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Board Activities and Meetings

View records of actions and decisions made by the ICANN Board from recent activities and meetings.

Approved Board Resolutions | Special Meeting of the ICANN Board | 16 January 2022

  1. Consent Agenda:
    1. IT Outsource Contract Renewal
    2. IT Outsource Contract
  2. Main Agenda:
    1. Rights Protection Mechanisms Policy Development Process Final Report
    2. Consideration of Final Declaration in the Afilias Domains No. 3 Limited (Afilias) v. ICANN Independent Review Process (.WEB)
    3. GAC Advice: ICANN72 Virtual Annual General Meeting Communiqué (October 2021)

 

  1. Consent Agenda:

    1. IT Outsource Contract Renewal

      Whereas, ICANN organization has a need for continued third-party development, quality assurance and content management support to augment its IT capacity.

      Whereas, [Redacted –Confidential Negotiation Information] has provided services in software engineering, quality assurance, and content management over the last several years.

      Whereas, ICANN org conducted a full request for proposal when renewing the contract in 2017, the results of which lead ICANN org to determine that [Redacted –Confidential Negotiation Information] was still the preferred vendor.

      Whereas, ICANN org considered the cost and efficiency of either issuing another request for proposal for outsourced IT capacity or further renewing the contract with [Redacted –Confidential Negotiation Information] and determined that it was more efficient and cost effective to renew the contract with [Redacted –Confidential Negotiation Information].

      Resolved (2022.01.16.01), the Board authorizes the President and CEO, or his designee(s), to enter into, and make disbursement in furtherance of, a further renewed contract with [Redacted –Confidential Negotiation Information] for a term of [Redacted –Confidential Negotiation Information].

      Resolved (2022.01.16.02), specific items within this resolution shall remain confidential for negotiation purposes pursuant to Article 3, section 3.5(b) of the ICANN Bylaws until the President and CEO determines that the confidential information may be released.

      Rationale for Resolution 2022.01.16.01 – 2022.01.16.02

      In November 2014, following ICANN Board approval, ICANN organization engaged an expert third-party outsourcing firm, [Redacted –Confidential Negotiation Information], to augment ICANN org's Engineering and IT capacity. That led to a [Redacted –Confidential Negotiation Information] with an annual value not to exceed [Redacted –Confidential Negotiation Information].  In April 2018, the contract was renewed through March 2020 with Board approval following a request for proposal (RFP) process.  The value of the renewed contract was [Redacted –Confidential Negotiation Information] for a period of [Redacted –Confidential Negotiation Information].  The contract was renewed for a third time in May 2020 through March 2022 with Board approval.  The value of the renewal contract was [Redacted –Confidential Negotiation Information].  To date, ICANN org has contracted with [Redacted –Confidential Negotiation Information] for a total of [Redacted –Confidential Negotiation Information]. The relationship with [Redacted –Confidential Negotiation Information] has been beneficial to ICANN org and overall has been successful.

      Both the initial and first renewed contracts included RFP processes. After consulting with its procurement department, ICANN org determined not to pursue a RFP process for the second and third (current) renewals due to cost of doing a RFP process and limited responses received from the first renewal RFP.  The RFP for the first renewed contract concluded that [Redacted –Confidential Negotiation Information] is still the preferred vendor and ICANN org determined it was most efficient and cost effective to renew the contract with [Redacted –Confidential Negotiation Information].

      Accordingly, both ICANN org and the Board Finance Committee (BFC) recommended that the Board authorize the org to enter into, and make disbursement in furtherance of, a renewed contract with [Redacted –Confidential Negotiation Information], covering the period of [Redacted –Confidential Negotiation Information], with a total cost not to exceed [Redacted –Confidential Negotiation Information]

      This decision is in the furtherance of ICANN org's mission and the support of public interest to support the security, stability and resiliency of the domain name system by ensuring that there is a fully resourced engineering and IT team able to support the org in a fiscally responsible and accountable manner.

      This decision will have a fiscal impact, but the impact has already been accounted for in the FY23 budget and will be for future budgets as well. 

      As noted above, this action is intended to have a positive impact on the security, stability and resiliency of the domain name system.

      This is an Organizational Administrative Function that does not require public comment.

    2. IT Outsource Contract

      Whereas, ICANN organization has a need for continued third-party ad hoc development and quality assurance support to augment its Engineering and IT capacity.

      Whereas, [Redacted –Confidential Negotiation Information] has provided services in software engineering and quality assurance over the last several years.

      Resolved (2022.01.16.03), the Board authorizes the President and CEO, or his designee(s), to enter into, and make disbursement in furtherance of, a further renewed contract with [Redacted –Confidential Negotiation Information] for continued third-party ad hoc IT support for a term of [Redacted –Confidential Negotiation Information].

      Resolved (2022.01.16.04), specific items within this resolution shall remain confidential for negotiation purposes pursuant to Article 3, section 3.5(b) of the ICANN Bylaws until the President and CEO determines that the confidential information may be released.

      Rationale for Resolutions 2022.01.16.03 – 2022.01.16.04

      In order to provide supplemental support and maintain vendor competition, ICANN organization has previously contracted with [Redacted –Confidential Negotiation Information] on a smaller scale to provide ad hoc support for Engineering and IT projects.  ICANN org will receive a [Redacted –Confidential Negotiation Information] discounted rate on procured engineering resources assuming ICANN signs a [Redacted –Confidential Negotiation Information] contract. The value of the contract is [Redacted –Confidential Negotiation Information] for a period of [Redacted –Confidential Negotiation Information]. The relationship with [Redacted –Confidential Negotiation Information] has been beneficial to ICANN org and has been a success overall.

