[bylaws-coord] Amendments to Articles of Incorporation

Sun Mar 13 01:38:48 UTC 2016

Dear John and Sam:

We're pleased to distribute proposed amendments to the Articles of Incorporation of ICANN, to conform the Articles to the CCWG Final Proposal.  We have two comments that may be helpful in your review.

*        You will note some highlighted text in Article 3.  Since the Articles govern the Bylaws in the event of any inconsistency between them, this text needs to be reviewed to ensure that proposed new Bylaws provisions in Annex 5, Paras. 72, 77, 80, and 83, are fully consistent with this description.  In the event of any inconsistency, changes should be made to this text in the Articles.

*        The minor edits to Article 4 are intended to make the Articles track more closely language in Annex 5, Para. 109, on the same subject.  (Note that the quote from the Articles on this subject found in Annex 5, Para. 5, is slightly inaccurate.)

In addition to the edits required to conform the Articles to the CCWG Final Proposal, you may wish to consider recommending to the ICANN Board making some additional edits now, in anticipation of the scrutiny this document may shortly be receiving outside of ICANN.  These amendments could be made by the Board alone, before the CCWG Final Proposal amendments are adopted.

1.      Article 2, naming the corporation's agent, is required to be included when Articles of Incorporation are initially filed with the Secretary of State.  If the agent changes after that, the information in this provision is obsolete, but it cannot be amended to update the name of the agent.  Section 5810(b) of the California Nonprofit Public Benefit Corporation Law does permit this provision to be deleted once the corporation has filed its initial biennial Statement of Information, and it is standard corporate practice to do so whenever the Articles are amended for other reasons.

2.      The third sentence in Article 3 refers to the possibility of future versions of the Internal Revenue Code ("IRC").  While referring to a "further" law is not entirely wrong, we think substituting "future" would be a more common and easily understood usage.

3.      Subsection (e) of Article 5 prohibits control of ICANN by "disqualified persons" as defined in IRC Section 4946,  or by a specific subset of 501(c)(3) tax-exempt organizations.  There is no legal requirement that ICANN's Articles include this prohibition, so we assume it is a matter of ICANN internal policy.  The reference to the IRC section defining "disqualified persons" is to the definition that applies for private foundations; the applicable definition for a public charity like ICANN is Section 4958, so if this subsection is retained, you may wish to correct that reference.  However, we would be hard-pressed to explain why this prohibition appears in ICANN's Articles at all now, and especially, if control over ICANN is a concern, why control by only a subset of 501(c)(3) nonprofits is prohibited, but not control by other types of tax-exempt organizations or for-profit entities.  Moreover, we think it is unlikely that ICANN has any disqualified persons under IRC Section 4946 other than its foundation managers (directors, officers, and senior executive staff); does ICANN maintain a list of such other disqualified persons, or otherwise monitor compliance with this subsection?  Given all these concerns, we would recommend deleting subsection (e) of Article 5.

4.      Article 8 addresses the possibility that ICANN might some day convert from 501(c)(3) public charity status to exemption as a trade or professional association under IRC Section 501(c)(6).  Since ICANN's assets are now irrevocably dedicated to charitable purposes by both federal tax law and California charitable trust law, any such conversion would require all ICANN's assets prior to the conversion to be distributed to or for 501(c)(3) organizations or purposes, making the cost of any such conversion prohibitive.  Keeping this provision at this point serves no practical function, and could confuse a reader regarding ICANN's long-standing and on-going tax-exempt status under IRC 501(c)(3).  We suggest deleting Article 8.

With the exception of item 2 above (which is a one-word substitution), our recommendations are all deletions, shortening and simplifying the document, and eliminating confusing or no longer applicable provisions.  We think these changes would facilitate review by NTIA and Congressional staff.

Holly and Rosemary

Rosemary E. Fei
Adler & Colvin
235 Montgomery Street, Suite 1220
San Francisco, CA 94104
415/421-7555 (phone)
415/421-0712 (fax)
rfei at adlercolvin.com<mailto:rfei at adlercolvin.com>
www.adlercolvin.com<http://www.adlercolvin.com>

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