[ga] Business Constituency: Charter and ByLaws Violations

[DannyYounger@cs.com]

I am rather leery of existing constituencies seeking to impose new criteria 
on new constituencies especially when our current constituencies don't honor 
their own sets of rules.

Our constituencies are expected to act in accordance with the proposals 
(charters) received by the Corporation (see ICANN Resolutions 27 May, 1999), 
as well as in accordance with the ByLaws.  Yet the Business Constituency is 
in violation of both its own charter and the ICANN ByLaws concurrently.

The charter of the Business Constituency states:  

"(ii)  In order to assure sectoral balance consistent with the Business 
Constituency's mission and purpose described under I, at most one Names 
Concil representative may belong to or represent an identifiable business 
sector."

At this time, two current Names Council representatives, Marilyn Cade and 
Grant Forsythe, both represent the Telcom sector.   Grant Forsyth is 
identified as Manager, Industry & Regulatory Affairs
CLEAR Communications Ltd.  Their website, clear.co.nz, identifies the company 
as follows:

CLEAR's focus on business, its innovation, and its state-of-the-art fibre 
optic digital network set it apart as one of New Zealand's leading 
communications companies. Its attitude has always distinguished it from the 
competition.  It began in 1991 when CLEAR first set new standards for 
telecommunications in New Zealand. Today it's stronger that ever.   CLEAR is 
wholly-owned by BT. A world leader in telecommunications, BT gives CLEAR 
access to the Concert global network as well as to formidable research and 
development resources. 

Marilyn Cade is well known as a lobbyist for AT&T, also a telecommunications 
firm.  As such, we have two names Council representatives who both belong to 
the same identifiable business sector, a Charter violation.


It is also to be noted that our ByLaws state:  

"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."

The Business Constituency never held an election in which Marilyn Cade 
emerged the winner.    She is an appointee filling the seat vacated by 
Theresa Swinehart; therefore we have a ByLaws violation.

The Business constituency Charter further states:  

III. Procedure for substantive decision-making. Subsidiary and support bodies 
--
1. For each policy work item arising from the need to provide support to the 
business constituency representatives on the Names Council, the secretariat 
shall call for volunteers to sit on a research committee whose mandate shall 
be tied to the work item in question. This invitation for volunteers shall be 
accompanied by a set of specific criteria to ensure that members of research 
committees have a knowledge of, and experience with, issues relevant to the 
work of the DNSO that is appropriate for the purpose for which the research 
committee is created. The secretariat shall publish the names of volunteers 
who are finally appointed, together with their credentials. The secretariat 
shall circulate any recommendations produced by such research committees 
among the members of the Business Constituency for consultation. This process 
shall be repeated until consensus has been achieved, always within the time 
frame of DNSO decisions, which may require a quick decision.. 

This well-conceived process has never been followed by the Business 
Constituency; no such research committee recommendations or other such 
details have ever been published (because they don't exist).  At best, an NC 
member will draft a statement, and if there are no comments received within 
10 days (and there never are), the draft is forwarded as the position of the 
BC.

Their Charter further states:  

"The secretariat shall use their best efforts to give small and medium-sized 
enterprises an adequate voice in all Business Constituency work processes. 
These efforts may include, but not be limited to, the organization of 
democratic elections for representatives of organizations of small and medium 
sized businesses (SMEs) to sit on an SME Consultative Committee whose advice 
shall be solicited on substantive policy work items."  

This has never happened.  Even though I and Jefsey are both ostensibly 
members of this constituency, our advice (as SMEs) has never been solicited.  
Furthermore, neither of our company names is cited on the current Business 
Constituency membership roster.   

Our Bylaws require each ICANN subordinate entity to "operate to the maximum 
extent feasible in an open and transparent manner".  The BC has no publicly 
archived mailing list.  How then can they maintain that they are operating in 
an open manner to the maximum extent feasible?

At this time the BC is no more than a cartel representing primarily Telcoms 
and intellectual property interests which seem to have no difficulty being in 
violation of their own rules while seeking to impose additional restrictions 
on others.  There is no hesitancy on the part of the BC to deny individuals a 
voice in the ICANN process.  The current BC position paper on the At-Large 
(drafted by Marilyn Cade) states:

"For now, we believe there should be five regionally elected At-Large 
representatives on the ICANN Board - one per region."  
http://www.bizconst.org/positions/BCatlargepositionv4.doc

Instead of the nine At-Large Directors that we were promised (to represent 
the rights of individuals on the ICANN Board), this Constituency seeks to 
have it permanently reduced to five.  

As long as they intend to deny individuals their right to participate in the 
ICANN process, I feel no personal remorse in challenging their fitness as a 
Constituency.  While they are in violation of their Charter and the ByLaws, 
their status as a constituency should be suspended by the ICANN Board.  








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