I noticed earlier today that the ICANN public comment period for Phase 1 of the RPM PDP was unreasonably short, going from April 7, 2021 to April 30, 2021, a mere 23 days. As I noted on Twitter:
Compare: April 7 to April 30https://t.co/BGivR1Md7u
— George Kirikos (@GeorgeKirikos) April 26, 2021
this didn’t make sense, and seemed to me to be an attempt to stifle public input. I submitted a complaint to the relevant ICANN staff, and even submitted a supporting spreadsheet analysis which proved that 23 days is inconsistent with past comment periods.
Three hours later, ICANN staff responded to my complaint by adding 21 days, making the new deadline Friday May 21, 2021. However, ICANN staff went on to assert that:
Please note that the proceeding in question complies with the mandatory minimum ICANN Bylaws requirement of a 21-day period prior to Board action, as explained under the “Brief Overview” of the public comment proceeding webpage.
In other words, I think they believe that 21 days would have been sufficient. In my view, their (possibly new) interpretation of the relevant ICANN Bylaws is not correct.
While Article 3.6(a)(i) of the Bylaws says that ICANN shall:
provide public notice on the Website explaining what policies are being considered for adoption and why, at least twenty-one days (and if practical, earlier) prior to any action by the Board;
one must also look to Article 3.6(a)(ii) immediately below that, which requires that they:
provide a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments (such comment period to be aligned with ICANN’s public comment practices), prior to any action by the Board
While 3.6(a)(ii) doesn’t specify a specific timeline, it must be “reasonable” and also “aligned with ICANN’s public comment practices”, which clearly makes the spreadsheet I prepared highly relevant, documenting that ICANN’s “public comment practices” are and have long been 40+ day public comment periods. So, the new deadline meets that standard (since it’ll be 44 days).
However, it dawned on me, due to my careful re-reading of Article 3.6(a)(ii), that ICANN staff has been repeatedly in violation of those Bylaws!
Consider the language above, which says that parties must have a reasonable opportunity “to see the comments of others” AND “to reply to those comments.” Lately, ICANN staff have started to moderate public comments, so that they’re not immediately visible. Also, many people submit their comments on the very last day, leaving little time for others to review/respond (remember, there must be a “reasonable opportunity” provided to reply). Indeed, at one time, there used to be an explicit “Reply period” after the public comment period, where folks were encouraged to respond to previously submitted comments, but that “Reply period” was eliminated.
Also, in an earlier RPM PDP comment period, some comments weren’t even posted by staff into the dreadful spreadsheet until after the comment period had already closed. That deprived the public of any ability to see the comments of others and reply to them (while they may have been seen, it would have been too late to reply). I myself was refused the ability to download that spreadsheet for numerous weeks, as I’ve previously documented.
For the .COM Amendment 3 Public Comment period, there were over 9,000 comments submitted. It would likely take many weeks to review and respond to those comments. Yet, again no reply period existed (and of course ICANN made a mockery of that public comment period, by ignoring the overwhelming opposition of the public to the proposal).
In light of this careful re-reading of the Article 3.6(a)(ii) of the ICANN Bylaws, today I formally asked that ICANN staff restore a minimum of a 1 week formal “Reply Period” for all future public comment periods (not just this latest RPM PDP comment period). Without that formal Reply Period, there’s simply no feasible way to comply with the requirement to have a reasonable opportunity both to see and to respond to the comments of others.