[ga] Business Constituency: Charter and ByLaws Violations
I am rather leery of existing constituencies seeking to impose new criteria
on new constituencies especially when our current constituencies don't honor
their own sets of rules.
Our constituencies are expected to act in accordance with the proposals
(charters) received by the Corporation (see ICANN Resolutions 27 May, 1999),
as well as in accordance with the ByLaws. Yet the Business Constituency is
in violation of both its own charter and the ICANN ByLaws concurrently.
The charter of the Business Constituency states:
"(ii) In order to assure sectoral balance consistent with the Business
Constituency's mission and purpose described under I, at most one Names
Concil representative may belong to or represent an identifiable business
At this time, two current Names Council representatives, Marilyn Cade and
Grant Forsythe, both represent the Telcom sector. Grant Forsyth is
identified as Manager, Industry & Regulatory Affairs
CLEAR Communications Ltd. Their website, clear.co.nz, identifies the company
CLEAR's focus on business, its innovation, and its state-of-the-art fibre
optic digital network set it apart as one of New Zealand's leading
communications companies. Its attitude has always distinguished it from the
competition. It began in 1991 when CLEAR first set new standards for
telecommunications in New Zealand. Today it's stronger that ever. CLEAR is
wholly-owned by BT. A world leader in telecommunications, BT gives CLEAR
access to the Concert global network as well as to formidable research and
Marilyn Cade is well known as a lobbyist for AT&T, also a telecommunications
firm. As such, we have two names Council representatives who both belong to
the same identifiable business sector, a Charter violation.
It is also to be noted that our ByLaws state:
"The DNSO shall consist of (i) a Names Council ("NC"), consisting of
representatives of constituencies as described in Section 3 of this Article
VI-B ("Constituencies") elected by those Constituencies."
The Business Constituency never held an election in which Marilyn Cade
emerged the winner. She is an appointee filling the seat vacated by
Theresa Swinehart; therefore we have a ByLaws violation.
The Business constituency Charter further states:
III. Procedure for substantive decision-making. Subsidiary and support bodies
1. For each policy work item arising from the need to provide support to the
business constituency representatives on the Names Council, the secretariat
shall call for volunteers to sit on a research committee whose mandate shall
be tied to the work item in question. This invitation for volunteers shall be
accompanied by a set of specific criteria to ensure that members of research
committees have a knowledge of, and experience with, issues relevant to the
work of the DNSO that is appropriate for the purpose for which the research
committee is created. The secretariat shall publish the names of volunteers
who are finally appointed, together with their credentials. The secretariat
shall circulate any recommendations produced by such research committees
among the members of the Business Constituency for consultation. This process
shall be repeated until consensus has been achieved, always within the time
frame of DNSO decisions, which may require a quick decision..
This well-conceived process has never been followed by the Business
Constituency; no such research committee recommendations or other such
details have ever been published (because they don't exist). At best, an NC
member will draft a statement, and if there are no comments received within
10 days (and there never are), the draft is forwarded as the position of the
Their Charter further states:
"The secretariat shall use their best efforts to give small and medium-sized
enterprises an adequate voice in all Business Constituency work processes.
These efforts may include, but not be limited to, the organization of
democratic elections for representatives of organizations of small and medium
sized businesses (SMEs) to sit on an SME Consultative Committee whose advice
shall be solicited on substantive policy work items."
This has never happened. Even though I and Jefsey are both ostensibly
members of this constituency, our advice (as SMEs) has never been solicited.
Furthermore, neither of our company names is cited on the current Business
Constituency membership roster.
Our Bylaws require each ICANN subordinate entity to "operate to the maximum
extent feasible in an open and transparent manner". The BC has no publicly
archived mailing list. How then can they maintain that they are operating in
an open manner to the maximum extent feasible?
At this time the BC is no more than a cartel representing primarily Telcoms
and intellectual property interests which seem to have no difficulty being in
violation of their own rules while seeking to impose additional restrictions
on others. There is no hesitancy on the part of the BC to deny individuals a
voice in the ICANN process. The current BC position paper on the At-Large
(drafted by Marilyn Cade) states:
"For now, we believe there should be five regionally elected At-Large
representatives on the ICANN Board - one per region."
Instead of the nine At-Large Directors that we were promised (to represent
the rights of individuals on the ICANN Board), this Constituency seeks to
have it permanently reduced to five.
As long as they intend to deny individuals their right to participate in the
ICANN process, I feel no personal remorse in challenging their fitness as a
Constituency. While they are in violation of their Charter and the ByLaws,
their status as a constituency should be suspended by the ICANN Board.
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