[gnso-improvem-impl-sc] FOR REVIEW: Suspending a PDP--Proposed Revised Footnote

[Mary.Wong at law.unh.edu]

Between Avri and Marika, I think they've covered and explained things
superbly. I agree that what (and whether) the Board can/will do if the
GNSO Council decides to suspend a Board-initiated PDP is a separate
question from what we're considering - how to deal with that will be up
to the Council. I think that the present wording, as amended after
Anne's comment, works and I support it. 

Cheers 
Mary


Mary W S Wong
Professor of Law
Director, Franklin Pierce Center for IP
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW
Two White Street
Concord, NH 03301
USA
Email: mary.wong at law.unh.edu
Phone: 1-603-513-5143
Webpage: http://www.law.unh.edu/marywong/index.php
Selected writings available on the Social Science Research Network
(SSRN) at: http://ssrn.com/author=437584  


>>> 


From:  
Avri Doria <avri at acm.org> 

To: 
<gnso-improvem-impl-sc at icann.org> 

Date:  
12/9/2012 6:28 AM 

Subject:  
Re: [gnso-improvem-impl-sc] FOR REVIEW: Suspending a PDP--Proposed
Revised Footnote 


Thanks.  I missed the RAA request being a Board PDP and forgot about
the purpose of WHOIS one.

avri



On 9 Dec 2012, at 15:05, Marika Konings wrote:

