Minutes | Regular Meeting of the ICANN Board
A Regular Meeting of the ICANN Board of Directors was held in Helsinki, Finland on 25 June 2016 at 18:00 local time.
Steve Crocker, Chair, promptly called the meeting to order.
In addition to the Chair, the following Directors participated in all or part of the meeting: Rinalia Abdul Rahim, Cherine Chalaby (Vice Chair), Ron da Silva, Chris Disspain, Asha Hemrajani, Rafael Lito Ibarra, Markus Kummer, Bruno Lanvin, Erika Mann, Göran Marby (President and CEO), George Sadowsky, Mike Silber (telephonically), Bruce Tonkin, Lousewies van der Laan, and Kuo-Wei Wu.
The following Board Liaisons participated in all or part of the meeting: Ram Mohan (SSAC Liaison), Thomas Schneider (GAC Liaison), Jonne Soininen (IETF Liaison), and Suzanne Woolf (RSSAC Liaison).
Observing: Becky Burr and Akinori Maemura.
Secretary: John Jeffrey (General Counsel and Secretary).
The following ICANN Executives and Staff participated in all or part of the meeting: Akram Atallah (President, Global Domains Division), Susanna Bennett (Chief Operating Officer); Michelle Bright (Board Operations Content Manager); Duncan Burns (Vice President, Global Communications); Xavier Calvez (Chief Financial Officer); David Conrad (Chief Technology Officer); Sally Costerton (Senior Advisor to the President and Senior Vice President, Global Stakeholder Engagement); Samantha Eisner (Associate General Counsel); Larisa Gurnick (Sr. Director, Multistakeholder Strategy & Strategic Initiatives); Dan Halloran (Associate General Counsel); Tarek Kamel (Sr. Advisor to the President – Gov. Engagement); Melissa King (VP, Board Operations); Vinciane Koenigsfeld (Board Operations Content Manager); Marika Konings (Senior Director, Policy Development Support and Team Leader for the GNSO); Margie Milam (VP, Multistakeholder Strategy & Strategic Initiatives); David Olive (Senior Vice President, Policy Development Support and General Manager, ICANN Regional Headquarters – Istanbul); Cassia Oliveira (Sr. Manager, Office of the CEO); Taryn Presley (Sr. Manager, FP&A); Wendy Profit (Board Operations Specialist); Erika Randall (Senior Counsel); Ashwin Rangan (Chief Innovation and Information Officer); Amy Stathos (Deputy General Counsel); Theresa Swinehart (Sr. Advisor to the President on Strategy); Christine Willett (Vice President, gTLD Operations).
These are the Minutes of the Regular Meeting of the ICANN Board, which took place on 25 June 2016.
- Thank You to Departing Member of SSAC
- Approval of Board Meeting Minutes
- Delegation of the бг ("bg") domain representing Bulgaria in Cyrillic script to Imena.BG Plc (Names.BG Plc)
- FY17 Operating Plan and Budget
- Consideration of Independent Review Panel's Final Declaration in the Donuts Inc. v. ICANN IRP 12
- Independent Review of the Generic Names Supporting Organization Final Report and Recommendations
- Revised Expected Standards of Behavior
- New gTLD Program: Reviews and Future Path
- Review of .HOTEL Application Status
The Chair introduced the items on the Consent Agenda and called for a vote. The Board took the following action by acclamation:
Resolved, the following items on the Consent Agenda are approved:
Thank You to Departing Member of SSAC
Whereas, the Board appointed Matt Larson to the SSAC on 26 June 2009.
Whereas, the Board reappointed Matt Larson to the SSAC on 05 August 2010 for a term beginning 01 January 2011 and ending on 31 December 2013.
Whereas, the Board reappointed Matt Larson on 21 November 2013 for a term beginning on 01 January 2014 and ending on 31 December 2016.
Whereas, Matt Larson resigned from the SSAC on 18 May 2016.
Whereas, ICANN wishes to acknowledge and thank Matt Larson for his service to the community by his membership on the SSAC.
Resolved (2016.06.25.01), that Matt Larson has earned the deep appreciation of the Board for his service to ICANN by his membership on the SSAC, and that the Board wishes him well in all future endeavors.
All members of the Board present voted in favor of Resolution 2016.06.25.01. The Resolution carried.
Rationale for Resolution 2016.06.25.01
It is the practice of the SSAC to seek Board recognition of the service of Committee members upon their departure.
The General Counsel made note of possible conflicts of interest with respect to Main Agenda Items 2.d. and 2.h. He noted that Board members and observers with potential conflicts of interest would abstain from any voting on Item 2.d. but would excuse themselves from the meeting room for Item 2.h. because confidential or special information would be disclosed during the discussion.
Approval of Board Meeting Minutes
The Chair introduced the agenda item. Rinalia Abdul Rahim noted that a correction needed to be made to the Board minutes of the 15 May 2016 meeting to note her abstention on the vote taken regarding the October 2016 ICANN Meeting Venue Contracting agenda item. The Board took the following action by acclamation:
Resolved (2016.06.25.02), the Board approves the minutes of the 19 April, 15 May and 27 May 2016 meetings of the ICANN Board.
All members of the Board present voted in favor of Resolution 2016.06.25.02. The Resolution carried.
Kuo-Wei Wu introduced the item on the agenda, and the Board engaged in discussion of the delegation of the top-level domain representing Bulgaria in Cyrillic script. George Sadowky expressed concerns about the delegation of the IDN ccTLD citing string similarity and confusion concerns with entries on the ISO 3166-1 list. Ram Mohan stated that he and Suzanne Woolf reviewed some of the history of the proposed string and noted that there are several characters in Cyrillic that are similar or identical to ASCII characters. He asked how the issue of visual similarity and confusion was resolved with this string.
