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MINUTES OF SPECIAL MEETING
A meeting of the Board of Directors of the Internet Corporation for Assigned Names and Numbers (the "Corporation") was held by teleconference on August 12, 1999. The following Directors of the Corporation were present by telephone: Geraldine Capdeboscq, George Conrades, Gregory L. Crew, Esther Dyson, Frank Fitzsimmons, Hans Kraaijenbrink, Michael Roberts, and Linda Wilson. Also present on the teleconference were Andrew McLaughlin, Interim Secretary of the Corporation; and Joe Sims, Louis Touton and Michael Weinberg of Jones, Day, Reavis & Pogue. Andrew McLaughlin acted as secretary for the meeting.
The meeting was called to order by Esther Dyson at 9:09 am U.S. Eastern Daylight Time.
The meeting began with a discussion of proposed bylaw amendments concerning the Names Council. At the public-forum session of the Board's quarterly meeting in Berlin on May 26, 1999, there appeared to be a clear sentiment among participants that it was inappropriate for the gTLD constituency of the DNSO, which presently has only one member, to have three representatives on the Names Council (NC). At its meeting on the following day, the Board noted this apparent strong sentiment and adopted the following resolution:
FURTHER RESOLVED (resolution 99.35, adopted May 27, 1999), that the Board requests that the Constituency for gTLD registries agree, for so long as Network Solutions is the only participant in such Constituency, to select only one individual (rather than three) to represent that Constituency on the provisional Names Council, and the Board states that if such Constituency does not agree to make only one such selection, the Board will amend the Bylaws to effectuate such goal.
By a letter dated July 1, 1999, Jim Rutt, Chief Executive Officer of Network Solutions, Inc., writing "On behalf of the gTLD Constituency," declined to follow the Board's request for voluntary action on the constituency's part and submitted three representatives (a Network Solutions employee and two of its lawyers) to the NC.
On July 16, 1999, a set of proposed amendments to the bylaws was posted on the ICANN web site with an invitation to the Internet community to comment. At its July 26, 1999, special meeting, the Board deferred taking action to allow additional comments to be received and established an August 10, 1999 deadline for comments. Numerous comments were received, including written comments from over thirty persons submitted for posting on the ICANN web site.
At the August 12 special meeting, after receiving a report and summary of the comments from the ICANN staff and counsel, the Board discussed the comments and issues in detail, as follows:
1. It was noted that some features were overwhelmingly supported by the commentators, others were the subject of a significant amount of controversy, and still others resulted in suggestions for modifications.
2. Based on the comments, there is an overwhelming consensus in support of limiting the number of representatives on the NC of a constituency having fewer than three members to the number of members. The Board's discussion concluded that this amendment should be made.
3. The current bylaws (Art. VI-B, Sec. 3(c)) generally limit any member of a constituency to one nomination for the NC representatives of that constituency. Some commentators questioned whether this limitation remained appropriate. After discussion, the Board concluded that these comments were persuasive and that the limitation on the number of a constituency member's nominations should be eliminated.
4. The proposed amendments that were posted included a residency- based geographic diversity requirement, in contrast to the citizenship-based geographic diversity requirement in the present bylaws. After discussion, the Board concluded that the question of whether geographic diversity agreements should be determined on the basis of residency or citizenship raises many issues, which should be considered in a coordinated way for all of the bylaws' geographic diversity requirements. The Board concluded that a change to a residency-based geographic diversity requirement for the NC should not be made at this time and that further discussion of geographic diversity requirements should be scheduled for the upcoming Santiago meeting.
5. Several comments criticized the proposed language concerning Board waivers of geographic diversity requirements as too open-ended. At the same time, many comments were received stating that during the initial period of the DNSO's operation some constituencies, which are still in the process of broadening their membership through outreach, have significant difficulties in meeting diversity requirements. In its discussions, the Board noted the need to move forward to complete the organization of the DNSO without significant delays, so that the DNSO can formulate policy recommendations and select its three directors in time for their seating at the annual ICANN meeting in November. The Board concluded that the bylaws should permit the Board to grant waivers of the geographic diversity requirements, but that that ability should be exercised sparingly according to express guidance stated in the bylaws. After some discussion, the Board concluded, as proposed by one of the commentators, that waivers should be granted only on good cause shown by a constituency that meeting the geographic diversity requirement is presently impracticable and on its commitment to a detailed plan for increasing global outreach to diversify its membership.
6. The posted proposal included various amendments designed to recognize expressly the Board's authority to ensure that each constituency's members are proper members of the NC. There was significant opposition to these amendments, mainly raising concerns that these amendments would give the Board discretionary authority over the NC membership. The Board noted that this was not the intent of the proposed amendments; they were instead intended to recognize the Board's responsibility for enforcing bylaw requirements. Because of the apparent potential for misinterpretation of these proposed changes, and because the Board's existing authority has so far proven sufficient to allow enforcement of bylaw requirements, the Board concluded that these proposed changes should not be made at this time.
7. The proposal would also have added a provision concerning removal of NC members by the constituency represented or by a three-quarters vote of the Board. In view of significant opposition, the Board concluded that this change should not be made.
The Board discussed whether action on the proposed bylaw amendments should be deferred to the quarterly meeting in Santiago, where procedures will be introduced to permit public observation of the Board's voting. Given the lengthy period of time and extensive public comment since this matter was discussed at the public session of the ICANN May meeting in Berlin, and because of the need of the DNSO Names Council for prompt clarification of its membership structure prior to its next scheduled meeting in Santiago, the Board determined that these bylaw amendments should be adopted without additional delay.
After this discussion, upon motion duly made by Greg. Crew and seconded by Linda Wilson, the Board unanimously adopted the following resolutions:
"The NC shall consist of representatives, selected in accordance with Section 3(c) of this Article, from each Constituency recognized by the Board pursuant to the criteria set forth in Section 3 of this Article."
"Each Constituency shall select up to three individuals to represent that Constituency on the NC, no two of whom may be citizens of the same Geographic Region, as defined in Article V, Section 6, except that, with the consent of the Board, this latter requirement may be suspended for the term of a particular individual upon a showing that it is impracticable for the Constituency to obtain such geographic diversity. Any such waiver shall be granted only upon a commitment by the constituency to a substantive plan to diversify its membership, thereby minimizing the likelihood of the need for future waivers from the Board. Notwithstanding the foregoing, no Constituency may have more representatives on the NC than there are members of the Constituency."
"Unless shortened by the Board in its recognition of a Constituency, the term of office for each member of the NC shall be two years."
The Corporation's counsel gave a short briefing on ongoing discussions among lawyers for the Corporation, the United States Department of Commerce, and Network Solutions, Inc. Those discussions concern the terms of a possible agreement between the Corporation and Network Solutions concerning its continued operation of the registry for the .com, .net, and .org TLDs; Network Solutions' suggestions for modifications to the Corporation's Registrar Accreditation Agreement; and the terms of the Network Solutions-Registrar license and agreement for use after conclusion of the present testbed.
The meeting was adjourned at 10:02 am Eastern Daylight Time.