At-Large Representative for Canada and the United States on the
ICANN Board of Directors

Karl Auerbac
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Diary - May 7, 2001

This entry is being written on May 14.  It is being revised on May 19.

The preliminary minutes of this meeting may be seen at http://www.icann.org/minutes/prelim-report-07may01.htm

As usual, this meeting occurred between 0-Dark-Thirty and "Before the Crack of Dawn" - 6am, California time.  (Actually I was in Nevada. ;-)

There were several measures discussed and voted upon.

Independent Review

There was a resolution to move forward with filling the Independent Review Panel.  I was one of the signatories of the original proposal, several years ago, requesting that there be an independent review mechanism, so I am all in favor of anything that will speed its long-delayed birth.

Reconsideration Committee Reports

Second, there were many reports from the Reconsideration Committee.  I broke these reports into two groups - A) Those reports having to do with the new TLD process of last fall, each of which contained an identical preamble describing the standard of review and B) those reports that did not have that preamble.

Group A (the reports with the preamble) comprised all but one of the reports from the Reconsideration Committee.

Because I disagree with the standard of review expressed in that preamble I voted to reject the Reconsideration Committee's report on each of these reconsiderations.  It is my feeling that ICANN should not adopt a narrow and judicial standard of reconsideration.  Rather I believe that ICANN should look to the meaning of the word "reconsider" - to "re consider", i.e. to "consider again", and take a liberal and charitable approach to correcting less than well considered decisions.

There was clearly much that was less than "well considered" in last fall's process.  And among the requests for reconsideration that were tendered, I find it statistically unbelievable that not one of them was found by the committee to have received less than $50,000 worth of fair consideration.  In addition, I find no merit in the argument by the Reconsideration Committee that the process was intended to select only a few winners - if that were the case, ICANN ought to have put all the qualified applicants names into a hat and had an audience member come up and pick the winners by random selection.

It is my feeling that ICANN has now inserted an insurmountable barrier into the reconsideration process, transforming the reconsideration mechanism into a vacuous and worthless adornment.  In many ways, this retreat into a siege-mentality interpretation of ICANN's By-Laws is similar to the way that ICANN has effectively vitiated the policy making roles that the By-Laws define for the Supporting Organizations.

I am also concerned that the bulk rejection of all of the these reconsideration requests gives those who wish to attack the reconsideration process, warranted or not, a non-trivial anecdotal argument that the reconsideration effort was merely a Potemkin Village, mere show without real substance.

By the criteria I published last fall I would have approved most, perhaps all, of the applications.  Thus I see no harm in rejecting the committee's reports and, instead, accepting the reconsideration requests and letting the applicants go forward and start running their proposed TLDs.

With regard to the Sarnoff reconsideration, I read e-mail from Bret Fausett to the other board members to highlight the fact that the decision, both initially and by the reconsideration committee, was apparently based on a misapprehension of the application.  I must say that I felt that if even honest and unintended confusion about facts underlying a decision isn't sufficient to obtain a reconsideration from ICANN, then what set of events will be sufficient?

As for what I am calling the Group B Reconsiderations - there was but one: RC 00-15.  I objected to some of the language in the report as being irrelevant to the decision and containing unwarranted negative characterizations.  With a few adjustments and removal of a couple of sentences I would have been happy to vote on the matter at this meeting; however the matter was returned to the committee (no vote was taken on this) so that the committee could come back next time with an amended report.

New TLD Agreements

I voted against these resolutions for the simple reason that, when taken in total, these agreements, along with their appendices, form what is an excessively intrusive and smothering regulatory system.  This regulatory system is beyond ICANN's role (as expressed in paragraph 3 of ICANN's Articles of Incorporation); will cause ICANN to significantly grow in order to manage these contracts; will impose expensive, burdensome, and unnecessary operational and reporting obligations on the new registries; will generally impede innovation of Internet technology; and will have the effect of encouraging new enterprises to work outside of ICANN's umbrella.

My decision was buttressed by the fact that I felt that there was little relationship between the rump agreements that we approved in Melbourne and the fully feathered Mothra's that eventually resulted as the volumes of very detailed and very policy-full appendices were nailed on.


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2001 Karl Auerbach, All Rights Reserved.
Updated: Saturday, May 19, 2001 09:46:35 PM