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Preliminary Report of Special Board Meeting 11 December 2008

(Resolutions were posted as the preliminary report on 18 December 2008)

[Formal Minutes are still to be approved by the ICANN Board]

This is a preliminary report of the approved resolutions resulting from the Special Meeting of the ICANN Board of Directors, which took place on 11 December 2008. This has not been approved by the Board and does not constitute minutes but a preliminary attempt to capture the resolutions from that meeting.

A Special Meeting of the ICANN Board of Directors was held via teleconference 11 December 2008 @ 1500 UTC. Chairman Peter Dengate Thrush promptly called the meeting to order.

In addition to Chairman Peter Dengate Thrush the following Directors participated in all or part of the meeting: Roberto Gaetano (Vice Chairman), Harald Tveit Alvestrand, Raimundo Beca, Steve Crocker, Demi Getschko, Steven Goldstein, Dennis Jennings, Rajasekhar Ramaraj, Rita Rodin Johnston, Jean-Jacques Subrenat, Bruce Tonkin, Katim Touray, Paul Twomey (President and CEO), and David Wodelet. The following Board Liaisons participated in all or part of the meeting: Janis Karklins, GAC Liaison; Ram Mohan, SSAC Liaison,; Thomas Narten, IETF Liaison; Thomas Roessler, TLG Liaison; Wendy Seltzer, ALAC Liaison; and Suzanne Woolf, RSSAC Liaison.

Also, the following ICANN Management and Staff participated in all or part of the meeting: John Jeffrey, General Counsel and Secretary; Doug Brent, Chief Operating Officer; Kurt Pritz, Senior Vice President, Services; Paul Levins, Executive Officer and Vice President, Corporate Affairs; Kevin Wilson, Chief Financial Operator; Denise Michel, Vice President, Policy; Diane Schroeder, Director, Board Support; Barbara Roseman, General Operations Manager, IANA; Kim Davies, Manager, Root Zone Services; Rob Hoggarth, Senior Policy Director; Liz Gasster, Senior Policy Counselor, Policy Support; and Craig Schwartz, Chief gTLD Registry Liaison.

Approval of Minutes

Steve Goldstein moved the following resolution, which was seconded by Jean-Jacques Subrenat.

It is, Resolved (2008-12-11-01) that the Minutes of the Special Board Meeting of 1 October 2008 are hereby approved.

All board members passed the resolution, unanimously by a voice vote.

New gTLD Implementation Issues –Briefing and Discussion

Kurt Pritz provided an update on the new gTLDs project and public feedback that was being received relating to the applicant guidebook and various meetings that are being held with constituency groups and others. There was an initial discussion about registrar and registry separation issues and a discussion of competition law concerns.

Dennis Jennings one follow-up was maybe we would explicitly use monopoly-busting functions in US & EU & elsewhere directly from competition authorities.

Rita Rodin Johnston suggested that ICANN stay away from price controls and consider provisions relating to immediate termination. Peter suggested that a set of intermediate sanctions might be useful.

Jean-Jacques Subrenat questioned whether that would require a set of standards and whether there was an appropriate legal requirement to apply standards if ICANN utilized a sanctions regime.

Kurt then introduced financial issues that had been raised and indicated that in Cairo there was more discussion about the 75K annual minimum fee than the 185K application-processing fee. Around 185K, there were questions from applicants from developing countries and communities about how this fee might be a barrier to entry. One way might be to engage with an independent agency to provide grants and he noted that we are still reviewing the public comments on the topic.

The Chairman indicated that some board members, including Wendy Seltzer and Raimundo Beca were questioning the recovery of up-front costs and asked for board views on the appropriateness of that. Wendy Seltzer indicated that had we known that all of the discussions were increasing the costs, we might have held shorter discussions. As a matter of economic cost analysis, it did not make sense to me.

Janis Karklins indicated that some GAC members raised the question of validity of charging the 60K risk money, and that he thought it looks odd, that someone is taking money in advance to cover legal expenditures at end. Maybe it needs further explanation on what the risk money covers, and asked that if there is no risk, then consider whether some of the money goes back to the applicants. Kurt Pritz responded that risk can be insured and where money was not spent it could be returned to future applicants.

The Chairman asked about lower fees, delayed fees and whether there were any other solutions than a grant program where someone else pays their fee for them.

Roberto Gaetano indicated that he just wanted to make sure it is clear he is not opposing cost recovery, but he is proposing we have a price that takes into account financial condition of potential buyer, where we have a differentiation in price; this is something done in prices for the elderly, where we take into account if the candidate is coming from a developing country & it is considered appropriate for example in IDN ccTLDs, where relationship to the country is a parameter that might be taken into account.

Bruce Tonkin indicated that the GNSO Council spent a bit of time on these issues and that the Council believes ICANN needs to look at circumstances Roberto was mentioning, but that should probably occur in second round. The danger of considering these issues in the first round is that it is complex to set this up. Bruce suggested that the Board should pledge to the community that this will be a major consideration for the second round and allow for more time to have staff set this up.

Raimundo Beca inquired about whether California law prevents them from not recovering costs in current Fiscal Year & which budget we should reflect recovered costs (next Fiscal Year or this one). Raimundo also raised the issues of whether ICANN needs the cash flow, and why ICANN could not ask for a fraction of the 185K, and if applicant does not continue past certain phases, then the applicant would not have to pay more, but if they continue, the applicant pays more. “Pay as you go” would be received well in the community. The Chairman indicated that he was attracted to the concept of a single application fee.