Akram Atallah noted that the IDN ccTLD Fast Track Process, including the process for addressing string similarity or string confusion, was developed through the ccNSO process. Chris Disspain provided additional background on the IDN ccTLD Fast Track Process and the reviews that are undertaken when a proposed IDN ccTLD is requested for delegation. Chris also provided a summary of a similar issue that arose with the request to delegate the IDN ccTLD for European Union (in Greek), which was subsequently delegated.
Ram commended that there is a bigger issue raised by this request, namely, that there are general challenges experienced across the DNS with the use of ASCII and IDNs. He suggested that there may not necessarily be a good technical solution to this set of problems. Suzanne agreed, and also reinforced previous discussions about the lengthy process to develop the IDN ccTLD Fast Track Process and the additional scrutiny placed on the proposed string due to the string confusion concerns.
Erika Mann requested additional information about the how the Fast Track program was developed, and staff noted additional briefing materials could be provided so that Board members understand the process.
Ram asked about the potential to block delegations of future strings based on the approval of the proposed IDN ccTLD string. Bruce Tonkin suggested a proposed amendment to the rationale of the proposed resolution to address possible string confusion concerns for subsequent delegations of ASCII ISO 3166-1 entries to address this point. Chris also acknowledged that additional work in the ccNSO was ongoing with respect to delegating IDN ccTLDs.
Kuo-Wei Wu moved and Rinalia Abdul Rahim seconded the proposed resolution. The Board took the following action:
Resolved (2016.06.25.03), as part of the exercise of its responsibilities under the IANA Functions Contract, ICANN has reviewed and evaluated the request to delegate the .бг country-code top-level domain to Imena.BG Plc (Names.BG Plc). The documentation demonstrates that the proper procedures were followed in evaluating the request.
Resolved (2016.06.25.04), the Board directs that pursuant to Article III, Section 5.2 of the ICANN Bylaws, that certain portions of the rationale not appropriate for public distribution within the resolutions, preliminary report or minutes at this time due to contractual obligations, shall be withheld until public release is allowed pursuant to those contractual obligations.
All members of the Board present voted in favor of Resolutions 2016.06.25.03 – 2016.06.25.04. The Resolutions carried.
Rationale for Resolutions 2016.06.25.03 – 2016.06.25.04
Why the Board is addressing the issue now?
In accordance with the IANA Functions Contract, the ICANN staff has evaluated a request for ccTLD delegation and is presenting its report to the Board for review. This review by the Board is intended to ensure that ICANN staff has followed the proper procedures.
By way of background, the бг ("bg") string was able to proceed to the IANA delegation step following its completion of the IDN ccTLD Fast Track Process. The string was initially rejected by the IDN ccTLD Fast Track DNS Stability Panel based on possible string similarity concerns between the candidate string and entries on the ISO 3166-1 list. However, in October 2014, a second review panel called the Extended Process Similarity Review Panel (EPSRP) found that "the candidate string is not confusingly similar to any ISO 3166-1 entries". The Board will consider subsequent applications for delegations of ASCII ISO 3166-1 entries to ensure that the process is followed regarding possible string confusion concerns.
The EPRSP report is available at: https://www.icann.org/en/system/files/files/epsrp-bulgaria-30sep14-en.pdf [PDF, 4.81 MB]. The EPSRP findings allowed the string to successfully complete the IDN ccTLD Fast Track string evaluation process and proceed to the IANA delegation process.
What is the proposal being considered?
The proposal is to approve a request to IANA to create the country-code top-level domain and assign the role of sponsoring organization (also known as the manager or trustee) to Imena.BG Plc (Names.BG Plc).
Which stakeholders or others were consulted?
In the course of evaluating a delegation application, ICANN staff consults with the applicant and other interested parties. As part of the application process, the applicant needs to describe consultations that were performed within the country concerning the ccTLD, and their applicability to their local Internet community.
What concerns or issues were raised by the community?
Staff are not aware of any significant issues or concerns raised by the community in relation to this request.
What significant materials did the Board review?
[Redacted – Sensitive Delegation Information]
What factors the Board found to be significant?
The Board did not identify any specific factors of concern with this request.
Are there positive or negative community impacts?
The timely approval of country-code domain name managers that meet the various public interest criteria is positive toward ICANN's overall mission, the local communities to which country- code top-level domains are designated to serve, and responsive to ICANN's obligations under the IANA Functions Contract.
Are there financial impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?
The administration of country-code delegations in the DNS root zone is part of the IANA functions, and the delegation action should not cause any significant variance on pre-planned expenditure. It is not the role of ICANN to assess the financial impact of the internal operations of country-code top-level domains within a country.
Are there any security, stability or resiliency issues relating to the DNS?
ICANN does not believe this request poses any notable risks to security, stability or resiliency.
This is an Organizational Administrative Function not requiring public comment.
FY17 Operating Plan and Budget
Bruce Tonkin abstained noting potential conflicts of interest. Cherine Chalaby introduced the agenda item and provided some highlights of the proposed FY17 Operating Plan and Budget. He explained how public comments were incorporated into the version of the Operating Plan and Budget being presented to the Board for approval, and also noted that the Board Finance Committee reviewed the documents and recommended their approval by the full Board. He stated that his opinion as Co-Chair of the Board Finance Committee, is that the Board has fulfilled its fiduciary obligation by conducting thorough and multiple reviews of the draft budget, both in Amsterdam and in Helsinki.
Cherine Chalaby moved and George Sadowsky seconded the resolution. The Board took the following action:
Whereas, the draft FY17 Operating Plan and Budget was posted for public comment in accordance with the Bylaws on 05 March 2016, which was based upon community consultations, and consultations with ICANN staff and the Board Finance Committee, during the current fiscal year.
Whereas, comments received from the public comment forum were discussed by Board members and staff during several calls with the representatives of the ICANN bodies that submitted them to help ensure the comments were adequately understood and appropriate consideration was given to them.