> To clarify, there are currently two Board requested PDPs, one on the
RAA
> ('Resolved (2011.10.28.33), the Board also requests the creation of
an
> Issue Report to undertake a GNSO policy development process (PDP) as
> quickly as possible to address remaining items suited for a PDP) and
the
> recently requested Issue Report on the purpose of Whois ('hereby
directs
> preparation of an Issue Report on the purpose of collecting and
> maintaining gTLD registration data, and on solutions to improve
accuracy
> and access to gTLD registration data, as part of a Board-initiated
GNSO
> policy development process'). As pointed out by Avri, for PDPs
initiated
> by the ICANN Board, there is no intermediate vote by the GNSO
Council, the
> PDP automatically proceeds. However, the ICANN Bylaws foresee that in
the
> case of a Board initiated PDP, 'the Board should provide a mechanism
by
> which the GNSO
> Council can consult with the Board to provide information on the
scope,
> timing, and priority of the request for an Issue Report'. In addition
to
> this mechanism, the ICANN Board and GNSO Council meet at every ICANN
> meeting where there is another opportunity to discuss and/or express
> concerns with regard to Board requested PDPs. For example, in
relation to
> the RAA PDP, as a result of dialogue between the ICANN Board and
GNSO
> Council it was agreed to 'suspend' the PDP until the RAA negotiations
were
> near completion so that it would be clear which topics would need to
be
> included in the PDP.
>
> With best regards,
>
> Marika
>
> On 09/12/12 08:12, "KnobenW at telekom.de" <KnobenW at telekom.de> wrote:
>
>>
>> Thanks Avri, very helpful for understanding.
>>
>>
>> Best regards
>> Wolf-Ulrich
>>
>>
>> -----Ursprüngliche Nachricht-----
>> Von: owner-gnso-improvem-impl-sc at icann.org
>> [mailto:owner-gnso-improvem-impl-sc at icann.org] Im Auftrag von Avri
Doria
>> Gesendet: Sonntag, 9. Dezember 2012 05:39
>> An: gnso-improvem-impl-sc at icann.org
>> Betreff: Re: [gnso-improvem-impl-sc] FOR REVIEW: Suspending a
>> PDP--Proposed Revised Footnote
>>
>>
>> Hi,
>>
>> As I understand it, they have asked g-council for answers, but they
have
>> not actually used the by-laws mechanism of requesting a PDP.  The
>> g-council has used the PDP as a method of deciding on answers. 
These are
>> still g-council initiated PDPs.  Had the Board asked for the PDP,
there
>> never would have been a vote in g-council to initiate the PDP.
>> Specifically:
>>
>> "
>> March 212 20120314-1
>> Motion on the Initiation of a Policy Development Process (PDP) on
'thick'
>> Whois
>>
>> Whereas the GNSO Council requested an Issue Report on 'thick' Whois
at
>> its meeting on 22 September 2011
>> (seehttp://gnso.icann.org/resolutions/#201109);
>>
>> ....
>> "
>>
>> "
>> November 2012 20121017-2
>> Motion on the Initiation of a Policy Development Process on the
>> Protection of Certain International Organization Names in all
GTLDs.
>>
>> Whereas the GNSO Council requested an Issue Report on the topic of
>> whether ICANN should approve additional protections for the names
of
>> international organizations at the first and second levels in the
New
>> gTLD Program.
>>
>> ....
>> "
>>
>> Under the by-laws, ANNEX A: GNSO POLICY DEVELOPMENT PROCESS
>>
>> "
>> Section 3. Requesting an Issue Report
>>
>> Board Request. The Board may request an Issue Report by instructing
the
>> GNSO Council ("Council") to begin the process outlined the PDP
Manual. In
>> the event the Board makes a request for an Issue Report, the Board
should
>> provide a mechanism by which the GNSO Council can consult with the
Board
>> to provide information on the scope, timing, and priority of the
request
>> for an Issue Report.
>>
>> ....
>>
>> Section 5. Initiation of the PDP
>>
>> The Council may initiate the PDP as follows:
>>
>> Board Request: If the Board requested an Issue Report, the Council,
>> within the timeframe set forth in thePDP Manual, shall initiate a
PDP. No
>> vote is required for such action.
>> "
>>
>> avri
>>
>>
>> On 9 Dec 2012, at 03:20, Aikman-Scalese, Anne wrote:
>>
>>> Must be my misunderstanding... I thought both the current whois PDP
and
>>> IOC RC NGO PDP were requested by the ICANN Board. Anne
>>>
>>> Sent from my Android phone using TouchDown (www.nitrodesk.com)
>>>
>>> -----Original Message-----
>>> From: Ron Andruff [randruff at rnapartners.com]
>>> Received: Saturday, 08 Dec 2012, 3:06pm
>>> To: 'Avri Doria' [avri at acm.org]; gnso-improvem-impl-sc at icann.org