      With its procurement department, ICANN org considered the cost and efficiency of either issuing a request for proposal (RFP) for ad hoc outsourced IT capacity or further renewing [Redacted –Confidential Negotiation Information] contract and determined that it was more efficient and cost effective to renew [Redacted –Confidential Negotiation Information] contract.  For example, the cost of switching vendors entails drafting a new RFP, vetting potential candidates, and vendor onboarding – all of which would add cost and extend project durations on an already burdened production line. 

      Accordingly, both ICANN org and the Board Finance Committee recommended that the Board authorize the org to enter into, and make disbursement in furtherance of, a renewed contract with [Redacted –Confidential Negotiation Information] for continued third-party ad hoc IT support covering the period of [Redacted –Confidential Negotiation Information], with a total cost not to exceed [Redacted –Confidential Negotiation Information]

      This decision is in the furtherance of ICANN org's Mission and the support of public interest to support the security, stability and resiliency of the domain name system by ensuring that there is a fully resourced engineering and IT team able to support the organization in a fiscally responsible and accountable manner.

      As noted above, this action is intended to have a positive impact on the security, stability and resiliency of the domain name system.

      This is an Organizational Administrative Function that does not require public comment.

  2. Main Agenda:

    1. Rights Protection Mechanisms Policy Development Process Final Report

      Whereas, on 18 February 2016, the GNSO Council resolved to initiate a two-phased policy development process (PDP) to review all existing trademark-related rights protection mechanisms (RPMs) in all generic top-level domains (gTLDs).

      Whereas, on 9 March 2016, the GNSO Council approved the PDP Charter, thereby initiating Phase 1 of the PDP that focused on the RPMs developed for the 2012 New gTLD Program.

      Whereas, the PDP Working Group has followed all the necessary steps and processes required by the ICANN Bylaws, the GNSO PDP Manual and the GNSO Working Group Guidelines, including the publication of an Initial Report for public comment (on 18 March 2020) and consideration of the public comments received thereto.

      Whereas, on 24 November 2020, the PDP Working Group submitted its Phase 1 Final Report to the GNSO Council for its review and action.

      Whereas, the PDP Working Group has reached Full Consensus for 34 out of the 35 final recommendations documented in the Phase 1 Final Report, and Consensus for the remaining one final recommendation (concerning Final Recommendation #1 for the Trademark Clearinghouse (TMCH)).

      Whereas, 16 of the 35 recommendations in the Phase 1 Final Report recommend modifying existing operational practices as well as updating documentation and related materials concerning RPMs and the Board does not anticipate that substantial  resources will be needed for implementation (TMCH Final Recommendation 4, Trademark Claims Final Recommendations 2, 5, and 6, URS Final Recommendations 1, 2, 3, 4, 5, 6, 7, 11, 12, 14, and 15, and one Trademark Post Delegation Dispute Resolution Procedure (TM-PDDRP) Final Recommendation).

      Whereas, nine of the 35 recommendations in the Phase 1 Final Report recommend that the status quo be maintained for future gTLD expansion rounds (e.g., no change to the current rules as applied to the gTLDs delegated under the 2012 New gTLD Program round) and, as such, the Board anticipates that implementation of these recommendations will be integrated into any implementation work related to the next gTLD expansion round (TMCH Final Recommendation 2, Sunrise Final Recommendations 2, 3, 4, 5, 6, and 7, and Trademark Claims Final Recommendations 3 and 4).

      Whereas, six of the 35 recommendations in the Phase 1 Final Report require substantial resources for implementation (including considerations relating to timing and staffing) due to their complexity and the need to involve multiple stakeholders. Successful implementation will also depend on the willingness and availability of stakeholders to participate in the implementation work. Specifically, these recommendations call for:

      •  collection of data concerning the RPMs,
      • developing educational materials to assist users of the RPMs, and
      • creating a new complaints mechanism for URS participants.

      ICANN org estimates that fully implementing these recommendations will require a minimum of one year once implementation work begins on this set of recommendations and would require substantial internal resources from multiple ICANN org functions in order to identify and work with relevant stakeholders to implement the recommendations, as well as to support and maintain ongoing operations and data collection. ICANN org plans to include these recommendations as part of its ongoing work with the community on prioritization efforts relating to anticipated implementation work arising from community-developed recommendations that require ICANN org resourcing and support (TMCH Final Recommendation 3, URS Final Recommendations 8, 9, 10, and 13, and one Overarching Data Collection Final Recommendation).

      Whereas, four of the 35 recommendations in the Phase 1 Final Report call for specific changes to the Applicant Guidebook and/or the Base Registry Agreement for subsequent rounds of new gTLDs (TMCH Final Recommendation 1, Sunrise Final Recommendations 1 and 8, and Trademark Claims Final Recommendation 1).

      Whereas, on 21 January 2021, the GNSO Council unanimously approved all 35 final PDP recommendations as documented in the PDP Working Group's Phase 1 Final Report.

