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[discuss] FW: Re: S. 705

-----Original Message-----
From: Antony Van Couvering [mailto:avc@interport.net]
Sent: Wednesday, June 23, 1999 4:53 PM
To: list@ifwp.org
Cc: bill lovell; domain-policy@lists.internic.net;
oregon@gsmith.senate.gov; senator@wyden.senate.gov; Roberto Gaetano
Subject: RE: [IFWP] Re: S. 705


I find myself agreeing with Jay Fenello less and less these days, but his
point that the DNSO as it functions now is very different from what the
Paris Draft envisioned is on target.  Why he is an opponent "tout court" of
ICANN is a different question upon which I don't wish to speculate.  I
personally don't reject ICANN because the alternative is the same thing two
years from now.  Better to fix it now than go through this hell all over

Still, the functioning of the DNSO is now radically different than what the
Paris Draft envisioned.  It is also turning out to be quite a bit different
from what the ICANN Bylaws require it to be.  Consider these areas:

1. Constituencies under the current rules can be formed out of public view.
We can only guess what questionable "election" methods were used for some of
them.  Those who might have been interested in joining are now excluded
because once recognized, the constituency can form rules that effectively
prevent others from joining (e.g., the Registrar's constituency won't allow
agents, resellers, and registrars of ccTLDs to join).  The Paris Draft had
only one the registry constituency  pre-defined, and that only because its
numbers would always be so few that it would never have attained the 5%
floor.  In the Paris Draft, all of the ugliness of the consituency formation
would have been exposed to public view, and the appropriate opprobrium
visited on the offenders.

2. Currently, there is no way for new constituencies to form, short of
begging the ICANN Board.  The current brouhaha over an individual name
owner's constituency wouldn't be an issue, because Joop Teernstra would be
forced to go around trying to collect signatures (in other words, trying to
build a constituency), instead of spending his time playing god with his
mailing list.

3. The main arena of work in Paris Draft was to have been the General
Assembly, and it is so envisioned in the ICANN Bylaws also (see VI-B.4).
Currently, the General Assembly doesn't even exist.  Amadeu Abril i Abril's
suggestion that it be identical to the discuss@dnso.org list, which has been
practically the only mention of the General Assembly in all NC proceedings
to date, was shot down in the Names Council meeting.  The Names Council,
while it is in a god-awful rush to deal with the treatment of Famous Marks
(for instance), seems to have forgotten that "The NC is responsible for the
management of the consensus building process of the DNSO." (ICANN Bylaws,

That consensus-building responsibility of NC has not begun to be exercised -
by definition, because according to the ICANN bylaws the DNSO does not even
exist yet.  The bylaws state that

"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 and (ii) a General
Assembly ("GA"), consisting of all interested individuals and entities."

There is no General Assembly, hence the DNSO doesn't exist.  To date this
has concerned no-one in the Names Council.

Furthermore, the NC members, who apparently are quite delicate creatures,
are not required to read the discuss@dnso.org list, which is the only thing
that remotely resembles the "forum" envisaged by the ICANN bylaws.  Also,
messages sent to council@dnso.org, which is the distribution list for the
Names Council, are bounced if they come from non-NC senders.  So not only is
there no General Assembly, there is no way to communicate officially to the
Names Council.  For instance, there is no way for me to forward this to the
NC members short of sending it to each of them separately.  There is a
"comments" address to post to, but only comments that suit some ill-defined
criteria will be posted, and it is not known who will make this decision.
See http://www.dnso.org/dnso/dnsocomments.html.

So, the functioning of the DNSO is quite different from how it would have
worked under the Paris Draft in this respect as well.

4. The Paris Draft had extensive review and comment mechanisms.  The ICANN
Bylaws also require the following:

"VI-B.2.j  The NC shall establish, subject to review and approval by the
Board, an appropriate mechanism for review of grievances and/or

This is a far cry from the stringent review process foreseen by the Paris
Draft, but even so it has not even been attempted.

These are just some of the big differences between the DNSO as seen by the
Paris Draft and the DNSO as currently functioning.


>-----Original Message-----
>From: owner-list@ifwp.org [mailto:owner-list@ifwp.org]On Behalf Of Jay
>Sent: Tuesday, June 22, 1999 2:10 PM
>To: list@ifwp.org
>Cc: bill lovell; domain-policy@lists.internic.net;
>oregon@gsmith.senate.gov; senator@wyden.senate.gov
>Subject: RE: [IFWP] Re: S. 705
>At 10:38 AM 6/22/99 , Roberto Gaetano wrote:
>>What exactly is the specific point of the Paris Draft that is so different
>>in the current DNSO to make you switch from a supporter of the process (I
>>assume that if the Paris Draft would have been accepted as the
>basis of the
>>DNSO by ICANN, you would have supported it) to an unconditional opponent
>>"tout-court" of ICANN.
>Hi Roberto,
>The Paris Draft allowed for constituencies
>to self-form upon the attainment of 5% of
>the General Membership (which was open to all
>Domain Name stakeholders).  In addition, it
>restricted these members to ONE constituency
>of *their* choice.
>Without these protections, and without ICANN
>making sure that the constituency formation
>process remained fair, you have gaming like:
>- The ICANN Board initially approving
>   seven constituencies, six of which are
>   commercial in nature.
>- The ICANN Board only recognizing six
>   constituencies (all commercial), then
>   asking them to approve the WIPO report.
>- Organizations like MCI being over
>   represented in the Names Council.
>- Etc, etc, etc.
>But, this gaming comes as no surprise, as
>it has always been a concern.  FYI:
>At 01:42 PM 2/15/99 , Jay Fenello wrote:
>>The result of forcing all "members" into non-exclusive
>>constituencies guarantees that minority positions will
>>*NEVER* have a voice in the process.  It is a form of
>>gerrymandering where minorities are forced into categories
>>where they will always remain minorities.
>>The truth of the matter is you can call your Names
>>Council whatever you want -- it is an all powerful
>>committee that can make decisions independent of the
>>wishes of Domain Name stakeholders.  When you combine
>>its power with the dilution of minority interests as
>>described above, you have an organization that is
>>captured from the get-go.
>At 11:49 AM 3/16/99 , Jay Fenello wrote:
>>One of the decisions of the ICANN Board was to approve
>>a DNSO that featured overlapping constituencies.  This
>>creates a problem common to all constituencies, namely,
>>where do we draw the lines.
>>My concern is that certain constituencies are
>>attempting to form in private, behind closed
>>doors.  This could easily result in a biased
>>process, one that excludes legitimately
>>interested parties.
>>I hereby request that the ICANN Board clearly
>>indicate that this is not acceptable, and that
>>any constituency wishing to be recognized by
>>ICANN must form via an open process.
>At 12:32 AM 4/27/99 , Jay Fenello wrote:
>>As I pointed out at the DNSO meeting and your
>>press conference in Singapore, allowing entities
>>to participate in multiple constituencies is
>>extremely disadvantageous to minority stakeholders.
>>What could have been one minority constituency
>>among seven, is now seven constituencies for the
>>majority, and NO VOICE for minorities.
>>If we are lucky, we will garner enough support
>>to have marginal representation in a few
>>constituencies.  More than likely, we will be
>>so diffused, that the minority positions will
>>be steamrollered in a most offensive way.
>As predicted, we've been steamrollered
>in a most offensive way :-(
>Jay Fenello
>President, Iperdome, Inc.    404-943-0524
>What's your .per(sm)?   http://www.iperdome.com