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Minutes of Special Board Meeting 4 February 2010

A Special Meeting of the ICANN Board of Directors was held via teleconference 4 February 2010 @ 03.00 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, 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; ; Thomas Narten, IETF Liaison; Jonne Soininen, TLG Liaison; and Vanda Scartezini, ALAC Liaison.

Raimundo Beca; Ram Mohan, SSAC 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; Jamie Hedlund, Vice President of Government Affairs - Americas; Kurt Pritz, Senior Vice President, Services; Theresa Swinehart, Vice President, Global and Strategic Partnerships; Kevin Wilson, Chief Financial Officer; Donna Austin, Chief of Staff to the CEO; Tina Dam, Senior Director, IDNs; Kim Davies, Manager, Root Zone Services; Denise Michel, Advisor to the CEO; and Diane Schroeder, Director of Board Support.

The CEO introduced Jamie Hedlund to the Board after Jamie's first week with ICANN. The Chair extended a formal welcome to Jamie on behalf of the Board.

The Chair thanked staff for the work in preparation for the Board meeting and to those Board members attending at inconvenient times, due to the rotation of times for the Special Board meetings.

  1. Consent Agenda

    The Board discussed the content of the Consent Agenda, moved the consideration of the .IN Redelegation off of the Consent Agenda, and approved the following resolutions unanimously, 13-0. The Resolutions were moved together by Rita Rodin Johnston, and Dennis Jennings seconded the motion. Raimundo Beca was not available to vote on the Resolutions.

    1. Minutes of 9 December 2009 Meeting

    RESOLVED (2010.02.04.01) the Board hereby approves the minutes of the 9 December 2009 Board Meeting.

    1. Minutes of 22 January 2010 Meeting

    RESOLVED (2010.02.04.02) the Board hereby approves the minutes of the 22 January 2010 Board Meeting.

    1. puntCAT Contract Amendment re One and Two Character Names

    Whereas, Fundacio puntCAT has submitted a request pursuant to ICANN's Registry Services Evaluation Policy to amend the .CAT Registry Agreements to allocate one and two-character domain names via a request for proposals process to members of the Catalan cultural and linguistic community.

    Whereas, the proposed release of single and two-character domain names in .CAT would be consistent with the recommendations of the GNSO Reserved Names Working Group and other approvals to permit the release of one and two-character domain names.

    Whereas, ICANN has evaluated the proposed amendment to the .CAT Registry Agreement as new registry services pursuant to the Registry Services Evaluation Policy and has posted amendments for public comment and Board approval (http://www.icann.org/registries/rsep/).

    It is hereby RESOLVED (2010.02.04.03) that the .CAT amendment is approved, and the President and General Counsel are authorized to take such actions as appropriate to implement the amendments.

    1. Recommendation from Finance Committee regarding FY10 Budget

    Whereas, in accordance with its commitments made at the time of adoption of the FY10 budget, the BFC has reviewed the results of financial operations for ICANN through December 2009, as well as the forecasts for FY10;

    Whereas the extra pressures on the FY10 budget are acknowledged and based upon reasonable underlying causes;

    Whereas the BFC directed staff to develop a plan for widespread and extra cost containment efforts, and has reviewed that plan;

    Whereas the BFC has indicated the cost containment efforts should not include the cutting back on essential ICANN services;

    Whereas the risks of FY10 budget overrun have been assessed and acknowledged ;

    It is hereby RESOLVED (2010.02.04.04) that the Board authorizes the CEO and his designated staff to approve the release of the $1.5 million from the existing FY10 budget contingency line item for FY10 operating expenses;

    It is hereby RESOLVED (2010.02.04.05) that the Board requests the CEO and his designated staff to closely monitor expenditures and forecasts for FY10, ensuring that ICANN essential services are not affected, and work with the BFC on plans and alternatives as required.

    Resolutions 2010.02.04.01; 2010.02.04.02; 2010.02.04.03; 2010.02.04.04; and 2010.02.04.05 were approved in a single vote approving the consent agenda items. All Board Members present unanimously approved these resolutions.

  2. Main Board Meeting:
    1. .IN Redelegation Request

    Dennis Jennings noted that he was not comfortable supporting a redelegation where the local community is not in support.

    Kurt Pritz clarified that there is now documentation of community support for the present delegee, through there wasn't a specific statement of support available at the time of the change in control.

    Steve Crocker inquired as to the scope of the redelegation.

    Kurt responded that this was a change in control, which used to be referred to as an “administrative” redelegation. Here, there were enough changes requested so as to trigger the normal redelegation process.

