Preliminary ICC comments on the
Barcelona/Monterrey Application to ICANN.
1. The general framework of the Barcelona/Monterey Proposal (BMP) provides a foundation which can underlie a unified submission to ICANN. A number of factors need further fleshing out and certain paragraphs will be the subject of further discussion.
2. The INTA by-laws proposal may provide some of the needed details.
3. An ICC text of general principles may also provide a needed chapeau - or context for the framework.
4. There is a need to review a number of items related to corporate structure which will have to be clarified by the ICANN Board.
5. Another major problem, which we encounter, is the continued circularity in nomination and approval. How to recognize the initial set of constituency representatives or Names Council participants remains a critical, and seemingly unsatisfactorily resolved issue.
6. Lastly, there are categorization and qualification issues. Where are the cut off lines in the categories and what are, if any, the minimum qualification for membership, constituency, names council. How determinative should factors like geography be? Before getting into any discussions on numbers, we should develop agreement on the diverse stakeholder categories or constituencies.
7. Manageable number of members. We are concerned that the concept of individual memberships could overwhelm the effectivess of the DNS. Lists and postings must clearly be open to exchange information and provide transparency. Individuals must have representative voices as well. But there must be a mechanism to select/develop appropriate representative or constituent groups for Individuals or as well suggest "general" stakeholder representatives.
8. Missing items: a process for nominating three directors to ICANN and whether there are criteria for the nominees in terms of experience and expertise.
9. A number of comments are in the form of questions. We find them difficult to resolve as well. A number of these issues may be the critical issues for discussion during the Friday meeting.
10. Funding issues. Clearly funding must be addressed, but it will require some adjustment based on membership categories. Flat fee or different rates for different "types" of members? Certain issues related to separate incorporation will also impact funding due to potential greater liability implications of separate incorporation.
More specific comments (underlined!) may be found within the document.
December 6 - DWM further revised Draft of Proposal for DNSO Format
NB: This is a DRAFT; it is intended to be a framework for discussion as proposed in the announcement of the DNSO process. Note that the terminology and Section references refer to the amended ICANN bylaws.
APPLICATION TO BECOME THE DOMAIN NAME SUPPORT ORGANIZATION, (pursuant
to Art. VI, Section 3 (b) of the Bylaws of Internet Corporation for
Assigned Names and Numbers (the "Corporation")
This application is made by the undersigned to become the Domain Name Support Organization ("DNSO"), pursuant to Article VI, Section 3 (b) of the Bylaws of the Corporation. The undersigned hereby commit to fulfill the undertakings and policies set forth in this application. This application is organized under the headings set forth in Article VI, Section 3 (b) as follows:
I. Membership criteria for the DNSO, and for the Names Council to be created pursuant to Article VI, Section 3 (a) (ii) of the Bylaws of the Corporation.
II. Methods for developing substantive Internet policies and selecting Board nominees
III. Open and transparent non-discriminatory processes
IV. Policies to ensure international and diverse participation
V. Policies for disclosure to the Corporation by members of or participants in the DNSO of conflicts of interest or other financial interests in matters within the scope of the DNSO
VI. Methods for funding the DNSO and providing funding for the Corporation.
I. MEMBERSHIP CRITERIA
A. MEMBERSHIP IN THE DNSO:
The qualifications for membership in the DNSO are set forth in Appendix A to this application, entitled "QUALIFICATIONS FOR MEMBERSHIP IN THE DOMAIN NAME SUPPORTING ORGANIZATION".
B. MEMBERSHIP IN THE CONSTITUENCIES:
Each member of the DNSO shall be either a member of the At Large constituency or a member of one or more of the constituencies described below. Qualifications for membership in each of the constituencies are set forth in Appendix B to this application entitled "QUALIFICATIONS FOR
MEMBERSHIP IN THE CONSTITUENCIES". DNSO members who are not members of one of the constituencies 1-5 below are automatically members of the At Large constituency. Use of the term "At Large" may be too confusing with the identity of the At Large Board. Perhaps the concept of "general" membership would be better.
