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Re[2]: [ga] Santiago DNSO GA Chair

Sunday, August 08, 1999, 11:16:24 AM, Amadeu Abril i Abril <Amadeu@nominalia.com> wrote:

> As I say below, the person chairing the telconf was Javier. The "regular"
> communications channel between pNC and GoD is Mike Roberts. The counsel is Joe
> Sims. I insit that there was clear communication, in wiritng, among NSI and
> Mike Roberts regarding this issue. 

This means nothing, Amadeu.  The bylaws permitted them representation
of this type, regardless if a future change in the bylaws would of
prevented it.  The simple fact is the bylaws were violated by this
refusal, no ifs ands or buts about it, and it doesn't matter WHO the
order came from, that order was against the bylaws.

> Let me explainb you something else: during ALL DNSO formation meetings
> /barcelona, Monterey, Washington and Sinapore) we faced at one moment or
> another to what extent the constituecnies were free to establish rules for
> themselves (as to elections; etc) and to what extent the DNSO as such could
> have a say. The usual vague compromise always was that Cosntiuencies had the
> rgiht t establish their own rules (membership; voting)...provided that the
> DNSO (the NC) did not felt that those rules could harm the DNSO as such
> (imagine of the consituency clisng its membership just after recognition, or
> establishing special voting rights for the founding members....).

> In this regards, let me say that regardless of what happended in this or that
> teleconf, it was the unanimous pNC feeing that NSI's behavoiur was perfectly
> irregular and unacceptable.

What the other members of the NC think is acceptable or not is really
of no relevance whatsoever.  The fact is that until the bylaws were
changed, NSI had an absolute right to do what it tried to do.

You don't take an action and then pass a law to make the prior act
legal.  The prior act was still illegal at the time of the act.

>> > teleconference (Javier) stated that only one of them could stay, and told the
>> > other two to leave. If I am not mistaken the three of them left the teleconference.
>> >
>> > * NSI informed again that they had apointed three gTLD NC reps (Don Telage,
>> > David Johnson and Phil Sbarbaro). As the Byalwas were clear in their spirti
>> > but open to interpetation to some extent (and this is also my perosnal
>> On what theory do you construe the text as open to interpretation?  In
>> other words, as a matter of textual interpretation, on what view do you
>> find that the TEXT supports your position?  Or are you reiterating the
>> argument from the "spirit" of the text?
> ????

> Waht I am saying is that, despite the fact that everyone was perfecly
> convinced (including NSI) that no company was able to appoint more than one NC
> rep, the bylaws simply say that each rĄconsituency would appoint three of
> them. The conflict comes from the fact that no special restircition is put on
> the gTLD constituency in the current circumstances. It depends on whether you
> give mre weight to the "three per constituency" or the corporation-specific
> limitation. But this limitation is, in my view, porly worded: it limits the
> number of "officers and employees" of a given entity, but therefore leaves
> room to "external" reps, appointed by the same entity.

And until the bylaws were changed, this is EXACTLY what should of been
done.  NSI has the right to make the appointments it did.

It's really quite simple.  The bylaws were breached.  There is NO
possible "interpretation" otherwise.

>> > opinion) the ICANN counsel on one side, and the NC on the other (decided to
>> > allow the three gTLD (NSI) reps in as full `NC members. Most of us noted that
>> > this was clarly against community consensus, passt compromises and any logi.
>> The relevant community of which I am aware professes to be for
>> inclusion.  Yet important sets of constituencies are excluded.

> Wait a minute, Michael. No consituency is excluded. You might consider that
> some interests are not adequately represented., Bair enough. We could agree.
> But if, for instance, the non-commercial consituency is not yet "there" it is
> simply because its "promoters" have failed to present an accepted proposal in
> time. And if the rgistrars failed to have voting reps in the inital NC
> meetigns, it is simply because we needed more htime than others to run the
> elections. Don't mix things up.

So why did this contituency, the NCDNHC, get to have self appointed
representatives sit in on NC meetings, even the executive session
portions, despite that it was not only unrecognized, but NOT EVEN
ORGANIZED, and yet other ORGANIZED but not yet recognized
constituencies did not?

