Information Concerning the Formation of ICANN Supporting Organizations
The purpose of this note is to provide assistance to those members of the Internet community who are interested in forming ICANN Supporting Organizations. The information contained in this document reflects ICANN's views as of the date shown above, which are subject to change based on further deliberations of the Board and discussions with members of the community.
The Board wishes to encourage the early formation of Supporting Organizations and the seating of additional Directors nominated by recognized SO's. The ICANN Bylaws provide for substantial delegation of policy responsibility to Supporting Organizations in the belief that putting policy development and recommendations organizationally closer to working professionals will produce a better result for the entire community. Details of the internal organization of SO's are best dealt with by the organizations themselves, so long as the basic requirements for recognition (see paragraph 10 below) are met and maintained.
Proposers should especially note that there is no requirement for precise symmetry among Supporting Organizations. The ability of the various SO communities to accomplish their work most effectively may well result in organizational configurations which differ from each other.
In addition to the substance of Supporting Organization proposals, the ICANN Board wishes to see explicit statements of support for the candidate SO included with applications for recognition. This will be extremely important in establishing whether consensus proposals having substantial breadth and depth of support have been received.
The ICANN Board will meet next in open session in Singapore on March 3, 1999. Details of this meeting may be found at www.icann.org. In order to be placed on the agenda of the ICANN Board at the Singapore meeting, applications for recognition of a Supporting Organization must be received by ICANN not later than midnight, U.S. West Coast time, Friday, February 5, 1999. Applications are to be submitted in ascii text to email@example.com and additionally must be posted on a widely accessible Web site in standard html format. Proposers are encouraged to post complete, or nearly complete, applications on a widely accessible Web site as far in advance of the submission deadline as possible. ICANN will provide links to these sites from its own Web site in order to ensure the maximum availability of this information to the community at large. ICANN will establish specific comment mechanisms on its Web site for all SO applications for recognition.
The next opportunity for consideration of applications for SO recognition not received in time for the March meeting will be in May, 1999. An agenda deadline for the May meeting will be announced at a later date. Applications received after February 5, 1999, may be noticed for action at a special meeting held before the May meeting, if such a meeting is subsequently scheduled and the application is ripe for action at that time.
The United States Government, in its Statement of Policy issued June 5, 1998, generally known as the "White Paper", proposed the formation of a private, non-profit corporation to administer policy for the Internet Name and Address System. Subsequently, in a Memorandum of Understanding executed on November 25, 1998, the government recognized ICANN as the corporation designated to undertake these responsibilities. [Text of these documents may be viewed at www.ntia.doc.gov.]
With respect to governance of the new corporation, the White Paper stated, "The new corporation could rely on separate, diverse and robust name and number councils responsible for developing, reviewing, and recommending for the board's approval policy related to matters within each council's competence. Such councils, if developed, should also abide by rules and decision-making processes that are sound, transparent, protect against capture by a self-interested party and provide an open process for the presentation of petitions for consideration. The elected Board of Directors, however, should have final authority to approve or reject policies recommended by the councils."
This guidance, with the further benefit of community discussion and debate during the summer of 1998, resulted in the support organization structure which is contained in Article VI of the ICANN Bylaws, the complete text of which may be found at www.icann.org.
4. ICANN Supporting Organizations
The Bylaws currently provide for three Supporting Organizations, although more are allowed if found to be needed in the future. The general scope of the three SO's is set forth in section 3 (a) of Article VI as follows:
"(i) The Address Supporting Organization shall be composed of representatives from regional Internet address registries and others with legitimate interests in these issues, as determined by the Address Supporting Organization consistent with Section 2 of this Article and approved by the Board. The Address Supporting Organization shall create an Address Council to make recommendations to the Board regarding the operation, assignment and management of Internet addresses and other related subjects;
(ii) The Domain Name Supporting Organization shall be composed of representatives from name registries and registrars of top-level domains ("TLDs"), businesses and any other entities that are users of the Internet and others with legitimate interests in these issues, as determined by the Domain Name Supporting Organization consistent with Section 2 of this Article and approved by the Board. The Domain Name Supporting Organization shall create a Names Council to make recommendations regarding TLDs, including operation, assignment and management of the domain name system and other related subjects; and
(iii) The Protocol Supporting Organization shall be composed of representatives from Internet protocol organizations and others with legitimate interests in these issues, as determined by the Protocol Supporting Organization consistent with Section 2 of this Article and approved by the Board. The Protocol Supporting Organization shall create a Protocol Council to make recommendations regarding the operation, assignment and management of protocol parameters, such as port numbers, enterprise numbers, other technical parameters and related subjects."