The constituencies described herein are an initial set of constituencies. The DNSO and the Names Council will develop fair procedures for the creation, deletion, and merger of constituencies; and adjustment of the representation of constituencies on the Names Council.
The constituencies are (we presume that these are presented in no order of priority or importance - perhaps alphabetical would be best...):
3. Infrastructure and connectivity providers
4. Businesses,MSC: non-profit, and other organizations
5. Organizations primarily concerned with the interests of
trademark owners (This constituency should also include large trademark holders which are primarily concerned with doing business, but for which trademark is a vitally important policy issue. While we are aware that these companies are represented by associations, they may have specific interests which require direct representation as well.)
6. At Large (general...)
A member of the DNSO may be a member in more than one constituency if it meets the qualifications for each constituency for which it applies and pays the membership fees for each such constituency. No member of any of the constituencies 1-5 may be a member of the At Large constituency.
C. THE NAMES COUNCIL
There shall be a Names Council consisting of 21 members, elected from time to time by the members of the DNSO, following the procedures set forth below. The constituencies shall each have the right to be represented by the following numbers of members of the Names Council:
1. Registries - X 6
2. Registrars - X 3
3. Infrastructure and connectivity providers - X 3
4. Business and other organizations -X 3
5. Organizations primarily concerned with the interests of trademark owners - X 3
6. At large general- X 3
The above categories represent a good Ďfirst cut" at an inclusive list of broadly representative constituencies. There must be flexibility to assure that potential constituencies that are not now included could be provided for later. While there should be no "magic number" there need to be voting restrictions or other assurances that no constituency can be disenfranchised by the collective action of a number of other constituencies acting in concert. It seems unlikely that any of the current constituencies would cease being relevant stake holders, but we might wish to consider whether special criteria and mechanisms need to be developed to address issues of new constituency addition or removal. Questions of voting and decision-making processes for the NC must also be addressed. Consensus? Majority? Super majority - for all issues?
In order to assure geographical diversity among members of the Names Council, the members of the Names Council representing each constituency must each be from different geographical regions, unless there are more such representatives than there are regions. In this latter case no region shall have more than one more representative than any other region. The geographical regions shall be those set forth in Article V, Section 6 of the Corporation's bylaws. In particular, because the Registry constituency is represented by 6 members of the Names Council, and there are only 5 regions, not more than 2 representatives of the Registry constituency may be from the same geographical region.
One caution, while we should strive for this goal, but in light of the need to find qualified and available representatives in short order, some North American or European skewing may result. Everyone would be pleased if this were not a problem, but we must face some realities. These nominees will need to be known and established. Nominating a person solely on the basis of geographic origin is not in the DNSOís best interest. Geographical diversity is a very important factor, but it can not be the only determinant.
D. APPLICATIONS FOR MEMBERSHIP IN CONSTITUENCIES 1-5
After formation of the Names Council, applications for membership in the constituencies 1-5 shall be submitted to the Names Council. The Names Council shall have the right to approve or disapprove each application. How does this work? After formation of the Names Council constituencies can be applied for. How is the Names Council constituted and how does the Names Council accept the Constituencies? Will the Names Councils provide objective criteria for the Constituencies? Isnít this a problem of circular reasoning - the proverbial chicken and egg? If an application is not approved, the applicant shall have the right to appeal to the Fair Hearing Panel (described below).
E. ELECTION OF THE NAMES COUNCIL
Within four weeks of acceptance by ICANN of this application the undersigned will self-select into constituencies, and elect members of the Names Council. This seems like a problem waiting to happen. This concept of self-selection presumes that all participants within a constituency are in agreement as to who is in the constituency. Without greater detail in the parameters of the constituency this could be a problem. Businesses and Organizations for instance - does this mean all business including SOHO and mom and pop? Some among them may feel that their interests may be more akin to general users. And which organizations qualify? Unfortunately, there is no suggestion for a better solution. Perhaps this could be a brainstorming question for a future call?