>>> [gnso-improvem-impl-sc at icann.org]
>>> Subject: RE: [gnso-improvem-impl-sc] FOR REVIEW: Suspending a
>>> PDP--Proposed Revised Footnote
>>>
>>>
>>> I support Avri's comments as well.  The Board's role is to commit
policy
>>> that has been developed through the bottom up process into rule by
way
>>> of
>>> resolution.  Although the history of the Board's actions to date
might
>>> prove
>>> otherwise, in an ever-maturing ICANN environment we should expect
the
>>> Board
>>> to conform to ICANN's basic principles.
>>>
>>> I support the footnote amendment as proposed.
>>>
>>> Kind regards,
>>>
>>> RA
>>>
>>> Ronald N. Andruff
>>> RNA Partners, Inc.
>>>
>>>
>>> -----Original Message-----
>>> From: owner-gnso-improvem-impl-sc at icann.org
>>> [mailto:owner-gnso-improvem-impl-sc at icann.org] On Behalf Of Avri
Doria
>>> Sent: Saturday, December 08, 2012 9:47 AM
>>> To: gnso-improvem-impl-sc at icann.org
>>> Subject: Re: [gnso-improvem-impl-sc] FOR REVIEW: Suspending a
>>> PDP--Proposed
>>> Revised Footnote
>>>
>>>
>>> Hi,
>>>
>>> I think the question of what the Board would do if g-council ever
>>> suspended
>>> a PDP that they mandated is an open question.  I expect they would
>>> either
>>> wait, question the postponement, or make one their preemptory
decisions.
>>> Since the Board has never yet, to my knowledge, mandated a PDP -
though
>>> they
>>> can - I do not think it is a critical issue at this point, and in
any
>>> case
>>> think it is a separate issue from the suspension mechanism.  All
other
>>> PDPs
>>> are g-council decsions, even if the issues report is requested by
one
>>> of the
>>> ACs.
>>>
>>> I am fine with the footnote. thanks.
>>>
>>> avri
>>>
>>>
>>>
>>> On 8 Dec 2012, at 18:26, <KnobenW at telekom.de> <KnobenW at telekom.de>
>>> wrote:
>>>
>>>> Anne and all,
>>>>
>>>> this touches the question whether the board may overrule a
council
>>> decision on suspension because you're expressing an expectation
that the
>>> council should follow a related board request. I think this could
be the
>>> case depending on a council debate following the board request but
>>> there is
>>> no obligation to do so.
>>>>
>>>> With this understanding, an you agree to the footnote provided by
>>> Julie?
>>>>
>>>> Best regards
>>>> Wolf-Ulrich
>>>>
>>>>
>>>> Von: owner-gnso-improvem-impl-sc at icann.org
>>> [mailto:owner-gnso-improvem-impl-sc at icann.org] Im Auftrag von
>>> Aikman-Scalese, Anne
>>>> Gesendet: Freitag, 7. Dezember 2012 18:43
>>>> An: 'J. Scott Evans'; Julie Hedlund;
gnso-improvem-impl-sc at icann.org
>>>> Betreff: RE: [gnso-improvem-impl-sc] FOR REVIEW: Suspending a
>>> PDP--Proposed Revised Footnote
>>>>
>>>> This makes sense.  Is it clear to everyone that if the ICANN
Board
>>> says,
>>> "Sorry, GNSO, we don't want you to suspend because we need an
answer -
>>> go
>>> back to the drawing board,"  then that is what will happen?
>>>>
>>>> Deadlock is deadly for ICANN.  If GNSO can't work effectively and
the
>>> Board has to act (pursuant to GAC Advice or otherwise), then
Fadi's
>>> "oasis"
>>> announced in Dubai becomes more of a "quagmire" and pressure
increases
>>> to
>>> take control away from ICANN.
>>>>
>>>> I only raise this because it seems to me the question will come up
at
>>> the
>>> GNSO level.
>>>>
>>>> Anne
>>>>
>>>> <image001.gif>Anne E. Aikman-Scalese
>>>> Of Counsel
>>>> Lewis and Roca LLP . Suite 700
>>>> One South Church Avenue . Tucson, Arizona 85701-1611
>>>> Tel (520) 629-4428 . Fax (520) 879-4725
>>>> AAikman at LRLaw.com . www.LewisandRoca.com/Aikman
>>>>
>>>>
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>>>>
>>>>
>>>> From: J. Scott Evans [mailto:jscottevans at yahoo.com]
>>>> Sent: Friday, December 07, 2012 10:20 AM
>>>> To: Julie Hedlund; Aikman-Scalese, Anne;
>>> gnso-improvem-impl-sc at icann.org
>>>> Subject: Re: [gnso-improvem-impl-sc] FOR REVIEW: Suspending a
>>> PDP--Proposed Revised Footnote
>>>>
>>>> I can live with that and I don't think this require further
public
>>> comment
>>> since it merely clarifies the suspension.
>>>>
>>>> jse
>>>>
>>>> j. scott evans -  head of global brand, domains & copyright -
Yahoo!
>>> Inc.
>>> - 408.349.1385 - jscottevans at yahoo.com
>>>>
>>>>
>>>> From: Julie Hedlund <julie.hedlund at icann.org>
>>>> To: "Aikman-Scalese, Anne" <AAikman at lrlaw.com>;
>>> "gnso-improvem-impl-sc at icann.org"
<gnso-improvem-impl-sc at icann.org>
>>>> Sent: Friday, December 7, 2012 8:40 AM
