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Minutes of the Special Board Meeting 9 December 2009

A Special Meeting of the ICANN Board of Directors was held via teleconference 9 December 2009 @ 11.00 UTC. Chairman Peter Dengate Thrush promptly called the meeting to order.

In addition to Chairman Peter Dengate Thrush the following Directors participated in all or part of the meeting: Rod Beckstrom (President and CEO), Dennis Jennings (Vice Chairman), Harald Tveit Alvestrand, Raimundo Beca, Steve Crocker, Gonzalo Navarro, Rita Rodin Johnston, Raymond A. Plzak, George Sadowsky, Mike Silber, Jean-Jacques Subrenat, Bruce Tonkin, and Katim Touray.

The following Board Liaisons participated in all or part of the meeting: Janis Karklins, GAC Liaison; Ram Mohan, SSAC Liaison; Jonne Soininen, TLG Liaison; and Vanda Scartezini, ALAC Liaison.

Thomas Narten, IETF Liaison, Rajasekhar Ramaraj and Suzanne Woolf, RSSAC Liaison, sent apologies.

Also, the following ICANN Management and staff participated in all or part of the meeting: John Jeffrey, General Counsel and Secretary; Doug Brent, Chief Operating Officer; Kurt Pritz, Senior Vice President, Services; Denise Michel, Vice President, Policy, Theresa Swinehart, Vice President, Global and Strategic Partnerships; Tina Dam, Senior Director, IDNs; Marco Lorenzoni, Director, Organizational Reviews; and Craig Schwartz, Chief gTLD Registry Liaison.

  1. Consent Agenda

    The Board discussed the content of the Consent Agenda, moved the consideration of the lease for the Washington D.C. office space off of the Consent Agenda, and approved the following resolutions, unanimously, 15-0. The Resolutions were moved together by the Chair and Raymond A. Plzak seconded the motion.

    1. With Board Finance Committee Approval - Payment of Jones Day Invoices

      RESOLVED (2009.12.09.01) that the President and Chief Executive Officer is authorized to direct the Chief Financial Officer to pay Jones Day invoices for services provided in September 2009.

    2. Amendment for Partial Bulk Transfer in dot-COM and dot-NET

      Whereas, VeriSign has submitted a request pursuant to ICANN's Registry Services Evaluation Policy to amend the dot-COM and dot-NET Registry Agreements to offer partial bulk transfer (also known as Bulk Transfer After Partial Portfolio Acquisition or BTAPPA).

      Whereas, the ICANN Board previously approved a similar BTAPPA service requested by Neustar for the dot-BIZ gTLD in November 2006.

      Whereas, ICANN has evaluated the proposed amendments to the dot-COM and dot-NET Registry Agreements as new registry services pursuant to the Registry Services Evaluation Policy and has posted amendments for public comment and Board approval (

      It is hereby RESOLVED (2009.12.09.02) that the amendments to Appendix 7 in the dot-COM and dot-NET Registry Agreements are approved, and the President and General Counsel are authorized to take such actions as appropriate to implement the amendments.

    3. From the Security & Stability Advisory Committee – Thank You to Rajasekhar Ramaraj

      Whereas, Rajasekhar Ramaraj was appointed to the ICANN Security and Stability Advisory Committee on 2 November 2007,

      Whereas, ICANN wishes to acknowledge and thank Rajasekhar Ramaraj for his service to the Internet community by membership on the Security and Stability Advisory Committee.

      It is RESOLVED (2009.12.09.03), that Rajasekhar Ramaraj has earned the deep appreciation of the Board for his service to ICANN by his membership on the SSAC, and that the Board wishes Ramaraj well in all future endeavours.

Resolutions 2009.12.09.01; 2009.12.09.02; and 2009.12.09.03 were approved in a single vote approving the consent agenda items. All Board Members present unanimously approved these resolutions.

  1. Regular Agenda
    1. [With Board Finance Committee Approval] – Approval of Lease for Washington D.C. Office Space

Jean-Jacques Subrenat and Dennis Jennings requested that the Board discuss ICANN's global presence at the next meeting of the Board of Directors to address further expansion of office locations outside of the United States. Jean-Jacques also requested that staff work to make items such as this flagged for more visibility before the Board.

