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Minutes | Regular Meeting of the ICANN Board

A Regular Meeting of the ICANN Board of Directors was held in Brussels, Belgium on 15 September 2016 at 15:45 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, Erika Mann, Göran Marby (President and CEO), George Sadowsky, Mike Silber, Bruce Tonkin, Lousewies van der Laan, and Kuo-Wei Wu.

The following Directors sent their apologies: Bruno Lanvin.

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: Maarten Botterman, Becky Burr, Khaled Koubaa, Akinori Maemura, and Kaveh Ranjbar.

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); 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); Dan Halloran (Deputy General Counsel); Melissa King (VP, Board Operations); Trang Nguyen (Senior Director GDD Operations); David Olive (Senior Vice President, Policy Development Support and General Manager, ICANN Regional Headquarters – Istanbul);  Wendy Profit (Board Operations Specialist); Ashwin Rangan (SVP Engineering & Chief Information Officer); Amy Stathos (Deputy General Counsel); Theresa Swinehart (Sr. Advisor to the President on Strategy).

These are the Minutes of the Regular Meeting of the ICANN Board, which took place on 15 September 2016.

  1. Consent Agenda:
    1. Implementation of RSSAC 003 Recommendations for the KSK signature validity
    2. Delegation of the .বাংলা (“bangla”) domain representing Bangladesh in Bengali script
    3. October 2018 ICANN Meeting Venue and Location Contracting
    4. Appointment of 2017 Nominating Committee Chair and Chair-Elect
  2. Main Agenda:
    1. IANA Naming Function Contract between ICANN and PTI
    2. Services Agreement between ICANN and PTI
    3. .COM Registry Agreement Amendment
    4. PTI Governance Items – Adoption of PTI Bylaws; Appointment of PTI Board Initial Directors; Appointment of PTI President
    5. Further Consideration of the Dot Registry IRP Final Declaration
    6. Consideration of Ombudsman Report Regarding dotgay, LLC’s application for .GAY
    7. Reconsideration Request 16-3 (dotgay LLC)
    8. AOB
  1. Consent Agenda:

    The Chair introduced the items on the consent agenda and called for a vote. The Board then took the following action:

    Resolved, the following resolutions in this Consent Agenda are approved:

    1. Implementation of RSSAC 003 Recommendations for the KSK signature validity

      Whereas, on 16 September 2015, the ICANN Root Server System Advisory Committee (RSSAC) published RSSAC0003: Report on Root Zone TTLs.

      Whereas, in RSSAC003, the report recommends that the Root Zone Management partners increase the signature validity periods for signatures generated by both the Key Signing Key (KSK) and the Zone Signing Key (ZSK). The report furthers recommends that the KSK signature validity should be increased to at least 21 days, ZSK signature validity should be increased to at least 13 days, and no further changes to Root Zone TTLs be made at this time.

      Whereas, upon receiving RSSAC003, ICANN staff conducted a feasibility and cost analysis of increasing the KSK signature validity, and created an KSK implementation plan for review by the Board.

      Whereas, the Board has considered the advice of the RSSAC in RSSAC003, in addition to the feasibility and costs of implementing the advice related to the KSK. The Board understands the Root Zone Maintainer is also considering the recommendations in RSSAC003 related to the ZSK.

      Resolved (2016.09.15.01), the Board adopts the RSSAC advice for the KSK signature validity in RSSAC 003, and directs ICANN’s President and CEO, or his designee, to proceed with implementing the KSK recommendations in RSSAC 003 in collaboration with the root zone management partners.

      Rationale for Resolution 2016.09.15.01

      On 16 September 2015, the ICANN Root Server System Advisory Committee (RSSAC) published RSSAC0003: Report on Root Zone TTLs. In this report, the RSSAC studies the TTLs (DNS “Time-To-Live” values) for the root zone and the extent to which the current root zone TTLs are still appropriate for today’s Internet environment.

      The report identified two potential problems related to the interaction between the root zone Start of Authority (SOA) Expire value and the root zone’s signature validity periods exist, and recommends them to be addressed by the DNS operations community. In particular, the RSSAC recommends Root Zone Management partners to increase the signature validity periods for signatures generated by both the Key Signing Key (KSK) and the Zone Signing Key (ZSK). KSK signature validity should be increased to at least 21 days. ZSK signature Validity should be increased to at least 13 days.

      The conditions under which the signature validity problems occur are very rare, have not occurred to date, and are unlikely to affect end users at this time. Thus, the RSSAC believes this issue is not urgent and should be addressed within a reasonable amount of time following an update of the necessary procedures documents and software testing.

      Upon receiving RSSAC003, ICANN staff conducted a feasibility and cost analysis for implementing the KSK recommendation in RSSAC003, and created a KSK implementation plan with timelines and high-level milestone for review by the Board.

      The Board has considered the advice of the RSSAC in RSSAC003, in addition to the feasibility and costs of implementing the advice related to the KSK, and adopts the RSSAC advice for the KSK signature validity in RSSAC 003. The Board also directs ICANN to proceed with implementing the KSK recommendations in RSSAC 003 in collaboration with the root zone management partners.

      This is an operational issue that does not require public comment. There is no fiscal impact expected. The approval and implementation of the RSSAC recommendation will improve the security, stability, and resiliency of the domain name system.

      The Board understands that NTIA has already agreed with Verisign, as the Root Zone Maintainer, that Verisign should change the signature validity period for the ZSK, and that work is scheduled to take place in September 2016.

    2. Delegation of the .বাংলা (“bangla”) domain representing Bangladesh in Bengali script

      Resolved (2016.09.15.02), as part of the exercise of its responsibilities under the IANA Functions Contract, ICANN has reviewed and evaluated the request to delegate the .বাংলা country-code top-level domain to the Ministry of Posts, Telecommunications and Information Technology, Posts and Telecommunications Division of Bangladesh. The documentation demonstrates that the proper procedures were followed in evaluating the request.
      Resolved (2016.09.15.03), 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.

      Rationale for Resolutions 2016.09.15.02 – 2016.09.15.03

      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.

      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 the Ministry of Posts, Telecommunications and Information Technology, Posts and Telecommunications Division of Bangladesh.

      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.

    3. October 2018 ICANN Meeting Venue and Location Contracting

      Whereas, ICANN intends to hold its third Public Meeting of 2018 in the Europe region.

      Whereas, staff has completed a thorough review of the proposed venues in Europe and finds the one in Barcelona, Spain to be the most suitable.

      Resolved (2016.09.15.04), the Board authorizes the President and CEO, or his designee(s), to engage in and facilitate all necessary contracting and disbursements for the host Convention Centre for the October 2018 ICANN Public Meeting in Barcelona, Spain, in an amount not to exceed [AMOUNT REDACTED FOR NEGOTIATION PURPOSES], and that the October 2018 ICANN Public Meeting be designated as the 2018 Annual General Meeting.

      Resolved (2016.09.15.05), specific items within this resolution shall remain confidential for negotiation purposes pursuant to Article III, section 5.2 of the ICANN Bylaws until the President and CEO determines that the confidential information may be released.

