Comments on Commercial Stakeholder Group Charter

Robin Gross robin at IPJUSTICE.ORG
Fri Jul 24 02:16:39 CEST 2009


Below and attached are NCUC's comments on the Proposed Charter for a  
Noncommercial Stakeholder Group (CSG).

Another big thanks to Mary for drafting the comment.

Best,
Robin


---------------
NCUC Comments on the Proposed CSG Charter

23 July 2009

The Non-Commercial Users Constituency (NCUC) welcomes this  
opportunity to comment on the various Stakeholder Group (SG) charters  
that have been put up for consideration and community discussion.   
NCUC also appreciates the fact that ICANN Staff have attempted to set  
some uniform standards of transparency, openness, fairness and  
courtesy (among others) across all SGs.  Nevertheless, NCUC has grave  
concerns regarding the adoption of the Commercial Stakeholders Group  
(CSG) Charter as it currently stands. These concerns are as follows:

(1) Approval of New Constituencies
The Charter potentially, and possibly effectively, limits membership  
of the new CSG to its existing Recognized Constituencies, since it  
subjects examination of whether any new constituency sufficiently  
represents “commercial user interests” to the “unanimous  
consent” of the existing Recognized Constituencies[1].

"4.2 Membership shall also be open to any additional constituency  
recognised by ICANN’s Board under its by-laws, provided that such  
constituency, as determined by the unanimous consent of the  
signatories to this charter, is representative of commercial user  
interests which for the purposes of definition are distinct from and  
exclude registry and prospective registry, registrar, re-seller or  
other domain name supplier interests."  (italics added).

Provision 4.2 of the proposed CSG (drafted by existing commercial  
constituencies) is untenable for the following reasons:
(i) it goes against the Board’s express desire to encourage the  
formation of new constituencies and increase the growth and  
diversification of the overall GNSO community, including forging a  
“stronger partnership between the international business community  
and ICANN”[2];

(ii) it arrogates to the CSG the constituency approval function more  
properly exercised by the Board of Directors (particularly for a  
nonprofit organization with heightened obligations to not be driven  
by commercial interests); and

(iii) in light of recent discussions within the GNSO Council and the  
community as to who and what would constitute a “commercial”  
interest and/or user[3], the requirement of unanimous consent from  
all existing commercial constituencies is extremely likely to mean  
that no new constituency will be formed within the CSG for as long as  
its transitional status exists.

(iv)  it treats commercial stakeholders different from noncommercial  
stakeholders, with the board controlling noncommercial users, while  
giving commercial users a VETO over the board’s decisions.

It is no answer to say that the CSG Charter is merely  
“transitional”, as the Charter’s own silence regarding how new  
constituencies can be formed within the final CSG means that the GNSO  
community is left in a state of uncertainty – to await the CSG’s  
undefined “consensus process”[4] regarding what is intended to be  
a significant feature in the restructured GNSO.  This uncertainty is  
further aggravated by the explicit acknowledgment that how new  
constituencies are to be created is something that the CSG will  
determine only after its transitional Charter is approved[5]

NCUC believes that the CSG Charter, even as a transitional document,  
should be amended to reflect that decisions as to the formation of  
new constituencies should be made by the Board and not the Recognized  
Constituencies or any other person or group within the CSG.



(2) Election of Representatives/Councilors
             The CSG Charter contemplates the selection of two (2)  
representatives from each of the Recognized Constituencies, for a  
total of six (6) representatives, which NCUC assumes will serve as  
the transitional CSG’s Councilors to the Non-Contracting Party  
House. There is no provision for transitioning these six (6)  
representatives to the Final CSG Charter, for limiting or staggering  
their service terms, or for including representatives of new  
constituencies that may form during the transition period. Given that  
the timetable for fully implementing a restructured GNSO has been  
rescheduled in certain respects, and may possibly be again, NCUC  
believes that the lack of detail in the CSG Charter dealing with  
issues of representation must be addressed before it is approved and  
adopted.
  (3) General Comments
              As mentioned above, the draft transitional CSG Charter  
is extremely brief and gives no guidance as to how the Recognized  
Constituencies intend to operate within the restructured GNSO.  NCUC  
invites the Board, ICANN Staff, the CSG and other members of the  
community to compare the brevity and generality of the CSG Charter to  
that being proposed by the Board and ICANN Staff for the new Non- 
Commercial Stakeholders Group (NCSG), the other SG making up the Non- 
Contracting Party House.  Although that Charter, too, is termed a  
transitional document, it is far more controlling and detailed, e.g.  
in describing the processes and voting procedures within an Executive  
Committee (EC).  The difference in treatment between the CSG and the  
NCSG as can be clearly seen in the proposed charters is staggering,  
and points to ICANN’s deference to insider-lobbying by large  
companies in formulating policy.
             To the extent that both proposed CSG and NCSG Charters  
(as put up for public comment) are intended to be transitional in  
nature, and since both the CSG and NCSG will comprise the Non- 
Contracting Party House, NCUC believes that both Charters ought to  
reflect a similar level of detail, particularly as regards  
operational details relating to the existence, creation and  
representation of new Constituencies[6].
NCUC has been engaged in recent and extensive discussions with the  
Board’s Structural Improvements Committee (SIC) regarding  
substantive changes to the NCSG Charter originally proposed by NCUC,  
which changes (as reflected in the ICANN Staff’s current draft  
available for public comment) resulted in part from feedback provided  
by other GNSO Constituencies.  We request that the Board, ICANN Staff  
and the GNSO Community ensure that the CSG Charter be subject to  
similar scrutiny and input.


[1] Section 4.2 of the proposed CSG Charter available at: http:// 
gnso.icann.org/en/improvements/csg-proposed-petition-charter-22jun09.pdf

[2] See p. 32, Board Governance Committee Working Group (BGC WG)  
Report on GNSO Improvements.

[3] E.g. the question of which of the two SGs in the Non-Contracting  
Party House new groups such as the proposed new IDNgTLD constituency  
should belong to.

[4] Section 8.2.

[5] Section 9.
[6] See, e.g. Board Resolution #7(b) from its May 2009 meeting,  
calling for the SIC and ICANN Staff to revise “most” Charters to  
“ensure equitable participation and representation by new  
constituencies”. To the extent that the SIC and ICANN Staff have  
attempted to revise the original proposed NCSG Charter to do so, NCUC  
believes that a similar exercise should be undertaken with respect to  
the CSG Charter.

--------
Footnotes:

[1] Section 4.2 of the proposed CSG Charter available at: http:// 
gnso.icann.org/en/improvements/csg-proposed-petition-charter-22jun09.pdf

[1] See p. 32, Board Governance Committee Working Group (BGC WG)  
Report on GNSO Improvements.

[1] E.g. the question of which of the two SGs in the Non-Contracting  
Party House new groups such as the proposed new IDNgTLD constituency  
should belong to.

[1] Section 8.2.

[1] Section 9.
[1] See, e.g. Board Resolution #7(b) from its May 2009 meeting,  
calling for the SIC and ICANN Staff to revise “most” Charters to  
“ensure equitable participation and representation by new  
constituencies”. To the extent that the SIC and ICANN Staff have  
attempted to revise the original proposed NCSG Charter to do so, NCUC  
believes that a similar exercise should be undertaken with respect to  
the CSG Charter.



IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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