The Chair noted that the lease is for a change in location of the Washington D.C. office space, where ICANN already has an office.

Following the discussion, the Chair then moved and Raymond A. Plzak seconded the following Resolution:

Whereas, ICANN has a need for office space in Washington, DC to meet needs for current and future staff; including the Vice President of Government Affairs,

Whereas, ICANN has an organization benefit in maintaining a geographic presence in a leading center of government and in geographic proximity of major registry and registrar operators,

Whereas, future ICANN staff growth is likely to be outside of the existing offices in Marina del Rey, CA and likely to increase in other parts of the U.S. and the World;

It is hereby RESOLVED (2009.12.09.04) that the ICANN Board authorize either the Chief Operating Officer or the Chief Financial Officer to negotiate and finalize a lease for office space in Washington, DC on commercially reasonable terms, for approximately 6,000 square feet of space, not to exceed a ten year term, and for total occupancy costs to start out at less than $400,000 per year, and not to exceed $600,000 per year during the lease term.

Fourteen of the Board members present approved of this resolution. Jean-Jacques Subrenat abstained from voting on this resolution. The resolution passed.

    1. President's Report

The Board received a report from the President regarding ICANN's recent work, activities and achievements, including efforts on strengthening ICANN's global relationships, including the ongoing work to reach the .POST agreement with the UPU and the UNESCO agreement for provision of linguistic expertise. The President also provided a brief report on the status of work on ICANN's Strategic Plan.

Additionally, Steve Crocker congratulated the President on the work done with .CO.

    1. Affirmation of Commitments Reviews

The President introduced the topic of the planning for the Affirmation of Commitments reviews and stressed that the staff role is solely a support role, and the review teams must be independent.

Marco Lorenzoni reported to the Board on the planning work underway to facilitate the work of the review teams performing the reviews set out in the Affirmation of Commitments.

George Sadowsky remarked that there has to be clarification on the expectation of where the members of the review team would come from, whether nominated by the community or wholly independent of ICANN. In additional straightforward and streamlined terms of reference are needed, and time frames and deadlines will have to be set for the review teams to assure timely completion of tasks.

Dennis Jennings commented that though the conduct of the review is for the review team to decide, there have to be objective standards agreed to up front and provided to the review teams, and the Board should be involved in that initial planning process.

Jean-Jacques Subrenat queried management on the staff resources necessary to support the Affirmation of Commitments reviews, and Doug Brent reported that staff resources would be allocated as appropriate for the model selected.

Rita Rodin Johnston asked for clarification on the term "staff support," as it could mean staff responding to requests for information from the review teams, or it could mean that staff is involved more heavily, such as in writing the reports. If "staff support" in this context means anything other than responding to data requests, she'd like to have that stated. Rita also supported George's comment that the identity of the reviewers was important, and it is important that the review teams not be viewed as ICANN reviewing itself.

The President confirmed that the credibility of the review teams is dependent on the quality of the members, the process used and ultimately the independence of the work from the ICANN staff and Board, and agreed that the roles for each should be clarified from the outset. Staff will be extremely busy in responding to requests for information.

Janis Karklins reminded the Board that this is a community review, and the community has to be driving force. The community should decide the terms of reference for the reviews, as there has to be acceptance of these reviews. Janis agreed that there should be a clear separation of roles, and acknowledged the hard work and expertise being done by Marco and other staff to present an initial proposal for the methodology. Staff involvement in technical assistance to the review teams, such as organizing calls and travel support, is also appropriate. While the review teams may need to engage external consultants to assist in the data synthesis, ICANN should make clear the maximum amount of time that a consultant is expected to work on these matters. In terms of size of the review teams, it will be different for each review. It is urgent to get the review team selection process underway, so that there can be face-to-face meetings in Nairobi.

Bruce Tonkin suggested that if the review teams are comprised of nominees from ICANN's Supporting Organizations and Advisory Committees, the appointees should be like the appointments to the Board from the Nominating Committee – people who have not been active in the policy debates for a number of years. This will decrease the chance of having advocates for the SO or AC positions, and will result in the appointment of independent voices. This could be part of the guideline in setting up the review teams.