    The Chair noted that Board liaison Ram Mohan, through affiliations with Afilias – a registry services provider – was able to provide additional information to the Board on this item.

    Following the discussion, Dennis Jennings moved and the Chair seconded the following Resolution:

    Whereas, .IN is the ISO 3166-1 two-letter country-code designated for India. Whereas, ICANN has received a request for redelegation of .IN to the National Internet Exchange of India.

    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 (2010.02.04.04), that the proposed redelegation of the .IN domain to the National Internet Exchange of India is approved.

    All of the Board members in attendance unanimously approved of this Resolution. Raimundo Beca was not available to vote on the Resolution.

    1. President's Report

    The Board received a report on from the President and CEO regarding staff activity since the Board's meeting in December, including work on DNSSEC, and the announcement of four strings passing the IDN ccTLD Fast Track string evaluation stage, as well as various outreach events attended by the President and CEO. The President and CEO also provided additional background on Jamie Hedlund and noted the hiring of David Olive as ICANN's new Vice President of Policy Development.

    Janis Karklins requested that, in the future, the President and CEO provide a written report to the Board. The President and CEO noted that he would endeavor to achieve that.

    1. Approval of Strategic Plan for 2010

    The Chair opened discussion on the Strategic Plan.

    Jonne Soininen noted that he is reluctant to move forward due to a concern that comments that came in before the winter holidays had not been fully addressed. Also, Jonne noted that the version presented in advance of the Board meeting was more detailed than prior versions he'd seen.

    The Chair commented on some of the specific wording in the draft Plan.

    Rod Beckstrom confirmed that staff took the Board's input and made changes where possible, and staff is receptive to further input from the Board.

    Theresa Swinehart noted that staff received a wide variety of comments, and many of those comments are reflected in the edits made. As noted by Rod, Theresa indicated that additional edits from Board members could still be integrated.

    The Chair inquired as to the next steps in the process.

    Theresa confirmed that the next step is for Board approval. Theresa reviewed the steps taken to solicitation of community input and noted that because of the shift in approach to the strategic planning process, there may be more comments in the next year, as the community becomes familiar with this approach.

    The Chair noted that he's been trying to encourage the chairs of the ICANN Sponsoring Organizations (SOs) and Advisory Committees (ACs) to coordinate input from those organizations, and inquired about the sufficiency of input from the SOs and ACs.

    Rod stated that this planning process represents a significant improvement of what has existed in the past. There is now a one-page overview, setting out the four initiatives. The process can be even furthered refined.

    Theresa noted that some members of SOs and ACs participated in the survey process, as well as in the public comment process. In addition, the feedback received from the GNSO, ALAC, GAC and ccNSO in Seoul was positive about the new framework for the strategic planning discussion. While there weren't formal responses from any SO or AC, ICANN engaged in outreach and reminders and follow up to encourage even more participation. There was significant time for comment and participation.

    Harald Alvestrand congratulated staff on coming to conclusion on the plan. Harald noted concerns with the process, as was not aware that the draft circulated to the Board meeting was to be the final version, therefore he did not prepare final comment. Harald requested better notification of the finality of documents.

    Bruce Tonkin noted that some communities might not have provided input because of the clarity of the presentation of materials in this new planning cycle. In addition, the planning process is a rolling process, so there will be an opportunity to update and comment in the near future. Bruce noted that there may be complaints if staff does not show how input has been taken into account in the final document, and requested a document be provided to “map” the input.

    Theresa responded that a document can be presented that can reflect how comments were captured, in addition to a summary of the comments. Theresa noted that staff is also working to provide responses back to all persons who submitted comments on the Strategic Plan.

    Janis Karklins noted a concern with the accuracy of a statement in the one page plan.

    Dennis Jennings noted his approval with the single page overview, and commented on some of his vision for ICANN strategy.

    Katim Touray congratulated Theresa and staff on the plan, and provided comments suggesting amendments to reflect the needs of those in developing countries. Katim noted that he too anticipated that the Strategic Plan was being presented for discussion at this meeting – not approval - though the rolling nature of the plan makes immediate action possible.

    The Chair suggested that the Board authorize the Chair to give final approval of the plan after a certain period of time for comment for “tidying up” from the Board members, so long as there are no revisions to major portions of the plan.

