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Special Meeting of the Board Minutes 16 January 2007

A Special Meeting of the ICANN Board of Directors was held via teleconference on 16 January 2007 and was called to order at approximately 1:00 P.M. PST US.

Chairman Vinton G. Cerf presided over the meeting. The following other Board Directors participated in all or part of the meeting: Raimundo Beca, Susan Crawford, Peter Dengate Thrush, Roberto Gaetano, Demi Getschko, Steven Goldstein, Joichi Ito, Alejandro Pisanty, Rajashekar Ramaraj, Rita Rodin, Vanda Scartezini, and Paul Twomey. Board Members Njeri Rionge and Dave Wodelet were not present at the meeting.

The following Board Liaisons participated in all or part of the meeting: Vittorio Bertola, ALAC Liaison; Janis Karklins, GAC Liaison Elect; Mohammed Sharil Tarmizi, GAC Liaison; and Suzanne Woolf RSSAC Liaison.

John Jeffrey, General Counsel and Board Secretary; Paul Levins, Executive Officer and Vice President, Corporate Affairs; Doug Brent, Chief Operating Officer; Kurt Pritz, Vice President, Business Operations; Denise Michel, Vice President Policy Development; David Conrad, IANA General Manager; Kim Davies, IANA Technical Liaison; Barbara Roseman, IANA Operations Manager; Theresa Swinehart, Vice President of Global and Strategic Partnerships; and, Dan Halloran, Deputy General Counsel also participated in the meeting.

Approval of December 2006 Board Minutes

Vint Cerf introduced the two separate sets of minutes for the Board Meetings, which occurred in December 2006.

-- Approval of 7 December 2006 Minutes

Following this discussion, Vint Cerf moved and Vanda Scartezini seconded the following resolution:

Resolved (07.01), the minutes of the Board Meeting of 7 December 2006 are approved.

Resolution (07.01) was approved unanimously by a voice vote of the Board Members present on the call (12 Members). In addition to the Board Members not present for the call, Demi Getschko was not available to vote.

-- Approval of 8 December 2006 Minutes

Steve Goldstein moved and Alejandro Pisanty seconded a request for a vote on the following resolution for approval of the 8 December 2006 Minutes:

Resolved (07.02) the minutes of the Board Meeting of 8 December 2006 are approved.

Resolution (07.02) was approved unanimously by a voice vote of the Board Members present on the call (12 Members). In addition to the Board Members not present for the call, Demi Getschko was not available to vote.

Two Character New Registry Service Proposal from .NAME Registry

The Chairman referred to the comprehensive work done by staff on this issue and that full information had been provided to the Board by ICANN staff. The Chair asked Kurt Pritz to provide background and summary information to this item.

Kurt advised that GNR is the sponsor of the .NAME registry and that they have been examining ways to make this registry more vibrant and so they have submitted a proposal to ICANN for the limited release of two character names. Two character names on the second level would be shared just like other common surnames are currently shared on the second level in .name. The proposal would release two character names for third level registrations and email only (so for example joe@li.name ) meaning that the actual second level two character names cannot be registered.

ICANN staff performed an initial technical evaluation, and referred the matter to the RSTEP process. The RSTEP panel considered the security and stability impacts of the proposal, which focused on unexpected responses being received from the DNS for both existing and non-existing domains, as well as simply user confusion where the idea of two letter second-level domains is unfamiliar.

Kurt advised that the RSTEP report found that the proposal "does not create a reasonable risk of a meaningful adverse effect on security and stability." Its study included analysis of name server data to determine if an abnormal number of queries for TLDs within TLDs were received by top-level domain operators, as well as registering experimental domains that would be susceptible to technical problems. Research of UDRP cases had found no evidence of user confusion from earlier registrations of two letter domain names. Public comments were evaluated and taken into consideration by the Board and there was specific discussion of the negative comments made by .DE, .CN and .UK during the process.

The Chairman opened discussion on this item.