Katim Touray stated that from his experience in participating in reviews, they always take longer than planned, particularly when there are language and translation issues involved. Participating on a review will represent a significant commitment of resources from each member. Katim inquired about the need to have a timeline to work from, with benchmarks on when items need to be completed, and stated that from the start, all stakeholders have to be reminded that these reviews are critically time-bound, and the targets have to be met.

The Chair noted his concerns regarding who has responsibility for setting the methodology of the reviews. If this is a task left up to each review team, then ICANN will be presented with a separate methodology for each of the reviews, and the community would have concerns about that variation. Instead, there should be greater community interaction in the setting the terms of review and providing the review team with what it should be doing. It is the community that should be largely responsible for the setting of the terms of reference, and the review teams should not be given latitude to substitute terms of their choice. At this time, the selection of the review teams can get underway, and at the same time provide a set of proposals to the community regarding what the reviews require, so that the community can provide input on what is essential for inclusion in the reviews.

Janis reiterated his point that the first proposals on the review subject should come from the review teams themselves, as agreed in their first face-to-face meeting. Those proposals would then be posed for public comment prior to finalization.

Dennis countered that there has to be an initial straw man terms of reference document and methodology, and some objective standards have to be identified. Dennis offered an example that for corporate governance, there is likely an objective standard for U.S. not for profit organizations set forth by the National Association of Corporate Directors. The standards ICANN is measured against cannot be left to individual preferences.

The Chair noted his agreement with Dennis, and reiterated that the Board has to run this process, as it is ultimately responsible. He suggests that the staff prepare the straw man proposal, and the Board approves the posting of the proposal for public comment. After the public comment period is over, the results will be synthesized and the review team will be presented with the methodology.

Rita stated that it was important to note that the Board could not wait for absolute agreement in the community.

Vanda Scartezini and Jonne Soininen noted their agreement with this approach on the way forward. Jonne stressed the urgency of getting the proposal out for public comment.

Staff was requested to incorporate the Board's comments in forming a straw man proposal and circulate that to the Board for review and discussion, as well as a proposed process for the recruitment of the review team members. The proposal is to be posted for public comment no later than 4 January 2010. Staff is only to deliver terms of reference for the first review.

The President noted Staff's ability to meet this request.

    1. Plan for Expressions of Interest

The President provided an introduction to the Staff's work in response to the Board's resolution in Seoul regarding Expressions of Interest for the New gTLD Program. The President noted that there are content questions and process questions posed in the staff's work. The three key decision areas are: fees (is there a fee; if so, how much, and is it refundable); will the EOI be a queuing device or opening of the New gTLD round; and will the data be public or private?

Doug Brent presented to the Board that the decisions about the EOI is a series of decisions about parameters. Doug provided information on Staff's work, briefly explained the three major options: a "firm" EOI round, where participation could be required; a "soft" EOI round, where participation would be options and low cost, with applicant determinations on the amount of information to share; or not going forward with an EOI round. The Staff recommendation is to conduct a firm EOI round, as it will bring certainty to the process, in the numbers of applicants, the strings, and a better understanding of the risks associated with New gTLDs. If the Board elected to not go forward with a "firm" EOI round, Staff's recommendation is to not pursue an EOI, with the potential for a "soft" EOI round as the lowest rank of the three choices.

The Chair then called for discussion on whether any Board members believed that ICANN should not proceed with the EOI round.

Dennis Jennings raised his concerns with the EOI, noting that if a participant in the EOI may be subject to a change in contractual conditions as the New gTLD work continues. In addition, Dennis raised the risk of the potential for influence on the evaluation criteria because of the knowledge of what the strings are and who the applicants are, if the EOI is solicited prior to the finalization of the evaluation criteria. Dennis suggested that some of these risks could be mitigated if the data is securely held by a third party, with ICANN having access to scaling information, instead of having the information published prior to the finalization of the process.

Doug Brent noted that there are certain issues within the New gTLD program that staff recommends to be resolved prior to issuing an EOI, including the EOI model, a model for vertical separation or integration of registries and registrars, the three-character rule, and a full communications plan. The full contract would not be ready.

Rita Rodin Johnston indicated her understanding that part of the genesis of the EOI process was to give an indication to the community that this process was going to start. Rita then questioned why we would do this, to add the perfection of an EOI model to all of the work that is going on within ICANN, and whether the results will provide a return on that investment of time and effort.

