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Minutes | Special Meeting of the Board 10 May 2006

Special Meeting of the ICANN's Board of Directors was held via teleconference on 10 May 2006 and was called to order at 1:06 P.M. PDT US.

Vinton G. Cerf (Chairman) presided over the entire meeting. The following other Board Directors participated in all or part of the meeting: Raimundo Beca, Susan Crawford, Mouhamet Diop, Demi Getschko, Hagen Hultzsch, Joichi Ito, Veni Markovski, Alejandro Pisanty, Hualin Qian, Njeri Rionge, Vanda Scartezini, Peter Dengate Thrush and Paul Twomey.

Liaisons present included Steve Crocker (SSAC), Daniel Dardailler (TLG), Roberto Gaetano (ALAC), Thomas Narten (IETF), Mohamed Sharil Tarmizi (GAC), and Suzanne Woolf (RSSAC). John Jeffrey, General Counsel and Board Secretary; Kurt Pritz, Vice President, Business Operations; Melanie Keller, Chief Financial Officer and, Olof Nordlng, Manager, Policy Development Coordination were also present.

Approval of Minutes for 18 April 2006

The Board Members present voted unanimously 12-0 (with one abstention by Njeri Rionge who was not present at that meeting) by voice vote in favor of approving the minutes from the last meeting 16 April 2006. Mouhamet Diop was not present during the vote.

The resolution reads as follows:

Resolved (06.26), the minutes of the Special Board Meeting of 18 April 2006 are hereby approved and should be posted.

Approval of the .TEL (Telnic) sTLD Registry Agreement

Kurt Pritz introduced the .TEL Registry Agreement and various Board Members and staff discussed the agreement and community input including the public statements of the .MOBI registry operator. Njeri Rionge moved and Veni Markovski seconded the following motion:

Proposed sTLD Agreement with .TEL (Telnic)

Whereas, on 28 June 2005, the board authorized the President and General Counsel to enter into negotiations relating to proposed commercial and technical terms for the .TEL sponsored top-level domain (sTLD) with the applicant, Telnic Limited.

Whereas, on 16 March 2006, ICANN announced that negotiations with the applicant for the .TEL sponsored top-level domain had been successfully completed, and posted the proposed .TEL sponsored TLD registry agreement on the ICANN website.

Whereas, the Board has determined that approval of the agreement, and delegation of a .TEL sponsored top-level domain to Telnic Limited would be beneficial for ICANN and the Internet community.

Resolved (06.27), the proposed agreement with Telnic concerning the .TEL sTLD is approved, and the President is authorized to take such actions as appropriate to implement the agreement.

The Board Members voted in a voice vote 13-0 in favor of the resolution. Mouhamet Diop was not present on the call at the time of the vote.

Consideration of the .XXX (ICM) sTLD Registry Agreement

John Jeffrey introduced ICM’s proposed version of the .XXX Registry Agreement and various board members and staff entered into a detailed discussion of the following points: agreement terms against the application statements and promises made by ICM in support of their proposal; concerns regarding ICANN’s ability to enforce the promises made by ICM through a contractual framework and the potential harm if such enforcement could not be maintained; the sponsorship criteria in the RFP and materials submitted in support by ICM and others; community input including letters and emails from industry and consumers regarding the proposed sTLD; GAC advice contained in the GAC Communique from the Wellington Meeting and whether the terms of the proposed agreement achieved the terms of that advice; and ICM’s submission and supporting letters and documentation.

Vanda Scartezini moved for a vote, and Peter Dengate Thrush seconded a motion on to approve the proposed .XXX Registry Agreement as submitted by ICM.

ICANN's Board voted 9 to 5 against the proposed agreement. Votes in favor of the proposed .XXX Registry Agreement were cast by the following Board Members: Veni Markovski, Susan Crawford, Peter Dengate Thrush, Joichi Ito, and Mouhamet Diop. Directors who voted against the approval were Vint Cerf (Chairman), Alejandro Pisanty (Vice-Chairman), Raimundo Beca, Demi Getschko, Hagen Hultzsch, Njeri Rionge, Vanda Scartezini, Paul Twomey (President and CEO), and Hualin Qian.

Directors statements regarding their votes are set out in the Voting Transcript which was posted on 13 May 2006 on the ICANN website at http://www.icann.org/minutes/voting-transcript-10may06.htm.

Approval of Director’s Expenses

After an introduction by Melanie Keller and a discussion by the Board, Peter Dengate Thrush moved and Susan Crawford seconded the following motion:

Whereas, Article VI, Section 22 of the ICANN Bylaws provides that the Board may authorize the reimbursement of actual and necessary reasonable expenses incurred by Directors and non-voting liaisons in the performance of their duties.