Whereas, the public comments received, as well as other solicited community feedback through conference calls, meetings in Marrakech and email communications, were taken into account to determine required revisions to the draft FY17 Operating Plan and Budget.
Whereas, the Board Finance Committee (BFC) has discussed, and guided staff on, the development of the FY17 Operating Plan and Budget at each of its recent regularly scheduled meetings.
Whereas, the BFC met on 09 June 2016 to review and discuss the suggested changes resulting from public comment, and the final FY17 Operating Plan and Budget, and recommended that the Board adopts the FY17 Operating Plan and Budget.
Whereas, per section 3.9 of the 2001, 2009 and 2013 Registrar Accreditation Agreements, respectively, the Board is to establish the Registrar Variable Accreditation Fees, which must be established in order to develop the annual budget.
Whereas, the description of the Registrar fees, including the recommended Registrar Variable Accreditation Fees, for FY17 has been included in the FY17 Operating Plan and Budget.
Resolved (2016.06.25.05), the Board adopts the FY17 Operating Plan and Budget [PDF, 1.35 MB] and in doing so establishes the Variable Accreditation Fees (per registrar and transaction) as set forth in the FY17 Operating Plan and Budget.
All members of the Board present voted in favor of Resolution 2016.06.25.05. Bruce Tonkin abstained from voting on Resolution 2016.06.25.05. The Resolution carried.
Rationale for Resolution 2016.06.25.05
In accordance with Article XVI, Section 4 of the ICANN Bylaws, the Board is to adopt an annual budget and publish it on the ICANN website. On 05 March 2016, a draft of the FY17 Operating Plan and Budget was posted for public comment. This version was based on numerous discussions with members of the senior ICANN Management, and extensive consultations with ICANN Supporting Organizations, Advisory Committees, and other stakeholder groups throughout the prior several months. Subsequent activities, including conference calls, face-to-face meetings in Marrakech and email communications, as well comments received through the public comment forum, resulted in some revisions to the 05 March 2016 draft FY17 Operating Plan and Budget. Notably the following activities were carried out:
- 6 March 2016: Task force on FY17 Budget assumptions (~15 community members, Board member attending: Asha Hemrajani, 4 staff members) – 4-hour meeting.
- 5 May 2016: Review/discussion of CWG-Stewardship public comments submitted on FY17 Operating Plan & Budget (Board members attending: Asha Hemrajani)
- 5 May 2016: Review/discussion of Registry SG public comments submitted on FY17 Operating Plan & Budget (Board member attending: Asha Hemrajani)
- 9 May 2016: Review/discussion of ALAC public comments submitted on FY17 Operating Plan & Budget (Board members attending: George Sadowsky, Rinalia Abdul Rahim)
- 9 May 2016: Review/discussion of BC/IPC/ISPCP public comments submitted on FY17 Operating Plan & Budget (Board members attending: Ron da Silva)
- 9 May 2016: Review/discussion of ccNSO SOP Working Group public comments submitted on FY17 Operating Plan & Budget (Board member attending: Asha Hemrajani)
- 10 May 2016: Review/discussion of GNSO Council public comments submitted on FY17 Operating Plan & Budget (Board member attending: none)
All comments received in all manners were considered in developing the final version of the FY17 Operating Plan and Budget, and where feasible and appropriate have been adopted.
In addition to the day-to-day operational requirements, the FY17 Operating Plan and Budget includes the FY17 new gTLD budget items and amounts allocated to various FY17 budget requests received from community leadership. The budget also sets forth the financial information on the new gTLD program, relative to expenses, revenues and net remaining funds. Further, because the Registrar Variable Accreditation Fee is key to the development of the budget, the FY17 Operating Plan and Budget sets out and establishes those fees, which are consistent with recent years, and will be reviewed for approval by the Registrars.
This FY17 Operating Plan and Budget will have a positive impact in that it provides a proper framework pursuant to which ICANN will be operated. It also provides the basis for the organization to be held accountable in a transparent manner. This will have a fiscal impact on ICANN and the community as is intended. This should not have anything but a positive impact on the security, stability and resiliency of the domain name system (DNS) with respect to any funding that is dedicated to those aspects of the DNS.
This is an Organizational Administrative Function that has already been subject to public comment as noted above.
Consideration of Independent Review Panel's Final Declaration in the Donuts Inc. v. ICANN IRP
Ram Mohan, Suzanne Woolf and Becky Burr abstained noting potential conflicts of interest. Amy Stathos presented the agenda item for discussion with the Board. She provided background on the underlying matter in the Donuts Inc. v. ICANN Independent Review Process (IRP), and reported on the final declaration issued by the IRP Panel. She also reported that that Donuts Inc. recently submitted a letter to the Board requesting that the Board initiate a re-review of the community objection against Donuts' .SPORTS application by a three-member panel, and the Board considered this request.
The Board discussed the proposed resolution to adopt the IRP Panel's Final Declaration, and Bruce Tonkin suggested revisions to the resolution to clarify next steps for the applicant if the resolution were adopted.
The Board took the following action by acclamation:
Whereas, in May 2016, an Independent Review Process (IRP) Panel (Panel) issued its Final Declaration in the IRP filed by Donuts Inc. (Donuts) against ICANN (Final Declaration).
Whereas, Donuts specifically challenged the determinations rendered by separate expert panels upholding community objections brought against Donuts' applications for .SPORTS (.SPORTS Expert Determination) and .RUGBY (collectively, Expert Determinations).
Whereas, the Panel declared ICANN to be the prevailing party in the IRP and, among other things, declared that the Board's actions or inactions did not in any way violate ICANN's Articles of Incorporation (Articles) or Bylaws. (See Final Declaration, ¶ 225, https://www.icann.org/en/system/files/files/irp-donuts-final-declaration-05may16-en.pdf [PDF, 7.55 MB].)
