[comments-deletes] Comments on the TF Final Report -- Part One

[DannyYounger@cs.com]

Comments:

I.  Summary history:

On 21 March 2002 VeriSign, Inc., as registry operator of the .com and .net 
top-level domains, notified ICANN that it sought amendments to the registry 
agreements for those top-level domains to allow it to conduct a twelve-month 
trial of a proposed wait-listing service (WLS) to be offered through 
accredited registrars for an annual fee.  

On 17 April 2002 our General Counsel presented the findings of his own 
examination of this proposal to the Board noting that, under the terms of our 
Amendment Three to the Memorandum of Understanding with the U.S. Department 
of Commerce, ICANN must obtain DoC approval of changes to its registry 
agreements with VeriSign. 
  
Counsel, aware of the prohibition that "Neither Party, either in the DNS 
Project or in any act related to the DNS Project, shall act unjustifiably or 
arbitrarily to injure particular persons or entities or particular categories 
of persons or entities", sought to ensure that ICANN would abide by the terms 
of the MoU and recommended that the organization invoke the formal 
consensus-development processes currently established within ICANN (in that 
it was plausible that the legitimate interests of others could possibly be 
harmed by the proposed amendments).

On 22 April 2002, at the Special Meeting of the Board, the Names Council was 
requested via Resolution 02.53 to coordinate within the DNSO a comprehensive 
review, and to provide the Board (no later than 10 June 2002) with both 
recommendations and supporting materials concerning VeriSign's request.   The 
Board further invited public comments and directed the Secretary to advise 
the Address and Protocol Councils of VeriSign's request and the Board's 
intent to consider that request at its Bucharest meeting on 28 June 2002, 
with an invitation to those councils to submit comments (if any) on the 
request before that time.

On June 10 2002 the Names Council submitted a status report to the Board.

On June 27 2002 at the ICANN plenary session in Bucharest several members of 
the Internet community gave their views on WLS, and VeriSign gave a 
presentation in which it constructively proposed changes to accommodate 
concerns expressed in community comments.

On June 28 2002 the ICANN Board noted that the Transfers Task Force status 
report, while giving preliminary findings and recommendations on WLS, still 
required additional analysis and discussion within the DNSO, and directed 
that a bottom-up consensus-development effort be pursued within the DNSO that 
would result in final recommendations (with supporting rationale and any 
separate positions of DNSO constituencies), being submitted to the Board no 
later than 26 July 2002.  


II.  Initial Observations:

In essence, the Board has asked for a comprehensive report, a 
consensus-development process that would examine policy issues and lead to 
policy recommendations, supporting materials, supporting rationale, the 
separate positions of DNSO constituencies, and additional analysis and 
discussion to augment the preliminary report already submitted.

This 1600-word Final Report sadly is far from comprehensive, has not examined 
policy issues, does not provide supporting materials or supporting rationale 
for its recommendations, does not reflect a consensus-development process, 
and has not provided the additional analysis and discussion as requested by 
the Board.  

The Board has an obligation to operate within the constraints of its Bylaws.  
These Bylaws stipulate that the Board shall refer proposals for substantive 
policies not received from a Supporting Organization (in this case the 
VeriSign entity) 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 -- such a referral was made to 
the DNSO.  Additionally, any recommendation forwarded to the Board by a 
Supporting Organization shall be transmitted to all other Supporting 
Organizations so that each Supporting Organization may comment to the Board 
regarding the implications of such a recommendation on activities within 
their individual scope of primary responsibility - this too was done as both 
the ASO and PSO were notified.  Finally, the Board shall accept the 
recommendations of a Supporting Organization if the Board finds that the 
recommended policy (1) furthers the purposes of, and is in the best interest 
of, the Corporation (2) is consistent with the Articles and Bylaws (3) was 
arrived at through fair and open processes (including participation by 
representatives of other Supporting Organizations if requested) and (4) is 
not reasonably opposed by any other Supporting Organization.

At the heart of all of this language is the phrase "recommended policy".  A 
recommended policy that emerges from the DNSO takes one of two forms - (1) a 
NC recommendation, along with statements of majority and minority views, and 
any separate or dissenting statement(s) of any member(s) of the NC (if 
adopted by less than two-thirds of the NC), or (2) a community consensus 
position which shall be forwarded to the Board as a consensus recommendation, 
along with all materials or other information that could reasonably be 
relevant to the Board's review of that determination, including (but not 
limited to) the dissenting statement(s) of any member(s) of the NC (if 
adopted by two-thirds or more of the NC).