      Whereas, on 19 March 2021, the GNSO Council transmitted its Bylaws-mandated Recommendations Report to the ICANN Board of Directors, recommending that the Board adopt all the final Phase 1 recommendations. The GNSO Council also requested that ICANN org convene an Implementation Review Team (IRT) to work on the implementation of these recommendations, as is the regular practice and in accordance with the IRT Principles & Guidelines approved in 2016.

      Whereas, on 7 April 2021, the Phase 1 Final Report was published for public comment to inform Board action on the report, in accordance with the Bylaws.

      Whereas, on 7 April 2021, the ICANN Board also notified the Governmental Advisory Committee (GAC) of the GNSO Council's approval of the Phase 1 Final Report, in accordance with the Bylaws.

      Whereas, the GAC has not provided advice as to whether it believes there are any public policy issues raised by these recommendations.

      Resolved (2022.01.16.05), the Board thanks the members of the PDP Working Group for their dedication and over four years of work on Phase 1 of the PDP, including its development of 35 recommendations to enhance the RPMs that were originally developed for the 2012 New gTLD Program and to facilitate future reviews of all RPMs.

      Resolved (2022.01.16.06), the ICANN Board adopts all 35 final Phase 1 PDP recommendations as documented in the PDP Working Group's Phase 1 Final Report.

      Resolved (2022.01.16.07), for the 16 recommendations that call for updates to existing operational practices or documentation concerning the RPMs where no substantial resources are required for implementation, the ICANN Board directs ICANN's President and CEO, or his designee(s), to proceed with the implementation of  these recommendations as soon as feasible, and to develop an implementation plan, including resources and timelines, for the recommendations that is consistent with Annex A, Section 10 of the ICANN Bylaws, and to continue communication with the community on implementation.

      Resolved (2022.01.16.08), for the nine recommendations affirming the status quo (i.e. maintaining the Phase 1 RPMs as implemented for the 2012 New gTLD Program), the ICANN Board directs ICANN's President and CEO, or his designee(s), to document and include these recommendations for future expansions of new gTLDs and to inform the community about the ICANN org's plans for how these will be implemented.

      Resolved (2022.01.16.09), for the six recommendations that require  substantial resourcing, and involvement of multiple stakeholders to implement, the ICANN Board directs ICANN's President and CEO, or his designee(s), to develop and to submit to the ICANN Board a plan for implementation of these recommendations containing information on estimated timing, staffing, and other resources required, and information about  how implementation of these recommendations fit into its operational planning and prioritization of the anticipated implementation efforts that will require ICANN org resourcing and support. The Board recognizes that these six recommendations will consequently not be implemented immediately, and that implementation will proceed when resources become available as a result of the ICANN org's prioritization work.

      Resolved (2022.01.16.10), for the four recommendations that call for specific changes to the Applicant Guidebook and/or the Base Registry Agreement and coordination with the expected Subsequent Procedures IRT, the ICANN Board directs ICANN's President and CEO, or his designee(s), to incorporate the implementation of these recommendations into the work on updates to the Applicant Guidebook for subsequent new gTLD rounds.

      Resolved (2022.01.16.11), the Board directs ICANN org to provide it with an implementation timeline, to be established in agreement with the Implementation Review Team, and to report regularly on the status of work throughout the implementation period. In the event that implementation progress may be impeded or the timeline cannot be met due to unforeseen circumstances or policy questions that cannot be resolved, or any other cause of impasse, the Board may consider appropriate ways to facilitate next steps with the GNSO and community.

      Rationale for Resolutions 2022.01.16.05 – 2022.01.16.11

      Why is the Board addressing the issue?

      The 2012 New gTLD Program rights protection mechanisms (RPMs) are mechanisms that have now been in use for several years. Community feedback on the RPMs developed for the 2012 New gTLD Program indicated a need to review their application and scope, especially if there is to be further expansion of the gTLD space. As this PDP is the first time that the RPMs have been subject to a policy review by the ICANN community, there were no comprehensive studies or data collected that measured their effectiveness.

      As such, on 15 March 2016, the GNSO Council chartered the PDP Working Group to conduct a review of all the RPMs in two phases. Phase 1, which recently concluded, focused on reviewing the effectiveness of all the RPMs and associated structures and procedures applicable to gTLDs that were launched under the 2012 New gTLD Program. Phase 2 will focus on reviewing the Uniform Domain-Name Dispute-Resolution Policy (UDRP), which has been an ICANN Consensus Policy since 1999.

      In November 2020, the PDP Working Group completed its review of the RPMs that were developed for the 2012 New gTLD Program and submitted its Phase 1 Final Report to the GNSO Council for review and approval. The Phase 1 Final Report represents the culmination of over four years of work by the PDP Working Group.

      On 21 January 2021, the GNSO Council voted to approve by a GNSO Supermajority all the 35 recommendations contained in the Phase 1 Final Report. On 19 March 2021, the GNSO Council transmitted its Bylaws-mandated Recommendations Report to the ICANN Board of Directors, recommending adoption of all the final recommendations by the ICANN Board.

      As required by Article 3, Section 6.(a)(iii) of the ICANN Bylaws, the approved recommendations were posted for public comment to inform Board action on the final recommendations. Furthermore, under Section 11.3(i)(x) of the ICANN Bylaws, the GNSO Council's Supermajority support for these recommendations obligates the Board to adopt the recommendations unless, by a vote of more than two-thirds, the Board determines that the policy is not in the best interests of the ICANN community or ICANN.

      What is the proposal being considered?

