Jonathan Robinson jonathan.robinson at ipracon.com
Fri Nov 30 10:28:09 UTC 2012

Thanks Bruce, that's helpful additional context.  Jonathan.

-----Original Message-----
From: owner-council at gnso.icann.org [mailto:owner-council at gnso.icann.org] On
Behalf Of Bruce Tonkin
Sent: 30 November 2012 10:20
To: council at gnso.icann.org
Cc: Marika Konings
Subject: [council] RE: POLICY vs. IMPLEMENTAION

Hello Jeff,

>>    Perhaps rather than coming out with a document from "staff", you
solicit a few volunteers from the community to help staff in the preparation
of this initial cut of the paper.  For too long the community is forced into
a reactive mode once staff in isolation comes up with its position (which
may or may not be reflective of the community's thoughts).  Then staff
traditionally is in a position to "defend" its position and the community
feels like it is too late to have an impact.  I do not believe that is the
right way to proceed.  If you get a small group together that works on this
initial paper with you, staff does not have to take on this burden alone and
the community can feel like it has made a contribution.

This paper was produced at the direction of the Board Governance Committee
(BGC), in response to the ATRT recommendation 6 that stated:

" The Board should clarify, ....  the distinction between issues that are
properly subject to ICANN's policy development processes and those matters
that are properly within the executive functions performed by the ICANN
staff and Board and, as soon as practicable, develop complementary
mechanisms for consultation in appropriate circumstances with the relevant
SOs and ACs on administrative and executive issues that will be addressed at
Board level."

The paper - pointed out the clear cut cases of topics that go through a
routine public comment process (e.g on the operating plan), and topics that
go through the full PDP (e.g the new gTLD policy).

However we recognized that many areas were falling in between the two
situations, and that the processes were very ad-hoc.   Examples include the
process of consultation on vertical integration, additional trademark
protections (IRT team, and GNSO STI team, and most recently the various
consultations on the trademark clearinghouse design and yet more proposals
for additional trademark protections.

The paper stated:

	" This raises the question whether it would be beneficial to develop
a more formalized process for requesting and developing community advice or
input that does not require the implementation of a formal PDP and for which
the public comment mechanism is not sufficient.

	As the frequency of use of this function increases, ICANN is now
initiating conversation among the community to help formalize this process.
A 	workshop is scheduled at the ICANN Meeting in Toronto to inform this

The BGC was disappointed about the lack of discussion of this important area
in Toronto (I think there were less than 10 people in the room, and about
half were Board directors).   See the attached slides that pose open
questions for the community.   However I understand the issue around
scheduling problems, and the lack of awareness that the session was
discussing the issues you raise.

We certainly agree with you that it is an important topic and a source of
tension between various parts of the community due to the lack of
predictability in the process.

I am more than willing to consider other ways to have the conversation.  I
think the BGC would be happy to have a dialog with a smaller group, or the
GNSO could even form a working group to begin discussing this.  Basically I
am open to ideas from members of the GNSO community for how best to take
this forward.

Note that I was part of the original "small group" that designed the
original PDP within about 30 days with a few teleconferences.  The process
seems to be right but the timelines have consistently not worked, and there
are issues when one or more parties seek  to deliberately delay the process
rather than focussing on the discussion of content.   The deliberately
stalling of the PDP process or the lack of genuine willingness to find a
compromise is one of the reasons many seek to create ad-hoc mechanisms to go
around it.

Bruce Tonkin
Chair, Board Governance Committee

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