Members of each constituency shall nominate individuals to represent that constituency. There seems to be more circularity here. We seem incapable of escaping the need to have some initial group that is "touched by an angel" to start off the process. The self-organization of memberships remains unclear. Will there be outreach beyond the undersigned? Is there any upper numerical limit on DNSO membership? Nominations within each constituency may be made by any member of the constituency, provided, however, that each member of a constituency may make no more than one nomination for a Names Council member representing that constituency. An entity that is a member of more than one constituency may make one nomination for each constituency of which it is a member. Every nominee shall be identified as representing a particular geographical region. Will geographic representation be maintained after nomination? Geographic diversity should be sought, but once appointed there should be no competition to ensconce or further any one geographical interest. Geographical diversity, rather ensures broad representation and prevents geographic discrimination. All of these issues must be reviewed in light of overall stability and end-user utility of the Internet.
Elections for Names Council members shall be held once each year for vacant seats. The term of office for each member of the Names Council is three years, staggered so that each year one third of the Names Council members shall be elected.
Each member of the DNSO may cast one vote for one nominee for membership in the Names Council from each of the constituencies Clarification: the nominations are made by the constituencies, but elections are made by all? If not, it should be that way to assure that only nominees representative of the constituency are up for election...
The winning nominees from within each constituency shall be determined as follows:
Within the group of nominees for each constituency, the nominees shall be grouped according to their geographical identification, and shall be ranked according to the votes received. Winners will be selected by the following criteria: Nominees identified with regions with the least number of current representatives for the constituency will be considered as a group. Within this group, the nominee with the most votes is selected, and is then considered a member of the group of current representatives. This procedure is repeated until there are no vacancies. Any ties shall be broken by random processes. While there is a certain logic of fairness to this method, we have seen no limit as to qualification that requires specific knowledge or expertise. This should not be a laymanís Council. We have no qualms with geographical diversity as long as all participants demonstrate proper qualifications of technological or policy expertise. There will be substantive policy and technical problems raised within the near term that require experience and expertise to discuss, negotiate and reach closure on.
[There are two choices on how to proceed if there is insufficient geographical representation: leave seats empty if the geographical distribution requirements are not met; or fill remaining empty seats with candidates with the most votes, even though the geographical requirements are not met.] If this ends up being the process, then filling seats with candidates that are qualified and have received most votes is the way to go.
[The following two paragraphs are an earlier description of a procedure.]
Within each group of nominees for each constituency, nominees from the same geographical region as any incumbent member of the Names Council with an uncompleted term of membership representing the same constituency shall not be selected.
All remaining nominees shall be grouped according to geographical region and, from each region, the eligible nominee (or, with respect to the Registries' constituency, the two eligible nominees for not more than one geographical region) with the most votes shall be elected to fill the available vacant seats on the Names Council.
The term of office for members of the Names Council shall be three years. However, for the first election the first third of the nominees selected through the above process shall receive a three-year term, the second third shall receive a two-year term, and the remainder shall receive a one-year term. In the event of a resignation or other event that disturbs the even distribution of terms a similar fair process of adjusting the terms of newly elected members shall be used to regain an even distribution. If for any reason fewer than the seats allocated to a constituency are filled, the seats remain unfilled until the next election.
II. METHODS FOR DEVELOPING SUBSTANTIVE INTERNET POLICIES AND SELECTING
The Names Council is delegated the task of determining policies regarding TLDs, including operation, assignment and management of the domain name system and other related subjects, and, in accordance with Article VI, Section 3(a)(ii) of the Corporation's Bylaws, the Names Council shall make recommendations on such subjects to the Corporation's Board. The Names Council shall also have the power to select the nominees of the DNSO to the Corporation's Board.
The Names Council shall seek input and review of its recommendations and Board nominations from each of the constituencies. It is the intent of the DNSO that, initially, there will be significant review by the constituencies; over time, the constituencies may agree to reduce the extent of review.
Decisions by the Names Council on recommendations and selection of Board nominees shall be made by [majority] [two-thirds] vote.
The DNSO, the Names Council and each of the constituencies will establish on-line methods of collecting opinion, canvassing constituencies, meeting and conducting ballots.
The DNSO will develop procedures for its deliberations. Applicable IETF procedures will be examined as a possible model.