      In 2016, the PDP Working Group was chartered to assess the effectiveness of the existing RPMs, including those established as safeguards in the New gTLD Program, and to study whether or not all the RPMs collectively fulfill the purposes for which they were created. The Board today considers the 35 Phase 1 final recommendations from the PDP Working Group.

      The Final Report contains 35 recommendations, which were classified into three categories by the PDP Working Group: nine recommendations which recommend that the status quo (e.g., the current rules as applied to the gTLDs delegated under the 2012 New gTLD Program round) be maintained,15 recommendations for new policies or procedures to improve the RPMs launched under the 2012 New gTLD Program, such as to enable fulfillment of the objectives for their creation and enhance their effectiveness in the next new gTLD expansion round, as well as 10 recommendations to modify existing operational practices to improve the effectiveness of the RPMs. As the Working Group experienced difficulties in obtaining quantitative data concerning the effectiveness of the Phase 1 RPMs, it also put forward an Overarching Data Collection Final Recommendation aimed at addressing this data-related gap.

      Among the 35 Phase 1 final recommendations, the PDP Working Group reached full consensus on 34 recommendations and consensus on one recommendation, which was the TMCH Final Recommendation #1. A Minority Statement was jointly filed by seven members of the PDP Working Group with regard to this recommendation, although the Minority Statement did not oppose the primary thrust of the recommendation but instead noted the submitters' concerns over the scope of "word marks" that can be accepted into the TMCH. The Minority Statement was included in the Phase 1 Final Report as "Annex D – Working Group Members' Minority Statement on TMCH Final Recommendation #1".

      As required by Article 3, Section 6.(a)(iii) of the ICANN Bylaws, the recommendations were posted for public comment to inform Board action on the final recommendations. In considering the Final Report, the Board reviewed public comments on the Phase 1 Final Report and briefings by ICANN org on the feasibility and impact of implementation of all the recommendations, including considerations regarding the timing and resourcing needs in the context of the overall prioritization of work on implementation of other community-developed recommendations and  other existing activities by the ICANN org and community.

      In its review of all the recommendations contained in the Phase 1 Final Report, the Board noted that implementation of the recommendations could be divided into several categories. These implementation categories are:

      1) Recommendations where no substantial resources are needed for implementation as they can be integrated into existing work efforts – a total number of 16 recommendations:

      • Implementation of 15 of the 16 recommendations in this category involves updating existing documentation and related materials concerning the relevant RPMs, such as the URS Rules, URS Procedure and URS High Level Technical Requirements for Registries and Registrar, as well as the RPM Requirements, TM-PDDRP, and the TMCH Database Framework Agreement (TMCH Final Recommendation 4, Trademark Claims Final Recommendations 2, 5, and 6, URS Final Recommendations 1, 2, 3, 4, 5, 6, 7, 11, 14, and 15, and one TM-PDDRP Final Recommendation).
      • With regard to modifying existing operational practices, one of the 16 recommendations in this category involves working with registries, registrars, and URS Providers to ensure that one another's contact details are up to date in order to ensure the efficacy of the URS process (URS Final Recommendation 12).

      2) Recommendations to maintain the status quo – a total number of nine recommendations:

      • The recommendations in this category involve documenting and informing the community as to how the status quo (i.e. the current rules as applied to the gTLDs delegated under the 2012 New gTLD Program application round) will be maintained in the next new gTLD expansion (TMCH Final Recommendation 2, Sunrise Final Recommendations 2, 3, 4, 5, 6, and 7, and Trademark Claims Final Recommendations 3 and 4).

      3) Recommendations requiring substantial time and resources to implement – a total number of six recommendations:

      • Implementation of four of the six recommendations in this category involves working with RPM-related service providers to develop educational materials to assist users of the RPMs (TMCH Final Recommendation 3 and URS Final Recommendations 9, 10, and 13).
      • Implementation of one recommendation in this category involves developing a new and separate complaints mechanism or mechanisms to ensure that URS providers, registries, and registrars operate in accordance with the URS Rules and fulfill their role and obligations in the URS process (URS Final Recommendation 8).
      • Implementation of one recommendation in this category involves working with RPM-related service providers and ICANN-accredited registrars to collect data concerning the TMCH (one (1) Overarching Data Collection Final Recommendation).

      4) Recommendations affecting subsequent round(s) of new gTLDs – a total number of four (4) recommendations:

      • Implementation of these recommendations involves making specific changes to the Applicant Guidebook and/or the Base Registry Agreement for the next expansion round of new gTLDs (TMCH Final Recommendation 1, Sunrise Final Recommendations 1 and 8, and Trademark Claims Final Recommendation 1).

      Annex A contains additional details on each recommendation and the scope of effort required for implementation.

      Which stakeholders or others were consulted?

      In accordance with the requirements of the GNSO PDP Manual, the Working Group solicited early input from ICANN's Supporting Organizations and Advisory Committees as well as the GNSO's Stakeholder Groups and Constituencies. The Working Group also sought input from registry operators, URS providers and practitioners, and other stakeholders, and conducted a data-gathering exercise to obtain specific data points for the Phase 1 RPMs.