Whereas, the Panel further declared that Donuts shall bear all the fees and expenses and shall reimburse ICANN the sum of US$83,067.66, and the parties shall each bear their own legal fees.
Whereas, the Panel further declared that: (i) IRPs are limited to evaluating action or inaction of the Board; (ii) actions of experts appointed by dispute resolution providers do not equate to Board action or inaction, and are therefore not reviewable by an IRP panel; (iii) an IRP panel is not allowed to base its determinations on what it, itself, might have done, had it been the Board; (iv) the time for challenging the community objection process has passed; (v) the Board need not react merely because it has been petitioned to do so; (vi) the Board is not required to, and has not represented that it would, train dispute resolution experts; (vii) the lack of an appeal mechanism does not violate ICANN's Articles or Bylaws; (viii) the Board has no affirmative duty to consider each and every new gTLD application; and (ix) ICANN did not discriminate against Donuts by not implementing a review mechanism of community objections in general or of the community objections at issue in the Donuts IRP.
Whereas, the Panel also observed the following: (i) the community objection proceedings might benefit from three-member expert panels; (ii) further study could be useful to understand the potential tension that could result from allowing standard applications for strings with relatively open registration policies that could be associated with one or more communities; and (iii) the Panel's belief that establishing an appeals mechanism for community objection proceedings, after careful study, would not be inconsistent with ICANN's Articles and Bylaws.
Whereas, while the Panel declared that ICANN did not discriminate against Donuts and did not violate ICANN's Articles or Bylaws in not directing a re-evaluation of the community objections at issue in this IRP, the Panel opined that "it would not be inconsistent with ICANN's values and principles to provide for a rehearing of [the .SPORTS] objection, by a different expert (or three experts)."
Whereas, in accordance with Article IV, section 3.21 of ICANN's Bylaws, the Board has considered the Panel's Final Declaration.
Resolved (2016.06.25.06), the Board accepts the following findings of the Panel's Final Declaration: (i) ICANN is the prevailing party in the Donuts Inc. v. ICANN IRP; (ii) the IRP Panel's analysis is limited to declaring whether the Board has acted consistently with the provisions of ICANN's Articles and Bylaws; (iii) the Board acted consistently with the Articles and Bylaws; (iv) an IRP panel is not allowed to substitute its own judgment for that of the Board; (v) the time for challenging the Guidebook's standard for community objections has passed; (vi) the Board need not react merely because it has been petitioned to do so; (vii) the Board is not required to, and has not represented that it would, train dispute resolution experts; (viii) the lack of an appeal mechanism to contest the merits of the Expert Determinations is not a violation of ICANN's Articles or Bylaws; (ix) the actions of the experts appointed by the ICC do not equate to Board action or inaction, and are therefore not reviewable by an IRP panel; (x) the Board has no affirmative duty to individually consider each and every new gTLD application; (xi) ICANN did not discriminate against Donuts by not implementing a review mechanism of community objections in general or of the community objections at issue here; (xii) Donuts shall bear all the fees and expenses, and shall reimburse ICANN the sum of US$83,067.66; and (xiii) the parties shall each bear their own legal fees.
Resolved (2016.06.25.07), the Board notes the Panel's observations with respect to the community objection process referenced in the Whereas clauses above, and directs the President and CEO, or his designee(s), to ensure that the New gTLD Program Reviews take into consideration such issues raised by the Panel as they relate to the community objection process.
Resolved (2016.06.25.08), the Board concludes that nothing in the Final Declaration supports re-review of the .SPORTS Expert Determination, nor is it sufficiently "inconsistent" or "unreasonable" such that it warrants re-evaluation.
Resolved (2016.06.25.09), the Board authorizes the President and CEO, or his designee(s), to proceed with processing the New gTLD Program applications at issue in the IRP consistent with the standard New gTLD Program processes.
All members of the Board present voted in favor of Resolutions 2016.06.25.06 – 2016.06.25.09. The Resolutions carried.
Rationale for Resolutions 2016.06.25.06 – 2016.06.25.09
Donuts Inc. (Donuts) initiated Independent Review Process (IRP) proceedings challenging the separate expert determinations upholding community objections brought against Donuts' applications for .SPORTS (.SPORTS Expert Determination) and .RUGBY (collectively, Expert Determinations).
With respect to .RUGBY, Donuts contended that the expert determination was the result of what Donuts portrayed as procedural irregularities. With respect to .SPORTS, Donuts contended that the expert determination was the result of bias on the part of the expert panelist (.SPORTS Expert) appointed by the International Chamber of Commerce (ICC). Donuts' three primary arguments were as follows: (1) the .SPORTS Expert Determination "resulted from the objection panelist's conflict of interest"; (2) the Board had an "obligation" to ensure consistent application by the ICC and its expert panels of ICANN's Bylaws and the Guidebook; and (3) the Board failed to create a "review process" for objection determinations. The request for IRP (IRP Request) sought to compel the ICANN Board to reverse or vacate the community objection determinations, and reinstate Donuts' applications for .SPORTS and .RUGBY.
The Final Declaration was circulated to the parties on 12 May 2016. After consideration and discussion, pursuant to Article IV, Section 3.21 of the ICANN Bylaws, the Board has determined to adopt the findings of the Panel, which are summarized below, and can be found in full at https://www.icann.org/en/system/files/files/irp-donuts-final-declaration-05may16-en.pdf [PDF, 7.55 MB].
The Panel found that it was charged with determining whether the Board's actions are consistent with the Articles of Incorporation (Articles) and Bylaws, and that the Panel was "duty-bound to focus on [the] three questions" enumerated in Article IV, Section 3.4 as to whether the Board acted without conflict of interest, exercised due diligence, and exercised independent judgment. (Final Declaration at ¶ 126.) The Panel further stated that, in determining whether the Board acted consistently with the Articles and Bylaws, the Panel is "not allow[ed]…to base its determinations on what it, itself, might have done, had it been the Board." (Id. at ¶ 133.)
