[council] Clarification & next steps for Rec 6 motion

Mary Wong Mary.Wong at law.unh.edu
Mon Dec 6 19:12:47 UTC 2010

Thanks, Tim - my responses are below.

Mary W S Wong
Professor of Law
Chair, Graduate IP Programs
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAWTwo White StreetConcord, NH 03301USAEmail: mary.wong at law.unh.eduPhone: 1-603-513-5143Webpage: http://www.law.unh.edu/marywong/index.phpSelected writings available on the Social Science Research Network (SSRN) at: http://ssrn.com/author=437584>>> 

(1) I don't really believe this. If you carefully consider what Staff
says it is clear that at least some sense of the Board is being
reflected in the reply. Is it a formal Board response, no. But to
characterize it as only a Staff response is not right either.
MARY: I'm not sure that is true (though I obviously can't know what happened in between the CWG report and the staff document) - from what was said during the GAC-GNSO meeting and conversations with a few Board members I really do think my assertion does at least represent the views of some on the Board.

(2) Does the response from the CWG have the full consensus of the CWG?
Some I have heard from indicate that based on the Staff/Board response
they nave changed their position on some of the recs. So if the CWG does
forward with a response I think it should be clear as to who supports
MARY: All the CWG members who have weighed in on the response so far have agreed with its contents. I hadn't heard that some have changed their minds, though to my mind that does not amount to their rescinding their support for the Full Consensus recommendations. This may be a good opportunity for the GNSO to consider the best language for the motion. It may be that we don't agree sufficiently to do a full endorsement, but we are not, for example, precluded from at least acknowledging the report and encouraging speedy resolution of outstanding questions raised by the staff, so as to enable closure on what is still a somewhat open issue in the DAG (until the Board speaks). 
(3) This is why you should not have made such an 11th hour motion. I
think it will be difficult to near impossible for us to vote in favor of
this motion.
MARY: I guess we'll have to agree to disagree on this one :) Many of us had been given to understand that the Board was likely to vote on Rec 6 implementation by this Friday, and the CWG had already been informed that silence would be interpreted as lack of support from the GNSO - something that I think you'll agree is significantly different from the GNSO not having had the time or opportunity to discuss or vote on it.
I actually think that if we hadn't had the motion and thus the Saturday session, the Board would most likely not have engaged us on the issue, and they would have proceeded to vote on Friday without any GNSO input. 
I still hope we can come to agreement on satisfactory wording for the motion.


> -------- Original Message --------
> Subject: [council] Clarification & next steps for Rec 6 motion
> From: "Mary Wong" 
> Date: Mon, December 06, 2010 9:37 am
> To: 
> Hello everyone, 
> I thought it would be useful if I provide some additional context and clarification regarding the Rec 6 motion that is up for voting this Wednesday. Bearing in mind that the Rec 6 CWG was approved and chartered by us in September, and that silence or a down vote by us on this matter will be viewed as a lack of support by the GNSO of the work done (unlike, say, the STI recommendations which we endorsed and that resulted in substantive changes to the DAG), I am hopeful that we can arrive at satisfactory language for a positive outcome on the motion.
> Here are some points that may not have been made entirely clear before:
> (1) The explanatory memo setting out reasons for not adopting some CWG recommendations is a staff document, not a Board-endorsed response. In fact, the Board is interested to know what the GNSO thinks before voting/acting on this issue in the DAG.
> (2) There is a pending response from the CWG to the staff, based on questions and discussions arising from the staff memo, which the CWG expects will clarify certain of its recommendations for the staff (and hence the Board). I expect this response to be forwarded very shortly, possibly even today.
> (3) As mentioned above, a lack of Council action on Rec 6 is very likely to be taken as lack of support for any of the CWG recommendations, including the numerous ones that received Full Consensus. I believe this would be detrimental to both our managerial and our representative role, and further believe that this would NOT necessarily mean the Board will therefore vote to move ahead immediately with new gTLDs (particularly given points (1) & (2) above.) In other words, the Board may vote to postpone its decision on the matter pending further resolution and action from us and/or the GAC.
> (4) I understand that some SGs/constituencies may not have had the bandwidth to fully discuss all the recommendations (note that the CWG report does state the following: 
> "Given the short duration of the Rec6 CWG's existence, the participating supporting organizations and advisory organizations have not been provided with the opportunity to review and comment on this Report. The Rec6 CWG recommends that each participating organization should follow its procedures as described in the ICANN Bylaws as may be necessary or appropriate to comment on and communicate to the ICANN Board the opinion of its members with regard to the recommendations contained in this Report....")
> I would like to be able to discuss any suggested changes to the motion that will make it more acceptable to you and your SGs/constituencies. Please let me know if and when you would like to do so before Wednesday. I hope we can arrive at a mutually agreeable motion that will allow the Board to act with better information and input from the GNSO.
> Thanks very much,
> Mary
> Mary W S Wong
> Professor of Law
> Chair, Graduate IP Programs
> Two White Street
> Concord, NH 03301
> 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

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