    The Chair then moved, and Dennis Jennings seconded the following Resolution:

    Whereas, ICANN's July 2010 through June 2013 Strategic Plan seeks to provide four areas of high level strategic focus for ICANN;

    Whereas, ICANN's July 2010 through June 2013 Strategic Plan identifies in addition to four areas of focus, enablers across all areas to reflect ICANN's responsibilities towards a multi-stakeholder model, collaboration, and being international, transparent and accountable;

    Whereas, ICANN's July 2010 through June 2013 Strategic Plan captures strategic objectives and strategic projects, details of community work and staff work will be reflected in the operational plan;

    Whereas, ICANN's Strategic Plan is based on input from the ICANN Board of Directors, public consultations on ICANN's website, presentations at ICANN Seoul meeting, and to constituency groups, and a survey with the community;

    Whereas, the 2010-2013 Strategic Plan describes four strategic initiatives, and principal work areas under these initiatives;

    Whereas, measurements and metrics will be addressed by staff in consultation with the community, as part of the operational planning process and further integration into the next Strategic Planning cycle;

    Whereas, the Strategic Plan will form the framework around which the July 2010 through June 2011 Operational Plan and the associated budget are constructed.

    Whereas, members of the community have been very generous with their time and the Board appreciates the work that they have done.

    It is hereby RESOLVED (2010.02.04.07) the Board approves the July 2010-June 2013 Strategic Plan, and directs the President and staff to move forward with the community-based Operational planning process based on the strategic objectives as set forth in the plan.  Minor edits will be provided to staff by the Board before close of business on Monday 8 February 2010, final changes will be subject to the Chairman's final approval.

    All of Board members present unanimously approved of this Resolution. Raimundo Beca was not available to vote on the Resolution.

    1. Adoption of Event Security Risk, Contracts and Cancellation Management Policy

    Rod Beckstrom introduced a standardized process for assessing event security risks and a review and planning process, based upon objective, phased standards.

    The Chair noted that there has to be some flexibility written into a practice such as this, so that ICANN still has discretion while following the guidance of the practice.

    Jean-Jacques Subrenat noted that this is useful for public participation purposes and will work with staff to see how it can be integrated.

    Bruce Tonkin noted that the Risk Committee recently raised the issue of having criteria such as this for meetings, and noted that the UN Phase would not be the only measure for consideration.

    Rod requested that the security team be allowed to provide updated information to the Risk Committee after Nairobi, so that the security team can continue focusing efforts on security for the Nairobi meeting,

    The Chair then moved, and Jean-Jacques Subrenat seconded the following Resolutions:

    RESOLVED (2010.02.04.08), the ICANN Board directs the ICANN Staff (through the CEO) to monitor, review and regularly report to the community, where possible, the United Nations Security Plan Phase Designations, relating to all ICANN International Meetings.

    RESOLVED (2010.02.04.09), the ICANN Board directs ICANN Staff (through the CEO) to consider the “Phase Two” or higher designation as a possible rationale for cancelling any ICANN International Meeting.  

    RESOLVED (2010.02.04.10), the ICANN Board directs ICANN Staff (through the CEO) to consider the United Nations Security “Phase One” designation as a triggering event for review, along with other factors, of the safety and security of holding any ICANN International Meeting.

    All Board members in attendance unanimously approved of these Resolutions. Raimundo Beca was not available to vote on the Resolutions.

    1. New gTLDs
      1. Expressions of Interest in new gTLDs (EOI)

    The Chair introduced the EOI materials produced as a result of the Board's direction in December.

    Kurt Pritz laid out the options to the Board on the EOI. Kurt noted that the Board could approve the formal EOI and direct staff to plan for the conducting of the EOI, or the Board could defer action on the EOI until Nairobi and arrange community consultations to inform the Board prior to action in Nairobi. If the Board elected to defer action, the Board could still direct staff to continue work on the EOI and convey that this should not set back the time frame, so the deferral has the minimal amount of impact.

    George Sadowsky noted that there are two issues with the EOI. First, some in the community believe that the Board has not discussed this enough, and the community needs to be satisfied that the issue has been aired. Second, George noted that though he earlier voted to proceed on the EOI, he is not sure if it's a good idea for implementation. The calendar converges with the timing set out if the EOI is not passed, so it may make sense to focus on concluding on the outstanding issues in the New gTLD program, and not proceed with the EOI.

    The Chair inquired of staff whether the EOI could shorten the time of the New gTLD process, and not be a distraction.

    Kurt noted that proceeding with the EOI would be a benefit; the EOI would help to resolve issues. Trademark issues and three-character restrictions have to be resolved prior to the EOI, so people know who is allowed to apply and what they may apply for. The EOI will resolve root-scaling issues, and allow for operational planning for the evaluator teams. The launch of the New gTLD process will be more efficient and more reliable because of the advance notice provided by the EOI. Also, the EOI will provide a last check for unanticipated issues in the New gTLD process. Kurt noted that his personal opinion on the benefits of an EOI has changed; while he used to be skeptical of the idea, he's now in support.

