NCUC Comments on the Proposed CSG Charter
23 July 2009
The Non-Commercial Users Constituency (NCUC) welcomes this opportunity to comment on the various Stakeholder Group (SG) charters that have been put up for consideration and community discussion. NCUC also appreciates the fact that ICANN Staff have attempted to set some uniform standards of transparency, openness, fairness and courtesy (among others) across all SGs. Nevertheless, NCUC has grave concerns regarding the adoption of the Commercial Stakeholders Group (CSG) Charter as it currently stands. These concerns are as follows:
The Charter potentially, and possibly effectively, limits membership of the new CSG to its existing Recognized Constituencies, since it subjects examination of whether any new constituency sufficiently represents “commercial user interests” to the “unanimous consent” of the existing Recognized Constituencies[1].
"4.2 Membership shall also be open to any additional constituency recognised by ICANN’s Board under its by-laws, provided that such constituency, as determined by the unanimous consent of the signatories to this charter, is representative of commercial user interests which for the purposes of definition are distinct from and exclude registry and prospective registry, registrar, re-seller or other domain name supplier interests." (italics added).
(i) it goes against the Board’s express desire to encourage the formation of new constituencies and increase the growth and diversification of the overall GNSO community, including forging a “stronger partnership between the international business community and ICANN”[2];
(ii) it arrogates to the CSG the constituency approval function more properly exercised by the Board of Directors (particularly for a nonprofit organization with heightened obligations to not be driven by commercial interests); and
(iii) in light of recent discussions within the GNSO Council and the community as to who and what would constitute a “commercial” interest and/or user[3], the requirement of unanimous consent from all existing commercial constituencies is extremely likely to mean that no new constituency will be formed within the CSG for as long as its transitional status exists.
(iv) it treats commercial stakeholders different from noncommercial stakeholders, with the board controlling noncommercial users, while giving commercial users a VETO over the board’s decisions.
It is no answer to say that the CSG Charter is merely “transitional”, as the Charter’s own silence regarding how new constituencies can be formed within the final CSG means that the GNSO community is left in a state of uncertainty – to await the CSG’s undefined “consensus process”[4] regarding what is intended to be a significant feature in the restructured GNSO. This uncertainty is further aggravated by the explicit acknowledgment that how new constituencies are to be created is something that the CSG will determine only after its transitional Charter is approved[5]
NCUC believes that the CSG Charter, even as a transitional document, should be amended to reflect that decisions as to the formation of new constituencies should be made by the Board and not the Recognized Constituencies or any other person or group within the CSG.
NCUC has been engaged in recent and extensive discussions with the Board’s Structural Improvements Committee (SIC) regarding substantive changes to the NCSG Charter originally proposed by NCUC, which changes (as reflected in the ICANN Staff’s current draft available for public comment) resulted in part from feedback provided by other GNSO Constituencies. We request that the Board, ICANN Staff and the GNSO Community ensure that the CSG Charter be subject to similar scrutiny and input.