Sharil Tarmizi asked whether GNR Registry had received feed back from the GAC on this proposal. Both Kurt Pritz and Paul Twomey confirmed that the matter was raised informally by the GAC at ICANN's Melbourne meeting in March 2001 but that the only comment made formally was at ICANN's Montevideo meeting in September 2001 and that was specific to .AERO and two letter names. The contract with .AERO has been changed since. Sharil also asked that when reviewing TLD's, staff should note the GAC ccTLD principles that were approved by the GAC in Capetown, South Africa at the ICANN Meeting in 2005.

Susan Crawford noted that the RSTEP process seems to be working well and security and stability issues are being well explored.

Following this discussion, Susan Crawford moved and Roberto Gaetano seconded a request for a vote on the following resolution:

Whereas, Global Name Registry submitted a request <http://www.icann.org/registries/rsep/GNR_Proposal.pdf> for the limited release of two-character names under Appendix K of the .NAME Registry Agreement and under the Registry Services Evaluation Policy <http://www.icann.org/registries/rsep/rsep.html>.

Whereas, ICANN conducted its review of the request and determined that although there were no significant competition issues, ICANN did not have sufficient information to conclude there are no significant security and stability issues and referred the proposal to the Registry Services Technical Evaluation Panel for further evaluation.

Whereas, on 4 December 2006, the Registry Services Technical Evaluation Panel review team completed its report on the proposal <http://www.icann.org/registries/rsep/RSTEP-GNR-proposal-review-team-report.pdf>. The review team determined that the proposal does not create a reasonable risk of a meaningful adverse effect on security and stability. The report was posted for public comment during the ICANN Annual Meeting in Sao Paulo, Brazil.

Whereas, based on the report of the Registry Services Technical Evaluation Panel, internal experts and other public comments, ICANN has concluded that there are no significant security and stability issues related to introduction of the proposal.

Resolved (07.03), the President and General Counsel are authorized to enter into an amendment of the .NAME Registry Agreement to implement the proposed registry service.

The Board approved the resolution by a unanimous voice vote of all Board Members attending the Meeting (13 Board Members. Demi Getschko had joined the call prior to this vote.

Discussion of Proposal for .MOBI sTLD Contract Amendment Regarding ICANN Fees

The Chair asked Kurt Pritz to background this item. Kurt advised that the .MOBI Registry proposes to amend their agreement with ICANN to change the amount of fees paid to ICANN. Vittorio Bertola advised the Board that he would abstain from discussion of this item as he was a member of the .MOBI Policy Advisory Board.

.MOBI was negotiated early in the sTLD process using the .NET model for setting fees. The .NET agreement provides for a $0.75 transaction fee based on a $4.50 per registration price. The .MOBI agreement provides for a $0.75 fee based on a projected $7.50 to $12.00 price that is about to 6 to 10% of the registration price. Since the original agreement was struck, negotiations for several sTLD's have been concluded and the transaction fee is generally 3 to 5% of the per registration price. In discussions on this issue ICANN suggested to the .MOBI Registry that they model their fee proposal on the .TEL agreement model, which would mean that the transaction fee would be about 5% of the registration price. .MOBI has also suggested that there be a fee cap of $0.75 per transaction.

During the discussion, Kurt indicated that the proposal from .MOBI in part was based upon the position that had been negotiated by Telnic in the .TEL Registry Agreement. Upon learning this, Rita Rodin similarly advised of her intention to recuse herself from the discussion as she represented .TEL as their attorney during that negotiation before she was a member of the Board of Directors.