    The Chair request Janis Karklin's input on this item, in light of the GAC's position on the EOI.

    Jean-Jacques Subrenat expressed support for George's comment. Jean-Jacques also noted the import of the GAC letter on this topic, and stated that staff should have addressed the GAC letter more fully in the presentation to the Board on the EOI, though he notes that the letter was received quite close to the Board meeting. As things stand today, Jean-Jacques stated that a decision should be deferred until a discussion in Nairobi.

    Bruce Tonkin noted that he read much of the public comment received on the EOI, and that commenters noted that people may be surprised if the Board took action so soon after the close of the public comment session, as it may indicate that the Board did not take the comments under consideration. Bruce would like to see a paper identifying the objections to the process and how those objections and concerns are being dealt with in the EOI process.

    The Chair noted that the staff provided a paper addressing nearly all of the comments received on the EOI.

    Bruce stated that the Board should take more time to digest that work, and requested that the staff document analyzing the comments be posted publicly prior to the Board taking a decision.

    The Chair noted that the Board does not need to publish the input prior to taking action, so long as the Board has the input.

    Dennis Jennings noted the initial attractiveness of the EOI approach, but now that the EOI is clearly the launch of the New gTLD program, the aspects of the program have to be right before the launch. Therefore, does the EOI accelerate the process, and are the benefits of the EOI worth the hassle? Dennis stated that the only benefit of the EOI appears to be that it will provide data on numbers, which may be possible to address separately. Dennis cautioned that all aspects of the New gTLD program have to be dealt with carefully and publicly considered before the launch of the EOI. Dennis supports deferring this for consideration until Nairobi.

    Katim Touray supported deferring the decision until the Nairobi meeting. There's only a month of time until the Nairobi, and many of the commenters, including the GAC and the ALAC, requested time for discussion of the EOI in Nairobi. It's clear that discussion needs to happen in an interactive fashion prior to the Board moving forward on the EOI. Katim also noted that the GAC mentioned the Affirmation of Commitments in its letter, and the Board needs to be aware of this accountability and transparency concern in the way that the Board handles the EOI process.

    Janis Karklins noted that the ICANN Bylaws addressing policy development support an ICANN holding an in-person public forum on this important issue prior to the Board taking a decision.

    The Chair noted that ICANN has to be careful about what is described as policy and what is implementation of those policies, as everything that ICANN does is subsequent to policy. The EOI can be described as implementation, not policy. The policy is to implement new gTLDs, and input has been received on that. If this distinction is not made, everything that ICANN does could be considered as policy. However, the general thrust of having more discussion and more community buy-in is good.

    Harald Alvestrand noted that the current EOI plan is not finished; for example, it does not address what happens when applicants combine. Harald noted that it would be more positive to ICANN if this matter were considered in Nairobi, instead of creating a risk that it will be viewed as a fait accompli if the Board takes action at this time.

    George noted his agreement with Dennis. George noted his concern that the GAC letter did not trigger a response from Staff for inclusion in the Board paper on this topic.

    Kurt noted that the GAC letter was posted in the correspondence page, and while not addressed in detail, staff did note that there is a requirement of consultation with the GAC, and that issue was raised. In addition, the staff highlighted here that an option available to the Board was to defer decision making to Nairobi.

    The Chair inquired of Bruce what additional documentation might be needed for the Board to take a decision.

    Bruce stated that the feedback on the public comment requested earlier should be provided, and should be a more integral part of ICANN's process.

    Raymond Plzak noted that the sense of the Board seems to be that it is most appropriate to defer taking action now, because of continued discussion on this matter.

    The Chair noted that a Board resolution was needed on the EOI so that it does not appear that the Board abandoned the issue, as well as an indication of what is expected before and at Nairobi.

    Bruce Tonkin then suggested the form of a resolution, and Kurt suggested the inclusion of a clause noting that a deferral of a decision on the EOI would only cause a three-week modification to the timeline proposed by staff.

    Bruce Tonkin then moved and Jean-Jacques Subrenat seconded the following Resolutions:

    Whereas, deferring an ICANN Board decision on the Expressions of Interest in new gTLDs until the ICANN International Meeting in Nairobi, Kenya in March 2010 will only cause a three-week modification to the timeline proposed by staff.

    It is RESOLVED (2010.02.04.11), ICANN Board adjourns with making a motion with respect to the approval of the Expressions of Interest in new gTLDs until the Board meeting at the ICANN International Meeting in Nairobi, Kenya in March 2010. The Board has a goal of making a decision on the Expressions of Interest at its Board meeting in Nairobi.