Using the applicable standard of review, the Panel found that ICANN is the prevailing party in the Donuts Inc. v. ICANN IRP, and declared that "Donuts has not met its burden to demonstrate action or inaction by the Board that violated ICANN's Articles or its Bylaws." (Id. at ¶ 225.) The Panel further declared that "Donuts is to bear all the fees and expenses" and "shall reimburse ICANN the sum of US$83,067.66, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by ICANN." (Id. at ¶¶ 235-236.)
In addition, the Panel found that while the Guidebook permits the Board to individually consider new gTLD applications, the Board has no affirmative duty to do so in each and every case, sua sponte. (Id. at ¶¶ 185, 213.) "[A]t any given time the Board is confronted with [a] range of options and is entitled, indeed required, to balance the competing values listed in the Bylaws when deciding what, if anything, to do. The Board need not react merely because it has been petitioned to do so by a stakeholder, commentator or other observer." (Id. at ¶ 170.) The Panel also found that the actions of the experts appointed by the ICC do not equate to Board action or inaction, and are therefore not reviewable by an IRP panel. (Id. at ¶¶ 142, 153, 156, 159, 187.) "This Panel concludes given the foregoing, and in accord with the reasoning of other Panels, that the relationship between ICANN and the ICC is not such as to allow an IR Panel '[to] review the actions or inactions of ICANN's staff or any third parties, such as the [DRSP or objection experts] who provided services to ICANN.'" (Id. at ¶ 159.) The Panel further found that "the Board is not specifically required by any constituent document known to the Panel to institute training [of the experts appointed by the ICC]; nor has it represented that it would perform such training." (Id. at ¶ 172.)
The Panel also found that the time for challenging the community objection process as adopted has passed. (Id. at ¶¶ 136, 179.) The Panel also concluded that the lack of an appeal mechanism to contest the merits of the Expert Determinations is not a violation of ICANN's Articles or Bylaws. (Id. at ¶¶ 182-183.)
The Panel also made some observations for the Board's consideration. In particular, the Panel opined that "rather than using single expert panels, the community objection process might to [sic] advantage employ panels composed of three experts." (Id. at ¶ 229.) The Panel also observed that since applicants may pursue standard applications for strings with relatively open registration policies but which could be associated with one or more communities, there may be a "predictable conflict of expectations" and "the assumptions and policies that lead to this kind of tension warrant further study." (Id. at ¶ 231.) The Panel further noted that "some sort of appeals mechanism [for community objection determinations] might add predictability of outcome and produce greater satisfaction with the process by some," and "to do so in a sound fashion after careful study would be consistent with ICANN's Articles and Bylaws." (Id. at ¶ 181.)
The Board acknowledges the foregoing important observations by the Panel. The Board has considered the observations and notes that it will ensure that the New gTLD Program Reviews take into consideration the issues raised by the Panel as they relate to the community objection process.
Donuts also claimed that ICANN discriminated against Donuts by implementing a review mechanism to address certain string confusion determinations, while not permitting the re-evaluation of the community objections against Donuts' two applications. The Panel concluded that ICANN did not discriminate against Donuts by not implementing a review mechanism of community objections in general or of the community objections at issue here. (Id. at ¶¶ 220-221.) "The record does not allow the Panel to conclude that the considerable consistency issues raised in connection with the string similarity cases have emerged in connection with the community objection cases as a whole, or with respect to the two expert decisions giving rise to this IR." (Id. at ¶ 220.) While the Panel did not suggest that ICANN provide for a re-review of SportAccord's community objection to Donuts' application for .SPORTS, the Panel did note that "[c]oncerning the community objection proceeding brought by SportAccord in connection with .SPORTS, the [Panel] believes it would not be inconsistent with ICANN's values and principles to provide for a rehearing of that objection, by a different expert (or three experts)." (Id. at ¶ 230.)
On 21 June 2016, Donuts' counsel sent a letter to the Board requesting that the Board initiate a re-review of the community objection against Donuts' .SPORTS application by a three-member panel. (See 21 June 2016 letter available at https://www.icann.org/en/system/files/correspondence/genga-to-icann-board-21jun16-en.pdf [PDF, 538 KB].) While Donuts' letter suggests that the IRP Panel "recommended" that ICANN should conduct a re-hearing, that is not an accurate statement and is belied by the Final Declaration. The Panel actually stated that it "believes it would not be inconsistent with ICANN's values and principles to provide for a rehearing of that objection, by a different expert (or three experts)." (Final Declaration at ¶ 230.) SportAccord later sent an email to the Board pointing out, among other things, that "the majority panel ruled in ICANN's favor and did not require any further action."
The Board acknowledges and has considered the Panel Declaration, as well as Donuts' 21 June 2016 letter and SportAccord's subsequent email, and concludes that the Panel did not recommend that the Board take the action that Donuts is suggesting. Having considered the Declaration and the community objection proceeding at issue, the Board does not think that re-review of the objection is warranted based on any of the IRP Panel statements in the Declaration. Further, the Board determined that the .SPORTS Expert Determination is not sufficiently "inconsistent" or "unreasonable" such that the underlying community objection proceeding resulting in the .SPORTS Expert Determination warrants re-evaluation. The SCO Final Review Mechanism was established by the NGPC on 12 October 2014, after consultation with the community, in order to address two SCO expert determinations that had conflicting expert determinations about the same strings issued by different expert panels, thus rendering their results to be so seemingly inconsistent and unreasonable as to warrant re-evaluation. (See https://www.icann.org/resources/board-material/resolutions-new-gtld-2014-10-12-en#2.b.) As part of its deliberations, the NGPC considered and determined that it was not appropriate to expand the scope of the proposed SCO Final Review Mechanism to include other expert determinations, such as expert determinations relating to community objections. Moreover, here, the expert determination with respect to Donuts' application for .SPORTS is not contrary to or inconsistent with another determination. Rather, Donuts merely disagrees with the results of the .SPORTS Expert Determination. Such is not a justification for subjecting the underlying community objection to re-evaluation. The Board finds that ICANN's Bylaws concerning core values and non-discriminatory treatment, and the particular circumstances and developments noted in the Final Declaration, do not support re-evaluation of the community objection proceeding leading to the .SPORTS Expert Determination.
