[client com] Suggestions regarding the transition models now under consideration

Boucher, Rick rboucher at sidley.com
Mon Apr 6 15:45:28 UTC 2015

Sharon and colleagues,

With a view toward enhancing the prospect for congressional acceptance of the transition proposal, I offered these suggestions with respect to the models under consideration:

1. It's far better for the PTI to be a separate nonprofit public benefit corporation. While this approach may add to structural complexity, it underscores the extent to which there is a clear separation between ICANN's DNS policymaking function and the performance of the IANA functions.

2. A careful review should be undertaken of the commitments imposed on ICANN in the Affirmation of Commitments ICANN entered into with NTIA. The obligations ICANN has undertaken in the Affirmation should be incorporated into the bylaws of ICANN, and these bylaws should not be amendable by the ICANN board without a supermajority of all board members (not just those present and voting). Senate Commerce Committee Chairman Thune's letter to ICANN says that the ICANN board should not be in a position to terminate the Affirmation of Commitments unless more than 4/5 of the entire board votes to do so. An appropriate way to acknowledge this recommendation would be to require a 4/5 majority of the entire board for amendments to the portions of the bylaws containing the ICANN responsibilities under the Commitments. This could also be the kind of board decision which would be subject to approval by the group of members. Please note that one of the commitments is that ICANN will remain headquartered in the United States.

3. The PTI board should be truly independent from the ICANN board, not ICANN board designated or controlled. It should be member group appointed, and there should be very limited if any overlap in membership between the ICANN Board and the PTI board.

4. The Periodic Review Team (PRT) should be chosen by an answerable to the member group. It is the main way members have of being certain the IANA functions are being satisfactorily performed.



Sidley Austin LLP
rboucher at sidley.com<mailto:rboucher at sidley.com>

From: Flanagan, Sharon
Sent: Saturday, April 04, 2015 10:51 AM
To: 'cwg-client at icann.org'
Cc: Grace Abuhamad; Gregory, Holly; Hofheimer, Joshua T.; Clark, Michael A.; McNicholas, Edward R.; Boucher, Rick; Kerry, Cameron; Mohan, Vivek; Hilton, Tyler; Tam, Tennie H.; Fuller, Miles
Subject: Transition Models for Further Consideration

Dear All,

Attached is an initial discussion draft of the two models that the CWG requested Sidley’s input on:  the internal accountability/hybrid model with two closely related variants:  accountability mechanism with legal separation and accountability mechanism with functional separation.  We look forward to discussing.

Best regards,

Sidley Austin LLP
sflanagan at sidley.com<mailto:sflanagan at sidley.com>

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