    It is further RESOLVED (2010.02.04.12), the ICANN Board directs staff to produce a summary of the major issues identified in the public comment on the Expressions of Interest proposal, as well as an explanation of how those issues will be dealt with if ICANN proceeds with Expressions of Interest.

    It is further RESOLVED (2010.02.04.13), the ICANN Board directs staff to schedule a forum at the ICANN International Meeting in Nairobi for the discussion of the Expressions of Interest proposal, including the receipt of community input.

    Twelve of the Board members present approved of these Resolutions. George Sadowsky abstained from voting on these resolutions due to the proposal of the Resolutions by Staff. Raimundo Beca was not available to vote on the Resolutions. The Resolutions passed.

      1. Relaxing 3-Character Requirement for gTLDs

    The Chair inquired as to whether there was need to discuss this item due to the posting of the paper.

    Tina Dam clarified that the paper was posted for Board information. Tina noted the staff activities to date.

    The Chair thanked Tina for the paper.

    Kurt noted that the intention is to publish this as a proposal in the next version of the DAG.

    1. Update on ICANN Proposed Security Initiatives in Response to Affirmation and IANA Contract Requirements

    Doug Brent provided a short update to the Board on the ongoing work within the IANA functions department on proposed security initiatives and business continuity planning.

    1. Recommendation from Board Governance Committee for Consideration of Board and Chairman Remuneration

    Dennis Jennings introduced a resolution for the Board to ask for more work to be done so that this item can be brought forward for discussion. The Board Governance Committee (BGC) is not seeking Board discussion on Chair remuneration at this time; the BGC is seeking approval to collect of facts to facilitate further discussion.

    Jean-Jacques Subrenat noted his approval of this resolution, but noted that Board review Working Group set aside the Chair from the other Board members when addressing this topic, and that should be reflected in the Board's work. There is a factor difference between the compensation of Chair versus the Board. Jean-Jacques inquired as to why the Chair should be singled out for consideration at this time. All Board members give time for their work, and there is a principle regarding Board remuneration, so consideration for the full Board should be reflected here. Dennis Jennings clarified that the information staff presents will outline all of these issues.

    Jean-Jacques requested the consideration of Board remuneration be reflected in the title and the body of the resolution, instead of a resolution limited to Chair remuneration.

    Dennis clarified that the BGC felt it was prudent to separate the Chair out for several reasons. First, remuneration of the Chair is the easiest to deal with by the whole Board and does not raise questions of how the Board as a whole could approve remuneration. Therefore the BGC recommends moving forward only with consideration of remuneration of the Chair at this time.

    Jean-Jacques requested clarification on further timing for consideration for the entire Board.

    Dennis suggested that any paper on remuneration of the Chair may be available for consideration at the August meeting of the Board, and a paper on the remuneration of the full Board could be available an additional three months after the paper on the Chair remuneration.

    Steve Crocker noted his great discomfort with the topic of remuneration, and noted his concern that the critical issues are not being worked out within the BGC, and wants a broader discussion. Steve stated that topic should not be handled piecemeal with separate consideration regarding the Chair and the remainder of the Board.

    Raymond A. Plzak noted that the BGC is seeking Board approval to produce a document that will facilitate the discussion that Steve requested.

    Mike Silber suggested that the resolution be drafted to indicate that Chair remuneration be considered first, with Board remuneration considered later.

    Rita Rodin Johnston noted that the BGC is trying to move this topic forward, and was not sure if there was a consensus of the Board to consider remuneration. In addition, there seemed to be some more support for the concept of remuneration of the Chair as opposed to remuneration of the full Board. This resolution will allow the Board to signal if the Board even wants to consider this issue; if so, staff will produce a paper. Rita noted that if there were not enough support to pass the resolution, the issue would be put to rest here.

    Dennis turned to a discussion of the resolution.

    Jean-Jacques suggested that the resolution be reworded to include Board remuneration. Jean-Jacques is struck by Steve's comment on the important considerations that will be faced regarding the remuneration issue as a whole.

    Steve again noted his discomfort with the Chair remuneration being handled separately, as that almost pre-ordains the outcome. Steve prefers the focus to be on basic principles of remuneration, without specific reference to the Chair.

    Bruce noted his support for the limitation of this resolution to address the consideration of Chair remuneration.

    Rita noted her agreement with Bruce on the separation of the Chair remuneration issue.