      Rationale for Resolutions 2016.09.15.04 – 2016.09.15.05

      As part of ICANN’s Public Meeting schedule, presently three times a year ICANN hosts a meeting in a different geographic region (as defined in the ICANN Bylaws). ICANN 63, scheduled for 20-26 October 2018, is to occur in the Europe geographic region. A call for recommendations for the location of the meeting in Europe was posted on 23 March 2015. Various parties sent a proposal to ICANN.
      The staff performed a thorough analysis of the proposals, as well as other venues, and prepared a paper to identify those that met the Meeting Selection Criteria (see https://meetings.icann.org/en/host). Based on the proposals and analysis, ICANN has identified Barcelona, Spain as the location for ICANN 63.

      The Board reviewed staff’s briefing for hosting the meeting in Barcelona, Spain and the determination that the proposal met the significant factors of the Meeting Selection Criteria, as well as the related costs for facilities selected, for the October 2018 ICANN Public Meeting.

      There will be a financial impact on ICANN in hosting the meeting and providing travel support as necessary, as well as on the community in incurring costs to travel to the meeting. But such impact would be faced regardless of the location and venue of the meeting. This action will have no impact on the security or the stability of the DNS.

      The Board thanks all who recommended sites for the ICANN 63.

      This is an Organizational Administrative function that does not require public comment.

    4. Appointment of 2017 Nominating Committee Chair and Chair-Elect

      Whereas, the BGC reviewed the Expressions of Interest from candidates for the 2017 Nominating Committee (“NomCom”) Chair and Chair-Elect, considered the results of a 360-degree evaluation of the 2016 NomCom leadership, and conducted interviews of candidates.

      Whereas, the BGC has recommended that Hans Petter Holen be appointed as the 2017 NomCom Chair and Zahid Jamil be appointed as the 2017 NomCom Chair-Elect.

      Resolved (2016.09.15.06), the Board hereby appoints Hans Petter Holen as the 2017 Nominating Committee Chair and Zahid Jamil as the 2017 Nominating Committee Chair-Elect.

      Rationale for Resolution 2016.09.15.06

      ICANN’s Bylaws require the Board to appoint the Nominating Committee (NomCom) Chair and NomCom Chair-Elect. See Article VII, sections 2.1 and 2.2 at http://www.icann.org/en/general/bylaws.htm#VII. The Board has delegated the responsibility for recommending the NomCom Chair and Chair-Elect for Board approval to the Board Governance Committee. See BGC Charter at http://www.icann.org/en/committees/board-governance/charter.htm. The BGC posted a call for expressions of interest (EOI) on 24 May 2016 seeking EOIs by 10 June 2016 (see (https://www.icann.org/news/announcement-2016-05-24-enn). The call for EOIs was later extended through 30 July 2016 (see https://www.icann.org/news/announcement-2016-06-10-en). The BGC received and reviewed several EOIs, oversaw a 360-degree evaluation of the 2016 NomCom leadership and conducted interviews with candidates before making its recommendations. The Board has considered and agrees with the BGC’s recommendation for the 2017 NomCom Chair and 2017 NomCom Chair-Elect. The Board also would like to thank all who expressed interest in becoming part of the 2017 NomCom leadership.

      Appointing a NomCom Chair and Chair-Elect identified through a public EOI process positively affects the transparency and accountability of ICANN, as well as supports the public interest. Adopting the BGC’s recommendation has no financial impact on ICANN that was not otherwise anticipated, and will not negatively impact the security, stability and resiliency of the domain name system.
      All members of the Board present voted in favor of Resolutions 2016.09.15.01, 2016.09.15.02 – 2016.09.15.03, 2016.09.15.04 – 2016.09.15.05 and 2016.09.15.06. Bruno Lanvin was unavailable to vote on the Resolutions. The Resolutions carried.

  2. Main Agenda:

    1. IANA Naming Function Contract between ICANN and PTI

      Akram Atallah provided the Board with an update on the status of the proposed agreement between ICANN and Public Technical Identifiers (PTI) to perform the IANA naming function after the IANA stewardship transition. He explained that the IANA Naming Function Agreement was one of the agreements insisted on by the community as part of the IANA stewardship transition. Akram informed the Board that the agreement had been published for public comment and most of the questions received during the public comment period concerned the secondment of ICANN employees in the IANA department to PTI.

      Asha Hemrajani asked questions regarding the difference between the use of the term “affiliate” versus “subsidiary” when describing the relationship between PTI and ICANN. Samantha Eisner explained that use of the term “affiliate” reflects the appropriate relationship between ICANN and PTI under California law.

      Rinalia Abdul Rahim inquired about staffing of PTI and the risk associated with ICANN employees not agreeing to be seconded to PTI. Akram noted that the same risk currently exists with employees in the IANA department, and whether the employee is employed by ICANN and seconded to PTI does not change the risk.

      The Board took the following action by acclamation:  

      Whereas, completion of the Naming Function Contract <https://www.icann.org/en/system/files/files/proposed-iana-naming-function-agreement-10aug16-en.pdf> fulfills a requirement from the package of proposals that the Board approved on 10 March 2016 to transition NTIA’s stewardship of the IANA functions to the global multistakeholder community.

      Whereas, the Naming Function Contract was drafted to meet the requirements of the IANA Stewardship Coordination Group’s IANA Stewardship Transition Proposal.

      Whereas, through the Naming Function Contract, ICANN will contract with Public Technical Identifiers to serve as the IANA Naming Function operator and perform the IANA naming-related functions.

      Whereas, ICANN solicited public comment on the proposed Naming Function Contract from 10 August 2016 to 09 September 2016 <https://www.icann.org/public-comments/iana-naming-function-agreement-2016-08-10-en>.

      Whereas, the public comment forum for the proposed Naming Function Contract closed on 9 September 2016, with ICANN receiving eight of comments, both by individuals and organizations/groups. A summary and analysis of the comments was published <https://www.icann.org/en/system/files/files/report-comments-iana-naming-function-agreement-15sep16-en.pdf> and provided to the Board.

      Resolved (2016.09.15.07), the proposed Naming Function Contract is approved, and the President and CEO, or his designee(s) is authorized to take such actions as appropriate to finalize and execute the Agreement.

      All members of the Board present voted in favor of Resolution 2016.09.15.07. Bruno Lanvin was unavailable to vote on the Resolution. The Resolution carried.

      Rationale for Resolution 2016.09.15.07

      Why the Board is addressing the issue now?

      Completion of the Naming Function Contract is specified as one of the requirements from the package of proposals that the Board approved on 10 March 2016 to transition NTIA’s stewardship of the IANA functions to the global multistakeholder community.
      Since 15 July 2016, ICANN has worked with the CWG-Stewardship and its outside counsel to finalize the Naming Function Contract. After incorporating initial feedback from the CWG-Stewardship, the Agreement was published for a 30-day public comment period on 10 August 2016. The 30-day comment period ended on 9 September 2016 and the Board is being asked today to consider the proposed Agreement for approval.

      What is the proposal being considered?

