[council] Motion SubPro WG Final Report

Kurt Pritz kurt at kjpritz.com
Tue Feb 9 00:53:22 UTC 2021

Hi Philippe and Flip:
The bottom line to this email is that I believe the Council should have a discussion with respect to how:
1. the two recommendations not enjoying consensus support are forwarded to the Board, and
2. whether other ongoing policy issues should be allowed to intervene in the adoption and implementation of the Final Report
I do not think these discussions preclude a vote on the report, even if they do result in a modification to the Motion. 
With regard to the first issue: 
The Motion Flip ably drafted lays out the situation for us. We have a voluminous report with many recommendations, the vast majority of which enjoy consensus support. I believe our role is urge the Board to adopt those, which I think the resolution does. 
I also believe that the Council should provide specific advice to the Board regarding the resolutions that have not received consensus support. I have come to this belief because: 
1. In the past, Board members have always strongly encouraged any specific advice the Council or other policy-making bodies have to offer. The Board will appreciate the input from the Council given it is the GNSO’s responsibility to develop policy not the Board. 
2. The SubPro report is silent on the issue, providing no direction to the Board. The record of the SubPro deliberations indicates that a concern was raised that the Council would approve all recommendations regardless of support level and the Board would adopt them. The WG decided however, to not provide advice for the handling of these issues and rather leave it to the discretion of the Council. I think we should take that charge and discuss the issue raised but not addressed by the WG. It does not make sense that the WG has deferred to the Council and the Council is precluded from taking up the issue.
3. ICANN is a consensus-based organization and the Council should indicate to the Board that they cannot / should not easily create programmatic requirements that are not supported by community consensus. 
4. From the start, the Co-Chairs were clear that where the WG could not reach consensus that the status quo would prevail. It was never the intention to punt those decisions to the Board. It would be inappropriate to change those understandings across the WG at this stage.
5. The recommendations are not so inter-related to the other recommendations that they cannot be separated out without affecting the adoption and implementation of the other recommendations. They are readily separable. 
I believe that providing advice to the Board on the two non-consensus supported recommendations will also result in the fastest adoption and implementation of the Final Report.
1. It will provide a roadmap to the Board and facilitate their discussion. The Board repeatedly states it does not make policy.  If there no advice on the handling of “non-consensus recommendations,” the Board is likely to request clarification from the Council.
2. It will serve to avoid a re-litigation of the issues during implementation. 
3. It avoids an alternate discussion regarding the designation of consensus. By that I mean that, if the Council is precluded from this discussion, the only remaining discussion for the Council or the Board to gain an understanding of the support for the “non-consensus” recommendations is to study how consensus levels were designated. That might require requests for information and reports that would extend the process in a contentious manner. 
Therefore, I believe the Council should discuss whether to provide advice to the Board that: (1) the myriad of  recommendations supported by consensus of the  WG should be adopted, and (2) those not supported in such a manner should not be adopted. 
With regard to the second issue: 
It has been raised by the SubPro WG leadership that the Board / ICANN staff / others have recommended that the SubPro implementation should be tolled pending outcomes of IDN and DNS Abuse work. 
It is worth discussing a potential amendment to the motion that indicates that the Council recommends that the SubPro Report should be adopted and implemented without delaying for other policy outcomes. 
The primary rationale for such a resolution would be that: (1) there is always some ongoing policy initiative and we cannot wait for all issues to be decided before moving ahead or any progress might become impossible, and (2) the IDN and abuse issues affect all TLDs, not just gTLDs and especially not yet-to-be born gTLDs. 
I think such a resolution would provide cover for the Board to move ahead, and also provide a service to the ICANN model to, in some way, expedite the work of ICANN.

I hope you accept this overly long email in the spirit it was intended. This has been a long effort on the part of many people and we should not short-change that effort in our consideration for expediency. I think this is important. 
Best regards,

> On Feb 8, 2021, at 10:37 AM, <philippe.fouquart at orange.com> <philippe.fouquart at orange.com> wrote:
> Dear Councilors,
> Having discussed this within the leadership, and with the WG chairs and the liaison, you would have noted that we approached this motion for the SubPro final report in the most straightforward and simple way, both in terms of timing and framing: 
> -          the SubPro motion is up for a vote at the next Council call; and 
> -          it’s all-in-one package - with the phrasing that Flip described, depending on the degree of consensus reached.
> Given the importance of the work of SuPro for the Community, we pondered over the need for another discussion item at the next Council call and wanted offer all opportunities for Council to discuss this as much as necessary. On the other hand we did want to take into account the feedback we have received so far and not overstretch our exchanges unnecessarily.
> Our appreciation of the feedback/questions/concerns expressed during both our discussion item at the last council call and the SubPro final report webinar lead us to believe that having the above was the best approach. 
> If this assessment is inaccurate and if some councillors/SG-Cs consider that our January discussion item and the webinar do not suffice for them to be fully informed on the motion prior to our vote, it is your time to say so. 
> Flip remains available for assistance if need be for any clarification, but again we want to make sure everyone’s duly informed and comfortable when the time of voting comes.
> Thanks,
> Regards,
> Philippe 
> From: council [mailto:council-bounces at gnso.icann.org <mailto:council-bounces at gnso.icann.org>] On Behalf Of Flip Petillion
> Sent: Friday, February 5, 2021 10:00 PM
> To: GNSO Council List <council at gnso.icann.org <mailto:council at gnso.icann.org>>
> Subject: [council] Motion SubPro WG Final Report
> Dear Councilors,
> Attached please find a Motion to Adoption of the Policy Development Process on New gTLD Subsequent Procedures Final Report.
> The motion is structured in such a way that the Council will be voting on the Final Report as one package.  That said, because two of the hundreds of Outputs had strong support but significant opposition, we have bifurcated the resolved clauses to (a) recommend the implementation of those Outputs that had either consensus or full consensus designations and (b) consider the Outputs that have strong support but significant opposition as well as the associated rationale in the report and the minority statements.
> We believe that providing the entire report to the Board for its consideration is important for the Board to understand how we arrived at where we are and to give those very few areas without consensus some context.  We are not stating that the Board MUST implement those elements that did not have consensus, but we are giving them full information so that either they can make a decision on how to proceed on those, or ask for future work.
> Although there are these couple Outputs that did not attain at least Consensus, and one Output (Closed Generics) where there is consensus that there is no agreement, we do not believe that a Council substantive discussion on these issues or remanding it back to the Working Group, would result in a different result.  There are good arguments on all sides of these issues and the Working Group spent  a number of years trying to come up with compromise proposals without success. These are areas where we believe that guidance from the Board will be necessary to make further progress on these issues.
> Should you have questions, I am at your disposal for a call to discuss these. I would appreciate it should you share your questions in the list beforehand.
> Respectfully submitted, 
> Flip
> Flip Petillion
> fpetillion at petillion.law <mailto:fpetillion at petillion.law>
> +32484652653
> www.petillion.law <http://www.petillion.law/>
> <image001.png> <https://www.petillion.law/>
>   Attorneys – Advocaten – Avocats
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