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Internet Corporation for Assigned Names and Numbers

Committee on ICANN Evolution and Reform
ccNSO Formation: Proposed Revisions to the Bylaws
18 June 2003

Introduction

On 22 April 2003, the ICANN Evolution and Reform Committee (ERC) posted for comment its Fifth Supplemental Implementation Report setting forth the ERC's recommendations for the Country-Code Supporting Organization (ccNSO), based on the extensive work of the ccNSO Assistance Group. After continued consultation among interested ccTLD managers and other segments of the ICANN community, the ERC requested ICANN's General Counsel to prepare proposed revisions to the Bylaws to implement the ERC's Recommendations, as adjusted in several respects to accommodate comments received. These were posted on 13 June 2003. This summary serves as the ERC's explanation of the Proposed Bylaws and their intended effect.

The proposed revisions to the Bylaws take the next step towards finalizing the formation of a Supporting Organization for country-code names. As was reflected in the President's Report: ICANN – The Case for Reform, the original incorporation of ccTLD registries under the former Domain Name Supporting Organization (DNSO) needed to be rethought. In its Blueprint, the ERC acknowledged the very significant contributions of the ccTLD community and its vital role in assuring that the benefits of the Internet are accessible to all parts of the world. It also recognized the ccTLD community's diversity of circumstances and opinions concerning what are the responsibilities of ccTLD administrators that fall strictly under the purview of national or otherwise local jurisdiction, and which involve the need for global harmonization and coordination.

The ccNSO will be the forum where this distinction will be further understood and developed, and in which the global aspects will be considered thoughtfully by those affected. The ccNSO, as a supporting organization, has the purpose of engaging in activities relevant to country-code top-level domains, specifically (1) developing policy recommendations to the ICANN Board; and (2) nurturing consensus across the constituencies, including the name-related activities of ccTLDs.

The proposed revisions to the Bylaws to implement the ccNSO represent the approaching culmination of intensive analysis and consultations within the ccTLD community regarding the most appropriate structure for handling within the ICANN context the development of policies on ccTLD issues requiring global coordination. These discussions have their roots early in ICANN's existence, and over time focused on the need for a dedicated Supporting Organization, as ultimately recognized by the ccTLD constituency at the Stockholm meeting in June 2001. The proposed revisions reflect further development of these longstanding efforts by the ccNSO Assistance Group and ccTLD community since September 2002 to establish a ccNSO, bringing together different thinking and solidifying an approach. The ERC deeply appreciates the tireless work of the Assistance Group, the ccTLD community, and all others who have provided comments and thoughts to the ccNSO formation.

The ERC provides the following background explanation to the proposed revisions to the Bylaws, and hopes it is helpful to the community. As readers will note, these explanations are in large part compilations of prior postings of the ERC and the ccNSO Assistance Group.

The ERC would like to express its strong appreciation for the time taken by the community to comment on the different stages leading up to these proposed revisions to the Bylaws. The ERC believes that, while it is not possible to fully address all comments received, the proposed revisions to the Bylaws strike a common ground between the different stakeholders and different views. This common ground seeks to ensure the ccNSO provides the ccTLD community with the means to work together on common issues within the ICANN mission to ensure the stable and secure operation of the DNS, in a manner that is based on consensus and participation of all affected stakeholders.

The ERC also believes that, just as with any new structure, it is likely that possible improvements to some aspects of the proposed ccNSO will become clear after it goes into operation. Assessment of the need for improvements and consideration of implementing them is best deferred until experience with the proposed ccNSO is gained. This highlights the wisdom of periodic re-evaluation of the role and effectiveness of all ICANN structures, including the ccNSO.

The ERC looks forward to discussing the proposed revisions to the Bylaws with the community at the upcoming ICANN meeting in Montréal, and to receiving any comments.