      As mandated by the GNSO's PDP Manual, the PDP Working Group published its Phase 1 Initial Report on 18 March 2020 for public comment, which closed on 4 May 2020. Following a careful review of all public comments received from 55 contributors as well as extensive discussions over a number of additional recommendations developed as a result of the public comment review, the Working Group finalized its recommendations and delivered its Phase 1 Final Report to the GNSO Council in November 2020. Several Working Group members submitted a Minority Statement pertaining to the TMCH Final Recommendation #1. The Minority Statement was included in the Phase 1 Final Report as Annex D.

      As required by the ICANN Bylaws, a public comment proceeding for the final recommendations in the Phase 1 Final Report was conducted between 7 April 2021 and 21 May 2021, which allowed stakeholders to comment on the proposed recommendations prior to Board action. As further required by the Bylaws, on 7 April 2021 the ICANN Board notified the GAC of the GNSO Council's approval of the Phase 1 Final Report, to allow the GAC to provide timely advice on any public policy concerns that it may have with the recommendations.

      What concerns or issues were raised by the community?

      The community provided feedback through Public Comments on the Initial and Final Phase 1 Reports and correspondence. A few Working Group members also submitted a Minority Statement to the Phase 1 Final Report, which raised concerns regarding the continuing confidentiality of the TMCH database and the possibility that the scope of marks accepted by the TMCH is broader than the scope of rights conferred by trademark registration. The Phase 1 Working Group considered all Public Comments filed to its Initial Report in coming to consensus on its final recommendations. The Report of Public Comments on the Phase 1 Final Report summarizes the concerns raised by commenters for the Board's consideration.

      What significant materials did the Board review?

      The Board reviewed the following materials:

      • The 18 March 2020 Phase 1 Initial Report of the GNSO PDP on the review of all RPMs in All gTLDs.
      • The 24 November 2020 Phase 1 Final Report of the GNSO PDP on the review of all RPMs in All gTLDs.
      • The 10 February 2021 GNSO Council Recommendations Report regarding the adoption of the Phase 1 Final recommendations.
      • The 21 January 2021 GNSO Council resolution of the RPM PDP Phase 1 Final Reportrecommendations.
      • The 4 June 2021 Staff Report of Public Comment Proceeding on the Phase 1 final recommendations from the GNSO Review of all RPMs in all gTLDs PDP.

      What factors did the Board find to be significant?

      As noted in the GNSO Council Recommendations Report, the PDP Working Group's 15 recommendations for new policies or procedures, 10 recommendations to modify existing operational practice, and one recommendation for overarching data collection are expected to have operational, financial, and/or other impact on registries and registrars who have to implement new requirements and improvements to existing processes; RPM-related service providers, including the TMCH Validation Provider, TMCH Database Provider, URS Providers, and TM-PDDRP Provider; and ICANN org, which will have to, among other things, update its documentation and related materials concerning the TMCH and the Applicant Guidebook for future expansions of new gTLDs, and collaborate with the RPM-related service providers and Contracted Parties to implement the new policies and procedures.

      In addition to the 35 Phase 1 final recommendations, the Phase 1 Final Report included a substantial amount of implementation guidance, which are intended to provide supplemental and/or clarifying information to assist with implementation of the recommendations. The Board understands from the GNSO Council Recommendations Report that substantial time and effort will be needed to translate the recommendations into policy language and operational requirements, as well as the complexity of implementing these recommendations with the involvement of various stakeholders.

      The Board also understands that some of the PDP Working Group's Phase 1 recommendations will affect future expansion round(s) of new gTLDs. In particular, the PDP Working Group proposed specific changes to the Applicant Guidebook and/or the Base Registry Agreement. As such, the Board's adoption of these recommendations means that they will need to be factored into preparations for future expansion of the gTLD space, including coordination with the SubPro IRT should the Board decide to adopt the recent PDP recommendations from the GNSO's New gTLD SubPro PDP.

      The ICANN org has preliminarily estimated that implementing the Phase 1 final recommendations could take a minimum of two years from Board adoption. However, a significant factor that is likely to impact the final implementation timeline is the Board's decision regarding the SubPro PDP recommendations, including implementation considerations based on the outcomes of the Operational Design Phase currently underway for SubPro.

      Are there positive or negative community impacts?

      Adopting the final recommendations will have a positive impact on ICANN in that it will contribute to ensuring that ICANN addresses policy questions and operational issues identified through experience with the RPMs developed for the 2012 New gTLD Program. Board adoption of the recommendations will facilitate a coherent and uniform mechanism for future reviews of all RPMs and allow for opportunities for continuous improvement of these policies and processes. However, community bandwidth and resources will be required to ensure that implementation of the recommendations are consistent with what the PDP Working Group intended, in addition to other ongoing work in the community.

      Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

      Implementing the Phase 1 recommendations is expected to have operational, financial, and/or other impact on registries and registrars who will implement new requirements and improvements to existing processes; RPM-related service providers, including the TMCH Validation Provider, TMCH Database Provider, URS Providers, and TM-PDDRP Provider; and ICANN org, which will have to, among other things, update its documentation and related materials concerning the TMCH and the Applicant Guidebook for future expansions of new gTLDs, and collaborate with the RPM-related service providers and Contracted Parties to implement the new policies and procedures, update existing documentation and develop or enhance educational materials to assist users of the RPMs.

      Are there any security, stability or resiliency issues relating to the DNS?

      None at this time.

      Is this decision in the public interest and within ICANN's mission?

