NTIA Vetoes Compromise Proposal on GAC Advice to ICANN Board

Above right: Stress Test 18 "Compromise proposal" under consideration by CCWG-Accountability 23 Nov 2015

In a "last minute" move by the US Government (US Department of Commerce's NTIA), the "Compromise Proposal" (see above) under consideration by CCWG-Accountability (Cross Community Working Group on Enhancing ICANN Accountability, which is part of the total IANA Stewardship Transition process announced March, 2014, by NTIA), dealing with ST18--GAC advice to the ICANN Board--was effectively vetoed via email sent to the CCWG mail list on November 25, 2015 (emphasis and links added):

"Hello everyone, Assistant Secretary Strickling has asked that I share this with the CCWG.  Best regards, Suz (Suzanne Radell of NTIA, US Department of Commerce).

"NTIA Statement on Stress Test 18, November 25, 2015

"NTIA has been closely following the discussions in the CCWG-Accountability, including the recently concluded small group on stress test 18.  As has been the case throughout the work of the CCWG, we are impressed by the time and dedication so many of you are putting into these important discussions.  We thank everyone for their efforts as the group works to finalize the proposal for publication on November 30. 

"NTIA has long believed that governments, like all stakeholders, have an important role to play within multistakeholder processes, including ICANN.  Our position on that has not changed.  As the CCWG finalizes its proposals for enhancing ICANN’s accountability, we feel we should reiterate our view, as we stated last July, that ICANN preserve and clarify the current practice of the Board  in responding to advice it receives from the Governmental Advisory Committee (GAC). Specifically, ICANN should amend its Bylaws to clarify that the Board is required to enter into a formal consultation process with the GAC only where it receives GAC advice that is consensus advice based on the current definition within the GAC’s Operating Principles, that is, advice to which no GAC member has raised a formal objection. 

"We want to make clear that nothing about this proposal is intended to limit how the GAC determines what advice it submits to the Board.  As the Bylaws make clear, the Board is obligated to duly take all GAC advice into account.  However, it is not practicable for the Board to give GAC advice special consideration unless it is consensus advice as currently defined in the GAC Operating Principles.  Anything less than consensus places the Board in the awkward, if not impossible, position of trying to choose between governments with conflicting opinions.  NTIA sees any deviation from the current standard of consensus as introducing instability into the system while also inadvertently diminishing the important role of governments.  Accordingly, every time the GAC provides consensus advice that it expects to trigger the special Bylaws consideration from the Board, it must be unambiguous and consistent with the current definition in the Operating Principles.  Asking the Board to interpret any other threshold of support seems counter to the spirit of the CCWG’s efforts to empower the community in a clear and consistent manner.  It also undermines the work done to implement the relevant recommendations of ATRT1 to fix what the community diagnosed as a dysfunctional Board-GAC relationship.

"We are aware that some countries are concerned that the current GAC Operating Principles could lead to a single-country veto of GAC advice to the detriment of other countries.  We too share that concern.  But the right place to deal with that issue is not at the last minute in the CCWG but in a more reasoned and full discussion of this issue within the GAC.  NTIA stands ready to participate in and contribute to such a discussion to resolve that concern at the appropriate time and place."

Reactions from CCWG members and participants included the following:

As long as we do as we are told, I am sure we can achieve a result that  is acceptable to NTIA. What is obvious to me now, is that not only did the NTIA want a solution that was not dominated by governments, a goal I strongly agree with, they also did not want a solution where the GAC stands with equal footing as a stakeholder, which makes me uneasy. But we can be thankful, at least we now know what we must do if we want approval. Before now there was ambiguity because as long as the  solution did not give government primacy I thought we would be ok. Now I realize we can't even have equality. This is not disarray but well ordered.  We had one serious issue pending and now that has been taken off the table. We can expect that GAC will not be able to approve of the accountability proposal as I expect that [there] will be at least one [or] more member[s] of the GAC disappointed enough to formally object to the solution as constrained by NTIA. So as long as the solution is acceptable to all the SOs and to ALAC, ... [we’ll] still be ok with the latest NTIA condition, we should be successful at reaching the end of the discussion.  We also have a good indication of the power of NTIA over ICANN as a  backstop for any who doubted that power.  Anytime the US speaks, ICANN jumps. We should rejoice and be thankful as we have less to decide upon. -- Avri Doria, active stakeholder in ICANN and GNSO since 2005, recipient of the ICANN Multistakeholder Ethos Award (given for the first time at ICANN 50, June 2014); also active in IGF, IETF, ISOC, and other groups.