5. ICANN Directors Selected by Supporting Organizations
Each Supporting Organization will be represented on the ICANN Board by three Directors. Article V, section 2 of the Bylaws states:
"Immediately upon the recognition of a Supporting Organization by the Board pursuant to Section 3(b) of Article VI, the Board shall request that such Supporting Organization nominate three persons to be directors. Upon receipt of such nominations, the Board shall elect such persons as members of the Initial Board."
With respect to the first election of Support Organization Directors, Article V, section 9(d) states:
"the three original Directors nominated by any Supporting Organization shall be elected for terms of one (1) year, two (2) years, and three (3) years, respectively, with each term considered to have begun on October 1, 1998 regardless of when those original Directors actually take office."
6. Powers and Responsibilities of Supporting Organizations
The Supporting Organizations will be the primary source of substantive policy recommendations for matters lying within their individual charters as described in paragraph 4 above. More specifically, Article VI, section 1 states:
"(a) The Supporting Organizations shall serve as advisory bodies to the Board and shall have such powers and duties as may be prescribed by the Board and these Bylaws. The Board may add additional Supporting Organizations by a two-thirds (2/3) majority vote of all members of the Board and in such event shall, by such two-thirds (2/3) vote, reallocate the positions on the Board set forth in Section 4 of Article V. A Supporting Organization may not have obligations to any other entity inconsistent with its duties to the Corporation.
(b) Each Supporting Organization shall be responsible for nominating Directors for election to those seats on the Board designated to be filled by each Supporting Organization.
(c) The Supporting Organizations shall be delegated the primary responsibility for developing and recommending substantive policies and procedures regarding those matters within their individual scope (as defined by the Board in its recognition of each such Supporting Organization). Recommendations of Supporting Organizations shall be adopted as policies and procedures of the Corporation only upon action of the Board as provided in this Section 1.
(d) The Board shall refer proposals for policies and procedures not received from a Supporting Organization to the Supporting Organization(s) with primary responsibility over the matter to which the proposal relates for initial consideration and recommendation to the Board.
(e) Any recommendation forwarded to the Board by a Supporting Organization shall be simultaneously transmitted to all other Supporting Organizations so that each Supporting Organization may comment to the Board regarding the implications of such a recommendation on activities within their individual scope.
(f) Subject to the provisions of Article III, Section 3, the Board shall accept the recommendations of a Supporting Organization if the Board finds that the recommended action, policy or procedure (1) furthers the purposes of, and is in the best interest of, the Corporation, (2) complies with the Articles and Bylaws, (3) was arrived at through fair and open processes (including permitting participation by representatives of other Supporting Organizations if requested), and (4) is not reasonably opposed by any of the other Supporting Organizations. No recommendation of a Supporting Organization shall be adopted unless the votes in favor of adoption would be sufficient for adoption by the Board without taking account of either the Directors nominated for election by that Supporting Organization or their votes.
(g) If the Board declines to accept any such recommendation of a Supporting Organization, it shall return the recommendation to the Supporting Organization for further consideration, along with an explanation of the reasons it declines to accept the recommendation. If, after reasonable efforts, the Board does not receive a recommendation from a Supporting Organization that meets the foregoing standards or, after attempting to mediate any disputes or disagreements between Supporting Organizations, receives conflicting recommendations from Supporting Organizations, and the Board finds that there is a justification for prompt action, the Board may initiate, amend or modify and then approve a specific action, policy or procedure.
(h) Nothing in this Section 1 is intended to limit the general powers of the Board or the Corporation to act on matters not within the scope of a Supporting Organization or that the Board finds are necessary or appropriate to further the purposes of the Corporation."
7. Membership in Supporting Organizations
Participation in Supporting Organizations must be open to any individual or organization that meets reasonable minimum qualifications proposed by the SO and ratified by the ICANN Board. Article VI, section 2 states, in part:
"Participation in a Supporting Organization shall be open to any individual or organization that meets the minimum qualifications adopted by the Supporting Organization and ratified by the Board. Each Supporting Organization may adopt membership structures, including open or multiple classes or categories of members, that it deems appropriate for its effective functioning, consistent with the foregoing."
