[wg-c] Reply to co-chair (was: CONSENSUS CALL -- selecting the gTLDs ...)

[Eric Brunner <brunner@world.std.com>]

Jon,

Let's agree to pass on the meaning of "registry" and what isn't in the call
for consensus, at least for today, and deal with the second issue I raised
in my objection -- time.

The second issue I raised is the familiar issue of delay to some purpose.

We are all familiar with the positions and manuvers of the parties which
co-authored Position Papers C -- delay substantive actions until the "marks"
interests complete their procedural actions -- the dominance of private
ownership of intellectual property, presently trademark, over all competing
interests in the DNS.

And,

We are all familiar with the positions and manuvers of the parties which 
co-authored Position Papers B -- delay substantive actions until the "free
market" interests complete their procedural actions -- the dominance of
private ownership of capacity to act, the semi-mythical "market", over all
competing interests in the DNS.

So ...

Position Paper E affords to the Names Council and the ICANN Board their
first opportunity to reject the claim that some predicate condition(s)
must be satisfied before ICANN may create its first gTLD. Position Paper
E is simply the first available specific instance of the general position
articulated in Position Paper D and A, that ICANN has the capacity to act
and that capacity to act includes its discretionary capacity to judge on
merit and need. Further, ICANN may delegate policy and jurisdictional
competency, as it has the capacity to define policy and jurisdiction,
a capacity lacking in nation states, and unweildly in the international
treaty system.

	Aside: Personally I found the IANA decision to act on the .PN issue
	(jurisdictional competency) pleasing.

               Finally, ICANN may act at any time, prior to WG-C reaching
any consensus call, and without ICANN adopting that conclusion, whatever it
may be.

It is a consequence that my communities are the ones that are the direct
beneficiaries, someone has to be the direct beneficiaries, but it is ICANN
itself that benefits from discretionary substantive acts which are within
its competency and charter.

Three claims are bandied about:

	a) ICANN may not act (Rutkowski, Auerbach, etc)
	b) ICANN may not act in a discretionary manor (Meuller, Ambler, etc)
	c) ICANN may not act substantively (Chicoine, etc)

Meaningful consensus without excluding the proponents of each of the above
camps isn't going to stick, if the fundamental proposition is contrary to
their position, so why bother?

I expect the next big idea after Sheppard/Kleiman will be the return of the
lottery -- the lengths people will go to to avoid either having to frame a
critical process, or allow themselves to imagine ICANN operating, is more
then I ever thought people could be pursuaded to endure.

I'm unchanged in my position, or my advise to others. Sheppard/Kleiman is
junk, and Meuller/Sheppard is more junk. In this instance, the co-chair
errs.


Cheers,
Eric