Doug Brent responded that the EOI process will give a greater level of certainty, including on root scaling and operational scaling issues. If ICANN made a decision to actually look at the strings, which there could be conflicts and pressures associated with that choice, it would address some of the other work ICANN will face in the New gTLD process, such as that some of the "worst case scenario" concerns will not be realize, just as occurred with the IDN ccTLD Fast Track launch.

Kurt Pritz noted that a lot of balancing would have to be done in crafting this process, with a view to the purpose of the EOI decided by the Board.

Rita Rodin Johnston raised the question of whether we need certainty of applications to deal with root scaling, as this has not been raised in the past. Rita noted that DNSSEC may have altered prior analysis, however the current thrust of the EOI seems to be to obtain information that may be nice to have, such as the amount of interest and potential string conflicts. While this information may be nice to have, Rita questioned whether it made sense to lock people in know when they don't know the complete set of criteria that they will be judged against. The EOI process could show that ICANN is moving too quickly, as some major issues within the New gTLD process are not resolved.

[The General Counsel provided advice that running the EOI round - correctly timed – could reduce risk to ICANN.]

Katim Touray discussed the balancing of risks associated with the program, along with the need to meet the community demand expressed in Seoul. Katim expressed his support for the firm EOI round with an application fee, and noted that ICANN should be careful to collect only the data that it needs to answer the questions integral to the EOI round. The EOI should be carefully crafted to limit the amount of information needed, so that ICANN can remain accountable to the community in moving forward with the EOI.

Jonne Soininen stated that ICANN cannot go back anymore on the EOI, in his personal opinion. This is a promise for the community, with strong support. Jonne stated that he is worried that ICANN is starting a pre-round, as this would change the application process. ICANN cannot do that without having some community discussion on that topic.

Bruce Tonkin noted that the timetable for an EOI round would come in the last quarter of 2010, which would be late. Bruce suggested that maybe the EOI should be considered part of the New gTLD process. Otherwise, the EOI could be used as a method of policy input – on changing the policy – as opposed to planning input for staff. If the EOI is for policy input, it is too late. However, for planning input, the EOI makes more sense, and fits into a timetable.

Kurt noted his agreement with Bruce, that the EOI is seen as a planning tool, though there is a risk that policy issues may be raised by the EOI process.

Bruce stated that the publication of the strings should not occur until the appropriate point of the New gTLD process – when the strings are being posted for formal objections. Otherwise people will try to influence policy in reaction to particular strings.

Harald Alvestrand states his support for a firm EOI. By seeing this as the opening of the process, ICANN can view the results, make assessments, and move forward with the process. Strings will have to be made public during the process.

Janis Karklins noted that the GAC supported having the EOI done correctly so that ICANN can benefit from it. The GAC had three points – first, the GAC requested that the staff risk report be made available to the public. The GAC expects an extended comment period of the proposal, to encourage people other than those who will participate in the EOI as well as potential applicants that may not be aware of the EOI. The GAC also requested that the staff find ways to involve the community in the continuation of the work on the EOI.

The Chair responded that providing this information top the community could be helpful, as it will explain the difficulties inherent in the risks of the process, and will also help demonstrate why the Board is not taking action at this meeting, as some expect to happen. The Chair then requested a discussion on the three points raised by the President in his introduction of the topic.

Mike Silber noted his agreement with a firm EOI round with a non-refundable fee. Mike raised the question of ICANN receiving more EOIs than it can handle, and how those will be phased, as well as when the next round will occur for those who do not participate in the EOI.

No Board member expressed opposition to the staff proposal that there should be a fee for the process. It should be refundable only if ICANN does not go ahead with the New gTLD process.

Bruce queried how a queuing process would work in the EOI – would it be a time-stamped process, and does that start from the time of the submission of the EOI or the actual application.

Kurt clarified that this would not be queuing process, but a preregistration process.

Rita stated that she agrees that if the justification of the EOI is for information to reduce risk and get certainty, it has to be a requirement for participation in the next round.