Harald Tveit Alvestrand noted that on-going registry fees are intended to cover fees for service, and that he did not understand that there was an estimate on those costs, and inquired whether there was something that could be made public. Kurt Pritz noted that historically gTLD fees have paid for nearly all of ICANN’s budget. ICANN is continuing to look for alternative sources of revenue, but until that happens, fees go to direct support for registries but to other activities that benefit registries directly or indirectly. Fee is based on “half a person” to support a gTLD registry.

Bruce Tonkin indicated that in his view, there has been a lot less material presented to support the 75K; and that we should include more on the experience of the earlier rounds on actual costs of supporting a new gTLD registry. He suggested that we could potentially structure fees 75K in first year, 50K the next year.

The Chairman noted that people want to know what this is paying for & level of support.

The discussion then moved to dispute and contention resolution. Kurt noted that the board had previously asked for staff to perform additional consultations, and that staff would provide results in a future paper.

Harald Tveit Alvestrand indicated that on morality & public order, there used to be a list of documents that embodied the principles, and that he would like to retain that list.

Rita Rodin Johnston agreed and indicated her concern about discretion for a panel without objective standards; noting that there may be risks surrounding subjective discretion. She noted her understanding to the need for flexibility, but stressed that solid criteria was an important factor relating to such determinations.

The conversation moved to comparative evaluation scoring & community-based evaluations. Kurt Pritz noted that the Applicant Guidebook provides procedure and criteria for scoring., and that the GNSO Council expressed concerns that the sponsored or community-based applicants in 2003 did not meet community criteria, they asked that criteria be more stringent.

The Chairman asked whether there were comments on methods for last resort contention resolution. Harald Tveit Alvestrand indicated that he had heard a lot of public comment on this, and that auctions are objective & efficient at allocating TLD to those with most money. Jean-Jacques Subrenat agreed with Harald’s comments.

Steve Goldstein indicated that the GAC folks were reassured ICANN would not use auction revenues in general funds.

Rita Rodin Johnston noted that we need more information from community, as she is generally opposed to auctions, as it seems to be not in keeping with ICANN’s mission.

The Chairman asked what happens if there is an objectionable string and no one objects? Public Defender or someone else, but nothing has been crystallized yet. He also raised the issue of whether a government should be required to object? Rita Rodin Johnston indicated that she believed that, they should have to object. Wendy Seltzer stated that there should be no presumption of objection.

Janis Karklins said he could only restate what GAC members have said, that this is still under consideration. He noted that some governments are concerned because they may not know enough about it; or that they need to be sure no geographical names are adopted without consent of the government. He also noted that during Cairo another concern was expressed about the potential blurring of c-space and g-space, he noted that the GAC would try to address this in Mexico City. Steve Goldstein noted that if you can solved a test case for “.AMERICA”, than you could solve the problem.

It was agreed that there should be a break out board discussion on the topics and other public comments once the comments had been reviewed and digested.

2009-2012 Strategic Plan – Briefing and Discussion

Doug Brent noted that the most recent Strategic Plan had been posted two weeks prior to the meeting and that the public comment period was still running. He indicated that the Board could address concerns and questions via email and during the next board discussion.

The sense of the board was to move along in this manner and discuss it during the next board meeting.

Report from Internet Governance Forum in Hyderabad -- Briefing and Discussion

The Board conversation held in Confidence

United States Elections Results Transition Discussion – Briefing and Discussion

The Board conversation held in Confidence

GNSO Improvements / Implementation and the Role of Individual Users in GNSO – Briefing and Action

An update was provided on the GNSO Improvements and implementation issues by staff, and there were questions from board members on the progress and expected timelines. Staff agreed to provide more information during the next board meeting.

It was agreed that the discussion regarding term-limits for GNSO council members could be held over until the next meeting.

Denis Michel noted the importance of carrying forward the dialogue about the role of individual users within the GNSO. She noted that Management and Staff was recommending that the board ask the interested parties to work together and try to come up with an agreed-upon recommendation for the board’s consideration at it’s next meeting. She also noted that this is an important part of the restructuring work that is underway.

Steve Goldstein indicated that he agreed with the approach and would support the offering of a resolution on the topic. Dennis noted that in the proposed resolution presented by staff, there was no specific mention of the NCUC, and it was noted that the term GNSO broadly referred to all constituencies within the supporting organization. Accordingly the following resolutions was moved by Steve Goldstein and seconded by Dennis Jennings.

Whereas, the Board has received varying recommendations on registrant and user involvement in the GNSO, and the issue of how to incorporate the legitimate interests of individual Internet users in constructive yet non-duplicative ways remains an open issue that affects GNSO restructuring.

Resolved, (2008-12-11-02) the Board requests that members of the GNSO community work with members of the ALAC/At-Large community and representatives of potential new "non-commercial" constituencies to jointly develop a recommendation for the composition and organizational structure of a Non-Commercial Stakeholder Group that does not duplicate the ALAC and its supporting structures, yet ensures that the gTLD interests of individual Internet users (along with the broader non-commercial community) are effectively represented within the GNSO. This recommendation should be submitted, no later than 24 January 2009, for consideration by the Board.

The Board unanimously approved the resolution by voice vote.

Board Only Session

A working session was held without Staff, and the conversation was held in confidence. Actions were taken by the Board and withheld from publication pursuant to ICANN Bylaws, Article III, Section 5(2).

The meeting was adjourned following the Board-Only Session.