    Harald Alvestrand then moved and Raymond A. Plzak seconded the following Resolutions:

    Whereas, significant discussion and analysis has been conducted relating to whether remuneration of the Board Chairman should be considered;

    Whereas, the Board has discussed the idea and has determined that it shall further consider whether Board Chairman remuneration is appropriate and later consider whether full Board remuneration is appropriate;

    Whereas, additional work, research and analysis should be commissioned to inform the Board's consideration of Board Chairman remuneration, including an updated discussion of the associated risks;

    It is hereby RESOLVED (2010.02.04.14) that remuneration of the Board Chairman is worthy of further consideration.

    It is hereby further RESOLVED (2010.02.04.15) that the Board Governance Committee develop a plan and request that the CEO direct the General Counsel to commission additional work, research and analysis of the issue of Board Chairman remuneration, including an updated discussion of associated risks, for consideration by the BGC and then presentation to the Board for further consideration.

    Ten of the Board members voted in favor of the Resolutions. Steve Crocker opposed the resolutions. George Sadowksy and Peter Dengate Thrush abstained from voting on the Resolutions. Raimundo Beca was not available to vote on the Resolutions.

    Steve Crocker reiterated that the focus of the resolutions should be on the basic principle of remuneration and not the separate discussion of remuneration of the Chair, as that raises a fundamental issue on the role of the Chair.

    George Sadowsky stated that his abstention was based on the same rationale as Steve's opposition, but George abstained, as he does not wish to block the discussion from continuing.

    1. ICANN Media Relations Report

    The Board received a short update from Rod Beckstrom on ICANN's media relations planning.

    Jean-Jacques Subrenat inquired about the proportion of ICANN communications in English, and how ICANN could target additional languages.

    Rod noted that communications outside of the United States is an important focus of this work, and that he will obtain data to address Jean-Jacques' question.

    1. Recommendations of Ombudsman File 09-58

    The Chair opened discussion on this item.

    George Sadowsky noted he feels conflicted about this issue after reading the confidential response from the respondent. The Ombudsman's actions make the recommendations in his report unjustified. George noted that ICANN shouldn't have to be reminding our participants to be civil.

    The Chair noted that this is a way to consider what we already do within ICANN; the Chair has had to remind people of these principles on civility. The Chair noted that the Board does not need to get into the detail of the incident behind the report to address the civility issue at this time.

    Dennis Jennings noted that he believes the Ombudsman made mistakes in the investigation. On a broader aspect, the respondent's paper illustrated differences in assumptions and thinking between the US and the remainder of the world, and ICANN needs to consider carefully the entire civility issue so that we have the right opportunity for people from different cultures to contribute to ICANN's environment. The US approach is seen as hostile and intimidating to many, and the Board should address this in the future

    The Chair noted his agreement with Dennis, and the Board's Public Participation Committee is very aware of the need to make sure ICANN's fora are available to all participants.

    Rita Rodin Johnston noted her support for Dennis's comments, and reminded the Board that there are gender differences as well as cultural differences, and that the process can be intimidating to women across many cultures when seeing less than civil behavior. Rita encourages the Board to look at and analyze and promote this issue of civility within the ICANN community.

    The Chair indicated that the resolution would be a positive step, reminding participants that there are standards set and we expect people to behave, and setting up a mechanism to bring these issues to the forefront.

    The Chair then moved, and Jean-Jacques Subrenat seconded the following resolution:

    Whereas, the Board thanks the Ombudsman for his report on File 09-58 addressing civility issues within ICANN related meetings and discussions;

    Whereas, the Board notes that there is ongoing work within ICANN to enhance civility among ICANN participants, and that this topic is of high value to the ICANN community;

    Whereas, the Board responds to the Ombudsman Report as follows:

    It is hereby RESOLVED (2010.02.04.16) that the Board affirms that all participants in ICANN are expected to adhere to the Expected Standards of Behavior as published in the ICANN Accountability & Transparency: Frameworks and Principles, found at: http://www.icann.org/en/transparency/acct-trans-frameworks-principles-10jan08.pdf.

    It is further RESOLVED (2010.02.04.17) that the Board requests that the CEO direct ICANN Staff to provide at least annual reminders of the Expected Standards of Behavior to the membership of ICANN's supporting organizations and advisory committees, and to consider the other proposals by the Ombudsman to enhance civility.

    Twelve Board members voted in favor of these Resolutions. George Sadowsky abstained from voting on these Resolutions. Raimundo Beca was not available to vote on the Resolutions. The Resolutions carried.

    George Sadowsky noted that he abstained due to his believe that the Ombudsman's report was an inappropriate response, however George does not want to block calls for increased civility within ICANN.

    1. Update on IDNs

    The Chair called for questions on the IDN ccTLD Fast Track process.