III. OPEN AND TRANSPARENT NON-DISCRIMINATORY PROCESSES
The processes of the Names Council (and the processes of each constituency) shall be governed by the same provisions for open and transparent non-discriminatory processes as those of the Board of the Corporation. A general mechanism for review of conflicts and grievances will be developed, and the Names Council shall appoint a Fair Hearing Panel which will, among other responsibilities delegated to it by the Names Council, hear appeals pursuant to Section I.D. of this application.
Other such conflicts and grievances heard by this Fair Hearing Panel might include those regarding dominance or control of any single issue by means of membership in more than one constituency, other methods of unfair domination by special interests, matters concerning disputed membership in a constituency or the DNSO, disputes concerning membership dues, either in the DNSO or in a constituency, and so on. Should there be objective criteria of proof required? Does recourse to a fair hearing panel require a minimum number of Names Council members? Is it reasonable to assume that an entire constituencies representatives must object? Is there the danger that a vocal/disruptive minority could abuse the Fair Hearing Panel? Does a Fair Hearing complaint suspend the activity until itís resolution? Is there a de minimus showing that must be made to avail oneís self of the fair hearing panel? Are there policies controlling the appointment of the Fair Hearing Council - need for constituency representation. Must fair hearing council decisions be by consensus? unanimous? by majority? super majority?
IV. POLICIES TO ENSURE INTERNATIONAL AND DIVERSE PARTICIPATION
Because of the composition of the Names Council, there will automatically be international and diverse participation.
V. POLICIES FOR DISCLOSURE TO THE CORPORATION BY MEMBERS OF OR
PARTICIPANTS IN THE DNSO OF CONFLICTS OF INTEREST OR OTHER FINANCIAL
INTERESTS IN MATTERS WITHIN THE SCOPE OF THE DNSO.
These policies shall be the same as those for the Board of the Corporation.
VI. METHODS FOR FUNDING THE DNSO AND PROVIDING FUNDING FOR THE CORPORATION
The DNSO shall fund all costs of DNSO and Names Council membership and other meetings and communications, and all administrative and other costs associated with membership, from membership fees as established from time to time. Membership fees shall be set at a level sufficient to cover administrative and other costs associated with membership, (including the cost of verification of identity?).
Does part of the funding requirement depend on the corporate structure - part of ICANN vs. independently incorporated. There is no final decision-making authority in DNSO so costs of policy-related litigation should be born by ICANN, even though DNSO would also be named in the suit. As a separately incorporated entity, DNSO would have to bear a share of litigation costs. Also what if DNSO determines that a study or research would be needed? Shouldnít ICANN bear that burden out of user fees rather than DNSO membership fees?
The constituencies 1-5 shall fund all other expenditures and contributions to ICANN.
Should there be consideration of SO funding from fees, like ICANN? This would be a further argument in favor of one ICANN corporation with separate SO subdivisions.
The Names Council shall draw up a budget for each calendar year which shall include receipts and all expenditures for which the DNSO is responsible. These include the contributions payable to ICANN? This presumes ICANN funding will be independent of registration fee surcharges, or does this make the DNSO a pass-through entity which may have certain tax recognition importance, the administrative costs for DNSO and other expenditures for membership meetings, conferences and hearings. The budget shall include a provision for reasonable reserves, not to exceed [xx]% of the previous year's budget.
Members of the Names Council shall serve without compensation, provided, however, that members of the Names Council may be reimbursed by the DNSO for out of pocket expenses incurred in connection with their function if the expense is objectively necessary, and if the member seeking reimbursement can document the expense and show plausibly that the member could not perform the member's duties as a member of the Names Council without such reimbursement.
Members of the DNSO shall provide funding as follows:
A. Each member must pay annual dues in an amount equivalent to US$xx [$50-$100]. Does this include individual/general/at large members?
Itís unclear that this amount will generate sufficient fees. With some more detailed budget assumptions we may wish to consider a system whereby a slightly higher charge is paid by corporate and association members. We will need to ascertain what requirements exist. Staffing (part time?) Executive director? Administrative fees for listservs etc. Legal advice? Travel? How many non-virtual meetings?