      The proposed Naming Function Contract designates PTI as the operator of the IANA Naming Function and authorizes PTI to perform the IANA naming function. The Agreement includes Service Level Expectations for the performance of the IANA naming function, which were agreed upon between ICANN and the CWG-Stewardship. The Agreement will become effective upon the successful completion of the IANA stewardship transition.

      Which stakeholders or others were consulted?

      ICANN conducted a public comment period on the proposed Naming Function Contract from 10 August 2016 through 9 September 2016. ICANN also worked closely with the CWG-Stewardship and its external counsel to address any concerns. After the public comment period, the comments were summarized and analyzed.

      What concerns or issues were raised by the community?

      There were two major concerns raised during the CWG-Stewardship review process.

      The first concern was raised by some in the ccTLD community and related to applicable policies for the root zone management of ccTLDs. After consultation with the ccTLD community and members of the GAC that participated in CWG-Stewardship discussions, the Agreement was updated to reflect that the applicable policies include: (1) Those defined by the ccNSO; and (2) RFC 1591 (“Domain Name System Structure and Delegation”) as interpreted by the Framework of Interpretation of Current Policies and Guidelines Pertaining to the Delegation and Redelegation of Country-Code Top Level Domain Names, dated October 2014. In addition to these policies, PTI shall consult the 2005 Governmental Advisory Committee Principles and Guidelines for the Delegation and Administration of Country Code Top Level Domains when appropriate.

      The second concern, also raised by some in the ccTLD community, was that ccTLDs that do not have contracts with ICANN “do not want to appoint ICANN in charge of their entries in the root zone” and this should be reflected in the Agreement. ICANN pointed out that in the Proposal, the CWG-Stewardship in fact expects that ICANN’s and the Root Zone Maintainer’s roles in root zone management do not change post-transition. Paragraph 1158 of the CWG-Stewardship proposal says:

                 Currently, updating the Root Zone requires the active participation of three parties: the IFO, the Root Zone Maintainer and the NTIA. The IFO receives change requests       from various sources, validates them, and sends them to the    Root Zone Maintainer who, once they are authorized by the NTIA, updates the Root Zone File, DNSSEC signs it and distributes it to the Root operators.

                 Post transition there will only be the IFO and the Root Zone       Maintainer. The CWG-Stewardship is not recommending any change in the functions performed by these two roles at this            time. The CWG-Stewardship is recommending that should there be proposals to make changes in the roles associated with Root Zone modification, that such proposals should be subject to wide community consultation.
      What significant materials did the Board review?

      As part of its deliberations, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      What factors has the Board found to be significant?

      The Board considered the extent to which the public comment was incorporated into the proposed Naming Function Contract. Especially significant is the CWG-Stewardship’s involvement, and reliance on external counsel, in the review and identification of additional changes to the Naming Function Contract. ICANN’s agreement to take on the modifications generated through the CWG-Stewardship helps assure continued consistency with the IANA Stewardship Transition Proposal. The Board also considered the terms of the Agreement to ensure that the IANA naming function will continue to be operated in a secure, stable, and reliable manner that will meet the needs of the customers.

      Are there positive or negative community impacts?

      The proposed Naming Function Contract sets out the requirements and obligations for PTI to perform the IANA Naming Function in a secure and stable and reliable manner. The Agreement also includes Service Level Expectations for the performance of the IANA Naming Function. The Board’s approval of the proposed Agreement will fulfill one of the key requirements of the community-developed proposal to transition the IANA stewardship, which the Board approved on 10 March 2016, and ensure that the IANA Naming Function will continue to be operated in a secure, stable and reliable manner that meets the needs of the customers.

      Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

      There is no significant fiscal impact expected if the Board approves the proposed Naming Function Contract. ICANN will provide the necessary services to PTI for it to meet the obligations under this proposed Agreement. These services and associated costs are specified in a separate Services Agreement between ICANN and PTI.

      Are there any security, stability or resiliency issues relating to the DNS?

      The Board’s approval of the proposed Naming Function Contract would ensure continued operation of the IANA naming function in a secure, stable, and reliable manner post transition.

    2. Services Agreement between ICANN and PTI

      Samantha Eisner provided an overview of the proposed Services Agreement between ICANN and Public Technical Identifiers (PTI), which obligates ICANN to provide certain services and resources to PTI in order for PTI to perform the IANA function after the IANA stewardship transition. Samantha explained that there were various areas where there would be shared resources and services between ICANN and PTI, such as finance and human resources. She noted that ICANN would invoice PTI for these services, and the PTI budget would reflect these costs. After discussion, the Board took the following action by acclamation:  

      Whereas, completion of the Services Agreement <https://www.icann.org/iana_imp_docs/111-services-agreement-v-14sep16> fulfills a requirement from the package of proposals that the Board approved on 10 March 2016 to transition NTIA’s stewardship of the IANA functions to the global multistakeholder community.

      Whereas, the Services Agreement was drafted to meet the requirements of the IANA Stewardship Coordination Group’s IANA Stewardship Transition Proposal and the obligations that ICANN has under the Naming Function Contract.

      Whereas, ICANN consulted with the CWG-Stewardship, its outside counsel, the IETF, and the RIRs to address any concerns and finalize the Agreement.

      Resolved (2016.09.15.08), the proposed Services Agreement is approved, and the President and CEO, or his designee(s) is authorized to take such actions as appropriate to finalize and execute the Agreement.

      All members of the Board present voted in favor of Resolution 2016.09.15.08. Bruno Lanvin was unavailable to vote on the Resolution. The Resolution carried.

      Rationale for Resolution 2016.09.15.08

      Why the Board is addressing the issue now?

      The package of proposals that the Board approved on 10 March 2016 to transition NTIA’s stewardship of the IANA functions to the global multistakeholder community requires that ICANN provides the necessary services and resources to PTI for it to perform the IANA functions. This requirement is included in the Naming Function Contract between ICANN and PTI.

      ICANN has worked intensively with the CWG-Stewardship, its outside counsel, the IETF, and the RIRs to finalize the Services Agreement being presented to the Board today for consideration and approval.

      What is the proposal being considered?

      The Agreement commits ICANN to providing the necessary services and resources to PTI in order for it to perform the IANA functions.

      Dedicated resources include the employees currently in ICANN’s IANA department, who directly perform the IANA functions services.           Shared resources include employees in other ICANN departments who perform or participate in processes directly related to the delivery of the IANA functions. Support services include services            provided by ICANN’s departments to support PTI’s operations (e.g., Human Resources, Finance, Procurement, etc.).
      All services and resources provided to PTI will be billed at cost by ICANN to PTI. PTI will also be fully and exclusively funded by ICANN. It is estimated that the scope of services will represent a cost of US$9 Million on an annual basis (using as a basis the FY17 Budget).

                 As it relates to the dedicated resources, the Agreement provides that the ICANN employees currently in the IANA department will be seconded to PTI. The Agreement further commits that within three       (3) years of the effective date of the Agreement, PTI will have the           necessary programs, processes, and policies to offer full-time            employment to the seconded employees. In the event that PTI offers facilitate that change of employment.