The President introduced Staff's recommendation that data, including string information, be collected in the EOI but not published until the close of the New gTLD registration period, as there has not been any articulation of a public benefit of keeping that information private past that point. If the EOI will be the launch of the New gTLD process, ICANN will need to meet its requirement for advance communication.

Bruce commented that there are two decision points: first, a decision to publish the strings at the end of the process and a second decision on the closing date of the process, and the second decision is not ripe at this time. The DAG has to be finalized as much as possible.

Rita inquired about the public benefit of disclosure of strings even after the close of the application process, in light of the risk of people creating registrations of the various strings in the existing top level domains as a direct result of disclosing the strings.

The Chair raised the question of dealing with conflicts of interest arising from those who are participating in the New gTLD process, and noted that ICANN has process in place for dealing with conflicts of interest in other areas.

The Chair, Jonne, and Vanda Scartezini al agreed that the Board has to take some action on the EOI process. Jonne suggested that the Board resolve to ask to Staff to post the Staff recommendation on the EOI process for public comment, analyze the public comments received, and present a proposal for final approval at the Board meeting in February.

Following the discussion, Bruce Tonkin then moved and Dennis Jennings seconded the following Resolution

Whereas the ICANN Board has passed a resolution in Seoul directing ICANN staff to study the potential impact of a call for formal "expressions of interest", and provide a plan for Board consideration in December 2009, including possible options and a risk analysis relating to a proposed action;

Whereas ICANN staff has presented an analysis of the potential benefits of an Expressions of Interest (EOI) process, and has developed a preliminary EOI process model for ICANN Board discussion;

Whereas the board discussion has resulted in some preliminary determinations pending formalizing the EOI process model and obtaining public comment on those determinations;

Resolved, (2009.12.09.05), ICANN staff is hereby directed to record and publish for public comment the risks and considerations considered by the board and the ICANN Board's determinations on the EOI process model.  Staff is also directed to continue undertaking additional analysis on those determinations.

Resolved, (2009.12.09.06), ICANN staff shall summarize: a) the public comments resulting from the publication of the risks and considerations considered by the board, b) ICANN Board's determinations on the EOI process model, and c) the additional staff analysis undertaken; and present that summary to the ICANN Board.  Further, along with that summary ICANN staff shall present a proposed EOI process model for approval at the ICANN Board's February 2010 meeting.

All Board members in attendance unanimously approved of the resolutions.

    1. Updated Project Plan on New gTLDs

Kurt Pritz provided the Board with an update regarding assumptions and interdependencies affecting the project planning for New gTLDs, including the need for the issues of vertical separation and the three-character requirement to be resolved prior to opening the EOI process, and the communications plan regarding the EOI. Kurt also discussed the items that need to be working towards resolution for the publication of the Draft Applicant Guidebook version 4, including the GNSO council work on the trademark issues, as well as malicious conduct issues.

The Chair asked Kurt for more information relating to the vertical separation issue, and when there would be information presented to the Board for a vote.

Kurt replied that the debate format and other discussions at the Seoul meeting allowed for progress in clarifying positions on the topic, but also drew the parties further from resolution, and ICANN staff thought it would be better to bring the community together again to reach some compromise prior to presenting a recommendation to the Board.

The Chair clarified that this is an issue for the Board to ultimately determine, and requested a paper with a recommendation by the February Board meeting. The Chair thanked Kurt and staff for the enormous work done in creating the assumptions for Board discussion. The Chair requested that there be a dedicated meeting solely for discussing New gTLD related issues.

    1. New GNSO Constituency Applications

Raymond Plzak, the Chair of the Structural Improvements Committee, noted that there were four pending GNSO Constituency Applications, and while three were ready for Board action, work was continuing on the Consumer Constituency application. The Board discussed the fact that work was continuing on one of the four new GNSO Constituency Applications.

Katim Touray noted that he is involved with a consumer organization in the Gambia, The Consumer Protection Association of Gambia (CPAG). Though it's been dormant for over a year, Katim will abstain from voting in case of any potential conflict of interest.

