ICANN|ARCHIVES

Internet Corporation for Assigned Names and Numbers

At 06:47 12-05-05 -0700, Bret Fausett wrote:

Dear Reconsideration Committee,
>
>This Request for Reconsideration arises out of similar circumstances as
>Request 00-4 and Request 04-1
>
>http://www.icann.org/committees/reconsideration/rc00-4.htm
>http://www.icann.org/committees/reconsideration/rc04-1.htm
>
>Specifically, ICANN again has failed again to meet its obligations under
>the Bylaws to provide timely notice of developments during its closed
>telephonic Board meetings. This is especially disappointing in light of
>promises in Mar del Plata that this situation had been corrected. My
>reconsideration request, which asks the Board to review and correct
>ICANN's failure, follows below.
>
>ICANN's repeated failure to post minutes and preliminary reports within
>the timelines set forth in its bylaws has become intolerable. In 2004, the
>Reconsideration Committee "recommend[ed] that if difficulties with posting
>the preliminary reports continue, the full Board should consider the
>suggestion to make available audio recordings of all Board meetings."
>Given ICANN's repeated difficulties with bylaw compliance, this sound
>recommendation (pun intended) should be considered by the Board as a
>whole. Audio recordings would not materially increase ICANN's budget but
>would add immeasurably to the transparency of its actions.
>
>Thank you for your consideration.
>
>Bret Fausett
>http://www.lextext.com/
>bfausett@internet.law.pro
>
>___________________________________________________________
>
>a. name, address, and contact information for the requesting party,
>including postal and e-mail addresses;
>
>Bret Fausett
>1621 Arbor Drive
>Glendale, CA 91202
>bfausett@internet.law.pro
>
>b. the specific action or inaction of ICANN for which review or
>reconsideration is sought;
>
>Failure to post Preliminary Report of Board meeting of 3 May 2005 in a
>timely manner.
>
>c. the date of the action or inaction;
>
>10 May 2005.
>
>d. the manner by which the requesting party will be affected by the action
>or inaction;
>
>Deprived of access to information about actions of Board. No "special
>harm" must be established when ICANN violates the "openness and
>transparency" aspects of the bylaws. To the extext that some special harm
>must be established, I am also the registrant of at least two domain names
>(fausett.com and lextext.com), and in my capacity as a domain name
>registrant, I am affected by actions taken by ICANN.
>
>e. the extent to which, in the opinion of the party submitting the Request
>for Reconsideration, the action or inaction complained of adversely
>affects others;
>
>ICANN's failure to meet the transparency provisions of the bylaws affects
>all users of the Internet.
>
>f. whether a temporary stay of any action complained of is requested, and
>if so, the harms that will result if the action is not stayed;
>
>No stay is requested.
>
>g. in the case of staff action or inaction, a detailed explanation of the
>facts as presented to the staff and the reasons why the staff's action or
>inaction was inconsistent with established ICANN policy(ies);
>
>Article III, Section 5.2 of the ICANN Bylaws provides a firm, "brightline"
>rule for publication of Preliminary Reports of all Board meetings. It
>provides:
>
>2. No later than five (5) business days after each meeting (as calculated
>by local time at the location of ICANN's principal office), any actions
>taken by the Board shall be made publicly available in a preliminary
>report on the Website; provided, however, that any actions relating to
>personnel or employment matters, legal matters (to the extent the Board
>determines it is necessary or appropriate to protect the interests of
>ICANN), matters that ICANN is prohibited by law or contract from
>disclosing publicly, and other matters that the Board determines, by a
>three-quarters (3/4) vote of Directors present at the meeting and voting,
>are not appropriate for public distribution, shall not be included in the
>preliminary report made publicly available. For any matters that the Board
>determines not to disclose, the Board shall describe in general terms in
>the relevant preliminary report the reason for such nondisclosure.
>
>See, http://www.icann.org/general/bylaws.htm#III-5.2. ICANN failed to meet
>this firm deadline.
>
>h. in the case of Board action or inaction, a detailed explanation of the
>material information not considered by the Board and, if the information
>was not presented to the Board, the reasons the party submitting the
>request did not submit it to the Board before it acted or failed to act;
>
>Same as (g) above.
>
>i. what specific steps the requesting party asks ICANN to take-i.e.,
>whether and how the action should be reversed, cancelled, or modified, or
>what specific action should be taken;
>
>Through repeated violations of this provision of the ICANN bylaws, ICANN
>has demonstrated that it is either incapable or unwilling to meet the
>openness and transparency obligations of the bylaws as applied to posting
>Board minutes and preliminary reports. In spite of promises in Mar del
>Plata that ICANN's reporting function for minutes and preliminary reports
>would be improved, ICANN violated the brightline rule in its bylaws at its
>first opportunity.
>
>Given the fact that ICANN has violated this provision of its bylaws
>repeatedly, the Board should discontinue the practice of holding closed
>meetings and make the audio of all of its meetings, including
>teleconferences, promptly available following the close of each meeting.
>(The GNSO Council currently does this, for example). Recording the audio
>of the meetings and distributing mp3 audio files promptly thereafter would
>not materially increase ICANN's budget but would substantially increase
>the public's access to ICANN information.
>
>The Preliminary Reports are the only window that the general public has
>into the telephonic Board meetings. If ICANN cannot meet the obligation of
>making those reports available in a timely manner, it should discontinue
>the practice of holding closed meetings.
>
>j. the grounds on which the requested action should be taken; and
>
>Article III, Section 5.2 of the ICANN Bylaws provides:
>
>2. No later than five (5) days after each meeting, any 2. No later than
>five (5) business days after each meeting (as calculated by local time at
>the location of ICANN's principal office), any actions taken by the Board
>shall be made publicly available in a preliminary report on the Website;
>provided, however, that any actions relating to personnel or employment
>matters, legal matters (to the extent the Board determines it is necessary
>or appropriate to protect the interests of ICANN), matters that ICANN is
>prohibited by law or contract from disclosing publicly, and other matters
>that the Board determines, by a three-quarters (3/4) vote of Directors
>present at the meeting and voting, are not appropriate for public
>distribution, shall not be included in the preliminary report made
>publicly available. For any matters that the Board determines not to
>disclose, the Board shall describe in general terms in the relevant
>preliminary report the reason for such nondisclosure.
>See, http://www.icann.org/general/bylaws.htm#III-5.2
>
>k. any documents the requesting party wishes to submit in support of its
>request.
>
>None.
>