                 Under the Agreement, ICANN will use reasonable efforts to provide services, such as accounting, communications and human resources, established by ICANN for its own operations. The Agreement allows ICANN to change, suspend or terminate the provision of a service provided that the change, suspension, or termination does not create any material risk to the security and stability of the domain name system. For example, if ICANN makes a change to its dental coverage offerings, the dental coverage offerings made available to those working with PTI will be made consistent with the changed coverage.
      Which stakeholders or others were consulted?

                 As the Agreement is a detailed, operational commitment regarding particular services and resources needed to support PTI, it was not feasible to seek public comment on the document. However, ICANN consulted with the IETF, and the RIRs to address any concerns, and        worked intensively with the CWG-Stewardship, its outside counsel to and finalize the Agreement.
      What concerns or issues were raised by the community?

      No major issues were raised by the community, as most of the issues were legal in nature about the appropriate reflection of terms.

      What significant materials did the Board review?

      As part of its deliberations, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      What factors has the Board found to be significant?

      The Board considered that the requirements of the Agreement are consistent with ICANN’s financial planning processes and that the Agreement provides PTI with the necessary resources to perform the IANA functions.

      Are there positive or negative community impacts?

      The Agreement ensures that PTI will have the necessary resources to perform the IANA functions for the names, numbers, and protocol parameters communities.

      Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

      The services will be billed at cost by ICANN to PTI which, in turn, is fully and exclusively funded by ICANN. It is estimated that the scope of services will represent a cost of US$9 Million on an annual basis (using as a basis the ICANN FY17 Budget that the Board approved <https://www.icann.org/resources/board-material/resolutions-2016-06-25-en - 2.c).

      Are there any security, stability or resiliency issues relating to the DNS?

      The Board’s approval of the proposed Services Agreement would ensure that PTI has the necessary resources to continue operation of the IANA naming functions in a secure, stable, and reliable manner post transition.

    3. .COM Registry Agreement Amendment

      Ram Mohan abstained noting potential conflicts of interest. Cherine Chalaby presented the agenda item. He gave the Board an overview of the proposed amendment to the .COM registry agreement to extend the term of the agreement to 2024. The original term of the registry agreement was set to expire in 2018. He reported that there were some concerns raised during the public comment period about clarifying whether the maximum price provision in the .COM registry agreement would continue. Cherine informed that Board that staff worked with Verisign to address this comment by proposing to revise the version of the amendment posted for public comment by adding additional language to extend the maximum price provision through 30 November 2024. The Board continued its discussion of the proposed amendment with the understanding that the amendment would be revised to reflect the noted change.1

      Cherine stated that another topic of concern raised during the public comment period was about moving the existing .COM registry agreement to the form of the New gTLD Registry Agreement. The Board considered this concern, and took note of the provision in the proposed amendment obligating Verisign and ICANN in two years to negotiate in good faith potential changes to the registry agreement in order to preserve and enhance the security of the Internet or the TLD. Cherine commented that many of the reviews of the New gTLD Program would likely be completed by 2018, and that this information would help assess potential areas negotiation.  

      Bruce Tonkin asked how the extension of the term of the .COM registry agreement relates to other provisions in the existing .COM registry agreement that might allow for future changes of the agreement. Akram Atallah stated that the .COM registry agreement includes a provision concerning renewals being upon similar terms of the largest five gTLDs. Bruce also commented that that the community has the opportunity, through the GNSO policy development process, to create a policy, and such policy would apply irrespective of renewal date.

      Bruce observed that some other legacy gTLDs adopted additional rights protection mechanisms when their registry agreements were up for renewal, and asked whether not requiring similar provisions in the .COM registry agreement amendment raised issues of fairness. Akram noted that a policy development process regarding rights protection mechanisms was underway in the GNSO that could impact .COM and other gTLDs in the future. He noted that other legacy gTLDs that recently renewed their registry agreements adopted additional rights protection mechanisms as a result of bilateral contract negotiations, as opposed to implementing them as a matter of consensus policy.

      As part of its deliberations, the Board also considered comments raised by some members of the community about whether approving the proposed amendment raised other concerns about fairness and whether similarly situated parties were unjustifiably receiving different treatment. The Board took note of additional correspondence received on this topic.

      The Board discussed the interplay between the proposed amendment to the .COM registry agreement and the Root Zone Maintainer Services Agreement (RZMA) approved by the Board on 9 August 2016. The Board considered whether the proposed resolutions needed to be revised to make sure the dates of the two agreements would be aligned as anticipated. Erika Mann asked for additional explanation about the rationale for having the dates of the two agreements aligned, and Akram explained the connection between the .COM registry agreement and Verisign providing “registration services” under its Cooperative Agreement with the U.S. Department of Commerce. After discussion, Bruce Tonkin moved and George Sadowsky seconded the proposed resolution, and the Board took the following actions:

      Resolved (2016.09.15.09a), the text of the proposed resolution to amend the .COM registry agreement is modified to make approval of the amendment subject to the execution of the RZMA.

      The Board adopted the following amended resolution regarding the proposed .COM registry agreement amendment2:

      Whereas, ICANN and Verisign engaged in discussions on a proposed amendment to the 1 December 2012 .COM Registry Agreement (“Amendment”) and agreed to extend the term of the Agreement to 30 November 2024 to coincide with the term of the Root Zone Maintainer Services Agreement in order to enhance the security, stability and resiliency of root zone operations.

      Whereas, the proposed Amendment also requires Verisign and ICANN to cooperate and negotiate in good faith to: (1) amend the .COM Registry Agreement by the second anniversary date of the proposed Amendment in order to preserve and enhance the security of the Internet or the TLD; and (2) as may be necessary for consistency with changes to the Cooperative Agreement between Verisign and the U.S. Department of Commerce. All other terms and conditions in the existing Registry Agreement remain unchanged.

      Whereas, ICANN commenced a public comment period from 30 June 2016 to 12 August 2016 <https://www.icann.org/public-comments/com-amendment-2016-06-30-en> on the proposed Amendment. Ninety-nine (99) comment submissions were posted by both individuals and organizations/groups.

      Whereas, the Board carefully considered the comments and the staff summary and analysis of comments.

      Whereas, ICANN conducted a review of Verisign’s recent performance under the current .COM Registry Agreement and found that Verisign substantially met its contractual requirements.

      Resolved (2016.09.15.09b), the proposed amendment to the .COM Registry Agreement <https://www.icann.org/sites/default/files/tlds/com/com-amend-1-pdf-30jun16-en.pdf> is approved, subject to the RZMA being executed, and the President and CEO, or his designee(s), is authorized to take such actions as appropriate to finalize and execute the Amendment.

      All members of the Board present voted in favor of Resolutions 2016.09.15.09a – 2016.09.15.09b. Bruno Lanvin was unavailable to vote on the Resolutions. The Resolutions carried.

      Rationale for Resolutions 2016.09.15.09a – 2016.09.15.09b

      Why the Board is addressing the issue now?

