests (and registrars) for many years now. Stats in this area would be useful for policy development, particularly PEDNR, IRTP and WHOIS, but relevant data could only come from the Registrars (or some sort of big ICANN study), so I will not hold my breath waiting for it to appear.
I am happy we are having this discussion. I am not trying to "tirade", but merely put my beliefs into the open as you all know I have a habit of doing (perhaps sometimes too directly) -- as I feel I've been elected to do.
Thanks, Mike
Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Adrian Kinderis Sent: Tuesday, August 25, 2009 2:09 AM To: icann@rodenbaugh.com; gnso-council-draft2@icann.org Cc: 'BC List'; 'Council GNSO' Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws
Mike,
Thanks for the "shout out". I'm honoured (correct Australian spelling!).
I appreciate your "personal" comments.
One quick question;
When you refer to the following "Effectively today they are one block with effective veto power over anything", what do you mean?
Either we do or we don't which is it?
Adrian Kinderis Chief Executive Officer Registrar, Registry Services Provider oh.. and I own a few names, so throw in Registrant.
-----Original Message----- From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Mike Rodenbaugh Sent: Tuesday, 25 August 2009 2:25 AM To: gnso-council-draft2@icann.org Cc: 'BC List'; 'Council GNSO' Subject: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws
For nearly three years I have represented the Business Constituency as one of its Officers and GNSO Councilors, but make these comments in my personal capacity only, as they have not been reviewed by the BC.
Why is ICANN refusing to allow new constituencies in the Contracted Party SG?
There are applications for two subsets of newTLD registry operators -- geoTLDs and IDN TLDs. It seems reasonable for there to be a "Resellers Constituency." These commercial entities have interests wholly aligned with those of the Contracted Parties. Indeed resellers effectively are contracted parties, and prospective registry operators will have a contract with ICANN upon making their application. Meanwhile they have an "as soon as possible" expectancy of such a contract, and then a registry contract. Yet the Board and Staff, without any explanation that I have seen, have unilaterally decided that no other entities will be allowed into the "Contracted Party" House.
These entities do not belong in the Non-Contracted Party SG, as they simply would dilute the power and voice of the vast majority of entities and individuals in the world, who do not rely substantially on ICANN contracts (or the expectation of ICANN contract) for their livelihood, but are materially impacted by the policies of ICANN and its contracting parties. Resellers and prospective registry applicants (if that was their primary purpose, at least) would not be allowed in the existing or proposed Business Constituency, ISPCPC or IPC -- and should not be allowed to dilute the voices of the new Commercial SG and Non-Commercial SG. Representatives of those parties have indicated assent, however reluctantly in many cases, to this restructuring plan on the basis that parties aligned with ICANN Contracting Parties would find their voice through that House, not ours.
The voices and voting power of so-called "Non-Contracting" commercial interests are already heavily diluted under this restructuring scheme, with the NCSG gaining much and the Contracting Parties losing nothing whatsoever. Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable. While those interests suffer much already in the proposed restructure, now it will be proposed that 'contracting party' interests be allowed in our House as well?
The result will be an even stronger stranglehold on policy development than is already wielded by the Contracting Parties. Their two Constituencies are essentially aligned in interest on virtually all issues. Alignment will only increase if ICANN repeals restrictions on cross-ownership, which anyway do not exist with respect to ccTLDs in most cases, so we have seen registrars and registries teaming up on ventures for many years now. One of the GNSO Councilors, for the Registrar Constituency, is CEO of a registry services company. Effectively today they are one block with effective veto power over anything. The best way to cement that in place is to forbid any other voices from joining their House.
Why do Contracting Parties maintain double voting?
It is unwise that the Contracting Parties are allowed to continue with 'double voting' on the new Council. Is it not a main point of the restructure to increase participation and diversity on the Council? Why does this only apply to one House, and not the other? Particularly in the near future with hundreds more new TLD operators, and most likely hundreds more registrars, there is no excuse to allow just six seats in that House, while there are twelve in the other. That makes it twice as hard to persuade a single vote to "switch sides", which might make the difference in many cases. [Not sure if this is changed in their new charters, but for similar reasons it also should be forbidden that the Registry Constituency Councilors be required to vote as a block as they are today, rather than individually as in the Registrar Constituency.]
ICANN should be well aware that this entire GNSO restructure has been a bitter pill for the "Non-Contracting" business community to swallow. Their power and voices will be diminished and those who have been involved know it. It has not caused such recent uproar since the newTLD process has proved to be a more immediate and distressing battle for some in that community, though by no means all. These details are also rather uninteresting for any normal person to consider, particularly anyone who has not participated on Council. From my perspective, these specific elements of the new restructure could result in a lot more bitterness in the years to come, and appear wholly contrary to the spirit and stated intention of the ICANN Board in its mandate of this effort. Moreover, they were primary facets of the compromise reached in 2008, which now appear to have been discarded by the Board and Staff, without explanation or reason.
Sincerely,
Mike Rodenbaugh Rodenbaugh Law 548 Market Street San Francisco, CA 94104 +1.415.738.8087 www.rodenbaugh.com
On 24 Aug 2009, at 12:25, Mike Rodenbaugh wrote:
Yet it is those "Non-Contracting" commercial interests that essentially fund by far the greatest portion of ICANN's budget through their domain registration fees, and it is those commercial interests that make domain names valuable.
I question whether this is true or not and wonder if there have been any studies done. Yes, it is certain that registrants provide most all of ICANN funds. But are most registrants, those providing the ICANN share of the registration fee, commercial or non-commercial? organizations or individuals? My expectation is that it is individuals, but I would be curious to know if there is any fact based data on this. a
participants (7)
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Adrian Kinderis -
Avri Doria -
Gomes, Chuck -
Mike Rodenbaugh -
Rosette, Kristina -
Stéphane Van Gelder -
Tony Holmes