[Ccwg-auctionproceeds] NOTES & ACTION ITEMS | Wednesday, 25 March 2020 at 14:00 UTC

[Aikman-Scalese, Anne]

Thank you Joke, with respect to the “Decision” section, first bullet point, I think the final decision was to include the new proposed language in the Final Report (after Sam modifies it) and to include the second question to ICANN Legal and the response in the Implementation Guidance.

Anne

From: Ccwg-auctionproceeds <ccwg-auctionproceeds-bounces at icann.org> On Behalf Of Joke Braeken
Sent: Wednesday, March 25, 2020 7:59 AM
To: Ccwg-auctionproceeds <ccwg-auctionproceeds at icann.org>
Subject: [Ccwg-auctionproceeds] NOTES & ACTION ITEMS | Wednesday, 25 March 2020 at 14:00 UTC

[EXTERNAL]
________________________________
Dear All,



Please find included below the action items and notes from today’s CCWG new gTLD Auction Proceeds meeting, held on Wednesday, 25 March 2020 at 14.00 UTC.

Notes were taken as well in the templates themselves, discussed during today’s meeting. Those templates will be shared with the CCWG by the end of the week, to allow the group to review the proposed CCWG agreements.

The high-level notes included below are designed to help the CCWG navigate through the content of the call and are not meant as a substitute for the transcript and/or recording. The recordings are provided separately and are posted on the wiki at: https://community.icann.org/x/DLHDAw . Thank you.



Best regards,  Joke Braeken



NOTES / ACTION ITEMS



These high-level notes are designed to help the CCWG navigate through the content of the call and are not meant as a substitute for the transcript and/or recording. The MP3, transcript, and chat are provided separately and are posted on the wiki at: https://community.icann.org/x/DLHDAw .



  1.  Welcome/Agenda Review/SOI Updates



Attendance will be taken from the zoom room.  Welcome by co-Chair Erika Mann.

Please remember to check your SOI/DOIs on a regular basis and update as needed


2.                  Review of public comments on the Proposed Final Report (focus on responses to public comment question #4, see attached public comment review template)


Comment #1

  *   No additional comments raised.


Comment #2

  *   Input from ICANN legal received.

Comment from the BC: “The BC notes that the CCWG has already recognized that Bylaws must be amended to eliminate Request for Reconsideration and Independent Review Panel from the available remedies to challenge grants. These are amendments to Fundamental By-Laws and which should require Empowered Community approval.”

·         Question for ICANN Legal: It is the leadership team’s understanding that a carve out would be needed from existing accountability mechanisms as any Board decision could be challenged under the existing accountability mechanisms (including the approval of allocation of auction proceeds). Therefore, an exemption is needed if Board decisions on auction proceeds are not challengeable under existing accountability mechanisms. Can you confirm that this is correct?

·         Legal Response: Yes, this is correct.  This will require an amendment to the Fundamental Bylaws, as the BC note suggests, in order to effectuate this carve out.  The Fundamental Bylaws process requires Empowered Community approval.  This does not mean that the Empowered Community must approve the CCWG Final Report, though we should be clear (as there is cross-over between the Decisional Participants in the Empowered Community and the Chartering Organizations for the CCWG) that a Bylaws change is necessary and will be forthcoming.  Of course, the Bylaws change will have to be appropriately drafted and will be subject to all appropriate processes.


Anne: grants themselves are not Board decisions, but evaluation panel decisions. The response from legal relates to the bylaws amendments. The confusing language is "including the approval of allocation of auction proceeds" - allocation is normally a budget term and we have to clarify that EC powers are not diminished as to the overall Budget item

Legal: we understood this as “how things are challenged, at large”



Comment from the BC: ". . .The BC is also concerned that the final recommendation does not contain sufficient detail to ensure that the empowered community retains the ability to oversee ICANNs proposed budget and the disbursement of the auction proceeds. In particular, the Empowered Community should retain its ability to enforce accountability mechanisms related to items in the ICANN budget that are proposed to be allocated to grant making activity. The Final Report should also clarify that any changes to the bylaws needed to implement the report are not intended to strip the Empowered Community of its budgetary authority."