    Thomas Narten inquired for an estimate on the best case of when an IDN ccTLD will go live into the root.

    Tina Dam clarified that staff is trying to provide a better assessment of time, but it's been difficult to do, because it's dependent on the preparation for the string delegation process. Once the applications are in and complete, there will be a better sense of progress and scheduling.

    Tina noted that there was a public announcement that four passed the string evaluation phase. However, the entity will apply for delegation of the string as the IDN ccTLD manager does not have to be identified in string evaluation.

    Rod Beckstrom noted that while ICANN keeps the identification of pending applicants in the IDN ccTLD Fast Track process confidential, those requestors might publicize information about submitting an application. The requestors are identified after the passage of the string selection process.

    1. New gTLDs: Vertical Integration

    Prior to any discussion on this matter, the Chair identified Board members and liaisons with conflicts of interest on this issue, Harald Alvestrand, Bruce Tonkin, Jonne Soininen, Thomas Narten, Vanda Scartezini and Ram Mohan.

    Rita Rodin Johnston noted that though there'd been a suggestion that she may have a partial conflict due to her non-ICANN work, she did not believe that any conflict of interest existed and identified the safeguards being taken at her company regarding the matter. Rita clarified that as a non-conflicted Board member, she did not need to remove herself from the discussion.

    The Chair then moved, and Raymond A. Plzak seconded a motion for the conflicted Board members and liaisons to withdraw from participation in the discussion and be removed from the call. All non-conflicted Board members approved of this motion.

    Kurt Pritz provided a presentation to the Board on the issue, and noted that the there are two requests of the Board; first, whether the draft economic model from economists contracted by ICANN relating to the ongoing community work, study and review of the registry/registrar separation requirement can be posted for community comment; and second, whether the Board wished to direct the CEO to have staff draft a proposed model or implementation of the economist recommendation that could be posted with the economist report. Kurt reminded the Board of the history of discussions on this issue, leading to the recent draft of a paper by Steve Salop and Josh Wright that is now before the Board, and recommended the posting of that draft.

    The Chair noted that there were other issues raised on vertical integration that were not economic issues, and inquired as to how those are being dealt with.

    Kurt noted that there is a considerable public record regarding the discussion of the abuse issues, and the record shows that some of the parties previously opposed to vertical integration on the abuse issues, while they remain concerned of the creation of an unlevel playing field among new gTLDs and the ones in existence.

    The Chair also inquired about the suggestion for a phase-in period that is not addressed in the briefing to the Board.

    Kurt responded that staff's recommendation would be to have a phase-in period. Given the time to launch the new gTLD process, the phase-in could occur in parallel with the time for launch.

    George Sadowsky noted his dismay on this conversation. The draft paper was provided to the Board too soon prior to discussion, represents a recommendation for a fundamental change to the status quo, and he believes it is based on a fundamental misinterpretation of the structure of the domain name industry, after having independent conversations with an economist. George asked who would benefit from this change – it will not be the registrant, but those in the domain name industry, the same people pushing for the change. George states that this issue demands more attention.

    The Chair clarified that Board members are not going to be forced to take action today. The decision is does ICANN publish the draft of not, and do we spend time developing further models. The Board would not be taking a decision at this time on what would appear in the new gTLD contract.

    Mike Silber noted his agreement with George, that the draft report is based on a fundamental misunderstanding of the domain name industry. Mike believes that that every registry has significant market power because it is the only entity that manages a gTLD that has market power in that TLD. While there is no problem with publishing anything for comment, Mike believes that if we publish now ICANN is entering into a conversation that is fundamentally flawed.

    The Chair countered that we needed to be clearer about a market, and provided some analogies, including that while Frigidaire is a monopolist in the Frigidaire market, the real market is for refrigerator; or Ford is in the market of all cars, not just in the market for Ford cars. The Chair noted that this disagreement might show why further conversation is needed.

    Dennis Jennings noted that the paper can be published as a contribution, but the analysis is flawed. If there is a change to allow vertical integration, there has to be adequate notice so the market can adjust. The vertical integration issue also hides other issues on data and consumer protection, which need to be addressed, as well as pricing caps and power wielded over registrants. Te vertical integration point is a red herring and all issues have to be on the table. However, the paper is a contribution to the discussion and should be posted.

    Steve Crocker noted his a strong opposition to publishing the paper, and others have articulated the reasons why. Allowing the publishing of “contributions” by outside experts just because the work was done, that is a move in the wrong direction and creates a presumption of validity. Steve inquired as to why this subject is on the table; this is settled business.

