[CCWG-ACCT] For Enforcement Model small group on Saturday - Tables & Plan B slides

Sat Oct 17 03:37:45 UTC 2015

Dear all,
I am uncertain of being able to attend this group due to Chairing the meeting of GNSO SCI from 8 to 9 and then reporting to GNSO for that same Group from 9:15 to 9:30.  I do have one observation, however, which is purely procedural in nature.  (SCI people just love procedure.)

If the group ends up focusing on Sole Designator as the “candidate way forward”, it seems to me that this can only be a result of Board input since the majority of public comment supported the Sole Member.  Accordingly, if the practical reality of wanting a timely transition combined with the Board’s statement it will not support Sole Member is leading us to a required compromise, then I think the proper procedure which will best serve everyone long term in this situation could be as follows:

1.       Based on public comment and the Sidley legal advice, the CCWG should issue a Supplemental Report keeping the Sole Member model but specifying that the exercise of all the Community Powers must be accompanied by unanimous consent of all participating SOs and ACs and that no SO or AC objects even if not participating in the Sole Member consensus call.

2.       For certain extreme Community Powers, e.g. dissolution of the corporation, specify that community enforcement may not be commenced except by being triggered as the result of a Board resolution.  (Per Sidley, this has to be fixed anyway since the current ByLaws would permit a majority vote of 5 out of a quorum of 9 directors present to dissolve the corporation and that is just silly.)

3.       Some SOs and ACs may not agree with the Supplemental Report and will note their disagreement on the record, citing the fiduciary responsibilities of the Board and their confidence in the Board and the desire to change as little as possible.

4.       Some SOs and ACs will support the Supplemental Report citing the MSM and citing the CWG-Stewardship conditions related to strong Community Powers.

5.       There will be a very short public comment period on the Supplemental Report because not a lot has changed from the Second Draft Report.  What has changed is how consensus is developed (not via voting but via consensus call) and that consensus is specified to be unanimous.  What has also changed is that some community powers, e.g. dissolution, cannot be invoked  without first being triggered by a Board resolution.  (See the Sidley memo on how to limit powers of the member to address risks identified by the Board.)

6.       The Board will consider the Supplemental Report and the CCWG Charter provision will kick in which requires 2/3 majority of the Board  to reject and then a formal dialogue phase kicks in but at least you have followed the MSM public comment procedure and you have followed the CWG-Stewardship Final Report requirements.  The Board cites its fiduciary duty, its concerns about SO/AC Accountability and various public comments received and solicited in Dublin in open sessions.

7.       After the Board votes by 2/3 majority to reject the CMSM, the dialogue “begins” and the Community modifies the enforcement model to Sole Designator.  CWG-Stewardship goes back to modify its Final Report in light of formal Board input and expresses the opinion that the Sole Designator model meets the accountability requirements it has recommended with respect to the IANA transition.

8.       When Sole Designator is presented to NTIA, no one is able to say that the CCWG changed its model based solely on Board pressure alone.  All proper procedures in the MSM and in the Charter have been followed.
T
The above hopefully does not telescope the outcome of the work of the group.  I am likely known at this point as favoring the CMSM.  Nonetheless, it has been reported to me that at Friday’s sessions, the Chairs were observing that the group faces certain practical challenges.  If these practical challenges “rule the day”, then I believe it would be best to follow the above procedure in order to avoid certain difficulties that could arise down the road after NTIA certification of the transition proposal to Congress.

Anne

[cid:image001.gif at 01D10851.B53FB740]

Anne E. Aikman-Scalese, Of Counsel

Lewis Roca Rothgerber LLP

One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611

(T) 520.629.4428 | (F) 520.879.4725

AAikman at lrrlaw.com<mailto:AAikman at lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/>

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Jordan Carter
Sent: Friday, October 16, 2015 2:48 PM
To: Malcolm Hutty
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] For Enforcement Model small group on Saturday - Tables & Plan B slides

Same place as today all - and an 8.30am start

Jordan

On Friday, 16 October 2015, Malcolm Hutty <malcolm at linx.net<mailto:malcolm at linx.net>> wrote:
Thank you Jordan.

Please could you (or staff, or someone) confirm start time (8:30?) and particularly, which room for each meeting.

Thank you.

Sent from my iPhone

On 16 Oct 2015, at 18:13, Jordan Carter <jordan at internetnz.net.nz<javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');>> wrote:
Hi everyone

One of the small grounds meeting tomorrow is to deal with the Enforcement Model.

We anticipate the group will probably be asked to focus on testing the two central models (Single Member and Single Designator) with a focus on the two powers that attracted most discussion this morning. That is:

- separation review outcomes
- IRP

The attached documents essentially include the output the lawyers were tasked with with "Plan B", too. They are as follows:

- summary table of enforcement issues under all four models (status quo, MEM, Single Designator, Single Member)

- the full detailed table of enforcement issues under all four models

- a "three column" table that is the summary, just for Single Designator and Single Member (the most useful working doc to look at)

- a powerpoint set of slides that details other aspects of the "Plan B" which is Single Designator plus a governance review.

I encourage those interested in these issues to look at these documents, whether or not you can or will attend the small group session.

best,
Jordan

<Summary Comparison of Enforcement Mechanisms by Model - Final (00723591x....pdf>
<Comparison of Enforcement Mechanisms by Model- Final (00723592xA3536).pdf>
<3 COLUMN Summary Comparison of Enforcement Mechanisms (Sole Designator &....pdf>
<CCWG Slides--Community Powers with Opportunity for Future Governance Rev....pdf>
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Sent on the run, apologies for brevity

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