Minutes | Board Accountability Mechanisms Committee (BAMC) Meeting | 14 August 2019

Board Accountability Mechanisms Committee (BAMC) Attendees: Becky Burr, Chris Disspain, Nigel Roberts, and León Sanchez (Chair)

Other Board Member Attendees: Avri Doria

BAMC Apologies: Sarah Deutsch

ICANN Organization Attendees: Susanna Bennett (SVP, Chief Operating Officer), Michelle Bright (Board Operations Content Coordination Director), Franco Carrasco (Board Operations Specialist), John Jeffrey (General Counsel and Secretary), Elizabeth Le (Associate General Counsel), Wendy Profit (Senior Manager, Board Operations), Amy Stathos (Deputy General Counsel), and Christine Willett (VP, gTLD Operations)

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

  1. Reconsideration Request 19-1 (Colombian Government, .AMAZON and related Internationalized Domain Names) - The Committee received a briefing from ICANN organization regarding Reconsideration Request 19-1 submitted by the Colombian Government seeking reconsideration of ICANN Board Resolutions 2019.05.15.13–2019.05.15.15 (15 May 2019 Resolutions). The challenged Resolutions directed ICANN org to continue processing the Amazon corporation's applications for the .AMAZON generic top-level domain (TLD) and related IDNs (collectively, the .AMAZON applications and .AMAZON TLDs) according to the policies and procedures of the New gTLD Program. Specifically, the Requestor claims that: (i) the Board failed to consider all relevant information because it failed to consider the concerns raised in a 7 April 2019 communication from the Requestor to the Amazon corporation in which the ICANN CEO, ICANN Board Chair, and ICANN Governmental Advisory Committee Chair were all copied; (ii) the Board relied on inaccurate information when it adopted the 15 May 2019 Resolutions, including "Amazon [corporation's] representation that operating the contested string under a Specification 13 designation would be consistent with existing ICANN established best practice and would safeguard all parties' best interests; (iii) the Board failed to consider a potential governance structure for the .AMAZON TLD and IDNs offered by the Requestor and modelled after the .SAS TLD;1 (iv) the Board violated Article 3.4 of the ICANN Bylaws by posting the agenda for the 15 May 2019 meeting one day prior to the meeting;2 and (v) ICANN org violated the ICANN Bylaws regarding transparency by scheduling a closed meeting during ICANN65 with the ICANN Registry Stakeholder Group (RySG) to discuss a potential process for amending previously contracted-for Public Interest Commitments (PICs).3

    Upon discussion, the BAMC found that reconsideration is not warranted because the Board adopted the 15 May 2019 Resolutions based on accurate and complete information and because the Board's adoption of the 15 May 2019 Resolutions was consistent with ICANN's Bylaws, policies and procedures. With respect to the 7 April letter, the BAMC concluded that the letter was considered by the Board as part of its discussion of the issues at the Board workshop from 1-3 May 2019. As it relates to the Requestor's claims regarding the alternative governance models, the BAMC noted that this issue was not material to the question before the Board when it adopted the Resolutions. That is, the Board considered whether the Amazon corporation's proposal was acceptable, not to specifically compare the Amazon corporation's proposal with alternatives proposed by other stakeholders. As it relates to Specification 13, in adopting the 15 May 2019 Resolutions, the Board acknowledged that the .AMAZON applications still needed to go through the remaining application processes in accordance with the Applicant Guidebook. The Board's determination that ICANN org should "continue processing" the .AMAZON applications "according to the policies and procedures of the New gTLD Program" was not a determination that the Amazon corporation is automatically entitled to move forward to delegation of the .AMAZON TLDs, nor did the Board's action constitute approval of the Amazon corporation's Specification 13 applications to operate the .AMAZON TLDs as .BRAND TLDs. In terms of posting the agenda, as the Requestor noted, the Bylaws do provide flexibility. Given the circumstances, the agenda for the meeting was not finalized until 14 May 2019, when it was promptly posted as soon as practicable. Therefore, the timing of when the agenda was posted was consistent with the Bylaws. As it relates to a meeting during ICANN65 with the RySG, the BAMC noted that the meeting was about the process for enforcing PICs and not to discuss a potential process for amending previously contracted-for PICs. The BAMC recommended that the Board deny Request 19-1.

    • Action(s):

      • ICANN org to notify Requestor of BAMC's recommendation and advise Requestor of its opportunity to submit a rebuttal to the BAMC's recommendation within 15 days.
      • ICANN org to prepare materials for Board consideration, taking into consideration the Requestor's rebuttal, if any.
  2. Recomposition of Independent Review Process Implementation Oversight Team (IRP-IOT) – The BAMC discussed the expressions of interests to join the IRP-IOT that were submitted. Some of the candidates were endorsed by the GNSO Council. For those candidates that meet the substantive and time requirements to be on the IRP-IOT, the BAMC asked ICANN org to confirm their interests. For the candidates that did not provide sufficient information for the BAMC to determine their substantive qualifications and/or time availability, the BAMC asked ICANN org to inquire for additional information. The BAMC also asked ICANN org to confirm with the current IRP-IOT members that have actively participated in the IRP-IOT since January 2018 of their interests in continuing with the IRP-IOT.

    • Action(s):

      • ICANN org to conduct outreach as requested by the BAMC for the recomposition of the IRP-IOT.
  3. Litigation Update - The BAMC received a litigation update.

Published on 10 October 2019

1 Request 19-1, § 8, at Pg. 7.

2 Request 19-1, § 9, at Pg. 9.

3 Request 19-1, § 9, at Pg. 9–10.