Summary of Specific Provisions of Proposed Revisions to the Bylaws

A. Article IV: Accountability and Review, Section 4. Periodic Review of ICANN Structure and Operations

Under ICANN's current Bylaws, every Supporting Organization and Advisory Committee (except for the Governmental Advisory Committee, which conducts its own review) is reviewed at least once every three years by an entity independent of the organization under review. Language has been added to Article IV, Section 4, to schedule the review of the ccNSO into the second annual review, which will start no later than 15 November 2004, and be completed in time for the Board to consider the outcome of the review at its annual meeting in 2005. This schedule is intended to allow accumulation of a reasonable measure of practical experience with the ccNSO before its effectiveness is assessed.

B. Article VI: Board of Directors, Section 4. Additional Qualifications

Article VI, Section 4(2) defines procedures to follow when a Supporting Organization Council considers selecting one of its members for service on the ICANN Board. The phrase "group or" was added to make the terms of the paragraph applicable to the ccNSO, which (unlike the GNSO) does not formally have "constituencies".

C. Article IX: Country-Code Names Supporting Organization

This section compiles the principal Bylaws provisions setting forth the operation of the ccNSO. It is based on the ccNSO Assistance Group's recommendations, the ERC's Recommendations in its Fifth Supplemental Implementation Report, the ERC's 29 May Response to Comments Received, and subsequent comments received.

Section 3. Council

The ccNSO Council provisions set forth the number of ccNSO Council members selected by the ccNSO members in each region and by the Nominating Committee (Section 3(1)), the liaisons to the ccNSO Council (Section 3(2)), and observers the ccNSO may choose to exchange with other ICANN Supporting Organizations (Section 3(3)). The terms of Council members are outlined in Sections 3(4) – 3(7), with provisions to address vacancies due to death, resignation, or removal.

Some comments received expressed concerns over the membership on the ccNSO Council of three individuals selected by the Nominating Committee, in addition to the fifteen selected by the ccNSO members. The ERC believes that the presence of this very limited number of ccNSO Council members who are selected independently of the viewpoints of any Region's ccNSO membership will enrich the discussions of the Council and give it the perspectives needed to act in the broader public interest on the matters legitimately of global concern. The ERC notes that the experience of the ccNSO Assistance Group itself demonstrates the value of broadened perspectives arising from full participation by persons not tightly aligned with ccTLD manager interests.

Some comments also reflect a view that a single ccTLD delegate on the Nominating Committee is insufficient given that the Nominating Committee selects three members of the ccNSO Council. The ERC believes that, as membership in the ccNSO by ccTLD managers throughout the world grows, the possibility of enhancing its role in designating Nominating Committee delegates merits careful review. Initially, however, it is likely that the ccNSO will evolve through a trust-building stage, as ccTLD managers and other segments of the Internet community alike gain confidence in the ccNSO's ability to fill the needs for global coordination in practical, productive, and concrete ways. As ccTLD manager participation in the ccNSO expands, so too will the merits of according the ccNSO additional delegates on the Nominating Committee. The ERC believes that consideration of this matter should be taken up during the scheduled period review of the NomCom.

The role of the ccNSO Council is outlined in Section 3(8), noting that the ccNSO Council in managing the development of policy recommendations, must do so in a manner that is consistent with the ccNSO Policy Development Process (which is contained in Section 6, with the ccNSO PDP as established by the ccNSO Assistance Group and recommended by the ERC in Annex B).

The ccNSO Council also plays a role in selecting the ccNSO's seats to the ICANN Board. These Seats, numbers 11 and 12, must have the support of the majority of all the members of the ccNSO Council (Section 3(10)). Additionally the ccNSO Council will select its Chair and Vice-Chair(s) (Section 3(9)), as it believes appropriate, and adopts rules for membership and operating procedures that it deems are necessary (Section 3(11)).

The ccNSO Council must meet regularly, at least four times each year, and meetings should be open unless a majority of the Council determines a meeting should be closed (Section 3(12)). Administrative matters of ccNSO Council meetings are addressed in Sections 3(13) and 3(14), and are consistent with the administrative processes of the GNSO.

