[Comment-Dnso] Comment to Suggested Revised Bylaws

["Bret A. Fausett" <baf@fausett.com>]

Suggestions and comments follow each of the quoted revisions...

>RESOLVED, that Section 2(a) of Article VI-B of the Bylaws of the 
>Corporation is hereby replaced in its entirety with the following:
>
>"The NC shall consist of representatives, selected in accordance with 
>Section 3(c) of this Article, from each Constituency recognized by the 
>Board pursuant to the criteria set forth in Section 3 of this Article. Any 
>dispute about whether any such representative is a proper member of the NC 
>shall be resolved by, or at the direction of, the Board."

Suggestion:  Change the phrase "is a proper member of the NC" to "was 
elected in accord with Section 3 of this Article."

Reason:  I think the suggested change better captures what was intended, 
as any NC representative duly elected in accord with the procedures and 
specifications of Article 3 should be considered a "proper member." As 
currently worded, the phrase "proper member" is undefined and, 
accordingly, potentially provides too much enforcement discretion to the 
Board.

>FURTHER RESOLVED, that Section 3(c) of Article VI-B of the Bylaws of the 
>Corporation is hereby replaced in its entirety with the following:
>
>"Each Constituency shall select up to three individuals to represent that 
>Constituency on the NC, no two of which may be, except with the consent of 
>the Board, residents of the same Geographic Region, as defined in Article 
>V, Section 6. Notwithstanding the foregoing, no Constituency may have more 
>representatives on the NC than there are members of the Constituency. 
>Nominations within each Constituency may be made by any member of the 
>Constituency, but no such member may make more than one nomination in any 
>single Constituency."

Suggestion:  Delete the phrase ",except with the consent of the Board," 
on the Geographic representation requirement.

Reason:  There are no bounds around the Board's ability to accept or 
reject a lack of geographic diversity in a constituency. The geographic 
diversity element should either be enforced or scrapped, but leaving it 
open to potentially arbitrary enforcement is unacceptable. It's a big 
world though. If a constituency cannot find diverse representatives, then 
they should live with fewer NC representatives until such time as their 
constituency is more broadly populated. I would like to see ICANN enforce 
the current bylaws. 

In the alternative, I would suggest amending the language to provide a 
guide on how the Board would exercise its discretion. Better language 
would be: ", except upon good cause shown by the members of the 
constituency that meeting the geographic diversity requirement is 
impracticable at the present time. In the event that a constituency 
petitions the Board for an exception to the geographic diversity 
requirement, it shall, at the same time, present the Board with a 
detailed plan and timetable for increasing global outreach to diversify 
its constituency prior to the next scheduled Names Council election."

>FURTHER RESOLVED, that Section 2(f) of Article VI-B of the Bylaws of the 
>Corporation is hereby replaced in its entirety with the following:
>
>"Unless shorterned by the Board in its recognition of a Constituency, the 
>term of office for each member of the NC shall be two years, subject to 
>earlier removal by the Constituency that selected such member or by a 
>three-fourths majority vote of all members of the Board." 

Suggestion:  Delete the phrase "or by a three-fourths majority of all 
members of the Board." 

Reason:  If constituencies are to self-form and self-organize, they alone 
should have the authority to elect and retain their representatives. A 
Board veto, even at the proposed "super-majority" level, defeats this 
purpose. The mere ability to threaten to reject a NC member alters the 
balance of power and dilutes a constituency's influence.

       -- Bret Fausett


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     Bret A. Fausett
     Fausett, Gaeta & Lund, LLP
     21 School Street, Third Floor
     Boston, Massachusetts 02108

     Telephone: (617) 227-1600   
     Facsimile: (617) 227-1608
     E-Mail: baf@fausett.com

     http://www.fausett.com

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