      On 1 December 2012, ICANN and Verisign, entered into a Registry Agreement under which Verisign operates the .COM top-level domain. The agreement is set to expire on 30 November 2018. ICANN and Verisign have negotiated a proposed Amendment, which was posted for a 42-day ICANN public comment period between 30 June 2016 and 12 August 2016. At this time, the Board is approving the proposed Amendment for the continued operation of .COM TLD by Verisign.

      What is the proposal being considered?

      The proposed Amendment: (1) extends the term of the .COM Registry Agreement to 30 November 2024 to coincide with the term of the Root Zone Maintainer Services Agreement (RZMA) between ICANN and Verisign; (2) commits Verisign and ICANN to cooperate and negotiate in good faith to amend the .COM Registry Agreement by the second anniversary date of the proposed Amendment in order to preserve and enhance the security of the Internet or the TLD; (3) commits Verisign and ICANN to cooperate and negotiate in good faith to amend the terms of the .COM Registry Agreement as may be necessary for consistency with changes to the Cooperative Agreement between Verisign and the U.S. Department of Commerce. All other terms and conditions of the existing Registry Agreement remain unchanged.

      Which stakeholders or others were consulted?

      ICANN engaged in bilateral negotiations with Verisign to agree to the terms of the proposed Amendment. The proposed Amendment was then published for public comment from 30 June 2016 to 12 August 2016. Following the public comment period, the comments were summarized and analyzed.

      What concerns or issues were raised by the community?

      There were 99 comment submissions from individuals and groups/organizations during the 42-day public comment period. Some commenters were generally supportive of the proposed Amendment while others raised concerns. A summary and analysis of the comments is provided below and also posted at <https://www.icann.org/en/system/files/files/report-comments-com-amendment-09sep16-en.pdf>.

      What significant materials did the Board review?

      As part of its deliberations, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      What factors has the Board found to be significant?

      The Board carefully considered the public comments received for the proposed Amendment, along with the summary and analysis of those comments.

      The Board acknowledges that some commenters were generally supportive of the proposed Amendment, and some expressed general support but also asked ICANN and/or Verisign to clarify the relationship of the Cooperative Agreement and proposed Amendment, particularly around pricing, and the provisions or topics that would be the subject of good faith negotiations by the second anniversary of the effective date of the proposed Amendment.

      While the Board acknowledges the suggested changes to the proposed Amendment to specify what provisions will be discussed by the two-year anniversary of the proposed Amendment, the Board notes that the language as drafted in the proposed Amendment balances providing a commitment to engage in negotiations, while providing leeway to consider future topics related to preserving and enhancing the security and stability of the Internet or the TLD in this changing landscape.

      With respect to revising the proposed Amendment to account for potential changes to, or cancelation of the Cooperative Agreement between Verisign and the Department of Commerce, the Board notes that the proposed Amendment already takes into account the Cooperative Agreement. The proposed Amendment includes language, requiring ICANN and Verisign to engage in good faith negotiations to make changes to the .COM Registry Agreement as may be necessary for consistency with changes to, or the termination or expiration of, the Cooperative Agreement.

      The Board also acknowledges that there were several comments submitted relating to prices for .COM domain names. Some commenters suggested that the current price cap in the Registry Agreement must remain in place, while others recommended that prices must be reduced. The Board notes that Section 7.3(d) of the .COM Registry Agreement specifies the maximum price that Verisign can charge for registry services. The proposed Amendment does not change this provision.

      The Board also acknowledges the comments submitted opposing the presumptive renewal right provision in the .COM Registry Agreement and suggestions that the presumptive renewal right should be taken away if certain events occur, such as an uncured material breach of the Registry Agreement. Others suggested that instead of extending the .COM Registry Agreement, it should be put out for a competitive public tender to ensure that the registrants are charged lower prices. The Board notes that the presumptive right of renewal in Section 4.2 of the .COM Registry Agreement is a provision that is in all of ICANN’s registry agreements. The provision allows a registry operator the right to renew the agreement at its expiration, provided that the registry operator is in good standing at the time of renewal as set forth under the terms of the presumptive renewal provision. This presumptive renewal provision is in place to ensure stability, security, and reliability in the operation of the TLD, i.e., to encourage long-term investment in robust TLD operations. This has served public interest by encouraging investment in the TLD registry infrastructure and improvements in reliability of the TLD operations. ICANN has previously described the rationale for presumptive renewal for registries: “Absent countervailing reasons, there is little public benefit, and some significant potential for disruption, in regular changes of a registry operator. In addition, a significant chance of losing the right to operate the registry after a short period creates adverse incentives to favor short-term gain over long-term investment. On the other hand, the community, acting through ICANN, must have the ability to replace a registry operator that is not adequately serving the community in the operation of a registry.”

      The Board acknowledges the comments that the .COM Registry Agreement should be brought in line with new safeguards and intellectual property protections found in the New gTLD Registry Agreement. Some of the commenters noted that certain legacy gTLD Registry Operators have adopted the general form of the New gTLD Registry Agreement (e.g. .PRO, .CAT, .TRAVEL) including the additional enhancements and safeguards, and .COM should be required to do the same. Some suggested that not requiring .COM to be subject to the new enhancements, safeguards, and intellectual property protections in the New gTLD Registry Agreement raises concerns about whether ICANN is adhering to its core values related to non-discriminatory or preferential treatment, serving the public interest, transparency, and competition. The Board notes that the proposed Amendment posted for public comment is a simple extension of the current term of the agreement, and moving to the form of the new gTLD Registry Agreement would require longer discussion and community consultation. Proposing a simple Amendment at this time to extend the term of the .COM registry agreement is intended to maintain the stable, secure, and reliable operations of the .COM TLD.

      The Board also notes that the proposed Amendment provides a provision that commits ICANN and Verisign to cooperate and negotiate in good faith to amend the .COM Registry Agreement by the second anniversary date of the proposed amendment in order to preserve and enhance the security of the Internet or the TLD. This language was negotiated to provide an opportunity for future discussions that may be needed to discuss potential changes to preserve and enhance the security of the Internet or the .COM TLD.

      The Board acknowledges comments asking for confirmation that Verisign will be required to implement future developed consensus policies that may provide for additional safeguards and enhancements. The Board notes that Section 3.1 (b) of the .COM Registry Agreement states that, “At all times during the term of this Agreement and subject to the terms hereof, Registry Operator will fully comply with and implement all Consensus Policies found at http://www.icann.org/en/general/consensus-policies.htm, as of the Effective Date and as may in the future be developed and adopted in accordance with ICANN's Bylaws and as set forth below.”

      The Board acknowledges the comments that opposed the early renewal of the .COM Registry Agreement and the linkage to the Root Zone Maintainer Agreement (RZMA). These comments noted that the root zone maintainer infrastructure should never have become “inextricably intertwined” with Verisign’s .COM operations. Some questioned how linking the two agreements would enhance the security, stability and resiliency of root operations and argued that the linkage represents a single source of failure. These commenters urged ICANN technical staff to begin exploring how some practical separation between root zone and .COM technical operations might be achieved if that eventuality ever arises, and to assure that such action does not pose a threat to the security and stability of the DNS.