Section 4. Membership

This section addresses the criteria for membership in the ccNSO. The issue of membership was discussed extensively by the ccNSO Assistance Group, and the ERC addressed comments received on this in its 29 May Response to Comments Received. As the ERC noted in its response to the comments received, the ccNSO differs substantially in its composition from the other Supporting Organizations. It is composed of only one constituency group: ccTLD Managers. Ideally, of course, all ccTLD Managers should be members of the ccNSO. And that goal will hopefully be achieved in due course. The primary role – as defined in the ERC's Fifth Supplemental Implementation Report – of the ccNSO is to "be a policy-development body . . . which shall be responsible for developing and recommending to the ICANN Board substantive policies relating to country-code top-level domains." Because of this, the ERC believes that a commitment of the ccNSO members to abide by global policies developed through the ccNSO PDP is appropriate.

As a secondary role, the ERC appreciates that the ccNSO may have a role in voluntary or cooperative consideration of best practices for ccTLD Managers. And that is something that can be determined by the ccNSO, within the ccNSO.

Several comments expressed concern over the use of the term "Sponsoring Organization". While this term has been used in Section 4(1), the language makes clear that this is a current heading, but one that could well change, perhaps even by the ccNSO. As the ERC expressed in its response to comments:

The ccNSO-AG, and the ERC, spent much time grappling with the term to use that would ensure that the appropriate entity represented the ccTLD in the ccNSO, and concluded that it was best to refer to the entity identified under the heading "sponsoring organization" in the IANA database. The ERC understands that there is history behind this, which it truly hopes will one day be fully addressed and resolved – perhaps by the ccNSO.

In response to comments received, the proposed revisions to the Bylaws make clear (Section 4(3)) that ccNSO membership is not a condition for access to or registration in the IANA database. A ccTLD's membership in the ccNSO represents a commitment to participate in the ccNSO's process for developing appropriate global coordination policies and to abide by those policies it has participated in establishing through the process. It is independent of any individual relationship a ccTLD has with ICANN or its IANA function.

As the ERC noted in its response to comments received, it has great sympathy for the view that exemption based on national policy, etc., should be granted, unless two-thirds (or 66%) of the ccNSO Council rejects such an exemption. This has been included in Section 4(11).

The ERC understands that there have been some discussions about how the issue of geographic diversity, membership, and number of seats allocated on the ccNSO Council. The ERC has thought about different options to address the variations, and believes that it is best to remain with the status quo – that is each region has three members on the Council. However, if the ccTLD community achieves consensus on an alternative approach, the ERC would welcome discussion in Montréal.

Section 5. Regional Organizations

Many ccTLD managers are members of their respective Regional Organizations. For these purposes, the ccNSO Council may designate a Regional Organization for each ICANN Geographic region, as long as that Regional Organization is open to full membership by all ccNSO members within that region.

Section 6. ccNSO Policy-Development Process and Scope

ccNSO PDP. As noted in the ERC's response to comments received, one of the points expressed by members outside the ccTLD community was the need for consultation and communication between different ICANN constituencies. This relates not only to the ccNSO Policy-Development Process, but also in general. The ERC believes this is important. Accordingly, the ccNSO Policy Development Process provides for strong consultation and communication between the ccNSO and different ICANN constituencies. The ccNSO PDP is contained in Annex B to the Bylaws.

The ccNSO PDP as described in Annex B to the Bylaws incorporates the ccNSO Assistance Group's recommendation, also reflected in the GAC comments, that if the ICANN Board does not adopt the recommendations reached through the ccNSO PDP, the status quo will continue. The ERC believes that the ccNSO PDP ensures that global policy is developed through a bottom-up inclusive process, involving the ccTLD community and consultation and communication with other parts of the ICANN community.