Steve Goldstein asked if the $0.75 fee was proposed by .MOBI Registry and whether it meant they should be held to the $0.75 cap for the duration of the contract. Steve expressed the view that changes to the contract should not be made during the term of the agreement and that .MOBI should be forced to live up to the terms that they had negotiated. Staff confirmed that the fee had been proposed by .MOBI during the negotiations. Vint Cerf indicated that there have been previous examples of contracts being negotiated during their term, so this was not precedent setting. Steve Goldstein questioned whether the Board should not publicly advise of this proposed contractual change, so that there can be no suggestion that this process was not transparent. Susan Crawford agreed that public advice and consultation was desirable. The Board was reminded that an option presented by the Staff was to put this matter out for public comment. Susan Crawford indicated that while this request is entirely appropriate, the Board should not approve changes to a contract in private, without any opportunity for public input. The Chairman asked the Secretary whether this required a board vote and the Secretary recommended a "sense of the board" as an acceptable option for staff to move this to a public comment period. The Chair asked whether there was a view amongst the Board that it decide to provide a public comment period of no less than 21 days on this item, and not approve the proposed contract amendment at this meeting. There was no objection from any Board Member.

Discussion Regarding Proposed Re-delegation of .GW [ Guinea-Bissau]

The Chair asked if any Board members would object to obtaining clarification on some points of detail from the applicant. There were no objections. Accordingly, no formal resolution was passed by the ICANN Board on this issue during this meeting.

Revocation of .UM [United States Minor Outlying Islands]

The Chair asked Kim Davies to provide background information on this item. Kim advised that in 1997, management of .UM was delegated to the University of Southern California's Information Sciences Institute. At that time it also operated the IANA function, and the registry was run by ISI staff. However, when ICANN assumed operation of the IANA function, and the .US registry was spun out of ISI, the .UM registry remained at ISI.

He reported that the .UM registry had no usage, and for much of 2006 was a "lame delegation" in the root zone. In October 2006, ISI formally communicated to ICANN that it no longer wished to operate the zone, that it was empty, and that the delegation should be removed. ICANN's view is that this would be an appropriate action, and would not prevent a suitably qualified operator from running .UM in the future if they met all the normal criteria for delegation of a ccTLD.

The Chair said there might be side effects if people are using software that tests for the existence of valid country-code domains. He added that as long as there was widespread notice of the re-delegation, then this should not be an issue.

Paul Twomey pointed out that this would be the first country-code domain to be removed from the root that wasn't the result of ISO 3166 changes caused by a country changing its name or dissolving (such as Zaire and Czechoslovakia). Kim Davies clarified that this would bring the list of undelegated country-codes to five, the others being Montenegro (ME), North Korea (KP), Serbia (RS), and Western Sahara (EH).

Steve Crocker asked whether there were particular difficulties with reinstituting the name, should it be necessary or desirable. David Conrad advised that there were no more difficulties with resurrecting this domain than in other ccTLD delegations.

Paul Twomey pointed out that ICANN already had a consultation process on the revocation of TLDs, however it was clarified that this is a separate matter only involving countries that no longer existed. In this case, UM is still recognized as an official code by the ISO 3166-1 standard.

Following this discussion Susan Crawford moved and Rita Rodin seconded a request for a vote on the following resolution:

Whereas, the .UM top-level domain was originally delegated in December 1997 <http://www.iana.org/root-whois/um.htm>.

Whereas, the currently assigned operator is the University of Southern California's Information Sciences Institute.

Whereas, the .UM domain is not in active use, and the current operator no longer wishes to operate it.

Whereas, ICANN has reviewed the request, and has determined that the returning the domain to unassigned status is the appropriate action to reflect its status.

Recognizing, this would not prohibit future delegation of the domain to another party that meets the regular ccTLD delegation criteria.

Resolved (07.04), that the delegation of .UM be removed from the DNS root, and that it be returned to unassigned status.

The Board approved the resolution by roll call vote 12-0. In addition to the Board Members not present for the call, Steve Goldstein was not available to vote.

Election of Doug Brent as an Officer of ICANN and Provision of Signatory Authority

Paul Twomey provided background information to the Board on this proposed resolution. Paul Twomey explained that Doug Brent's appointment as Chief Operating Officer had already been approved by the Board. This resolution was to approve of Doug's appointment as an Officer of the Corporation under the Bylaws and to allow him to enter into financial commitments on behalf of the Corporation, pursuant to the policy approved by the ICANN Board and posted in October 2006.

