[comments-bylaws-bgc-31mar17] DotMusic Comments on Proposed Fundamentals Bylaws Changes concerning BGC

[Constantine Roussos]

Dear ICANN:

As mentioned in public comments at the ICANN GDD Meeting in Madrid on May
9, 2017, DotMusic has concerns with respect to the proposed changes to
introduce Fundamental Bylaws revisions that would move the Board Governance
Committee's (BGC) responsibilities for the Reconsideration process as set
forth under Article 4, Section 4.2 of the Bylaws to the Board
Accountability Mechanisms Committee (BAMC).

DotMusic has filed a reconsideration request with ICANN (See
Reconsideration Request 16-5 at
https://www.icann.org/resources/pages/reconsideration-16-5-dotmusic-request-2016-02-25-en)
on February 24, 2016, (i.e. more than 14 months ago) that has not yet been
determined by the BGC, despite the 30-day window to make a determination or
make a recommendation to the ICANN Board. DotMusic also presented materials
to the BGC concerning the Reconsideration Request 16-5 on September 17,
2016.

Since the filing of the Reconsideration Request, many ICANN Board members
and ICANN BGC members have been replaced with new members. Many Board
members that have read the Reconsideration Request materials or were
presented to are no longer members of the ICANN Board and the BGC.This
presents an overarching issue concerning the Proposed Fundamentals Bylaws
Changes to move the BGC's responsibilities for the Reconsideration process
to another Accountability Committee. Since the BGC has not make a
determination yet, it appears that ICANN may be "kicking the can down the
road" to constitute a new Accountability Committee comprised of new members
to determine the Reconsideration Request 16-5 (and other pending
Reconsideration Requests concerning Community Priority Evaluation). Such a
move would compromise the DotMusic presentations made to existing ICANN and
BGC members concerning the Reconsideration Request 16-5.

BGC Chair Chris Disspain has noted at the ICANN GDD Madrid Meeting that
DotMusic may have to present again to the new Accountability Committee as
needed. BGC Chair Chris Disspain also acknowledged the issue with ICANN
Board and BGC members that were presented to in 2016 who are no longer
Board members. While there is a clause in the Bylaws that the ICANN BGC
could choose not to make a determination within 30 days if it is
"impractical," it is clear that a delay that has exceeded 14 months has
harmed DotMusic and other community applicants in a similar situation.
DotMusic has spent significant resources, time and legal fees to provide
comprehensive materials to the ICANN BGC Board and present ICANN with
extensive and comprehensive materials to conduct its due diligence and make
a determination to accept Reconsideration Request 16-5. As such, moving
accountability to the Reconsideration Request 16-5 from the current BGC to
a new Accountability Committee lacks predictability, accountability,
transparency and ensures there will be further delays. Such an action harms
DotMusic and all the affected parties associated with the .MUSIC string as
well as other community applicants and their associated parties. Not only
has the Reconsideration Request "outlived" many Board members' tenure, it
appears that the revision concerning the BGC to be replaced by a new
Accountability Committee may be a tactic to "acquit" the BGC of any
responsibility and accountability in making timely decisions concerning the
Reconsideration Requests on hold relating to Community Priority Evaluation.

It is impractical and premature to make changes to the new Bylaws prior to
determining the existing Reconsideration Requests that are put on hold
pending the independent review of the Community Priority Evaluation
process. As such, shifting accountability from the BGC to a new
Accountability Committee is impractical, harmful and will likely lead to
further delays. It appears that the ICANN Board and BGC may be attempting
to shift accountability to making a determination on the pending
Reconsideration Requests to a new Accountability Committee comprised of new
members that would further aggravate the vicious circle of continued lack
of predictability and lack of timely decision-making by ICANN concerning
time-sensitive requests filed by community members that have invoked
accountability mechanisms against ICANN.

Respectfully submitted,

-- 
Constantine Roussos
DotMusic
Founder

http://music.us
Twitter: http://twitter.com/mus
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