Some comments in the community shared a view that there should be a minimum of 40 ccTLD managers (rather than the 20 initially proposed) as members in the ccNSO before a ccNSO PDP process can be undertaken. The ERC is persuaded that a somewhat higher threshold for the ERC's launch is appropriate. The proposed Transition Article (XX) therefore provides that upon the enrollment of 30 ccTLD managers as members of the ccNSO the ccNSO Council elections can occur, as may a ccNSO PDP.

ccNSO Framework for Scope. The ccNSO received several sets of comments with regard to the scope of the ccNSO. At the ERC's request, the Framework for Scope, which is an appropriately formatted version of the matrix from the ccNSO Assistance Group's Recommendations on Scope, has been included in the Bylaws. As stated in the response to comments received, the ERC shares the views expressed that the scope of the ccNSO should remain limited to issues of a truly global nature that pertain to the stable and secure operation of the DNS and the Internet. Therefore it puts great emphasis on the ability of the ccNSO to define the scope itself assisted by the Scope Matrix, now Framework (and Annex C to the Bylaws).

Because it is the members of the ccNSO that through direct participation develop global policies, it is appropriate that they should be obliged by virtue of their membership and participation to follow those policies, as they are developed through the ccPDP and adopted by the ICANN Board following the process laid down in the Bylaws. The ERC believes it is important to reiterate that ccTLDs are a part of a global Internet. In order for the Internet to function, no ccTLD registry can operate in isolation of the rest of the Internet without diminishing its reliable and effective operation. Cooperation, coordination, and communication are essential.

Section 7. Staff Support and Funding

As noted by the ERC in its response to comments received, it is up to the ccNSO to determine if it wants staff support or not. Should the ccNSO wish to have staff support, the option, as provided for the GNSO, exists, and is included in the Bylaws (Sections 7(1) and 7(2)).

On issues of funding of the ccNSO, the ccNSO Council will establish the fees paid by ccNSO members to defray ccNSO expenses. Funding for this purpose is separate and aside from other ccTLD contributions to ICANN (Section 7(3)).

Section 7(4) addresses the responsibilities of the ICANN Secretary in the cases of written notices given to the ICANN Secretary. These responsibilities are consistent with those the ICANN Secretary has to the GNSO and other parts of the ICANN structure.

D. Article X: Generic Names Supporting Organization, Section 3. GNSO Council

This provides for the addition of a ccNSO observer to the GNSO Council, should that option be implemented (Article X, Section 3(9)).

E. Article XI: Advisory Committees, Section 2. Specific Advisory Committees

This provides for the ALAC appointment of a non-voting liaison to the ccNSO Council, and contributes to good communication between the ccNSO and the ALAC.

F. Article XX: Transition Article, Section 4. Country-Code Names Supporting Organization

As noted in its response to comments received, the establishment of the ccNSO occurs though the Launching Group, and should be viewed as the Launching Phase.

The ERC supports the recommendation of the ccNSO Assistance Group, and recommends that the Launching Group that conducts the Launching Phase, should consist of those ccTLD managers that were members of the ccNSO Assistance Group (a total of nine), in addition to six that respond to the request for interest at the time of the Board's resolution adopting the ccNSO Bylaws. Expressions of interest should be provided to the Launching Group, and the Launching Group shall provide the ICANN Board with a full list of the Launching Group members within 30 days of the ICANN Board resolution.

The role of the Launching Group is limited to what is outlined in Article XX. Additionally, the ERC agrees with the view that promptly after its formation the Launching Group should explain how it proposes to conduct the elections and address any conflict of interest issues. The ERC agrees that this is important, and believes that different possibilities exist to ensure these concerns are addressed, including for example, managing the actual operation of elections through a neutral, third-party entity.

G. Annex B: ccNSO Policy-Development Process (ccPDP)

As noted above in the discussion under Section 6, the ccNSO PDP is annexed to the Bylaws, and is the process by which the ccNSO develops global policy.

H. Annex C: Framework for Scope of the ccNSO

As noted above in the discussion under Section 6, the Framework for Scope is annexed to the Bylaws. The ERC believes that it is essential for the ccNSO to have the Framework to assist it with its work and to ensure that the scope of the ccNSO is limited to global policies.

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The ERC looks forward to discussing the proposed revisions to the bylaws with the ICANN community during the Montreal meeting, with the objective to reach closure and adoption of the bylaws by the ICANN Board at the ICANN meeting in Montreal

Committee on ICANN Evolution and Reform
18 June 2003