[council] Request for Agenda Item, Final Notice to NCDNHC

["Harold J. Feld" <hfeld@mediaaccess.org>]

Fellow members of the Names Council.

I hope I am not accidentally violating procedure, but I must raise an 
issue of pressing importance to the NCDNHC. I would like to ask us to address this 
matter on tomorrows conference call meeting.  If we cannot address it tomorrow, I would like to request that we address it at the April 4 meeting, although I will be unable to participate in the April 4 conference because it is a religious holiday.

Unless the NC acts before May 11, the NCDNHC will lose its voting rights on the NC.
For the reasons stated below, I request that the NC take official action to prevent this from happening. Because this raises a difficult issue of first impression before the NC, I request that the NC vote to "stop the clock" on the DNSO process for sanctioning consticuencies that have not paid their dues in full until the face-to-face NC meeting in Bucharest.

As you know, the NCDNHC has had difficulty raising money to pay its DNSO dues.
Our constituency received a letter from the DNSO Secretariat on February 1, 2002, 
asking that we show cause why the NC should not suspend the voting rights of the NCDNHC.  

On February 7, 2002, the NCDNHC Adcom replied to the show cause letter. 
 the reply argued: (1) The NCDNHC has made its best efforts to pay the 
dues assessed; (2) suspension of voting rights would hinder NCDNHC 
efforts to collect overdue dues from members and would thus be 
counterproductive; (3) the presence of NCDNHC as voting members enhances 
the DNSO consensus development process, whereas suspending NCDNHC as 
voting members would diminish the effectiveness of the consensus 
process; and, (4) the NC should recognize the difficulty confronting 
NCDNHC in collecting dues and grant relief as a matter of fairness. 
 Several members of the NC posted positive responses to the NCDNHC reply 
to the show cause.  

The NCDNHC AdCom mistakenly believed that reply to the show cause 
"stopped the clock" under the DNSO bylaws until the NC acted on the 
reply, deeming it either sufficient or insufficient.  We were therefore 
both surprised and dismayed to receive a "Final Notice" informing us 
that (a) our voting rights will be suspended on May 13, 2002, unless we 
pay the current balance, and (b) total late fees of nearly $1000 have 
been levied against the NCDNHC in accordance with the approved process. 

It appears that although the rules provide an opportunity for an overdue 
constituency to show cause why it should not suffer sanctions, 
the process provides no mechanism for determining whether to 
grant relief in response to the show cause order.  As a result, despite 
our reply to the show cause and our continued best efforts to collect 
dues, we find ourselves in danger of losing our voting rights in the NC 
at a critical moment in the development of ICANN as an institution.

Had the Adcom realized this, we would have pressed for a formal 
determination on our reply at Accra or, at the least, asked that the 
procedures under which the reply to the show cause will be evaluated be 
clarified and that the NC "stop the clock" on sanctions against the 
NCDNHC until final action is taken on the reply to the show cause.

In light of the present compressed schedule under which we must reply to 
the Board on restructuring.  I do not propose that the NC should address 
either the NCDNHC show cause response or the question of what procedures 
to employ generally at this time.  Rather, I ask that the NC take action 
to "stop the clock" on the sanction process until the next face-to-face 
meeting in Bucharest.  We can continue to discuss the merits of the 
NCDNHC show cause reply, and what procedures to employ generally, 
on-line until the meeting.

I set forth the following reasons for granting this request.

1) The NCDNHC has acted and continues to act in good faith.  Owing to 
the confusion resulting from our election almost on the heels of  the 
show cause letter, the lack of any precedent or instruction from the 
Chair or the NC to guide NCDNHC, and the lack of clarity on the 
procedure as adopted, the NCDNHC genuinely thought its response 
sufficient and that no further action was needed on our part to require 
action on our response tot he show cause letter.  In addition, NCDNHC 
has continued to make best efforts to pay the remaining amount required 
by the DNSO.  Since the February 1 letter, NCDNHC has forwarded an 
additional $800 in dues.  NCDNHC continues to remind its members of 
their responsibilities and to collect dues from members that have not yet paid.

2) The NCDNHC cannot participate effectively in the structure debate if 
its voting rights will be suspended in the middle of the debate.  This 
matter absorbs a great deal of attention and concern within the NCDNHC. 
 Allowing us to set it aside until Bucharest will allow us to focus on 
the critical issue at hand without the distraction and drain on our 
resources.  Furthermore, several of our members who have paid their dues 
question why they should participate if, after doing all they can do, 
their voice still does not count in the final decision making process.

3) The consensus process will suffer if NCDNHC's voting rights are 
suspended.  Now, more than ever, it is important that all voices in the 
ICANN consensus process participate on equal terms.  Even more 
importantly, the public must the process as including all relevant 
communities.  If NCDNHC is suspended during the process, it may create 
an appearance that non-commercial voices are disfavored both within the 
non-commercial community (many of whom will therefore chose not to 
participate) and within the public at large even though the suspension 
has nothing to do with restructuring.

I am loathe to add this item at the last minute to tomorrow's conference 
call, but I would request that we resolve this request as quickly as 
possible. If we cannot address it tomorrow, than can it go on the agenda for April 4?
My one concern there is that I cannot participate in the April 4 meeting because it is a religious holiday.

Harold Feld
NCDNHC