Minutes | Board Accountability Mechanisms Committee (BAMC) Meeting 16 April 2021

BAMC Attendees: Becky Burr, Sarah Deutsch, Avri Doria, Patricio Poblete, Kaveh Ranjbar, Nigel Roberts (Chair), and León Sánchez

ICANN organization Attendees: Franco Carrasco (Board Operations Specialist), Samantha Eisner (Deputy General Counsel), Casandra Furey (Associate General Counsel), John Jeffrey (General Counsel & Secretary), Aaron Jimenez (Board Operations Specialist), Elizabeth Le (Associate General Counsel), and Amy Stathos (Deputy General Counsel)

The following is a summary of discussions, actions taken, and actions identified:

  1. Procedural Evaluation of Reconsideration Request 21-1: The BAMC reviewed and discussed whether Request 21-1 is sufficiently stated pursuant to Article 4, Section 4.2(k) of the ICANN Bylaws. Request 21-1 was submitted by Dot Hotel Limited and Domain Venture Partners PCC Limited (Requestors), seeking reconsideration of the ICANN Board's and ICANN staff's approval of a change of control request from the registry operators owned and controlled by Afilias, Inc. (Afilias) related to Afilias's proposed merger with Donuts Inc. (Donuts) (the Afilias/Donuts Transaction). The Requestors claim that ICANN's approval of the Afilias change of control request violated the ICANN Bylaws and Core Values of nondiscriminatory treatment, transparency, and the requirement to seek broad informed participation in all levels of policy development and decision-making. The Requestors also allege that the challenged action differed from the process by which ICANN evaluated change of control requests related to the proposed acquisition of Public Interest Registry by Ethos Capital in 2020. The BAMC determined that none of the harm alleged by the Requestors is sufficiently stated to satisfy the reconsideration standard under Article 4, Section 4.2(c) of the Bylaws. First, the BAMC concluded that the Requestors' allegation that they were adversely affected by the Afilias/Donuts Transaction because it "result[ed] in Donuts owning two competing applications in the .Hotel new gTLD contention set," including the prevailing community application for .HOTEL, falls short of the necessary showing for harm. The Requestors do not explain how they are "adversely affected" by Donuts' control over two .HOTEL gTLD applications. The committee had some questions about applicants controlling more than one application for the same gTLD, they also noted that nothing in the Applicant Guidebook prohibits a gTLD applicant from maintaining both a community application and a standard application for the same gTLD, and other applicants have done so previously. Second, the BAMC determined that the Requestors' suggestion that they may be harmed because ICANN might in the future let the prevailing community applicant for .HOTEL operate it as an open registry, is based on an unsupported hypothetical future "inaction," that ICANN might not enforce the contractual commitments made in HTLD's community application that would be included in a registry agreement with HTLD. The BAMC found that this hypothetical "inaction" by ICANN, even if it ever came to pass, has nothing to do with the action that Request 21-1 challenges—the approval of the Afilias change of control request. Third, the BAMC concluded that the Requestors' claim that they are adversely affected because ICANN's approach to reviewing the Afilias change of control request was somehow inconsistent with ICANN's evaluation process for the PIR/Ethos transaction last year does not confer standing. The BAMC noted that an IRP Panel recently rejected a very similar argument as insufficient to confer standing. Finally, the BAMC determined that the Requestors' assertion that they are harmed by ICANN's alleged violation of its Core Values and Bylaws because, because they "rel[y] on ICANN to fulfill its Bylaws commitments as referenced in the Applicant Guidebook, the gTLD Registry Agreements, and otherwise," states no harm to the Requestors. For these reasons, which are discussed in detailed in the Summary Dismissal and incorporated herein by reference, the BAMC approved a recommendation that Request 21-1 be summarily dismissed.

    • Action(s): ICANN org to publish Summary Dismissal on Reconsideration page and notify the Requestors.
  2. Legal Expenses Approval – The BAMC reviewed and discussed a request to approve a tranche of money for legal fees for a particular matter. Following discussion, the BAMC approved a recommendation to the Board for approval of a tranche of funds to be used for outside counsel fees for a particular matter.

    • Action(s): ICANN org to prepare relevant Board materials.
  3. Update on .Web Independent Review Process (IRP) – The BAMC received an update on the status of .web IRP. In particular, ICANN is awaiting the Panel's Final Declaration.
  4. Update on IRP Implementation Oversight Team (IOT) and IRP Standing Panel Progress – The BAMC received a briefing on the progress on the work underway in the IRP-IOT and on the establishment of the IRP omnibus Standing Panel.
  5. Litigation Update – The BAMC received a litigation update.

Published on 12 May 2021