      The Board notes that Verisign has been providing “registration services” under its Cooperative Agreement with NTIA for many years, which was broadly defined to include root zone maintainer function and .COM Top Level Domain registry services. Given the unified nature of these two functions under the Cooperative Agreement, much of the infrastructure supporting the root zone maintainer function is “intertwined” with Verisign’s TLD operations for .COM. A key component of ensuring security of the root operations was making sure that those operations continued to benefit from its historic association with the .COM operations. This was achieved by the proposed simple extension of the .COM Registry Agreement to coincide with the term of the new RZMA. While the terms of the agreements are linked together in the sense that they would expire at the same time, the agreements do not contain any provisions linking the performance of the obligations under the .COM Registry Agreement with the obligations under the RZMA. In fact, the Root Zone Maintainer Services Agreement (“RZMA”), approved by the ICANN Board on 9 August 2016, includes provisions that provide the community the ability – through a consensus-based, community-driven process – to require ICANN to transition the root zone maintainer function to another service provider three years after the effective date of the agreement.

      The Board acknowledges the comments suggesting that not requiring .COM to be subject to the new enhancements, safeguards, and intellectual property protections in the New gTLD Registry Agreement raises concerns about whether ICANN is adhering to its core values related to non-discriminatory or preferential treatment, serving the public interest, transparency, and competition.

      The Board notes that the Bylaws enumerate core values that should guide the decisions and actions of ICANN in performing its mission, and ICANN takes seriously its commitment to those values. As provided in the Bylaws, the “core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors that cannot be fully anticipated or enumerated; and because they are statements of principle rather than practice, situations will inevitably arise in which perfect fidelity to all eleven core values simultaneously is not possible. Any ICANN body making a recommendation or decision shall exercise its judgment to determine which core values are most relevant and how they apply to the specific circumstances of the case at hand, and to determine, if necessary, an appropriate and defensible balance among competing values.” When considering the comments and approval of the proposed Amendment, the Board has taken into consideration the relevant core values in order to balance the competing priorities.

      The Board further acknowledges comments concerning competitive issues and providing a level playing field. Article II, Section 3 of ICANN’s Bylaws state, “ICANN shall not apply its standards, policies, procedures, or practices inequitably or single out any particular party for disparate treatment unless justified by substantial and reasonable cause, such as the promotion of effective competition.” The Board notes the .COM Registry Agreement contains many different terms that are not present in other registry agreements. These unique terms might be considered either favorable or unfavorable depending on one’s point of view. For example, the price control provision in Section 7.3 of the .COM registry agreement tightly controls the ability of the registry operator to raise prices in a manner that is not present in any other registry agreement.

      Are there positive or negative community impacts?

      ICANN conducted a review of Verisign’s recent performance under the current .COM Registry Agreement and found that Verisign substantially met its contractual requirements.

      The Board’s approval of the proposed Amendment is intended to ensure the continued stable, secure, and reliable operations of the .COM TLD.

      Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

      There is no significant fiscal impact expected if the Board approves the proposed Amendment.

      Are there any security, stability or resiliency issues relating to the DNS?

      There are no expected security, stability, or resiliency issues related to the DNS if the Board approves the proposed Amendment

    4. PTI Governance Items – Adoption of PTI Bylaws; Appointment of PTI Board Initial Directors; Appointment of PTI President

      Samantha Eisner provided an overview of a series of actions proposed to be taken by the Board, as the sole member of Public Technical Identifiers (PTI). She explained that the proposal before the Board as the PTI sole member was to adopt the PTI Bylaws, appoint the initial members of the PTI Board of Directors, appoint the President of PTI, and accept the resignation of the PTI incorporator.

      As part of her presentation, Samantha reported that the PTI Bylaws were drafted in accordance with the CWG proposal, and were negotiated with the CWG, with the involvement of the external counsel to the CWG. The PTI Bylaws were published for public comment.

      Samantha also provided an overview of the composition of the PTI Board of Directors, and the recommendations for the initial slate of directors. The CWG-Stewardship recommended Lise Fuhr and Jonathan Robinson to serve as initial directors. She reported that given the timing of the adoption of the PTI Bylaws, the 2016 Nominating Committee was not in a position to solicit or evaluate candidates for the PTI Board, but the Nominating Committee would be in a position to do so in 2017.

      Steve Crocker asked questions regarding the voting rights of the President of PTI, and Samantha confirmed that each of the five directors have equivalent voting rights, but that the President of PTI is not permitted to serve as Chair of the PTI Board of Directors.

      Lito Ibarra made note of the different terms of office of each seat on the PTI Board, and asked whether the ICANN Board needed to assign seats at this point. Samantha explained that the PTI Bylaws were constructed so that there is a one-year term for the initial directors and the regular appointment phase would begin in 2017. The Board also discussed the process for appointing new directors, and whether the PTI Board would have similar subcommittees as the ICANN Board. Samantha highlighted a California corporation legal requirement for there to be an audit committee, but commented that it is up to the PTI Board to identify additional committees if needed.

      With respect to accepting the resignation of the PTI incorporator, Samantha stated that the only action taken by Akram Atallah, as the incorporator of PTI, was to sign and file the Articles of Incorporation for PTI.

      Samantha also informed the ICANN Board that the PTI Board of Directors, when established, would be asked to take action related to a series of organizational activities, such as ratifying the Bylaws, selecting the chair of the Board, and approving a conflicts of interest policy. She mentioned that the first Board meeting was anticipated to take place prior to 30 September 2016.

      Cherine Chalaby asked whether the proposed actions should be contingent on the occurrence of the IANA stewardship transition. Samantha stated that this was not needed because the IANA Naming Function Agreement contains condition precedent language; PTI would not have work to do until the IANA stewardship transition occurred and the IANA Naming Function Agreement became effective.   

      The Chair inquired about whether PTI would incur expenses prior to the IANA stewardship transition taking place, and Xavier Calvez responded that there would be costs associated with filing appropriate tax forms as well as marginal costs of setting up an initial meeting of the PTI Board.  

      The Board took the following actions by acclamation:

      PTI Bylaws

      Whereas, it is deemed to be in the best interest of PTI, as a California Nonprofit Public Benefit Corporation, that bylaws be adopted.

      Whereas, these initial Bylaws of PTI were developed to be consistent with the requirements of the ICG Proposal as received by the ICANN Board on 10 March 2016, including through coordination with the CWG-Stewardship and its external counsel.

      Whereas, the initial Bylaws of PTI were subject to a 30-day public comment period, from 12 July 2016 through 11 August 2016, with four comments received. ICANN staff developed a summary analysis and report identifying how each comment was considered and addressed, and ICANN coordinated with CWG-Stewardship’s external counsel on the revisions.

      Whereas, ICANN’s General Counsel has asserted that the proposed PTI Bylaws remain consistent with the ICG Proposal and recommends that ICANN, as PTI’s sole member, proceed with approval.

      Whereas, the PTI Bylaws will not go into effect until approved by both the PTI Board and ICANN as the sole member.