·         Question for Sam: Regarding the text in bold, it is not clear to the leadership team that the Empowered Community is relevant to the allocation of auction proceeds. As auction proceeds funds are kept and accounted for separately, does it even fall within the EC’s purview?

·         Legal Response: The place where the Empowered Community's powers come in is only in relationship its specified powers in the Bylaws.  The Empowered Community powers includes rejection powers on the Five-year strategic plan, on the Five-year operating plan, on the annual operating plan and on the annual budget, which would include grant making activities as relevant. There are no plans to change any of those Empowered Community powers other than in the broader scope of carving out individual application decisions from ICANN's Reconsideration or Independent Review processes. To the extent that there are items represented in ICANN's budget or operating plans that relate to grant making activities, the Empowered Community powers would be applicable.  If there are separate budgets or plans that are appropriate to maintain for ICANN's separate grant-making mechanism work, the details of how that interacts with the Bylaws-mandated budgets and plans will need to be addressed during implementation.



Allan: the IRP is not limited to Board Actions. Including actions or in-actions of staff. If someone applies for a grant, and we say no, they do not have a right to appeal through the accountability mechanisms.

Anne: response form ICANN legal is helpful.  Language we had regarding change of fundamental bylaw to be reviewed by Anne.

Sam: IRP does not extend to contractors. It is about whether ICANN followed its Bylaws/Mission.

if ICANN improperly relies on actions taken by a subcontractor, then you challenge ICANN’s action, not the subcontractor’s action.

Emily: I don’t believe there is currently language in the proposed Final Report addressing the Empowered Community. This may be something that the leadership team needs to take back and propose language to include


Sam: in the future, do we need further details regarding the budgetary or planning powers by ECA? Language as currently in place should be sufficient.

Allan: no need to mention the ECA in the report, but to be on the safe side, include it anyhow. We are aware of the situation. We understand that to change the EC, we need a fundamental bylaw change

Allan: limit in the implementation guidance to the 2nd question.

Sam: does not want it represented in the bylaws. Small details could cause interpretation issues in the bylaws

Allan: put a statement in the report, that if the EC felt that the tranche allocated to the AP, was either too small/large it could be subject to community action.

Erika: this was not yet discussed. Approval by board.

Sam: We’d want to coordinate with Xavier on any language that addresses specific budget items

Anne: Suggest "For the sake of clarity, the recommended ByLaws amendment is not intended to affect the powers of the EC over the overall Budget as expressed in the current ByLaws".

Sam: we probably want to make it a bit broader to reflect that the EC powers are broader than just over the budget, but I think that your language is a good starting point


Decision:

·         frame the issue raised, do not expand language in the report itself, but add to the list of issues that needs to be addressed during the implementation phase.

·         Add language, based on Anne’s suggestion "For the sake of clarity, the recommended ByLaws amendment is not intended to affect the powers of the EC over the overall Budget as expressed in the current ByLaws". Take into account Sam’s remark regarding making it broader


Comment #3

  *   No further comments by the group


Comment #4

  *   No further comments by the group
  *   CCWG chair expresses thanks for Board involvement and input


Comment #5

  *   Support of the leadership recommendation by Carolina, Anne, Judith, Vanda
  *   Allan: similar to previous discussion regarding feasibility study / assessment.


Comment #6

  *   No further comments by the group


3.                  AOB


a.                  Review of timeline to complete the CCWG’s work


[https://lh6.googleusercontent.com/YFzjWps03Do8ski9kzKxI4KueUiZ2Ilh1xlBSPGTVYFKvSupyFGQjqAcxYU5waEZsXAt3EqGZ1WnFChroBgoEOfqjrKBkA5yQlukXJU5LLBjznfTGVnNxsOk8VXyjdOcFC_7Vx_Y]

Thank you all. Stay safe, and take care.




Joke Braeken
ccNSO Policy Advisor
joke.braeken at icann.org<mailto:joke.braeken at icann.org>

Follow @ccNSO on Twitter: https://twitter.com/ccNSO
Follow the ccNSO on Facebook: https://www.facebook.com/ccnso/
http://ccnso.icann.org


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