Paul Twomey moved for a vote on the following resolution and Vanda Scartezini seconded:

Resolved (07.05), Doug Brent is elected as Chief Operating Officer, to serve at the pleasure of the Board and in accordance with the Bylaws of the Corporation, and shall hold his office until his resignation, removal, or other disqualification from service, or until his successor shall be elected and qualified.

Resolved (07.06), that as Chief Operating Officer, Doug Brent may authorize contractual commitments and disbursements of ICANN's funds in accordance with the senior operations executive role identified as position #5 in paragraph 3 of the "Financial Control Procedures: Corporate Officer Signing Authorities" adopted by the Board on 18 October 2006 <http://www.icann.org/financials/finl_control-signing_authority.htm>.

All Board Members present (12 Board Members) approved this resolution by a unanimous voice vote. In addition to the Board Members not present for the call, Steve Goldstein was not available to vote.

Discussion of Lisbon Schedule

The Chairman asked Susan Crawford as Chair of the Board Meetings Committee to lead this discussion. Susan Crawford explained that, given the tight schedule at ICANN meetings, the Meetings Committee had proposed that the BGC or Finance Committees meet on Saturday 24-March 2007, two days before the official start of the ICANN Meeting on March 26, instead of one day before the start of the meeting. Susan explained that the BGC and Finance Committees had not agreed to this proposal. Accordingly, arrangements are proceeding to ensure that all Board Members arrive on time and are available for Board Committee Meetings to take place from the start of Sunday morning March 25. Susan believed it important that all Board Committees should meet on a regular schedule between ICANN Meetings. The Chair asked whether meeting on Sunday would allow all Board Committees to meet. Susan replied that some committees would certainly need to meet outside of Lisbon to avoid meetings being scheduled at night, thereby cutting into valuable consultation time with the community.

Discussion of Proposed .XXX Registry Agreement with ICM

Kurt Pritz explained that staff had posted on 5-January, 2007 a new contract to establish a .XXX Registry. This followed additional discussions with the applicant, ICM resulting from their request to resubmit a registry agreement relating to their pending application from the unresolved sTLD round. Kurt explained that there was an extensive background to this proposal and that this had been posted on the ICANN website on 5-January 2007. He noted that an important element of the history of the consideration of the .XXX Registry had been the communiqué from the Governmental Advisory Committee (GAC) received by the Board during the ICANN Wellington Meeting in March 2006. Kurt explained that when the Board considered this issue at its meeting of 10 May 2006, the decision by the Board was not to reject the application, but to reject the contract that ICM requested that the Board vote on at that time. ICM believes that it has in its new proposed contract addressed many issues that were of concern to the Board and the GAC. Materials were also posted on the ICANN website regarding the changes and ICM's view that they had met the requirements set out in the previously mentioned GAC Communiqué.

The Chair asked whether Staff would be able to provide to the Board outside of this meeting an outline of the criteria that would be required for ICM to comply with the terms of the agreement, if implemented. John Jeffrey stated that it was possible to supply that information and that Staff would endeavor to do so. He also added that there had already been good dialogue regarding some of the legal issues among a number of the Board members.

Steve Goldstein requested clarification about the fee per registration under this proposal. He was concerned that the figure may be extremely high. Staff clarified that the figure being proposed by the ICM was close to $90 per registration.

Sharil Tarmizi restated that the GAC had expressed strong concerns based on the previous contract proposed by ICM and that these concerns had been set out in the GAC Communiqué during the ICANN Wellington Meeting. He suggested that a number of members of the GAC were of the understanding that this issue had been decided upon by the Board in May 2006 and had asked for clarification about why the matter was now being considered again. Sharil made it clear that the GAC was advised of the reasons for ICANN's review of a revised agreement on the same day that he was made aware which was 5 January 2007. However, he also made it clear that the deadline for consultation by 5 February 2007 was an insufficient time to respond for all members of the GAC. While some members were already analyzing the contract, it was unlikely that there would be a complete response from the GAC until ICANN's Lisbon meeting. Janis Karklins as GAC Chair-elect also supported Sharil's view that many on the GAC felt that the .XXX matter had been decided previously and that some were not aware that the contract was still under discussion. The Chair stated that he would provide a further communication to Sharil as current Chair of the GAC and Janis as Chair-elect explaining clearly that the Board was considering a new contract and that the application for a .XXX domain had remained in place.

