Re: [council] Reasonable Opportunity for Comment

[Louis Touton <touton@icann.org>]

Milton,

By refraining from acting on the proposed revision until sometime after
Melbourne, the Board inherently allows for comment after the Melbourne
meeting.  These can be sent by the usual channels (web-based forum,
e-mail, fax, and post).  In the past, when the Board has intended to 
act at a quarterly meeting, the practice has been to establish a 
written comment cut-off about five days before the meeting.  That 
hasn't been done here; the intent is to allow continued comment for 
some time after the Melbourne meeting.  The exact deadline is up to 
the Board.

So, in response to your question, there is time after the Melbourne
meeting to submit comments.  This sequence (of physical meetings before 
written comments instead of the other way around) may turn out to be a 
practice that should be adopted more generally (and perhaps the DNSO 
review should investigate whether it is a useful tool for developing
consensus), since it allows constituencies to meet, etc. at the
quarterly meeting and then to take some time to prepare and submit
careful, well-supported papers stating their positions.

Of course, as noted in the summary that was posted, in the case of the
proposed VeriSign revisions the time for decision is limited.  The 10
May deadline in the agreement that is currently in place probably means
that 1 April is a rough practical deadline for decision on the VeriSign
proposal.  This is because the proposal offers VeriSign a condition for
term extension that is different than (and one that some believe is
better for the community than) the registrar-divestiture condition in
the current agreements.  VeriSign will undoubtedly do what is necessary
to ensure that it complies with the present condition by 10 May; once it
does so it will have obtained the November 2007 term on all three TLDs. 
It is hard to see how it would then have any interest in any offer that
involves an alternative condition such as the .org turnover in December
2002 or the limitation on the .net extension to January 2006.

Your citation to Article VI, Section 2(c) does not seem relevant to the
proposed revisions to the VeriSign agreements.  That section deals with
referral of "substantive policies" and provides a presumption that new
substantive policies will be initially considered by the appropriate
supporting organization.  (Note that this presumption is not absolute: 
Article VI, Section 2(g).)  The VeriSign proposal, however, is to revise
an agreement.  There are a variety of changes between the existing
registry agreement and the three proposed ones, but they either (a) are
not matters of policy (trimming back the .net extension from November
2007 to January 2006 is an example of this); (b) involve the
continuation of present policy (allowing the continued common ownership,
with strict operational separation, is an example of this); or (c)
simply bring VeriSign into line with the policies that were developed as
a result of the new TLD program, which was initially considered in the
DNSO (the conformance of the proposed .net and .org agreements to the
new TLD template is an example of this).

Nonetheless, it would be very useful for the DNSO (including the Names
Council, the constituencies, and the general assembly) to study the
agreements, review the circumstances (you have the benefit of having a
VeriSign employee among your members, so you should have a good avenue
to obtain information), and give advice to the Board.  In fact, the
point of my note this morning (which initiated this thread) was to urge
the Names Council to do exactly that.  In comparison to the current
agreements, the proposed revisions of the VeriSign agreements appear to
involve some improvements for the community and some concessions to 
VeriSign.  Since the proposal is time-limited by circumstances, I 
believe the most constructive thing those involved in ICANN can do is 
to devote the time needed to assess realistically assess whether the 
improvements outweigh the concessions.

Best regards,

Louis

Milton Mueller wrote:
> 
> Louis:
> I understand your message quite well:
> 
> >>> Louis Touton <touton@icann.org> 03/01/01 02:50PM >>>
> 
>    * "The Board expects to consider the matter at Melbourne, but
>      to take action on this topic in the weeks after the Melbourne
>      meeting."
> 
> The still-unresolved question is NOT whether the Board decides at the Melbourne Board meeting. It is whether Melbourne is the last chance for constituencies and the public to formally express their views to the Board.
> 
> For reference sake, here are some relevant portions of the corporate by-laws. The ICANN bylaws (Article VI, Section 2) state that:
> 
> "(c) The Board shall refer proposals for substantive policies not received from
> a Supporting Organization to the Supporting Organization, if any, with primary
> responsibility for the area to which the proposal relates for initial
> consideration and recommendation to the Board."
> 
> Note the word "initial."