>>>> Subject: Re: [gnso-improvem-impl-sc] FOR REVIEW: Suspending a
>>> PDP--Proposed Revised Footnote
>>>>
>>>> Thanks Anne.  Then, would you want "until further notice" to be
>>> deleted?
>>> If so, here's an amended text for all to review.
>>>>
>>>> Best regards,
>>>> Julie
>>>>
>>>> "Suspension is a STATED time interval during which there is a
>>> temporary
>>> cessation of the PDP, i.e. all activities are halted upon a
decision of
>>> the
>>> GNSO Council. A mere change in milestones or schedule of the PDP is
not
>>> considered a suspension."
>>>>
>>>> From: <Aikman-Scalese>, Anne <AAikman at LRLaw.com>
>>>> Date: Thursday, December 6, 2012 4:32 PM
>>>> To: "gnso-improvem-impl-sc at icann.org"
>>> <gnso-improvem-impl-sc at icann.org>,
>>> Julie Hedlund <julie.hedlund at icann.org>
>>>> Subject: RE: [gnso-improvem-impl-sc] FOR REVIEW: Suspending a
>>> PDP--Proposed Revised Footnote
>>>>
>>>> What is the relationship between "stated" and "until further
notice"?
>>> If
>>> "stated" applies, then it seems that "until further notice" would
not
>>> apply.
>>> Anne
>>>>
>>>> Sent from my Android phone using TouchDown (www.nitrodesk.com)
>>>>
>>>> -----Original Message-----
>>>> From: Julie Hedlund [julie.hedlund at icann.org]
>>>> Received: Thursday, 06 Dec 2012, 2:15pm
>>>> To: gnso-improvem-impl-sc at icann.org
[gnso-improvem-impl-sc at icann.org]
>>>> Subject: [gnso-improvem-impl-sc] FOR REVIEW: Suspending a
>>> PDP--Proposed
>>> Revised Footnote
>>>>
>>>> Dear SCI members,
>>>>
>>>> As we discussed on today's call, J. Scott has proposed a
>>> clarification to
>>> the footnote text for the PDP Manual, Section 15, on Suspending a
PDP.
>>> Please review the revised following text with the change in bold
all
>>> caps:
>>>>
>>>> "Suspension is a STATED time interval during which there is a
>>> temporary
>>> cessation of the PDP, i.e. all activities are halted upon a
decision of
>>> the
>>> GNSO Council until further notice. A mere change in milestones or
>>> schedule
>>> of the PDP is not considered a suspension."
>>>>
>>>> For reference, I have included the entire section below so that
the
>>> footnote may be viewed in context.
>>>>
>>>> It was suggested on the call that if this clarification is
accepted
>>> by the
>>> SCI members it will not require a new public comment period.
>>>>
>>>> **Please send any comments by COB Monday, 10 December so that if
the
>>> SCI
>>> decides to submit a motion it may do so by the deadline of
Wednesday, 12
>>> December.**
>>>>
>>>> With best regards,
>>>>
>>>> Julie
>>>>
>>>> Julie Hedlund, Policy Director
>>>>
>>>> 15.    Termination of PDP prior to Final Report
>>>>
>>>> The GNSO Council may terminate or suspend[1] a PDP prior to the
>>> publication of a Final Report only for significant cause, upon a
motion
>>> that
>>> passes with a Supermajority Vote in favour of termination
orsuspension.
>>> The
>>> following are illustrative examples of possible reasons for a
premature
>>> termination or suspension of a PDP:
>>>>
>>>> 1.     Deadlock. The PDP Team is hopelessly deadlocked and unable
to
>>> identify recommendations or statements that have either the strong
>>> support
>>> or a consensus of its members despite significant time and
resources
>>> being
>>> dedicated to the PDP;
>>>> 2.     Changing Circumstances. Events have occurred since the
>>> initiation
>>> of the PDP that have rendered the PDP moot, or no longer necessary;
or
>>> warranting a suspension; or
>>>> 3.     Lack of Community Volunteers. Despite several calls for
>>> participation, the work of the PDP Team issignificantly impaired
and
>>> unable
>>> to effectively conclude its deliberations due to lack of volunteer
>>> participation.
>>>>
>>>> If there is no recommendation from the PDP Team for its
termination,
>>> the
>>> Council is required to conduct a public comment forum first prior
to
>>> conducting a vote on the termination of the PDP (as described
above).
>>>>
>>>> [1] Suspension is a STATED time interval during which there is a
>>> temporary
>>> cessation of the PDP, i.e. all activities are halted upon a
decision of
>>> the
>>> GNSO Council until furthernotice. A mere change in milestones or
>>> schedule of
>>> the PDP is not considered a suspension.
>>>>
>>>> For more information about Lewis and Roca LLP, please go to
>>> www.lewisandroca.com.
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>>>>
>>
>>
>>


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