Sharil also stated that the application was a volatile issue. In previous discussions in the GAC, there had emerged very diverse responses from GAC members. These included: opposition on moral grounds; views that ICM did not meet sponsorship criteria; concern about the enforcement of Registry agreement provisions. Eventually the GAC brought its views formally to expression through its communiqué at Wellington.

Susan Crawford said that she had looked carefully at this new contract. She is concerned that the current draft still puts ICANN in the position of a "hands-on" role in relation to ICM's administration of the proposed Registry, and that this situation was not appropriate.

Paul Twomey indicated that the process of consideration so far for this proposed registry application was very clear. The decision that the Board took at its meeting on 10 May 2006 was a vote on the contract to establish the Registry not a denial of ICM's application. The decision of the Board in voting down the contract was posted in the preliminary report and minutes of that board meeting and there was media coverage that included this delineation.

Paul was also made clear that the applicant applied to go through the Board's reconsideration process. There was communication about the reconsideration process in the President's report to the GAC at meetings since the Wellington meeting. On 4 January 2007, an update on the sTLD round was posted and the fact that the .XXX domain proposal was still being considered as a live application amongst other sTLDs was included.

Finally a posting of the new proposed contract from ICM and a comprehensive background was posted on 5 January 2007. Paul Twomey said that while he appreciated that some may have thought that the Board's decision of 10 May 2006 was a decision to reject the proposal it was a decision to reject the contract and there has been a consistent communications process about this since May 2006. He also pointed out that if there is any perception that the consideration of this new contract was sudden, that perception may have been driven by the timing of the revised contractual framework, which was only discussed and made clear by the applicant after ICANN's Sao Paulo meeting.

Sharil Tarmizi also wanted it noted that whilst ICM has stated that this new proposed contract addressed the GAC's concern there had been no communications between the applicant and the GAC. He differentiated between the documents outlining ICM's contention that they have met the conditions set out by the GAC as not being the same as the GAC determining the conditions have been met.

Rita Rodin stated as a new member of the Board she believed that there was clear knowledge that the contract could be re-submitted after the Board's decision of 10 May 2006. However, she acknowledged that there might be some confusion on the part of observers.

Janis Karklins asked whether the Board considered this as a new proposal from ICM or a revision of the previous one, because different procedural provisions would apply. The Chair stated that it can not be considered a new proposal because it is not new. He reiterated that it was consideration of a contract to establish a .XXX domain that resulted from an Request For Proposal response in 2004. Paul Twomey added again that in May 2006 ICM had asked the Board to vote up or down on the contractual agreement and that is exactly what happened, concluding that the Board did not take the step of voting down the application at that time.

The Chair drew discussion on this item to a conclusion noting the consultation period remained open until 5 February 2007, and that it would be discussed again at the next meeting on 12 February 2007.

Re-alignment of Board Agenda

The Chair noted that discussion of the previous items had absorbed the majority of the time allocated for the Board meeting call. He suggested that the agenda item on the Discussion of .EH ( Western Sahara) and "other business" matters be continued until the February Board Meeting.

Status of GNSO Review

The Chair asked Denise Michel to speak to status of the GNSO Review. Denise advised that the GNSO constituencies had submitted comments and suggestions on the review and proposals for response to the Board Governance Committee.

Roberto Gaetano, Chair of the Board Governance Committee (BCG) stated that at a teleconference of the BGC on 15 January 2007, it was decided that there would be a report produced for the Board following the next Board Governance Committee Meeting and after Board consideration of that report it was hoped that the BGC would meet with the GNSO Council in Lisbon.

Conclusion of Meeting

The Chair moved for an adjournment of the Meeting at 3:06 PM PST and multiple board members seconded that motion.