    Rod Beckstrom addressed Steve's question, and stated that this is under discussion because the New gTLD program brings to light that previous structures that may not be functional under the New gTLD system. This is a point of industry evolution that requires reexamination of the system. Without reexamination, material changes would be needed for the entire New gTLD program. Rod noted that here, the community has divergent economic interests, and there's a nearly even split on how to move forward. Turning to the draft paper as an input, Rod noted that given his 30 years of experience with economic problems, the principles used in the paper are classic and sound, including in not treating each registry as a separate vertical market. The document moves the dialog forward. Rod noted that ICANN has made a contribution to introducing competition in the domain name industry, such as the creation of new registrars, who are successful. What is the best way forward now? Vertical integration can benefit consumers. Issues on data mining and front running are important issues, and if we can clarify policy, behaviors, those can be regulated separately.

    Steve thanked Rod for his recitation of points. Steve noted that on the point of the soundness of the reasoning in the draft paper, the arguments don't make sense, so ICANN cannot base acceptance of the paper on the credentials of the economists drafting it. Except for carving out a “private label” TLD, the rationale of the paper does not hold up, and the economic interests of the players are driving this change.

    Jean-Jacques Subrenat noted his agreement with George and Steve. Jean-Jacques noted that if this paper is published, ICANN has to avoid any suggestion that we support or condone any one view. He also noted that there is a fundamental difference in the way competition laws are treated between the U.S. and Europe, and ICANN has to be careful to view laws outside of the US. Jean-Jacques also cautioned that ICANN is being drawn into a role that is not normally its role, serving as a regulatory body or a competition body. ICANN may have to step in to the issue at some point, but has to be cautious in respecting ICANN's mandate in doing so. Jean-Jacques noted that he is cautious in moving forward with abolition of separation.

    The Chair noted that the market was created by ICANN's rules, and now ICANN is looking at the validity of continuing those rules. This is not a new issue. The Chair notes Jean-Jacques' point that decisions on changing the rules do require careful though and consideration.

    Rita Rodin Johnston echoed what Dennis and others stated and noted that there are items missing from the paper, such as current market share. Rita noted that by reopening this issue now, ICANN would be creating a larger issue and inject in the new gTLD process that may not be appropriate; it's somewhat late in the process. Rita noted that ICANN is often criticized for not taking community input, and ICANN needs more input for a more holistic view. The draft paper, however, is not appropriate for publication now, as it would likely be viewed as the Board choosing a direction that the Board has not yet chosen. There needs to be more synthesis and analysis done prior to posting this paper, including comments have been made on this issue.

    Dennis noted there was a “dialogue of the deaf” here, as reports appear that the Board does not feel capture the market. The Board should prepare a note of its view of the issues in the market.

    The Chair summarized that the Board feels that we need to do more work and asked staff if more material will be provided.

    Rod noted that staff could go where the Board would like to go with this. Rod cautioned that a delay of the consideration of this issue might set back the timeline on the New gTLD process. Rod reiterated that from his economic background, the paper is sound, and also noted that moving forward supports ICANN in promoting competition. Staff can obtain additional studies the Board wants, or produce whatever information the Board would like.

    General Counsel John Jeffrey recommended publishing it for public discussion and reminded the Board that unless the paper was published, that only the non-conflicted Board members should review it, or alternatively, they should vote to open it up to them.

    The Chair reviewed the discussion to determine what the next steps would be if the Board did not publish the draft paper, including a further session on this. The Chair noted that he believed the questions of why the Board is looking at this now were answered in Seoul. The Chair noted that the Board, in taking another session on this, has to make some progress and cannot take too long.

    Raymond A. Plzak suggested that the matter be postponed and the Chair and CEO work together to devise a strategy on moving this issue forward.

    There were no objections to Ray's suggestion and discussion was closed.

    After the close of discussion, all Board members and liaisons were invited back into the meeting.

    1. Any Other Business

    The Board requested an update from staff on the status of the reviews called for within the Affirmation of Commitments.

    Doug Brent provided an update to the Board on the comments received on the proposed Affirmation review model, and the posting of a call for reviewers. The deadline for the call for reviewers was extended, and would likely be extended again.

    The Chair noted that at the close of the period for a call for reviewers he and Janis Karklins will be meeting on selection work, and the Chair will be providing further updates to the Board.

    The Chair also requested that all Board members and liaisons encourage applications for the volunteer review panel positions.

    Janis Karklins noted that the GAC is working on comments to the proposed methodology, and suggested a public session in Nairobi would be appropriate for a discussion on this.

    The meeting was adjourned at 0640 UTC.