As required, the Board has considered the Final Declaration. As this Board has previously indicated, the Board takes very seriously the results of one of ICANN's long-standing accountability mechanisms. Accordingly, and for the reasons set forth in this Resolution and Rationale, the Board has accepted the Panel's Final Declaration as indicated above.
Adopting the Panel's Final Declaration is not expected to have any direct financial impact on the organization or any direct impact on the security, stability or resiliency of the domain name system.
This is an Organizational Administrative function that does not require public comment.
Independent Review of the Generic Names Supporting Organization Final Report and Recommendations
Rinalia Abdul Rahim, the Chair of the Board Operational Effectiveness Committee (OEC), introduced the agenda item. The Board engaged in a discussion regarding the final recommendations of the independent review of the GNSO. This review is established by the Bylaws, which requires periodic reviews of the performance and operations of each Supporting Organization, each Supporting Organization Council, each Advisory Committee (other than the GAC), and the Nominating Committee. Rinalia noted that the independent review produced 36 recommendations, which were assessed by the GNSO. A working party in the GNSO assessed the feasibility of implementing the recommendations and suggested priority order of implementing the recommendations. She also reported that the GNSO endorsed implementation of 34 of the 36 recommendations in the Final Report after taking into account the working party's analysis. Rinalia confirmed that the recommendation from the OEC is that the Board adopt the 34 recommendations endorsed by the GNSO.
Steve Crocker asked questions about the next steps to implement the recommendations. Steve noted a general concern about receiving recommendations from various sources which may not take into account timing and the availability of resources. Larisa Gurnick noted that there would be a 6-month phase of implementation planning where resources, timing, etc. would be taken into account. She stated that the implementation plan would be presented to the Board for approval so there would be an opportunity for further input from the Board before implementation of the recommendations.
Rinalia Abdul Rahim moved and Lousewies van der Laan seconded the resolution. The Board took the following action:
Whereas, ICANN Bylaws Article IV, Section 4.1 calls on the ICANN Board to "cause a periodic review of the performance and operation of each Supporting Organization, each Supporting Organization Council, each Advisory Committee (other than the Governmental Advisory Committee), and the Nominating Committee by an entity or entities independent of the organization under review. The goal of the review, to be undertaken pursuant to such criteria and standards as the Board shall direct, shall be to determine (i) whether that organization has a continuing purpose in the ICANN structure, and (ii) if so, whether any change in structure or operations is desirable to improve its effectiveness."
Whereas, the second independent review of the GNSO commenced in 2014.
Whereas, the independent examiner produced a Final Report [PDF, 727 KB], containing thirty-six (36) recommendations in September 2015.
Whereas, the GNSO Review Working Party serving as a liaison between the GNSO, the independent examiner and the Organizational Effectiveness Committee of the Board assessed the implementation feasibility of all 36 recommendations and suggested a prioritization of recommendations.
Whereas, the GNSO Council adopted the GNSO Working Party's Feasibility and Prioritization Analysis of the GNSO Review Recommendations with a modification.
Whereas, the Organizational Effectiveness Committee of the Board concluded that the GNSO Working Party's Feasibility and Prioritization Analysis of the GNSO Review Recommendations as adopted by the GNSO Council, ought to guide the implementation process of the 36 recommendations.
Resolved (2016.06.25.10), the Board acknowledges the independent examiner's hard work and thanks them for producing a comprehensive set of recommendations to improve the GNSO's effectiveness, transparency, and accountability.
Resolved (2016.06.25.11), the Board acknowledges the work and support of the GNSO Review Working Party during the review process, as well as its insightful Feasibility and Prioritization Analysis that was adopted by the GNSO Council on 14 April 2016 and guided the OEC's recommendation to the Board. The Board thanks the GNSO Review Working Party for its efforts.
Resolved (2016.06.25.12), the Board accepts the Final Report from the independent examiner.
Resolved (2016.06.25.13), taking into account the GNSO Working Party's Feasibility and Prioritization Analysis of the GNSO Review Recommendations, adopted with modifications by the GNSO Council, the Board adopts thirty-four (34) recommendations of the Final Report (i.e. all recommendations excluding recommendations 23 and 32).
Resolved (2016.06.25.14), the Board requests that the GNSO Council convene a group that oversees the implementation of Board-accepted recommendations. An implementation plan, containing a realistic timeline for the implementation, definition of desired outcomes and a way to measure current state as well as progress toward the desired outcome, shall be submitted to the Board as soon as possible, but no later than six (6) months after the adoption of this resolution.
Resolved (2016.06.25.15), the Board directs the GNSO Council to provide the Board with regular reporting on the implementation efforts.
All members of the Board present voted in favor of Resolutions 2016.06.25.10 – 2016.06.25.15. The Resolutions carried.
Rationale for Resolutions 2016.06.25.10 – 2016.06.25.15
To ensure ICANN's multistakeholder model remains transparent and accountable, and to improve its performance, ICANN organizes independent reviews of its supporting organizations and advisory committees as prescribed in Article IV Section 4.1 of the ICANN Bylaws. The second GNSO Review started in 2014 and the independent examiner presented its Final Report in September 2015.
The Board's action today is consistent with ICANN's commitment pursuant to section 9.1 of the Affirmation of Commitments (AoC) to maintain and improve robust mechanisms for public input, accountability, and transparency so as to ensure that the outcomes of its decision-making reflect the public interest and that ICANN is accountable to all stakeholders.