      Resolved (2016.09.15.10), the ICANN Board, in its role as sole member of PTI, approves the Bylaws available here <https://www.icann.org/iana_imp_docs/109-revised-pti-bylaws_18aug16-v-v1> as the initial Bylaws for PTI.

      PTI President

      Whereas, pursuant to Section 7.2 of the PTI Bylaws, ICANN as the sole member is authorized to appoint a President of PTI.

      Resolved (2016.09.15.11), the ICANN Board, in its role as sole member of PTI, hereby appoints Elise Gerich as the President of PTI.

      PTI Board – Initial Directors

      Whereas, ICANN, in its role as sole member of PTI, has the obligation to appoint all members of the PTI Board in accordance with Article 5 of the PTI Bylaws.

      Whereas, the PTI Bylaws, at Section 5.2.1, authorize the PTI Board to have five Directors.

      Whereas, ICANN, as the sole member of PTI, must appoint four Initial Directors to the PTI Board, with two Initial Directors being employees of ICANN or PTI, and two Initial Directors being the candidates identified by the Cross-Community Working Group to Develop an IANA Stewardship Proposal for Naming Related Functions, pursuant to Section 5.2.2.2 of the PTI Bylaws.

      Whereas, ICANN, as the sole member of PTI, must appoint the President of PTI to the PTI Board. Elise Gerich has been appointed as President of PTI. The President of PTI serves on the PTI Board in an ex officio capacity, with a term that coincides with her service as President of PTI.

      Whereas, ICANN recommends that Akram Atallah, ICANN’s President, Global Domains Division and David Conrad, ICANN’s Chief Technology Officer, serve as the two Initial Directors that are employees of ICANN or PTI.

      Whereas, the CWG-Stewardship recommends that Lise Fuhr and Jonathan Robinson serve as Initial Directors.

      Resolved (2016.09.15.12), ICANN, in its role as sole member of PTI, appoints Akram Atallah, David Conrad, Lise Fuhr, and Jonathan Robinson as Initial Directors of PTI with terms to end as specified at Section 5.5 of the PTI Bylaws.

      Incorporator

      Whereas, on 9 August 2016, the ICANN Board approved the filing of Articles of Incorporation for Public Technical Identifiers (or PTI) with the California Secretary of State.

      Whereas, to complete that filing, ICANN identified Akram Atallah to serve as the incorporator for PTI for the purposes of signing and filing the PTI Articles of Incorporation.

      Whereas, the PTI Articles of Incorporation were received by the California Secretary of State on 10 August 2016.

      Whereas, Akram Atallah has taken no other acts as the incorporator of PTI, and has submitted a letter of resignation as the incorporator of PTI.

      Resolved (2016.09.15.13), that any or all actions heretofore taken by any Authorized Officer to effectuate or evidence the purpose and intent of the foregoing resolutions be, and hereby are, approved, ratified and confirmed as the act and deed of the Company or such affiliate and the act and deed of the Board.

      Resolved (2016.09.15.14), the ICANN Board, in its role as sole member of PTI, accepts the resignation of Akram Atallah as incorporator of PTI, effective on the above election of the Initial Directors of PTI.

      All members of the Board present voted in favor of Resolutions 2016.09.15.10 – 2016.09.15.14. Bruno Lanvin was unavailable to vote on the Resolutions. The Resolutions carried.

      Rationale for Resolutions 2016.09.15.10 – 2016.09.15.14

      The resolutions taken here today fulfill ICANN’s responsibility, as the sole member of PTI, to allow PTI to have the governance structure in place and become operationally ready to perform its required activities upon the successful completion of the IANA stewardship transition. With the acceptance of the incorporator’s resignation, ICANN can then transparently and in a manner accountable to its community, move forward with the adoption of the PTI Bylaws, and appointment of the PTI Board (including the PTI President). This will allow the PTI Board to meet in the near future to complete its necessary organizational activities, which will include acceptance of the PTI Bylaws, appointment of officers, and adoption of governance documents such as the Conflicts of Interest Policy. The PTI Board can also determine how to delegate authority for the approval and execution of the necessary contracts for PTI operations, such as the PTI Naming Functions Agreement, the Services Agreement with ICANN, and other subcontracting arrangements between PTI and ICANN.

      These resolutions do not authorize PTI to perform any of the IANA functions prior to such time as the IANA stewardship transition is complete. This is also an important accountability aspect.

      The PTI Bylaws are a product of collective work of the internal and external legal teams along with the intensive work of the CWG-Stewardship. The PTI Bylaws were posted for a 30-day public comment period, and four comments were received. Each of the comments was considered and analyzed, and explanation was provided on whether the PTI Bylaws required modification to reflect the issues raised within the comment. In modifying the PTI Bylaws, ICANN worked closely with the CWG-Stewardship and their external counsel, and revisions were made to assure that the community-nominated directors to the PTI Board would always be present at PTI Board and Board Committee meetings, and were appropriately accounted for in key decisions requiring higher thresholds than a simple majority. The PTI Bylaws as modified remain consistent with the ICG’s transition Proposal. The PTI Bylaws must still be adopted by the PTI Board in order for them to come into effect.

      The appointment of the PTI President and Board are taken fully in line with the obligations as set forth in the PTI Bylaws, and respectful of the community’s recommendations of the proposed composition of the Board.

      In taking these actions, the Board relied upon:

      The Board also relied upon the General Counsel and Secretary’s affirmation that PTI Bylaws reflect the Transition Proposals, as well as the inputs of independent counsel to craft the PTI Bylaws to support the ICG Proposal.

      These actions continue to confirms ICANN’s commitment to implement the Transition Proposals and all of the elements in those Proposals.

      None of the actions taken today are anticipated to have any impact on the security, stability or resiliency of the DNS, though the PTI will be essential to ICANN’s security, stability and resiliency work. There will be resource implications in supporting the PTI Board, as well as the significant resources required to support a new affiliate.

      The approval of the PTI Bylaws is an Organizational Administrative Function for which public comments were received.

      The acceptance of the resignation of the incorporator, appointment of the PTI President and the appointment of the PTI Board are Organizational Administrative Functions for which public comments were not necessary.

    5. Further Consideration of the Dot Registry IRP Final Declaration

      Ram Mohan and Suzanne Woolf abstained noting potential conflicts of interest. Chris Disspain introduced the proposed resolution regarding the next steps in relation to the Board’s adoption of the Independent Review Process (IRP) Panel majority’s finding that Dot Registry LLC is the prevailing party in the Dot Registry v. ICANN IRP proceeding. The Board reviewed the proposed resolution directing the Board Governance Committee to re-evaluate Dot Registry’s Reconsideration Requests 14-30, 14-32 and 14-33. Bruce Tonkin suggested some changes to the proposed resolution to more clearly state the Panel’s findings referenced in the resolution.

      The Board took the following action:

      Whereas, upon adopting the Panel majority’s findings that Dot Registry LLC is the prevailing party in the Dot Registry v. ICANN Independent Review Process (IRP) proceedings (Dot Registry IRP), the Board resolved to consider next steps in relation to Dot Registry's Reconsideration Requests or the relevant new gTLDs before the Board takes any further action. (See https://www.icann.org/resources/board-material/resolutions-2016-08-09-en - 2.g.)

