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RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to ICANN Bylaws

Hi Adrian,

Of course I am not ignoring you, I've had a busy work week.  

And of course I was not criticizing you personally, only pointing out the
fact that there is much amalgamation between registrars and registries, as
has been demonstrated by their Council reps.  I could also have referred to
another registrar Councilor whose company is actively engaged in ccTLD
registry businesses.  (Hi Tim! ... but he's not a CEO yet, so not quite as
sexy an example.)

I refer to the Contracting Parties' "effective stranglehold/veto" because
under the current and future system, the Contracting Parties have much more
alignment in their interests and in their positions than do the Commercial
Users and the Non-Commercial Users.  It obviously has been far harder for
the non-contracting parties to come to any agreement among themselves, than
for the contracting parties, on almost every issue in the history of ICANN.
Hopefully, that will decrease as NCUC becomes more diverse in their
representation and interests, and the balance of power between commercial
and non-commercial interests is evened -- but that remains to be seen.

Based on the very clear trend over the past few years, the contracting
parties are likely to become more aligned in the future rather than less.
When they vote together, there is little anyone can do to stop whatever they
want, except with unanimous opposition among fragmented and historically
unaligned parties.  The "double voting" compounds this as contract parties
need to get just six people to a vote, while the non-contracting parties
have to get twelve unanimous votes just to counter them -- which I believe
has never happened before, and probably will be less likely to ever happen
in the future given the shift in power in that "House," from 9/3 to 6/6.

Chuck mentioned a few examples that he says show unaligned interests among
Contracting Parties, but I do not agree with several of those, including
WHOIS and PEDNR.  Perhaps I need to understand better, and would love to
hear any further explanation.  Perhaps RrC and RyC have voted differently a
few specific times, but generally their interests are aligned on almost all
issues.  If policy development might conceivably change the way contract
parties do business, they generally fight like hell, together, to prevent
it.  I've seen it too many times to count.  We've had exactly one policy
development in three years that changed business methods -- wrt domain
tasting.  I also think any "unaligned" instances will become much fewer and
farther between, under the new system and as industry amalgamation between
registrars and registries likely increases.  

I also do not recall a single example of the RyC Councilors ever voting
individually rather than in a block, though Chuck says an instance may be
coming, and I'm sure he'll remind me if I'm forgetting something else.  The
new RyC charter, by Chuck's description, sounds unacceptable on this point
since the RyC can still force its Councilors to vote in a block, and
typically always has done so in the past.  Yet I would be remiss to not
point out that the BC has had the same rule forever, and we have not changed
it in our new Charter.  But we have not and will not have anywhere near the
level of power as the RyC, we will have 1/3 their power.  Also we have voted
differently in the past when there was not an adopted BC position on point.
Also, I would prefer we eliminated that requirement in the BC, for the same
reasons I think it should be eliminated in the RyC or anywhere else.

It is important for the Contracting Parties to have the same number of
Councilors as the Non-Contracting Parties, so there is more hope of greater
diversity of opinion, demographics and geography, as well as ultimate

Avri, I don't have facts to back up that assertion about individual vs.
commercial reg fees.  But commercial interests include domainers and
brandholders, who average several hundred (more likely, well over a
thousand) domain names apiece.  I know at least a dozen domainers (including
a bunch of ICANN accredited registrars) that have over 100,000 registrations
each.  I know at least 25 major brands that have over 20,000 registrations
each.  And that's just people I know personally.  I don't know any
individuals who own more than two, and I know of dozens of free hosting
sites, social networks, communication tools and other ways that individuals
communicate online without need of a domain name.  Also, we're talking
gTLDs, and many individuals must gravitate towards ccTLDs because the good
gTLD names have consistently been snagged by commercial interests (and
registrars) for many years now.  Stats in this area would be useful for
policy development, particularly PEDNR, IRTP and WHOIS, but relevant data
could only come from the Registrars (or some sort of big ICANN study), so I
will not hold my breath waiting for it to appear. 

I am happy we are having this discussion.  I am not trying to "tirade", but
merely put my beliefs into the open as you all know I have a habit of doing
(perhaps sometimes too directly) -- as I feel I've been elected to do.


Mike Rodenbaugh
Rodenbaugh Law
548 Market Street
San Francisco, CA  94104

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Adrian Kinderis
Sent: Tuesday, August 25, 2009 2:09 AM
To: icann@xxxxxxxxxxxxxx; gnso-council-draft2@xxxxxxxxx
Cc: 'BC List'; 'Council GNSO'
Subject: RE: [council] Rodenbaugh Comment re GNSO Restructure Amendments to
ICANN Bylaws


Thanks for the "shout out". I'm honoured (correct Australian spelling!).

I appreciate your "personal" comments.

