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Re: [IFWP] Re: The Sims-Auerbach Correspondence

Karl and all,

Karl Auerbach wrote:

Let's go through this one more time:
  A very good suggestion indeed.  Let just do that.  here is my take...

Let's accept ICANN's counsel's poposition that the board has plenary power
to control all actions taken by ICANN -- that no SO action can become the
action of ICANN without the board having to endorse and approve that
action, and that the board can take any action on any matter even if an SO
refuses to do so or objects.

  Point of interest in this introduction.  I doubt that anyone, with the
possible exception of the ICANN (Initial?) Interim Board and more
specifically Joe Simms really believe this...

Now let's read VI.2.(e)


(e) Subject to the provisions of Article III, Section 3, the Board
    shall accept the recommendations of a Supporting Organization if the
    Board finds that the recommended policy
      (1) furthers the purposes of, and is in the best interest of, the
      (2) is consistent with the Articles and Bylaws;
      (3) was arrived at through fair and open processes (including participation
          by representatives of other Supporting Organizations if requested);
      (4) is not reasonably opposed by any other Supporting Organization.
    No recommendation of a Supporting Organization shall be adopted unless
    the votes in favor of adoption would be sufficient for adoption by the
    Board without taking account of either the Directors selected by the
    Supporting Organization or their votes.

See how it says "the Board *shall accept* the recommendations of a
Supporting Organization".

  Yes indeed I do.  I "Highlighted" it so that poor Joe Simms could read
it a bit more clearly.  It appears from his previous comments he needs
this assistance.

In other words, the default is that the board accepts SO actions.  The
only way the board can escape this obligation is to find that the
action falls into items, 1, 2, 3, or 4.

  Yes, and indeed this provision also does not take into account the
individual stakeholder (Memberships) position.  This provision therefore
does not meet the requirements of the White Paper.

That list, items 1, 2, 3 and 4 hardly covers the range of reasons why
the board may wish to reject an SO provision.  As such, there are an infinite
number of reasons that this provision places beyond the board's reach
when examining an SO policy initiative.

Yet, we are told by ICANN's chief counsel that the board has no limit to what
it can consider.  That indeed, the board can not be limited because the board
is ultimately responsible for ICANN's acts.

Then what are we to say is the meaining of VI.2.(e)?

  The only reasonable thing that can be said is that Joe Simms is
"hood winking" anyone that he thinks he can get away with doing so.

What is the meaning of the obligation to accept what SO's recommend?

  It seems pretty obvious to me...

What is the special meaining of those four conditions if the board is
free to consider those as well as anything else that strikes its

If the board has plenary power, then that language is meaningless, even
worse, it is inconstant with the board's obligations.

  This is how I see it as well here.  It is also inconsistent with the basic
principals of the White Paper as well...

Language that is meaningless or wrong is language that should be
removed or repaired.

If that language is intended to have meaning, than what is that meaning?

Whatever that intended meaning might be, it is not readily apparent.

The words "shall accept" places a limit on the board's discretion.

The mandatory obligation expressed by the words "shall accept" is
inconsistent with the notion that the board has complete discretion.

If the board really does have the ability to control ICANN's actions, than
VI.2.(e) is full of useless verbage.

  And verbiage that is grossly inconsistent with the White Paper as well.

ICANN should simply amend its bylaws, eleminating 2(e) and 2(f) in their
entirety.  Perhaps something can be added that better expresses the
discretion of the board:

        2(e) The board may take notice of recommendations received from
             the Supporting Organizations or from any other source,
             however such recommendations are merely recommendations and
             do not bind the board of ICANN or its officers to any course
             of action until and unless adopted by the Board of Directors.

  I would add here: "and is approved by majority vote of the ICANN At-Large

             No recommendation of a Supporting Organization shall be
             adopted unless the votes in favor of adoption would be
             sufficient for adoption by the Board without taking account
             of either the Directors selected by the Supporting Organization
             or their votes.

And then there is the historical fact: Last summer, the BWG and others
pushed for SO's to be clearly nothing more than standing advisory committees.

But there was pushback, mainly from the original IANA proponents, to
keep SO's strong and able to be immune from, to quote some of
those proponents, the "know nothings" on the board of directors.

Let's deal with your comments on the imposition of ICANN decisions via
contract on another thread.



Jeffrey A. Williams
CEO/DIR. Internet Network Eng/SR. Java/CORBA Development Eng.
Information Network Eng. Group. INEG. INC.
E-Mail jwkckid1@ix.netcom.com
Contact Number:  972-447-1894
Address: 5 East Kirkwood Blvd. Grapevine Texas 75208