CCWG-Accountability met on Thanksgiving morning, November 26, 2015 (UTC 14:00). Notes, transcript, and recording may be found on the wiki page. The provisions now dealing with ST18 are summarized here. The CCWG-Accountability third draft proposal is scheduled to be published for public comment on November 30, 2015. The comment period is scheduled to close December 21, 2015.

See also on Domain Mondo:

• IANA, ICANN Accountability, CCWG Crunch Time! Midnight Deadlines! 19 Nov 2015
• CCWG on ICANN Accountability Issues Preview of Third Draft Proposal 16 Nov 2015
• IANA Transition, ICANN Accountability, New CCWG Proposal, New Timeline 29 Oct 2015

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DISCLAIMER

New gTLD Domain Extensions, ICANN Dysfunction, dot INSURANCE

As reported by Tom O'Toole at Bloomberg BNA, fTLD's successful application for new gTLD .INSURANCE is now designated by ICANN as "on hold" and correspondence from fTLD counsel to ICANN indicate the cause for the "hold" is Donuts (or one of its affiliates) which applied (through an affiliate), unsuccessfully, for .INSURANCE, but also (through another affiliate) applied for, and was awarded, .INSURE, which has launched. The correspondence (pdf) of fTLD's counsel to ICANN, none of which has been released by ICANN, provides a revealing look into the dysfunctional world of ICANN and its new gTLDs program--correspondence excerpts follow below (emphasis added)--

... Not only is fTLD deeply troubled by ICANN's handling of this matter, but we are confounded by ICANN's apparent willingness to extend the time period for Donuts to file a notice of request for Independent Review Process ("IRP") relating to the seven strings, including .INSURANCE, named in its July 18, 2014, request for CEP...

Setting aside the fact that any request by Donuts for a CEP relating to .INSURANCE is untimely and improper, any new purported time period for commencing an IRP also has expired, unless ICANN has afforded Donuts extra time... 

[W]e presume that ICANN has entered into an agreement with Donuts to extend the period for filing an IRP. If this is the case, ICANN is improperly and unduly delaying fTLD's progress towards delegation, at material detriment to fTLD...

During the several months in which fTLD’s application has been on hold as a result of various actions taken by Donuts, its affiliate, Pioneer Willow, LLC (“Pioneer”), which applied for a competing gTLD—.INSURE—has proceeded to enter into a registry agreement with ICANN and benefit immensely from the delays suffered by fTLD. On September 3, 2014, .INSURE entered into general availability without any competition from .INSURANCE. Each day that Donuts continues to delay fTLD’s application for .INSURANCE is another day that .INSURANCE loses registrants to .INSURE. ICANN must put an end to these anti-competitive actions and, at the very least, stop facilitating them by holding fTLD’s application hostage to Donuts’ improper and untimely attempts to engage in ICANN’s accountability mechanisms... 

Another concern, which should be brought to ICANN’s attention and that of the broader Internet community, is the apparent collaboration by certain portfolio applicants—companies associated with a large number of applications—in abusing ICANN’s internal processes in order to impede community based applicants from moving forward with their applications for the same strings. ICANN’s Governmental Advisory Committee (“GAC”) has repeatedly expressed its concern that the ICANN processes and in particular the auction mechanism raise public policy concerns by routinely disadvantaging community applicants. In light of the high costs associated with Community Objections and the high standard community applicants must meet in order to prevail in Community Priority Evaluations, the GAC reiterated in four separate Communiqués its Advice that ICANN consider “preferential treatment for all applications which have demonstrable community support.” Despite the GAC’s consistent and repeated Advice on the subject, ICANN has failed to give due regard to the Advice and has not conducted any meaningful discussion or briefing with the GAC on the subject of community applicants. In light of ICANN’s apparent disregard of repeated GAC Advice ....

gTLD applicants, such as fTLD, have a right to know the timeframes for the accountability mechanisms directly affecting their applications. Moreover, all applicants interested in pursuing ICANN’s accountability mechanisms—or applicants concerned that competitors might do so—have a right to know if ICANN is unable to comply with the deadlines set forth in its Bylaws and the extent to which they can expect such accountability mechanisms to be delayed. Because ICANN is tasked through its Bylaws and Articles of Incorporation with operating in a transparent and accountable manner, fTLD urges ICANN to provide a copy of the information requested…

read more here (pdf)

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