One quick question;

When you refer to the following "Effectively today they are one block with
effective veto power over anything", what do you mean?

Either we do or we don't which is it?

Adrian Kinderis
Chief Executive Officer
Registrar, Registry Services Provider oh.. and I own a few names, so throw
in Registrant.

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On
Behalf Of Mike Rodenbaugh
Sent: Tuesday, 25 August 2009 2:25 AM
To: gnso-council-draft2@xxxxxxxxx
Cc: 'BC List'; 'Council GNSO'
Subject: [council] Rodenbaugh Comment re GNSO Restructure Amendments to
ICANN Bylaws

For nearly three years I have represented the Business Constituency as one
of its Officers and GNSO Councilors, but make these comments in my personal
capacity only, as they have not been reviewed by the BC.

Why is ICANN refusing to allow new constituencies in the Contracted Party

There are applications for two subsets of newTLD registry operators --
geoTLDs and IDN TLDs.  It seems reasonable for there to be a "Resellers
Constituency."  These commercial entities have interests wholly aligned with
those of the Contracted Parties.  Indeed resellers effectively are
contracted parties, and prospective registry operators will have a contract
with ICANN upon making their application.  Meanwhile they have an "as soon
as possible" expectancy of such a contract, and then a registry contract.
Yet the Board and Staff, without any explanation that I have seen, have
unilaterally decided that no other entities will be allowed into the
"Contracted Party" House.

These entities do not belong in the Non-Contracted Party SG, as they simply
would dilute the power and voice of the vast majority of entities and
individuals in the world, who do not rely substantially on ICANN contracts
(or the expectation of ICANN contract) for their livelihood, but are
materially impacted by the policies of ICANN and its contracting parties.
Resellers and prospective registry applicants (if that was their primary
purpose, at least) would not be allowed in the existing or proposed Business
Constituency, ISPCPC or IPC -- and should not be allowed to dilute the
voices of the new Commercial SG and Non-Commercial SG.  Representatives of
those parties have indicated assent, however reluctantly in many cases, to
this restructuring plan on the basis that parties aligned with ICANN
Contracting Parties would find their voice through that House, not ours.  

The voices and voting power of so-called "Non-Contracting" commercial
interests are already heavily diluted under this restructuring scheme, with
the NCSG gaining much and the Contracting Parties losing nothing whatsoever.
Yet it is those "Non-Contracting" commercial interests that essentially fund
by far the greatest portion of ICANN's budget through their domain
registration fees, and it is those commercial interests that make domain
names valuable.  While those interests suffer much already in the proposed
restructure, now it will be proposed that 'contracting party' interests be
allowed in our House as well?

The result will be an even stronger stranglehold on policy development than
is already wielded by the Contracting Parties.  Their two Constituencies are
essentially aligned in interest on virtually all issues.  Alignment will
only increase if ICANN repeals restrictions on cross-ownership, which anyway
do not exist with respect to ccTLDs in most cases, so we have seen
registrars and registries teaming up on ventures for many years now.  One of
the GNSO Councilors, for the Registrar Constituency, is CEO of a registry
services company.  Effectively today they are one block with effective veto
power over anything.  The best way to cement that in place is to forbid any
other voices from joining their House.

Why do Contracting Parties maintain double voting?  

It is unwise that the Contracting Parties are allowed to continue with
'double voting' on the new Council.  Is it not a main point of the
restructure to increase participation and diversity on the Council?  Why
does this only apply to one House, and not the other?  Particularly in the
near future with hundreds more new TLD operators, and most likely hundreds
more registrars, there is no excuse to allow just six seats in that House,
while there are twelve in the other.  That makes it twice as hard to
persuade a single vote to "switch sides", which might make the difference in
many cases.  [Not sure if this is changed in their new charters, but for
similar reasons it also should be forbidden that the Registry Constituency
Councilors be required to vote as a block as they are today, rather than
individually as in the Registrar Constituency.]

ICANN should be well aware that this entire GNSO restructure has been a
bitter pill for the "Non-Contracting" business community to swallow.  Their
power and voices will be diminished and those who have been involved know
it.  It has not caused such recent uproar since the newTLD process has
proved to be a more immediate and distressing battle for some in that
community, though by no means all.  These details are also rather
uninteresting for any normal person to consider, particularly anyone who has
not participated on Council.  From my perspective, these specific elements
of the new restructure could result in a lot more bitterness in the years to
come, and appear wholly contrary to the spirit and stated intention of the
ICANN Board in its mandate of this effort.  Moreover, they were primary
facets of the compromise reached in 2008, which now appear to have been
discarded by the Board and Staff, without explanation or reason.


Mike Rodenbaugh
Rodenbaugh Law
548 Market Street
San Francisco, CA  94104