Common to both scenarios is the need to provide proper supporting 
documentation, and in both cases, the Rules of Procedure for the DNSO, as 
adopted by the Names Council, apply.   These rules call for:

(a) a written report and supporting materials (which must include all 
substantive submissions to the Supporting Organization relating to the 
proposal) - no such supporting materials or substantive submissions have been 
included in the report. 

(b) documentation of the extent of agreement and disagreement among impacted 
groups - no such documentation has been provided. 

(c) documentation of the outreach process used to seek to achieve adequate 
representation of the views of groups that are likely to be impacted - there 
is no evidence in the TF record that potentially impacted firms were 
specifically identified and contacted, and most notably no outreach efforts 
were conducted to specifically secure comments from those "speculators" that 
might be significantly impacted by a proposed policy.

(d) documentation of the nature and intensity of reasoned support and 
opposition to the proposed policy - none has been provided by this Final 
report

(e) an Executive Summary of not more than 1000 words - none has been 
provided. 

(f) Terms of reference - another omission

(g) a Conclusion, a clear and concise statement of the proposal discussed and 
the conclusion reached - neither a thorough analysis of the proposal, nor the 
means by which a conclusion was reached have been provided.

(h) an Impact analysis, a full analysis of who might be impacted and in what 
ways, by such a policy - no such analysis has been undertaken. 

(i) Constituency impact reviews, a summary and analysis of evidence provided 
by DNSO constituencies - neither a summary nor an analysis has been included.

(j) Minority reports, a fair statement of points in opposition and a 
substantive analysis of their merits and the intensity of the opposition - no 
such reports have been collected as of the date of issuance of the Final 
Report. 

(k) Supporting arguments, a summary of the best arguments for adoption of the 
policy - no such summary has been provided.

(l) Risk/Cost analysis, an analysis of the risks and costs of the proposed 
policy - once again, no such analysis has been provided. 

One can only conclude from all the above that this Final Report neither meets 
the most basic report requirements as established by the Names Council, nor 
the expectations as iterated by the Board.  The shoddy work-product that 
passes for this Final Report is yet still another embarrassment to the 
Council, and epitomizes the poor policy guidance that seems to be the 
hallmark of this organization.  


III.  Secondary observations

The report fails to advise why the proposed recommendations further the 
purposes of, and are in the best interest of, the Corporation… neither does 
the report establish that its recommendations were arrived at through fair 
and open processes - it may readily be argued that indeed the converse is 
true.  

On 11 July 2002, the Transfers Task Force conducted a vote on the modified 
recommendations.  This Task Force, like all subordinate NC bodies must abide 
by the NC Rules of Procedure that state: "where authority has been delegated 
by the NC, a simple majority must be NC members, those NC members hold the 
delegated authority and only those NC members can vote."  

The results of the vote were posted at: 
http://www.dnso.org/clubpublic/nc-transfer/Arc00/msg00346.html   

As a matter guided by Council procedure, the GA vote is not counted.  Three 
constituencies were not even present and didn't cast a vote:  the ISPs, the 
Non-commercial, and the Registrars.  Only two votes were cast in favor of the 
modifications (BC & IP) - it should be noted that the IPC cast this vote even 
after having declared a day earlier that:  "IPC has no objection to roll-out 
of WLS once the redemption grace period (RGP) is implemented" (see 
http://www.dnso.org/clubpublic/nc-transfer/Arc00/msg00338.html ).  The gTLD 
Registries voted against, and the ccTLDs abstained (as per Council rules:  
"Abstentions count as votes cast. This has the effect of making an abstention 
count the same as a vote against").

Clearly, there was not a majority of votes cast in support of the proposed 
recommendations as only four votes were cast and constituency proponents of 
the modified recommendations did not collectively cast three votes, only two 
(and one of those only half-heartedly) - certainly not a majority.  It is 
therefore highly misleading to state that the Task Force supported the 
modified recommendations, and it is equally untenable to characterize the 
gTLD registry position as "minority".  

Complicating matters further was the fact that basic parliamentary procedure 
was not utilized at this session (as revealed by discussion at the most 
recent Names Council teleconference).  Instead of voting on the 
recommendations on a point-by-point basis that would have been required to 
ensure fairness, the vote was held strictly on an all-or-nothing thumbs-up or 
thumbs-down basis.  

Part Two to follow...