Following the discussion, Raymond Plzak moved and Mike Silber seconded the following resolution:

Whereas, The Board has received four formal petitions for the creation of four new GNSO Constituencies, the first formal requests for new GNSO constituencies in a decade;

Whereas, Each petition has been subjected to a two-phase, public process that was instituted as part of the GNSO Improvements effort, and Public Comment Forums for all four petitions have concluded;

It is RESOLVED (2009.12.09.07) that:

  1. The Board is pleased with the response of the community in organizing these four prospective new Constituencies and in completing the various notifications, petitions, and charter documents designed to formally seek Board recognition and approval;
  2. The Board thanks and acknowledges the work of the four Constituency proponents for their perseverance and dedication in attempting to further the evolution and representativeness of the GNSO;
  3. The Board appreciates the work done by proponents of the CyberSafety Constituency (CSC), including its most recent response to various Board member and community questions and concerns. The Board, after careful reconsideration, has determined that this petition does not satisfy the standards for a new GNSO Constituency established by the Board; thus, the petition is not approved. Those individuals, groups, and organizations who have been involved with the CyberSafety proposal are encouraged to remain active within ICANN and, where applicable, seek to join other approved Constituencies.
  4. The Board appreciates the work done by proponents of the City TLD Constituency; however, that petition is not approved on the basis that the Registries SG will be organized as a grouping of individually contracted Registries rather than as a grouping of Constituencies; as such, each City will be eligible to join the RySG once it signs a formal ICANN contract as a registry operator. In the interim, the proposed RySG Charter provides for "observer" status for any City TLD proponent interested in becoming an ICANN gTLD Registry.
  5. The IDNgTLD Constituency petition, as presently formulated does not appear to be focused enough to be eligible for any single Stakeholder Group, is not comprised solely of non-governmental entities, and apparently is not focused on gTLD policies beyond non-Latin script IDNs. The Board acknowledges and thanks the IDNgTLD Constituency petitioners for their interest and effort, and welcomes further input on the structural and membership concerns raised.

Fourteen of the Board members present approved of this resolution. Katim Touray abstained from voting on this resolution. The resolution passed.

    1. Update on IDN Fast Track Applications

In the interest of time, the Chairman directed staff to provide an update via email.

    1. Update on Strategic Plan

In the interest of time, the Chairman deferred an update and reminded the Board to provide input as requested into the Strategic Planning Process.

    1. Reforecast of FY10 Budget

Doug Brent provided a short update regarding budget reforecasting activities and noted that in the interest of time he will follow up with the Board with an email.

Dennis Jennings requested information on the functional areas that may be impacted by the proposed changes.

    1. Redelegation of .co

Dennis Jennings moved and Raimundo Beca seconded the following resolution:

Whereas, "CO" is the ISO 3166-1 two-letter country-code designated for Colombia;

Whereas, ICANN has received a request for redelegation of .CO to .CO Internet S.A.S.;

Whereas, ICANN has reviewed the request, and has determined that the proposed redelegation would be in the interests of the local and global Internet communities.

It is hereby RESOLVED (2009.12.09.08), that the proposed redelegation of the .CO domain to .CO Internet S.A.S. is approved.

All Board members in attendance unanimously approved of this resolution.

The Chair expressed his thanks to all working in the IANA Functions department for their work on this matter.

    1. .Post Sponsorship Agreement

George Sadowsky moved and Mike Silber seconded the following resolution:

Whereas, the Universal Postal Union (UPU) applied for the .POST sponsored top-level domain during the 2003 round of sponsored new gTLDs;

Whereas, ICANN and the UPU conducted extensive, time consuming and challenging negotiations to overcome a number of contracting issues unique to the UPU as a result of its status as an intergovernmental organization and specialized agency of the United Nations;

Whereas, ICANN and the UPU concluded their negotiation with an agreement in principle in October 2009;

Whereas, the proposed .POST Sponsorship Agreement was posted for public comment on 2 November 2009, and two comments were received;

It is hereby RESOLVED (2009.12.09.09) that the .POST Sponsorship Agreement is approved, and the President and CEO is authorized to take such actions as appropriate to implement the agreement.

All Board members in attendance unanimously approved of this resolution.

The President expressed his thanks for the work on this item.

    1. Any Other Business

Bruce Tonkin requested staff to provide an update on the review of economic studies. The President noted that economists were being hired to analyze all economic studies done to date.

  1. Executive Session

The Board conducted an executive session, without staff present, in confidence.