[council] Response from chair of the New gTLD Program Committee

Bruce Tonkin Bruce.Tonkin at melbourneit.com.au
Thu Jun 6 09:50:18 UTC 2013

-----Original Message-----
From: Cherine Chalaby [mailto:cherine.chalaby at icann.org] 
Sent: Thursday, 6 June 2013 7:07 PM
To: Neuman, Jeff; Jonathan Robinson
Cc: Steve Crocker; Bruce Tonkin; 'council at gnso.icann.org'; Cyrus Namazi; Fadi Chehade; Michelle Bright; Megan Bishop; Amy Stathos; John Jeffrey
Subject: Re: Agenda - 11 June 2013 - New gTLD Program Committee

Jeff and Jonathan,

Thank you for bringing this matter to our attention and for clearly stating that the main issue for the GNSO Council is not so much about whether the New gTLD Program Committee (NGPC) upholds the decision relating to the BGC's recommendation on the reconsideration request 13-3, but there is a concern about the documented rationale supporting the recommendation.

Let me assure you that on the Board and the NGPC we always thrive at improving the rationale supporting our decisions.  We will therefore remove the reconsideration request 13-3 from the agenda of the NGPC meeting scheduled for 11th June.  We are currently holding weekly NGPC
meetings and the next two meetings are on 18th and 25th June.   We will
put reconsideration request 13-3 on the agenda for the 25th June meeting in order to give the GNSO Council sufficient time to discuss with its community and to write to the NGPC.

All the best,

On 05/06/2013 22:28, "Neuman, Jeff" <Jeff.Neuman at neustar.us> wrote:

>Yes, thanks for the correction that it will be the new gTLD Program 
>Committee that will be considering the BGC recommendation on the 11th 
>(2 days before the GNSO Council Meeting).  I was planning on doing a 
>presentation to the council on the 13th about the recommendation.
>In short, the BGC's recommendation basically (1) Assumes that if an 
>issue involves "implementation", then there is no reason to look to the 
>bottom-up process to get advice on that issue (and if they do get 
>advice (even consensus advice), they can ignore it and go with whatever 
>ICANN staff recommends; (2)  the ICANN Staff/Board is the sole arbiter 
>in deciding whether something is Policy or Implementation regardless of 
>whether the group charged under the bylaws with developing policies 
>(here, the GNSO) believe that the issue does involve policy; and (3) 
>there is no meaningful review process or accountability if the 
>community believes that ICANN Staff's determination on whether 
>something is policy or not is plain wrong.  The fact that 
>Reconsideration never looks at the substance of the issue at hand, but 
>only looks to whether a process was followed is incredibly problematic.
>In this recommendation, although the GNSO strongly stated the Trademark 
>plus 50 decision was in fact policy (with one group issuing a minority
>opinion) and the ICANN staff initially agreed it could be considered 
>policy, ICANN staff later decided on its own that it was implementation.
>Because ICANN Staff is not bound to accept the finding of the GNSO that 
>it was policy, and ICANN staff labeled it implementation, ICANN staff was
>free to make the changes as it saw fit (again with no review).    So
>essentially the recommendation states: (1) ICANN staff determined that 
>it was implementation, (2) there is and can be no review of that 
>decision through the reconsideration process, and (3) there is no 
>requirement that ICANN staff get input from the community or even 
>listen to the community if the ICANN staff determines that something is implementation.
>To add insult to injury, the outside law firm that wrote the 
>recommendation wrote it in the style of a litigation brief making such 
>ludicrous arguments (which cannot be reviewed), like [and I am
>paraphrasing]:  "Yes, the ICANN CEO said previously that this issue CAN 
>be considered policy."  It goes on to state that the CEO  carefully 
>chose this word because in saying that it "CAN" be policy, that also 
>equally means that it might not be policy and therefore the written 
>statement by the CEO was not an admission that it was in fact policy. I 
>find this argument insulting. Is this really what we expect of ICANN as 
>an multi-stakeholder organization?  Namely, to consistently use weasel 
>words (reviewed by legal counsel) so that one day if ever questioned on 
>a statement he or she made, the legal team can find a loophole and get 
>out of a commitment that ICANN makes.  Shouldn't we expect more from an 
>organization that is supposed to look out for the public interest?
>Steve - In the end I could care less about the substantive decision to 
>allow the Trademark plus 50 (although a number of people do care about 
>this).  The decision was made and my registry will implement that 
>decision because we have to.  However, there were probably 50 other 
>ways that ICANN's BGC could have justified the decision it made.  I 
>would rather have ICANN apologize for the way it handled the situation, 
>promise that it won't happen again that way, and then move on to the 
>real work of implementing the new gTLDs.  Instead, we got an overly 
>legalistic brief which is an after-the-fact justification for what they 
>did using a rationale that destroys the multi-stakeholder model.
>I intend to provide more information during the Council meeting and 
>would encourage attendance from the BGC.  However, I would ask that the 
>New gTLD Program Committee not proceed on making a decision on this 
>recommendation until it could be adequately discussed by the community.
>Sorry for the long note and I would be happy to give more concrete 
>examples from the recommendation.  I just ask for more time.

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