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Re: [discuss] Unofficial minutes June 11 1999 Names Council Meeting

This puzzles me.  If I understand what happened (and someone please
correct me if I have gotten lost somewhere), the sequence of events is
about like this:

1.  ICANN By-laws state that gTLD should have three delegates on Names

2.  At some point prior to Berlin, it becomes evident that as (for some
reason I do not know), no one from .mil / .gov / .int / .edu will be
joining this constituency, NSI will be the sole elector of three Names.

3.  At Berlin, in light of (2), the ICANN board votes to ask NSI to only
nominate one Name, and states that if they nominate more than that the By
Laws will be amended.

4. Despite (3), NSI nominates 3 names.  

5. Despite (4) no formal action is taken to amend the By Laws, which
remain unchanged at the time of the teleconference.

6.  Despite (5), someone from ICANN, instructs Javier Sola to ensure that
only one NSI Name is allowed into the teleconference, and he complies with
this direction.

Is that a correct summary of the events?

If so, and this may seem like pettifogging legalism, how --even if the
state of affairs is highly undesirable (and I am willing to stipulate for
the sake of argument that it may be; indeed, it is only one a number of
undesirable phenomena...) -- is that the By Laws do not control, contrary
resolutions of the board notwithstanding?

Particularly at a moment when there is no membership, and the ICANN
Board's legitimacy is, to be frank, somewhat debated, it would seem
essential to comply with the letter of the rules in order to build trust
in the community.  Yet that does not seem to be what happened either in
the case of NSI (or, I gather, MCI, which allegedly had two employees
seated as Names).

As I say, I may have missed some of the facts here, and if so I look
forward to being set straight.

On Thu, 17 Jun 1999, Javier wrote:

> Don Telage was told that we had not received from ICANN the name of the one
> gTLD constituency representative specified in the Berlin resolution of the
> ICANN Board. He responded that there were three of them and was told that
> we had been told by ICANN (Berlin resolution) that there was to be only
> one, and that we were a committee of ICANN. The Board is in command on
> ICANN procedural matters.
> As we had not received the name of the gTLD Constituency member of the
> provisional Names Council, Don Telage was admitted as an observer.
> The bridge was set for an exact number of people, including representatives
> from all constituencies. There were three lines for each constituency,
> except one for the gTLD Constituency (which, as far as we know, has only
> one representative or observer). Admitting anybody else to the
> teleconference would have kept a member of the Names Council away from it.
> We are considering webcasting future teleconferences, to avoid this problem.
> Javier


A. Michael Froomkin   |    Professor of Law    |   froomkin@law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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