      This action is within ICANN's Mission and mandate and in the public interest as set forth in the ICANN Bylaws. The multistakeholder policy development process of bottom-up, consensus policies and guidelines helps advance the stable and secure operation of the Internet's unique identifier systems.

      Is this either a defined policy process within ICANN's Supporting Organizations or ICANN's Organizational Administrative Function decision requiring public comment or not requiring public comment?

      As required by the ICANN Bylaws and the GNSO's policy procedures, the recommendations were the subject of public comment as discussed above.

    2. Consideration of Final Declaration in the Afilias Domains No. 3 Limited (Afilias) v. ICANN Independent Review Process (.WEB)

      Whereas, the Final Declaration in the Afilias Domains No. 3 Ltd. (Afilias)1 v. ICANN Independent Review Process regarding .WEB (.WEB IRP) was issued on 20 May 2021, a corrected version was issued on 15 July 2021, and that version was deemed "final" as of 21 December 2021 when the Panel denied Afilias' subsequent challenge.

      Whereas, among other things, the IRP Panel designated Afilias as the prevailing party, declared that ICANN violated its Articles of Incorporation and Bylaws in the manner set forth in the Final Declaration, and declared that ICANN shall reimburse Afilias the sum of US$450,000 for its legal costs relating to the Emergency Interim Relief proceedings and the sum of US$479,458.27 for its share of the IRP costs.  (Final Declaration at ¶¶ 410(6), (10), (12).)

      Whereas, the IRP Panel recommended that ICANN "stay any and all action or decision that would further the delegation of the .WEB gTLD until such time as the [ICANN] Board has considered the opinion of the Panel in this Final Decision, and, in particular (a) considered and pronounced upon the question of whether the [Domain Acquisition Agreement] complied with the New gTLD Program Rules following [Afilias'] complaints that it violated the Guidebook and Auction Rules and, as the case may be, (b) determined whether by reason of any violation of the Guidebook and Auction Rules, NDC's application for .WEB should be rejected and its bids at the auction disqualified."  (Final Declaration at ¶ 410(5).)

      Whereas, in accordance with Article 4, Section 4.3(x) of the applicable version of the Bylaws, the Board has considered the Final Declaration.

      Resolved (2022.01.16.12), the Board acknowledges that the Panel declared the following:  (i) Afilias is the prevailing party in the Afilias Domains No. 3 Ltd. v. ICANN Independent Review Process; (ii) ICANN violated its Articles of Incorporation and Bylaws in the manner set forth in the Final Declaration; (iii) ICANN shall reimburse Afilias the sum of US$450,000 for its legal costs relating to the Emergency Interim Relief proceedings; and (iv) ICANN shall reimburse Afilias the sum of US$479,458.27 for its share of the IRP costs.2

      Resolved (2022.01.16.13), the Board directs the President and CEO, or his designee(s), to take all steps necessary to reimburse Afilias in the amount of US$450,000 in legal fees and US$479,458.27 for its share of the IRP costs in furtherance of the Panel's Final Declaration.

      Resolved (2022.01.16.14), further consideration is needed regarding the IRP Panel's non-binding recommendation that ICANN "stay any and all action or decision that would further the delegation of the .WEB gTLD until such time as the [ICANN] Board has considered the opinion of the Panel in this Final Decision, and, in particular (a) considered and pronounced upon the question of whether the DAA complied with the New gTLD Program Rules following [Afilias'] complaints that it violated the Guidebook and Auction Rules and, as the case may be, (b) determined whether by reason of any violation of the Guidebook and Auction Rules, NDC's application for .WEB should be rejected and its bids at the auction disqualified."

      Resolved (2022.01.16.15), the Board asks the Board Accountability Mechanisms Committee (BAMC) to review, consider, and evaluate the IRP Panel's Final Declaration and recommendation, and to provide the Board with its findings to consider and act upon before the organization takes any further action toward the processing of the .WEB application(s).

      Rationale for Resolutions 2022.01.16.12 – 2022.01.16.15

      Seven applicants submitted applications for the right to operate .WEB, including Afilias Domains No. 3 Ltd. (Afilias),3 Nu Dotco LLC (NDC), and Ruby Glen LLC, a Donuts subsidiary (Ruby Glen), and, as they did not privately resolve contention, the applicants went to an ICANN auction of last resort.  An auction was held on 27-28 July 2016, which concluded with NDC prevailing with a bid of US$135 million.  Shortly thereafter, Verisign Inc. (Verisign) publicly disclosed that, pursuant to an agreement it had entered with NDC, Verisign provided the funds for NDC's bid in exchange for, among other things, NDC's future assignment of the .WEB registry agreement to Verisign, subject to ICANN's consent.

      Prior to and since the auction, Ruby Glen and Afilias made numerous allegations regarding NDC and Verisign (including alleging an undisclosed change of ownership or control of NDC and alleging a violation of the Guidebook's prohibition of assignment of an application to a third party), and requested that ICANN disqualify NDC's application, reject its winning bid, and then recognize Afilias as the winning bidder (which had the second highest bid in the auction).4  Further background information is available in the accompanying Reference Materials.