The GNSO Review recommendations have the potential to advance ICANN's transparency and accountability objectives and have been considered carefully by the Board's Organizational Effectiveness Committee as well as by the full Board.
The Board resolution will have a positive impact on ICANN and especially the GNSO as it reinforces ICANN's and the GNSO's commitment to maintaining and improving its accountability, transparency and organizational effectiveness.
Development of implementation steps for the Board-adopted GNSO Review recommendations is not expected to have a considerable budgetary impact on the organization. However, implementation work may necessitate certain expenditures (including staff support) and may require a significant commitment of volunteer time. Volunteer workload and ICANN resources will be considered during the implementation planning and prioritization.
Why is the Board addressing the issue?
This resolution completes the second review of the GNSO and is based on the Final Report of the independent examiner, Westlake Governance, as well as the GNSO Review Working Party's assessment of the recommendations as adopted by the GNSO Council. Following the assessment of all pertinent documents and community feedback by the Board's Organizational Effectiveness Committee, the Board is now in a position to consider and act on the recommendations and instruct the GNSO to start the implementation process in due course.
What is the proposal being considered?
The proposal the Board is considering is the Final Report by the GNSO Review's independent examiner in combination with "GNSO Review Working Party's Feasibility and Prioritization Analysis of the GNSO Review Recommendations", adopted by the GNSO Council, and considered by the Organizational Effectiveness Committee.
What significant materials did the Board review?
The Board reviewed the independent examiner's GNSO Review Final Report containing 36 recommendations; the Board also reviewed the "GNSO Review Working Party's Feasibility and Prioritization Assessment" as adopted by the GNSO Council, and it reviewed the considerations by the Organizational Effectiveness Committee with regard to both the Final Report and the Feasibility Assessment. Additionally, the Board considered the Report of Public Comments [PDF, 1.58 MB] on the Independent Examiner's Initial Report as well as the overview of changes [PDF, 114 KB] that took place from the Initial to the Final Report as a result of this community feedback.
Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, or budget)?
The work to improve the effectiveness of the GNSO organization may require additional resources beyond those included in the Board-approved FY17 Operating Plan and Budget, when adopted. This determination depends on the implementation planning and the definition of desired outcomes and prioritization. Additionally, implementation work should serve as an input into the next strategic planning cycle.
Are there any security, stability or resiliency issues relating to the DNS?
This action is not expected to have a direct impact on the security, stability or resiliency of the DNS. Still, once the improvements are implemented future policy-development will become more transparent and accountable, which in turn might indirectly impact the security, stability or resiliency of the DNS in a positive way.
Is public comment required prior to Board action?
A Public Comment was opened following the publication of the Draft Report in May 2015. As this is a result of a Bylaw-mandated organizational review, public comment is not necessary prior to implementation. It is important to note that throughout the GNSO Review process there has been extensive discussion and exchange of ideas and information between the independent examiner, the GNSO Review Working Party, the GNSO community and the ICANN Board.
Revised Expected Standards of Behavior
Amy Stathos presented the agenda item to the Board for discussion, and reminded the Board that a revised draft of ICANN's Expected Standards of Behavior was posted for public comment after the issue of community-member conduct towards each other was highlighted as a matter of concern at the ICANN 55 meeting in Marrakech. Amy engaged the Board in a discussion about the public comments received on the proposed revisions. The discussion included a summary of the public comments, and she noted that many of the comments and suggestions received would be better suited for the second phase of work that is underway to retain an expert to assist in a policy and procedure to guide when potentially improper behavior is reported.
Amy informed the Board that staff proposed a minor clarification to the revised Expected Standards of Behavior to take into account some of the public comments. Additionally, she reported that the Intellectual Property Constituency requested additional time to submit its comment on the proposed revisions to the Expected Standards of Behavior.
Board members expressed their views about whether to move forward with adopting the revised Expected Standards of Behavior or postpone taking action until a later date to allow additional public comments to be submitted. Bruce Tonkin suggested that the Board adhere to the timeline it previously committed to with the community to adopt the revised Expected Standards of Behavior by the Helsinki Meeting. Chernie Chalaby agreed, and commented that the Expected Standards of Behavior are relatively standard in many other places. George Sadowsky also agreed that the Board should move forward and suggested that there is always room for improving the Expended Standards of Behavior overtime as needed.
After discussion, the Board determined that consistent with its previous commitments to the community, it should move forward with adopting the revised Expected Standards of Behavior prior to the start of the ICANN 56 meeting in Helsinki. Amy suggested an amendment to the rationale to the resolution to make it clear that the Board considered the IPC's request.
Mike Silber moved and Asha Hemrajani seconded the resolution. The Board took the following action:
Whereas, during and after ICANN55, the issue of certain community-member conduct toward one another has been raised in various sessions and lists.
Whereas, among other activities to address this issue, the Board authorized the posting for public comment a revised Expected Standards of Behavior to more fully address the issues.
Whereas, the majority of the comments received generally support the revisions.
Whereas, per resolution 2016.05.15.05, ICANN is in the process of working to retain an expert with experience in drafting and implementing relevant anti-harassment policies to assist in the development of a Community anti-harassment policy/procedure to be followed at ICANN Public Meetings.
Resolved (2016.06.25.16), the Board hereby adopts the revised Expected Standards of Behaviors as they were posted for public comment on 16 May 2016, with slight modification for clarification.
All members of the Board present voted in favor of Resolution 2016.06.25.16. The Resolution carried.
Rationale for Resolution 2016.06.25.16
During and after ICANN55, the issue of certain community-member conduct toward one another has been raised in various sessions and lists, and the Board agreed to address this matter. In response, the Board confirmed and reiterated that ICANN's Board and staff take the issue of harassment or other improper conduct at its meetings very seriously. ICANN and members of the community share the goal of ensuring that ICANN community members are able to participate and contribute within an environment that does not tolerate discrimination and that remains free from harassment.
