Re: [ga] A Farce in a Pretty Package

[Bret Fausett <fausett@lextext.com>]

Neuman, Jeff wrote:
> I think what Chuck is commenting on is the removal of the language stating
> that issues involving purely contractual matters should not be subject to
> the PDP.

Fair enough. From my read though, several important checks remain against
the possibility of a PDP that relates to purely contractual matters.

  -- Checks against the initiation of a purely contractual PDP --

  (1) as you note, there's an opinion from the ICANN General Counsel before
the PDP process even begins;

  (2) only a two-thirds vote of the GNSO Council can begin the PDP over the
GC's evaluation that a matter is purely contractual. (I actually view the
super-majority as another check against wasteful PDPs);

  -- Checks against the implementation of a purely contractual PDP --

  (3) there's another Council vote at the end of the PDP before the
recommendation is passed to the Board;

  (4) the Board votes on whether to adopt the GNSO's recommendation (and
presumably the GC's report would carry significant weight in the Board's
decision);

  (5) Reconsideration;

  (6) Independent Review.

So I see six independent checks against something that relates purely to
issues of ICANN's contracts with registries and registrars from becoming
"policy." 

The real place of disagreement though is which group should bear the burden
of appeal to the Board, Reconsideration and then Independent Review. The
current draft places that burden on the registries and registrars; the
alternative proposed would place that on parties not in privity of contract
with ICANN. Reasonable people can certainly differ about how to strike that
balance, but I personally prefer what has been proposed in the advisory
group draft (on the assumption that commercial registries and registrars are
better able to bear the burden of reviews and appeals).

At the end of the day though, I suspect we're debating a pure hypothetical.

     -- Bret

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