I ask a few pointed questions here.

1) Who made the decision to let representatives from the NCDNHC sit on
the pNC?

2) When was this decision made?

3) By what rule was this decision made under?

4) How were the representatives selected?

Will the sitting members of the pNC answer these questions on the GA
list ASAP.

>> > But as the Bylaws "could" perhaps be read as allowing NSI to appont three
>> > reps, well, it was not that wise to make a battle over it (pleae note the
>> > diffeent slate of reps they rpesented the second time, and that at lest the
>> > second version abided to the principle of gTLD interest represntation...).
>> I find it especially depressing that you find the second NSI slate
>> preferrable to the first.  It does not comport with the spirit of
>> inclusion -- it's just 3 NSI employees.  Why ICANN and indpendent
>> thinkers such as yourslef should find that better than people like
>> Sexton and Teenstra is a great puzzle to me.  Can you explain?
> Sorry to depress you.

> Once again, my personal opinions about Sexton or Joop co8unt for nothing. Plz
> bear in mind that it was NSUI who changed its mind and appointed David Johnson
> and Phil Sbarbaro, not me....

> What i ahve said, and repeat here (even taking the risk to furhter depress
> you) is that the BoD indicated to NSI that they were not supposed to appoint
> people not represneitng the interests fo the gTLD constituency as defined.
> Full period.

Again, ICANN can ASK them to do whatever they want to, but it doesn't
change the fact that until the bylaws were modified, NSI was acting
perfectly within its rights, and these bylaws were violated.

> I shall insist that you are mising thing beyond any acceptable point: the gTLD
> representatives, or the registrars are that, are tnot the testbed for worlwide
> democracy. They have a dutyr to erform: represent the consitucny interests
> witin the NC. Nothing else.

If the ICANN can summarily decide not to enforce any provision of its
bylaws on a whimsical basis without formal process, then what
guarantee does the Internet Community have that ICANN will act in it's
best interests?  The ONLY thing we have to protect us is ICANN's
Bylaws, and if ICANN doesn't even take them as sacrosanct, why should
anyone trust them to enforce any of the provisions?

If the DNSO pNC is going to FOLLOW the actions of ICANN even when it
is apparent that these actions are contrary to the bylaws, simply
because they don't like something, then what trust can individuals and
others place in you and the other members of the pNC?

> It is a perfectly legitimate claim to beleive that the NC composition is not
> balanced, and that some other interests should be represented. But you cannot
> use this argument to subvert the role of the recognized consituencies.

> David Johnson is acceptable as a gTLD rep. Joop is not. This has nothing to do
> with their respective general abilities to become NC members "in general". 

Who are you to make this decision????  I would think the CONSTITUENCY
itself is the ONLY one who can make that determination of who is an
acceptable representative.  For you to even make this statement smacks
of self interest.

> BTW, David is NIOT a NSI employee. And I hope neither Phil is, as this would
> certaily be a clearcut violation of the Bylaws.

> All in all, this discussion is missing the real fact: regardless of what
> NSIdid, what the Bylaws say or who was appointed, there was a clear bsis for
> the "armisitece", clearly spelled out by all parties: NSI pointed three reps,
> nobody challenges that, and ICANN proposeds an immediate amendment to the
> Byalwas "to bring thigns back to normality". IE, no company being able to put
> three officers, directors or employees or able to select three NC by any other way.

> The rest is, how do yoy say that?: "trying to split hairs in four pieces"....
> And I will try not to get engaged in these exercises.

You are the one trying to split hairs, Amadeu.  Let me repost my
questions here, and lets see some answers.

1) Who made the decision to let representatives from the NCDNHC sit on
the pNC?

2) When was this decision made?

3) By what rule was this decision made under?

4) How were the representatives selected?

Will the sitting members of the pNC answer these questions on the GA
list ASAP.

William X. Walsh
General Manager, DSo Internet Services
Email: william@dso.net  Fax:(209) 671-7934

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