Membership fees can only be changed by resolution of the entire membership by affirmative vote of at least 80% of the membership [eligible to vote] [voting on the resolution with a minimum quorum of 4/5 of those eligible to vote]. The membership may not vote to reduce membership fees without a substantiated showing that expenses of the DNSO can be met by the reduced fees.
B. Pursuant to the Corporation's Bylaws Art. VI, Sec.3(b)(vi) and Art XI, Sec.4(b), fees and charges imposed by the Corporation shall be passed along by the DNSO to the parties receiving the services or benefits provided by the Corporation ??? Please clarify. Any other amounts in the DNSO budget that are not covered by the membership fees referred to in A. above shall be paid by each constituency in an amount proportional to its number of representative members on the Names Council.
C. Payments required to be made can only be changed by an affirmative vote of at least 80% of the Names Council, and only after the Names Council has consulted with all the constituencies regarding the change. [The change must be approved by the ICANN Board.]How does this work? Does the Names Council suggest to ICANN that there be different payments?
D. Each year's budget must be submitted by the Names Council to each of the constituencies for approval. If the constituencies do not unanimously approve the budget, it shall be submitted to the entire DNSO membership for approval. Approval by the DNSO membership shall be decided by a simple majority vote of [the members voting] [all eligible voters]. If the membership does not approve the budget, the budget shall be submitted to the Board of the Corporation (DNSO??? - is there a process for Board Election - are we referring to the Names Council?) which shall have the power to determine the budget.
E. Any surplus from membership fees in a fiscal year shall be carried forward and applied to the next year's budget.
F. The Names Council shall appoint, by vote of at least 50% of the
Council, one of its members to be the Treasurer of the DNSO, who shall have administrative control over receipts and expenditures. If the
Treasurer finds that receipts or expenditures are significantly different from the budgeted amounts, the Treasurer shall propose an amended budget, which shall be subject to adoption and approval in the same manner as the original budget.
QUALIFICATIONS FOR MEMBERSHIP IN THE DOMAIN NAME SUPPORTING
ORGANIZATION (pursuant to Art. VI, Section 2 of the Bylaws of
Internet Corporation for Assigned Names and Numbers (the
The following are the qualifications for participation by any entity
or organization for membership in the Domain Name Supporting
Organization ("DNSO"), as described in Article VI, Section 2 of the
Bylaws of Internet Corporation for Assigned Names and Numbers (the
Any entity or individual person with a legitimate interest in the
Internet is eligible to be a member of the DNSO.
This seems to be a very vague and subjective definition. Who decides what is a legitimate interest? It will be read to mean all people/organizations are included if they have a subjective belief that they have a legitimate interest.
QUALIFICATIONS FOR MEMBERSHIP IN THE CONSTITUENCIES
The following are the qualifications for participation by any entity or organization for membership in the constituencies, as described in Article IB of this application:
1) Any entity or organization that is either
a) Registry: A name registry (defined as an entity with write authority to a zone referenced by a TLD),
b) Registrar: or a registrar of generic/global or country-code top-level
domains ("TLDs") (defined as an entity with a direct contractual relationship with a registry to register names within a TLD zone),
c) or Infrastructure and Connectivity Provider: a network operator or service provider (defined as a legal person operating a name server for clients and offering Internet connectivity to third parties),
d) Business (legal persons properly incorporated as for-profit enterprises) and other organizations Or other business or organizations(defined as any legally constituted organization primarily engaged in the representation or promotion of businesses with a legitimate interest in Domain Name issues),
e) Trademark or an organization representing trademark interests, defined as entities primarily concerned with trademarks or defending business against counterfeiting.(again, what of businesses that are substantial trademark holders?)
2) Associations of organizations qualified to participate in the constituencies may also become members, as may associations of associations (umbrella associations) whose members meet the conditions for participation in the constituencies. Associations and umbrella associations must, however, be legally recognized entities with substantial numbers (vague delineating factor) of members. The Names Council will decide any questionable cases.
Are there any qualifications for at large or general members? Can any individual join?