As an organization ICANN has robust internal policies regarding the issue, including mandatory training for staff and Board members. While ICANN community members are not bound to the same policies and rules as the ICANN Board and staff, ICANN does expect community members to adhere to certain Expected Standards of Behavior. The currently approved language of the Expected Standards of Behavior does not specifically address harassment, but does provide a set of high-level guidelines for interacting with one another.
The Board committed to look at whether the Expected Standards of Behavior could be revised to more directly address harassment. In furtherance of that commitment, the Board Governance Committee (BGC) proposed certain revisions to the language of the Expected Standards of Behavior, and the Board authorized those proposed revised Standards be posted for public comment. The public comment window opened on 16 May 2016 and closed on 25 June 2016.
As of 25 June 2016, we have received twelve comments, which the Board has considered (see https://forum.icann.org/lists/comments-expected-standards-revisions-16may16/). Below is a very brief summary of the comments that have been considered, which will be reflected in more detail in the Staff Report of Public Comment Proceeding, which will be posted shortly. In sum, eight commenters support the revisions to the Expected Standards of Behavior as posted for public comment (although we note that one comment has not yet been ratified). One commenter agreed the modifications to the Expected Standards of Behavior fit the purpose, but suggested that the definition be more limited to account for cultural differences. Other commenters have identified various terms and phrases within the Expected Standards of Behavior that they believe could be better defined, clarified, or reordered. Three of the commenters have expressly encouraged ICANN to continue working on an anti-harassment policy/procedure for the community. Finally, several of the commenters have also indicated that it is important to provide clear information about where to report violations of the Expected Standards of Behavior and how those violations will be addressed.
The Board thanks the commenters for their views. At the outset, the Board wants to remind community members that the Board has specifically directed the organization to work with the community to help develop an anti-harassment policy/procedure.
Resolved (2016.05.15.05), the Board hereby directs the President and CEO, or his designee(s), to retain an expert, as appropriate, with experience in drafting and implementing relevant anti-harassment policies to assist in the development of a Community anti-harassment policy/procedure to be followed at ICANN Public Meetings, which could include items such as complaints handling and resolution and enforcement processes.
See https://www.icann.org/resources/board-material/resolutions-2016-05-15-en#1.d. As directed, ICANN staff is in the process of following the Board's direction. That work is in progress and it is anticipated that a proposal will be provided to the community for further discussion in the coming weeks. The Board anticipates that the policy will include the clarity of definition, as well as complaint and enforcement mechanisms, that commenters suggest is still needed.
Given that the majority of the commenters support the revisions to the Expected Standards of Behavior as presented, and the goal is to be as broad in definition as possible to make clear that there is zero tolerance for the conduct addressed in the revised Expected Standards of Behavior, the Board has determined to adopt the revised Expected Standards of Behavior as they were posted for public comment, with one slight clarification. The Board notes that the Expected Standards of Behavior are meant to be high level, and general statements about how ICANN participants should treat each other, and they are admittedly not meant to be formal policies of conduct with defined actionable consequences. However, the Board will evaluate the suggestion that there be clear direction on how and where to report any transgression to the other Expected Standards of Behaviors listed. Further, as noted above, we expect that many of the comments indicating that some of the terms contained in the revised Expected Standards of Behavior could be better defined or clarified are better addressed in the policy that is still under development, as commenters have suggested, rather than in the Expected Standards of Behavior document itself. The Board will also look at whether to require folks to affirmatively agree to the Expected Standards of Behavior as one commenter suggested. However, the Board wants to emphasize that all who participate in ICANN activities are already subject to the Expected Standards of Behavior and the Board will look for ways to better socialize awareness of them.
With respect to the comment about accounting for cultural differences, the Board notes that this is an important consideration, and expects that any evaluation of conduct that might be challenged will certainly take those differences into account.
As noted above, the public comment forum closed on 25 June 2016. The Board also would like to acknowledge the Intellectual Property Constituency's request for additional time to submit its comments, and appreciates its desire to be heard. While the Board will welcome the IPCs comment, the Board felt it important to adopt the revised Expected Standards of Behavior as soon as possible. The Board also reiterates that there is more work to be done and that work is in progress. We expect that any further suggestions the IPC may have will be considered with the upcoming work ahead on the community anti-harassment policy/procedure, as applicable.
It is not anticipated that the decision to adopted revised Expected Standards of Behavior will have any fiscal impact on ICANN, and it will not have any impact on the security, stability or resiliency of the domain name system.
This decision is an Organizational Administrative Function that has already completed the public comment process.
New gTLD Program: Reviews and Future Path
Item removed from agenda.
Review of .HOTEL Application Status
Ram Mohan, Suzanne Woolf and Becky Burr abstained noting potential conflicts of interest, and excused themselves from the meeting room during the discussion of this agenda item.
Amy Stathos presented the agenda item, noting that this item follows-on from the Board's discussion at the 15 May 2016 meeting. She provided a brief background on the issues, highlighting that in its 10 March 2016 action, the Board directed the President and CEO to complete the investigation of the issues alleged by Despegar Online SRL, Donuts Inc., Famous Four Media Limited, Fegistry LLC, and Radix FZC (collectively, ".HOTEL Claimants") regarding the portal configuration as soon as feasible and to provide a report to the Board for consideration following the completion of that investigation. The portal configuration issues raised in the IRP related to the misconfiguration issue affecting the New gTLD Applicant and GDD p2ortals that allowed portal users to view confidential information belonging to other applicants if they conducted a particular type of advanced search.
Amy presented the findings of its investigation, and the Board engaged in a privileged and confidential discussion with counsel regarding potential next steps. The Board decided to discuss this matter further at its next meeting.
The Chair called a meeting to a close.
Published on 10 August 2016