      Afilias initiated an Independent Review Process regarding .WEB (.WEB IRP) in November 2018, alleging that NDC had violated the Guidebook as a result of its arrangement with Verisign and that ICANN had violated the Bylaws by failing to disqualify NDC.  In particular, Afilias alleged that NDC violated the Guidebook by: (a) "omitting material information from and failing to correct material misleading information in its .WEB application"; (b) "assigning [NDC's] rights and obligations in its .WEB application to VeriSign"; and (c) "agreeing to submit bids on VeriSign's behalf at the .WEB Auction." With regard to ICANN, Afilias alleged that: (a) "ICANN's failure to disqualify [NDC] breaches ICANN's obligation to apply documented ICANN policies neutrally, objectively and fairly"; (b) "ICANN's decision to finalize a registry agreement while knowing of [NDC's] arrangement with VeriSign violates ICANN's mandate to promote competition"; and (c) "ICANN violated its Bylaws in Adopting Rule 7 of the Interim [Supplementary] Procedures," which allows participation in an IRP by a party with a material interest in the proceedings. 

      NDC and Verisign asked to participate as amici curiae in the IRP, which Afilias opposed.  The Panel granted amici participation allowing them to attend hearings, submit written briefings on the dispute or on questions the Panel might ask, and have access to all materials related to the IRP except for commercially sensitive or privileged material.  The merits hearing took place on 3-11 August 2020, and the IRP Panel issued its Final Declaration on 20 May 2021, which the Panel later corrected for certain typographical errors, effective 15 July 2021.

      In the Final Declaration, the IRP Panel designated Afilias "as the prevailing party in relation to the above declarations, decisions, findings and recommendations [noted in the Final Declaration]" and dismissed Afilias' "other requests for relief in connection with its core claims."  In particular, the Panel denied Afilias' requests for: (a) a binding declaration that ICANN must disqualify NDC's bid for .WEB for violating the Guidebook and Auction Rules; and (b) an order directing ICANN to proceed with contracting for .WEB with Afilias.  The Panel noted that:  "it is for [ICANN], that has the requisite knowledge, expertise, and experience, to pronounce in the first instance on the propriety of the [Domain Acquisition Agreement] under the New gTLD Program Rules, and on the question of whether NDC's application should be rejected and its bids at the auction disqualified by reason of its alleged violations of the Guidebook and Auction Rules."

      The Panel declared that ICANN had violated its Articles of Incorporation (Articles) and Bylaws by not applying documented policies objectively and fairly in that: (a) ICANN staff failed to decide whether the Domain Acquisition Agreement (DAA) between NDC and Verisign (pursuant to which Verisign financially supported NDC's bidding in the .WEB auction) violated the Guidebook and Auction Rules, and moved forward toward contracting with NDC in June 2018 without first having made that decision; and (b) the ICANN Board did not prevent staff from moving forward toward contracting in June 2018 or decide whether the DAA violated the Guidebook and Auction Rules, once pending accountability mechanisms had been resolved.

      The Panel also declared that ICANN violated its Articles and Bylaws by not operating in an open and transparent manner and consistent with procedures to ensure fairness when it failed to communicate to Afilias in November 2016 that the ICANN Board would not be evaluating Afilias' complaints while accountability mechanisms were pending.

      In addition, while finding Afilias' claim that ICANN failed to enable and promote competition in the DNS was premature, the Panel stated that it "accepts the submission that ICANN does not have the power, authority, or expertise to act as a competition regulator by challenging or policing anticompetitive transactions or conduct."

      The Panel further declared that Afilias' challenge to the validity of IRP Interim Supplementary Procedures Rule 7 about amici participation is moot since the Panel previously ruled that NDC and Verisign could participate, and "no useful purpose would be served by the Rule 7 Claim being addressed beyond the findings and observations contained in the Panel's Decision of Phase I."

      The Panel denied the majority of Afilias' request for cost shifting of legal fees, but did grant legal fees in connection with the Request for Emergency Interim Relief (related to whether the contention set would remain on hold during the pendency of the IRP) in a reduced amount of US$450,000.  The Panel further indicated that ICANN "shall reimburse [Afilias] the full amount of its share of [the IRP costs] that Afilias has advanced, in the amount of USD 479,458.27," the vast majority of which ICANN had already agreed to pay.5

      The Panel recommended that ICANN  "stay any and all action or decision that would further the delegation of the .WEB gTLD until such time as the [ICANN] Board has considered the opinion of the Panel in this Final Decision, and, in particular (a) considered and pronounced upon the question of whether the DAA complied with the New gTLD Program Rules following [Afilias'] complaints that it violated the Guidebook and Auction Rules and, as the case may be, (b) determined whether by reason of any violation of the Guidebook and Auction Rules, NDC's application for .WEB should be rejected and its bids at the auction disqualified."

      Subsequently, on 21 June 2021, Afilias submitted a request to the Panel for "interpretation and correction" of the Final Declaration under Article 33 of the ICDR Arbitration Rules (Request).  On 21 December 2021, the Panel unanimously denied Afilias' Request in its entirety, finding the Request to be "frivolous" and awarding ICANN the legal fees it incurred in responding to the Request (in the amount of US$236,884.39).  With the Panel's denial of Afilias' Request, the Final Declaration in the .WEB IRP remains intact and is deemed "final" as of 21 December 2021.  In accordance with Article 4, Section 4.3(x) of the operative Bylaws,6 the Board is now considering the Panel's Final Declaration in the .WEB IRP.