Resolved (06.28), the Board hereby authorizes the reimbursement of expenses to Directors and liaisons as follows:

Suzanne Woolf – for travel expenses to the IETF, Paris July 27-Aug 6, 2005 - $7,036.26;

Steve Crocker – for travel expenses to the IETF, Paris July 27-Aug 6, 2005 - $1,709.56, for travel expenses to the IETF, Vancouver, Nov 6-11, 2005 - $1,166.54, for travel expenses to Amsterdam & Utrecht - $4,482.61;

Vinton Cerf – for transportation expenses in Washington, D.C. Jan 8 2006 - $60.00;

Hagen Hultzsch – for travel expenses to Considerations Meeting in NY Feb 18-19 2006 - €4,171.0; and

Alejandro Pisanty - for telephone expenses at the WSIS Meeting in Tunis November 11-20, 2005 – US$437.83.

The resolution was approved unanimously, 14-0.

Approval of Financial Expenditure for Attorney’s Fees

After an introduction by Melanie Keller and a discussion by the Board, Hagen Hultzsch moved and Demi Getschko seconded the following motion:

Whereas, ICANN has had significant needs for legal services during the months of November 2005 through March 2006, including general legal advice, the new registry agreements for sTLDs and several pending lawsuits involving ICANN.

Whereas, Jones Day has provided extensive legal services to meet these needs.

Whereas, ICANN has received invoices from Jones Day totaling

US$830,074.16 in connection with legal services provided to ICANN during November 2005 through March 2006.

Whereas, the General Counsel and the Chief Financial Officer have reviewed the invoices and determined that they are proper and should be paid.

Resolved (06.29), the President is authorized to make payment to Jones Day in the amount of US$830,074.16 for legal services provided to ICANN during November 2005 through March 2006.

The resolution was approved unanimously, 14-0.

GNSO Recommendation on a Procedure for Potential Conflicts between WHOIS Requirements and Privacy Laws

John Jeffrey introduced the GNSO’s proposed recommended procedure for situations involving conflicts between contractual provisions in gTLD Agreements and national privacy laws. Board members and staff discussed questions regarding the non-binding nature of the recommendation, factual scenarios where such conflicts might occur, and how staff might utilize the recommendation to aid its processes for dealing with such potential scenarios. Alejandro Pisanty moved, and Hagen Hultzsch seconded the following motion:

Whereas, at its meeting on 28 November 2005, the GNSO Council voted by a supermajority in favour of the ‘Recommendation on a procedure for potential conflicts between Whois requirements and privacy laws’ in the Final Task Force Report of the Whois Task Force, and to forward it to the ICANN Board as a policy recommendation;

Whereas, the Preliminary Task Force Report on Policy recommendation and advice on a procedure for handling conflicts between a registrar/registry's legal obligations under privacy laws and their contractual obligations to ICANN was posted for public comments on the ICANN web site on 12 September 2005;

Whereas, the GNSO Council Report to the Board was published on the ICANN web site on January 18, 2006;

Whereas, the GNSO recommendation consists of a recommendation to ICANN on how ICANN should respond to potential difficulties its contracting parties could have in complying with ICANN contractual requirements, and the adoption of the recommendation would not impose any new obligations on any registries, registrars or third parties;

Resolved [06.30] that the Board adopts the ‘recommendation on a procedure for potential conflicts between Whois requirements and privacy laws "; and to develop and publicly document a procedure for dealing with such conflicts, taking into account the advice of the GNSO and any other interested ICANN Supporting Organization or Advisory Committee.

The resolution was approved unanimously, 14-0.

Appointment of Chair of Meetings Committee

The Board Governance Committee Chairman, Alejandro Pisanty set out a unanimous proposal by the Committee recommending the appointment of Veni Markovski to be the Chair to the Board's Meetings Committee left vacant following the resignation of Michael Palage.

Hagen Hultzsch moved and Alejandro Pisanty seconded the following resolution:

Resolved (06.31), the ICANN Board hereby appoints Veni Markovski as the Chair of the Board's Meetings Committee until the end of the Annual Meeting 2006.

The resolution was approved unanimously by voice vote, 14-0.

Approval of Reconsideration Committee's Recommendation on Reconsideration Request RC 06-3

Reconsideration Committee Chair, Vanda Scartezini and John Jeffrey presented the Reconsideration Committees recommendation to the full board regarding Reconsideration Request RC 06-3. The Board discussed the details of the reconsideration request and Hagen Hultzch moved and Alejandro Pisanty seconded the following resolution:

Whereas, the Reconsideration Committee presented its recommendations to the Board, as was posted at http://www.icann.org/committees/reconsideration/reconsideration-recommendation-06-3.htm

Resolved (06.32), that the Reconsideration Committee's Recommendation RC 06-3 is adopted for the reasons stated in that recommendation set out as follows: The committee concludes that there are no grounds for reconsideration, as Article VII, Section 8, is clear that Marilyn Cade cannot, under any circumstances, become eligible to fill the current midterm vacancy on the ICANN board without a change to the applicable bylaws. Moreover, Article VII, Section 8, does not allow flexibility to consider "exigent circumstances" under any situation. Finally, the request does not demonstrate any reason sufficient to stay the contested action.

Vint Cerf adjourned the Board Meeting at 3:06 PM PDT.

(Posted 19 June 2006; Updated 26 September 2006)