[council] No suspension of voting rights on 20 Oct 2002

[Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au>]

Hello All,

As an action following the last Names Council teleconference on 3 October
2002, I was requested to seek guidance from the ICANN General Counsel on the
enforceability of the Names Council Rules of Procedure that relate to voting
sanctions for non-payment of DNSO constituency dues with respect to the
ICANN By-laws.  The ICANN By-laws take precedence over any internal Names
Council rules of procedure.

I attach the advice from the ICANN General Counsel below.

The conclusion is that the By-Laws do not allow the Names Council to suspend
the ability of representatives to vote.

Thus there will be no suspension of voting rights on 20 Oct 2002.

The outcome of this process would naturally lead us to update the Names
Council Rules of Procedure, but considering that the Names Council is likely
to be replaced by the GNSO and ccNSO next year, I advise that we don't spend
time on further refinement.

With regard to the budget, we will need to carefully monitor our
expenditure, and I encourage the non-paying constituencies (non-commercial,
ISPs, cctlds) to work towards making at least some contributions.

Regards,
Bruce Tonkin


****************************************************************
To:  Bruce Tonkin, Chair of DNSO Names Council
From: Louis Touton, ICANN General Counsel
Date: 6 October 2002

On behalf of the DNSO Names Council, you have asked for guidance
concerning the enforceability of the features of the DNSO's procedure
for addressing nonpayment of assessed dues that suspend the vote of
Names Council representatives.

This memorandum provides my analysis of the enforceability of those
features.  In summary, I conclude that the Names Council is not
authorized under the Bylaws to suspend the ability of representatives
of non-paying constituencies to vote on matters arising within the Names
Council. This is true even with respect to any non-paying constituencies
that affirmatively supported the assessment of the dues and the
adoption of the procedure for suspending the vote of constituencies that
do not pay those dues.

Background

In April 2001, the Names Council adopted a procedure to address the
failure of DNSO Constituencies to pay their assessed dues in April 2001.
The procedure is applicable only for dues for the year 2001 and
afterward.  The procedure involves a graduated system of actions
concerning non-paying constituencies, culminating in suspension of a
non-paying constituency's vote on the Names Council after 180 days of
nonpayment.

The Names Council's adoption of the procedure followed shortly after its
assessment of constituency dues for the 2001 calendar year.  On 8
February 2001, the Names Council discussed the budget for the 2001
calendar year, which its Budget Committee recommended be set at
US$107,600.  Divided equally among the seven constituencies, this budget
resulted in assessed dues for 2001 of US$15,371 per constituency.
<http://www.dnso.org/clubpublic/council/Arc04/msg00721.html>  The Names
Council voted to adopt the 2001 budget, and the $US15,371 assessment, by
a vote of twelve in favor, none opposed, and three abstentions.  The
representatives for the ccTLD, gTLD, Registrars, and IP Constituencies
unanimously supported the budget; the representatives of the Business
Constituency split (2 in favor and 1 abstention); the representatives of
the NCDNH Constituency unanimously abstained; and the representatives of
the ISP Constituency were absent.

During their 8 February meeting, the Names Council members noted that
three constituencies (ccTLD, ISP, and NCDNH) were delinquent in paying
prior-year assessed dues.  Accordingly, the Names Council Budget
Committee undertook to review options for enforcement of constituencies'
dues and to provide information to the Names Council for its next
meeting.

The Names Council Budget Committee then developed and presented its
"March 2001 Report and Recommendation", which recommended adoption of a
graduated series of actions concerning non-paying constituencies.  The
report is posted at
<http://www.dnso.org/dnso/notes/20010409.NCbusiness-report.html>.  After
four lesser actions (warnings, etc.) were taken without resulting in
payment, the Budget Committee's recommendation was that after 180 days
of non-payment a constituency's vote be suspended:

  ** 180 days, the voting rights, but not the right to participate, of
  that Constituency's representatives to the Names Council are
  suspended until such time as the DNSO or its agent receives all past
  due amounts including the varies late payment fees.

The Budget Committee's recommendation was taken up by the Names Council
at its 10 April 2001 meeting.  (Minutes are posted at
<http://www.dnso.org/dnso/notes/20010409.NCbusiness-report.html>.)  At
that meeting, the Names Council accepted the Budget Committee
recommendation, with 14 votes in favor, none opposed, and three
abstentions.  (At the time, the Names Council had 19 members; two were
absent without proxy.)

The representatives of the NCDNH Constituency abstained, noting that
their constituency would have difficulty making payment and that its
assessed fee should be reduced.  All representatives present from the
other six constituencies (ccTLD, gTLD, Registrars, ISP, IP, and
Business) voted to adopt the Budget Committee's recommendation for
graduated actions, including suspension of voting after 180 days.
During the discussion, the importance of fee payment by all
constituencies was stressed.  In addition, it was noted that sanctions
would not apply to years before 2001.