ICANN has been asked whether open membership in organizations participating in a Supporting Organization would meet these requirements. ICANN is prepared to accept any structure that, considering the subject matter of the SO, ensures that all individuals and organizations with legitimate interests in the activities of the SO have a reasonable opportunity to participate in the SO. An application for recognition must clearly set forth the criteria and standards for participation, and should justify the particular structure proposed in the context of the responsibilities of the SO and the broader ICANN structure and procedures.
8. Supporting Organization Finances
Supporting Organizations are expected to establish equitable membership dues or assessments which cover all costs of organizing and sustaining the work of the SO, including any amounts which may be required to support ICANN itself. See 3.b.vi in paragraph 10 below.
ICANN will open a proceeding early in 1999 dealing with its budget and revenue sources. In that proceeding, alternatives for supporting ICANN's budget will be fully explored. Pending the conclusion of that proceeding, applications for recognition of SO's should not assume that a substantial funding burden for ICANN expenses will be borne by SO dues or assessments. ICANN does not presently intend to look to the SO's themselves for a significant portion of its funding requirements.
9. Supporting Organization Liability and Indemnity
It is intended that Supporting Organizations and their councils will have a separate organizational identity from that of ICANN, and that ICANN's relationship with the SO's, to the extent necessary apart from the bylaws, will be by contract. Thus, ICANN's liability insurance and other corporate resources will not be available to Supporting Organizations.
ICANN has been asked whether SO's are permitted to function as unincorporated associations, and whether they are permitted to have a non- U.S. corporate or unincorporated place of business. ICANN believes these are decisions best made by organizers of Supporting Organizations, following advice of counsel. ICANN does not intend to bias a recognition decision based on corporate form or location, provided that other requirements for recognition are met and that such a decision does not unnecessarily inflict administrative, financial or legal complexity on the SO or ICANN. Regardless of the specific organizational form chosen, the procedural rules of the proposed organization must meet commonly applied standards of organizational performance, integrity, and financialstewardship.
10. Recognition of Supporting Organizations
The ICANN Bylaws contain specific procedures and criteria for review and approval of SO recognition proposals. Article VI, section 3 (b) states:
"(b) The Board shall review an application for recognition as one of the Supporting Organizations referred to in Section 3(a) of this Article VI, and, after requesting and considering comments from parties interested in matters within the scope of the proposed Supporting Organization, shall approve such application if the Board finds that it has been organized in accordance with these Bylaws, that it will fairly and adequately reflect the full range of views of all interested parties, and that its recognition would be in the best interest, and serve the purposes, of the Corporation. The application shall include, but not be limited to, a description of the following in form and substance acceptable to the Board (and a commitment to implement the matters described in the application):
(i) membership or participation criteria,
(ii) methods for developing substantive Internet policies to be recommended to the Board and selecting Board nominees,
(iii) open, transparent, fair and non-discriminatory processes (including procedures for public attendance at appropriate meetings of the Supporting Organization and for the participation of interested persons who may not be members of the Supporting Organization in advisory committees of the Supporting Organization),
(iv) policies to ensure international and diverse participation,
(v) policies for disclosure to the Corporation by members of or participants in a Supporting Organization council of conflicts of interest or other financial interests in matters within the scope of the Supporting Organization (such conflicts or interests, however, not necessarily requiring abstention from action), and
(vi) methods for funding the Supporting Organization and providing funding for the Corporation (consistent with Article XI, Section 4 of these Bylaws). If more than one application to be a particular Supporting Organization is received by the Board, it shall encourage, to the extent possible and reasonable, such competing applicants to resolve any differences, and shall not approve any application that does not meet the criteria set forth in this Section 3."
With respect to the requirement in VI.3.b above that the application shall include "a description of the following in form and substance acceptable to the Board," proposers should be guided in general by the form of the ICANN bylaw provisions dealing with comparable requirements. E.g., with respect to open processes, see ICANN Bylaws, article III.3.b.
With respect to conflict of interest requirements, proposers should be guided by ICANN Bylaws Article V, section 7, and should prospectively agree to abide by the terms of the ICANN Conflict of Interest policy when it is adopted.
11. ICANN Contracts with Recognized Supporting Organizations
Following recognition of a Supporting Organization, ICANN will execute a contract with the organization which formalizes the recognition, creates binding responsibilities on the parties, contains provisions for termination for cause, and establishes mutually agreeable financial conditions.