      The Board appreciates that both the parties and the amici participated in good faith in the IRP, and acknowledges that a neutral third-party Panel designated Afilias as the prevailing party, declared that ICANN violated its Articles of Incorporation and Bylaws in the manner set forth in the Final Declaration, and declared that ICANN should reimburse Afilias for its legal costs relating to the Request for Emergency Interim Relief and for its share of the IRP costs as set forth in the Final Declaration.  The Board is therefore adopting this resolution so as to not delay the reimbursement of Afilias for these costs, while the Board continues to consider the Panel's recommendation and/or next steps relating to the .WEB application(s).

      The Board recognizes the importance of this decision and wants to make clear that it takes the results of all ICANN accountability mechanisms very seriously, which is why the Panel's recommendation is being referred to the Board Accountability Mechanisms Committee (BAMC) for thorough consideration and formulating a recommendation to the Board on next steps. 

      This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures.  This accountability includes having a process in place by which a person or entity materially and adversely affected by a Board or organization action or inaction may challenge that action or inaction.

      Taking this decision is expected to have a direct financial impact on ICANN in the amount the Panel declared ICANN should reimburse the prevailing party, which can be absorbed under the current budget.  Further review and analysis of the Panel's recommendation will not have any direct impact on the security, stability or resiliency of the domain name system. 

      This is an Organizational Administrative function that does not require public comment.

    3. GAC Advice: ICANN72 Virtual Annual General Meeting Communiqué (October 2021)

      Whereas, the Governmental Advisory Committee (GAC) met during the ICANN72 Virtual Annual General Meeting and issued advice to the ICANN Board in a communiqué on 01 November 2021 ("ICANN72 Virtual Annual General Meeting Communiqué").

      Whereas, the ICANN72 Virtual Annual General Meeting Communiqué was the subject of an exchange between the Board and the GAC on 21 December 2021.

      Whereas, in a 18 November 2021 letter, the GNSO Council provided its feedback to the Board concerning advice in the ICANN72 Virtual Annual General Meeting Communiqué relevant to the Board Scorecard on SSR2 Review Final Report, Domain Name Registration Directory Service and Data Protection, and EPDP Phase 1 Policy Implementation.

      Whereas, the Board developed a scorecard to respond to the GAC's advice in the ICANN72 Virtual Annual General Meeting Communiqué, taking into account the dialogue between the Board and the GAC and the information provided by the GNSO Council.

      Resolved (2022.01.16.16), the Board adopts the scorecard titled "GAC Advice – ICANN72 Virtual Annual General Meeting Communiqué: Actions and Updates (16 January 2022)" in response to items of GAC advice in the ICANN72 Virtual Annual General Meeting Communiqué.

      Rationale for Resolutions 2022.01.16.16

      Article 12, Section 12.2(a)(ix) of the ICANN Bylaws permits the GAC to "put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies." In its ICANN72 Virtual Annual General Meeting Communiqué (01 November 2021), the GAC issued advice to the Board on the Board Scorecard on SSR2 Review Final Report. The GAC also provided a follow-up to previous advice regarding Domain Name Registration Directory Service and Data Protection and EPDP Phase 1 Policy Implementation. The ICANN Bylaws require the Board to take into account the GAC's advice on public policy matters in the formulation and adoption of the polices. If the Board decides to take an action that is not consistent with the GAC advice, it must inform the GAC and state the reasons why it decided not to follow the advice. Any GAC advice approved by a full consensus of the GAC (as defined in the Bylaws) may only be rejected by a vote of no less than 60% of the Board, and the GAC and the Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.

      The Board is taking action today on the GAC Consensus Advice to the ICANN Board in the ICANN72 Virtual Annual General Meeting Communiqué, including the item related to the Board Scorecard on SSR2 Review Final Report. This decision is in the public interest and within ICANN's mission, as it is fully consistent with ICANN's bylaws for considering and acting on advice issued by the GAC.

      The Board's actions are described in the scorecard dated 16 January 2022.

      In adopting its response to the GAC advice in the ICANN72 Virtual Annual General Meeting Communiqué, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      The adoption of the GAC advice as provided in the scorecard will have a positive impact on the community because it will assist with resolving the advice from the GAC concerning gTLDs and other matters. There are no foreseen fiscal impacts associated with the adoption of this resolution.

      Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS. This is an Organizational Administrative function that does not require public comment.

Published on 18 January 2022


1 Afilias Domains No. 3 Ltd. is now known as Altanovo Domains Limited.  For consistency and ease of reference, we will continue to use "Afilias" to refer to the Claimant in this IRP.

2 ICANN already agreed, pursuant to the Bylaws, that it would pay for the administrative costs of maintaining an IRP, including panelist fees.  To the extent that this IRP Panel has directed reimbursement for additional fees related to the IRP, such as the initial filing fee, ICANN will abide by the Panel's declaration and reimburse Afilias those amounts as well.

3 Afilias Domains No. 3 Ltd. is now known as Altanovo Domains Limited.  For consistency and ease of reference, we will continue to use "Afilias" to refer to the Claimant in this IRP.

4 In addition, NDC later claimed that Afilias should have been disqualified from the .WEB auction for violating the auction blackout period, which prohibits certain communications just before an ICANN auction.

5 ICANN has already agreed to pay for the administrative costs of maintaining an IRP, including panelist fees.  To the extent that this IRP Panel has directed reimbursement for additional fees related to the IRP, such as the initial filing fee, ICANN will abide by the Panel's declaration and reimburse Afilias those amounts as well.

6 The operative Bylaws are the ICANN Bylaws as amended 18 June 2018.