For 2001, there has been a shortfall in the contributions of two
constituencies (ccTLD and NCDNH).  Some time was consumed in developing
the appropriate notices under the adopted procedures, however, so that
they were not immediately implemented.  In early 2002, the "show cause
notice" was sent out to the two delinquent constituencies; as a result
one of them (NCDNH) submitted a request for waiver of the sanctions for
2001 only.  The Names Council granted this request at its 11 July 2002
meeting by a vote of 17 in favor, none opposed, and three abstentions
(from the IP constituency).
<http://www.dnso.org/dnso/notes/20020711.NCteleconf-minutes.html>

Although it had not presented a request for waiver of sanctions in the
time contemplated by the procedures, the ccTLD Constituency presented
such a request at the 11 July 2002 meeting; this request was not acted
upon by the Names Council, however, with the meeting minutes stating:
"Discussion ended as the meeting lost quorum: ccTLD voting rights would
be unaffected until then."

On 17 January 2002, the Names Council assessed dues of US$13,994 per
constituency for the 2002 calendar year.  The Names Council vote was
twelve in favor, none opposed, three abstentions, one member absent, and
five members not responding.  The representatives present and voting
from the ccTLD, Business, gTLD, Registrars, and IP Constituencies
unanimously supported the assessment; the representatives of the NCDNH
Constituency all abstained; and the representatives of the ISP
Constituency did not vote.

On 1 October 2002, Bruce Tonkin, the chair of the Names Council,
announced that three Constituencies (ccTLD, ISP, and NCDNH) had not paid
their US$13,994 assessment for 2002. (Payments totalling US$2,000 from
the ccTLD Constituency and US$220 from the NCDNH Constituency have been
received.)  <http://www.dnso.org/clubpublic/council/Arc11/msg00092.html>
Under the Names Council procedures, the votes of these Constituencies
would be suspended as of 20 October 2002.  The situation was discussed
at the 3 October 2002 Names Council meeting, as a result of which the
chair requested guidance regarding the enforceability of the suspension
of voting.

Analysis

The DNSO is established by the ICANN Bylaws as the entity responsible
for advising the Board with respect to policy issues relating to
the Domain Name System.  (Bylaws, Art. VI-B, Sec. 1(a).) It is made up
of the Names Council (governed by Art. VI-B, Sec. 2), Constituencies
(governed by Art. VI-B, Sec. 3), and a General Assembly (governed by
Art. VI-B, Sec. 2).

Article VI-B, Section 2(a), of the ICANN Bylaws provides that the Names
Council "shall consist of representatives, selected in accordance with
Section 3(c) of this Article, from each Constituency recognized by the
Board pursuant to the criteria set forth in Section 3 of this Article."
Article VI-B, Section 3(c), provides (in relevant part) that "[e]ach
Constituency shall select up to three individuals to represent that
Constituency on the NC, no two of whom may be citizens of the same
Geographic Region, as defined in Article V, Section 6 . . . ."

In view of the above, it is clear that Bylaws delegate to the
Constituencies the role (within certain stated limitations) of selecting
their representatives on the Names Council.  The Names Council cannot
override those selections, nor do the fee-enforcement procedures purport
to do so.

Voting in the Names Council is governed by Article VI-B, Section 2(d),
(e), and (h) of the Bylaws.  Section 2(d) concerns voting on policy
recommendations, and accords votes to "members of the NC", without any
limitation concerning whether their Constituencies have paid dues.
Section 2(e) states that the Names Council's selection of ICANN
Directors will be made by a vote "of all the members of the NC."
Finally, Section 2(h) states the general rule for voting within, and
action by, the Names Council:

  A majority of the total number of NC members then in office shall
  constitute a quorum for the transaction of business, and the act of a
  majority of the NC members present at any meeting at which there is a
  quorum shall be the act of the NC, unless otherwise provided herein.

This provision contains no apparent provision for the Names Council to
suspend the vote of particular members, but instead indicates that the
only contingency on the right to vote is a member's presence at the
meeting.  In view of this, the ICANN Bylaws do not confer any authority
on the Names Council itself to suspend the ability of one or more of its
members to vote on matters that arise in the Council.

As noted in the Background section of this memorandum, certain
constituencies that are delinquent in their dues affirmatively supported
the dues assessments, or supported the procedure by which votes of
delinquent constituencies would be suspended, or both.  A question then
arises whether a suspension of the vote is authorized by the
Constiutency consent in these circumstances.  It may, of course, be
appropriate for the paying Constituencies to urge non-paying
Constituencies to act in accordance with their previous actions.  It may
also be appropriate to bring the circumstances to the attention of the
ICANN Board in connection with any policy recommendations the Names
Council submits to the Board.  In the absence of an express Bylaws
provision authorizing the Names Council to enforce a Constituency's
submission to the suspension procedure, however, for purposes of the
Bylaws the outcome of Names Council votes must be judged without regard
to any suspension arising from nonpayment of dues.

Please do not hesitate to contact me if additional guidance on this
matter is required.

Best regards,

Louis Touton
General Counsel