      Whereas, the Board has noted that the Panel majority in the Dot Registry IRP did not make any specific recommendations to the Board as to next steps.

      Whereas, the Board has also taken note of the various correspondence and input received from Dot Registry and others with respect to this matter.

      Whereas, the Panel majority in the Dot Registry IRP declared that the Board Governance Committee (BGC) acted in a manner inconsistent with the Articles of Incorporation or Bylaws in evaluating Reconsideration Requests 14-30, 14-32 and 14-33. (See Final Declaration, ¶ 151, available at https://www.icann.org/en/system/files/files/irp-dot-registry-final-declaration-redacted-29jul16-en.pdf.)

      Whereas, specifically, the Panel majority declared that “the Board (acting through the BGC) failed to exercise due diligence and care in having a reasonable amount of facts in front of them and failed to fulfill its transparency obligations including both the failure to make available the research on which the EIU and ICANN staff purportedly relied and the failure to make publically available the ICANN staff work on which the BGC relied). The Panel majority further concludes that the evidence before it does not support a determination that the Board (acting through the BGC) exercised independent judgment in reaching the reconsideration decisions.” See id., at ¶ 152.

      Resolved (2016.09.15.15), the Board directs the Board Governance Committee to re-evaluate Dot Registry’s Reconsideration Requests 14-30, 14-32 and 14-33 in light of the Panel majority’s Final Declaration in the Dot Registry IRP and the issues it identified with respect to the BGC’s actions in evaluating these Reconsideration Requests.

      All members of the Board present voted in favor of Resolutions 2016.09.15.15. Bruno Lanvin was unavailable to vote on the Resolution. The Resolution carried.

      Rationale for Resolution 2016.09.15.15

      Dot Registry, LLC (Dot Registry) initiated Independent Review Process (IRP) proceedings challenging the Board Governance Committee’s (BGC’s) denial of Dot Registry’s Reconsideration Requests regarding the Community Priority Evaluation (CPE) reports finding that Dot Registry’s applications for .INC, .LLC, and .LLP, respectively, did not prevail in CPE (Dot Registry IRP).

      Dot Registry applied for the opportunity to operate the new top-level domains .LLC, .INC, and .LLP. Dot Registry is one of nine applicants for .LLC, one of eleven applicants for .INC, and one of four applicants for .LLP. Dot Registry, however, is the only applicant that submitted community-based applications for these gTLDs.

      The CPE panels evaluating Dot Registry’s applications (CPE Panels) determined that the applications did not meet the criteria required to prevail in CPE, awarding only five of the 14 points needed to prevail in CPE (CPE Reports). Dot Registry filed Reconsideration Requests 14-30, 14-32, and 14-33, seeking reconsideration of the CPE Reports. On 24 July 2014, the Board Governance Committee (BGC) denied the Reconsideration Requests, finding that Dot Registry had “failed to demonstrate that the Panels acted in contravention of established policy or procedure in rendering their respective CPE Reports….”

      Dot Registry initiated the Dot Registry IRP on 22 September 2014, challenging the BGC's denial of Dot Registry’s Reconsideration Requests, as well as purportedly challenging ICANN's appointment of the Economist Intelligence Unit (EIU) as the third party provider to conduct CPEs, and the Board’s response to advice from ICANN’s Governmental Advisory Committee regarding .LLC, .INC, and .LLP.

      In a 2-1 decision, the Panel majority declared Dot Registry to be the prevailing party, and determined that “the actions and inactions of the Board were inconsistent with ICANN's Articles of Incorporation and Bylaws.” (Final Declaration at ¶ 151.) Specifically, the Panel majority declared that “the Board (acting through the BGC) failed to exercise due diligence and care in having a reasonable amount of facts in front of them and failed to fulfill its transparency obligations” and that there was not sufficient evidence to “support a determination that the Board (acting through the BGC) exercised independent judgment in reaching the reconsideration decisions.” (Id. at ¶¶ 151-152.) The Panel majority further declared that ICANN “shall pay to Dot Registry, LLC $235,294.37 representing said fees, expenses and compensation previously incurred by Dot Registry, LLC upon determination that these incurred costs have been paid in full.” (Id. at ¶ 154.)

      The Board noted that the Panel majority stated that “in reaching these conclusions, the Panel is not assessing whether ICANN staff or the EIU failed themselves to comply with obligations under the Articles, the Bylaws, or the [Applicant Guidebook (Guidebook)].” (Id. at ¶ 152.) Further, it is also noted that “[t]he Panel majority decline[d] to substitute its judgment for the judgment of the CPE as to whether Dot Registry is entitled to Community priority.” (Id. at ¶ 153.)

      During its initial consideration of the Final Declaration, the Board accepted the findings of the Final Declaration that: (i) Dot Registry is the prevailing party in the Dot Registry, LLC v. ICANN IRP; and (ii) ICANN shall pay to Dot Registry US$235,294.37 upon demonstration that these incurred costs have been paid in full.” (See https://www.icann.org/resources/board-material/resolutions-2016-08-09-en#2.g.)

      The Board also “noted the other findings in the Declaration and the findings regarding the Panel majority's statements with respect to the standard of review for Reconsideration Requests referenced above, and will consider next steps in relation to Dot Registry’s Reconsideration Requests or the relevant new gTLDs before the Board takes any further action.” See Id. Additionally, the Board took note that the Panel majority did not make any specific recommendation regarding next steps for the Board to take.

      As the Board has now had the opportunity to thoroughly evaluate some of those other findings in the Final Declaration, the Board has determined that the best approach at this time would be for the BGC to re-evaluate Dot Registry’s Reconsideration Requests 14-30, 14-32 and 14-33 in light of the Panel majority’s Final Declaration in the Dot Registry IRP and the issues it identified with respect to the BGC’s actions in evaluating these Reconsideration Requests.

      As part of its deliberations in taking this action, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      Letter from Shaul Jolles to ICANN Board re: 9 August 2016 Special Meeting of the ICANN Board of Directors regarding agenda item Dot Registry LLC v. ICANN (01-14-0001-5004) Independent Review Process ("IRP") Declaration of 29 July 2016 (6 August 2016)

      This action is not expected to have any material direct financial impact on the organization. This action will not have 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.

    6. Consideration of Ombudsman Report Regarding dotgay, LLC’s application for .GAY

      No resolution taken. The Board decided to take up this matter after receiving additional information from staff.

    7. Reconsideration Request 16-3 (dotgay LLC)

      No resolution taken. The Board decided to take up this matter after receiving additional information from staff and an opportunity to review the recent 60-page report submitted by dotgay LLC on the matter.

    8. AOB

      There was a Board discussion regarding the .WEB matter and the Board decided to pursue a course of reviewing with the relevant parties the issues that have been addressed to the Board in letters, accountability mechanisms, and active litigation.

      The Chair called the meeting to a close.


1 The final text of the amendment can be viewed here: https://www.icann.org/sites/default/files/tlds/com/com-amend-1-pdf-26sep16-en.pdf. A redline comparing the final text of the amendment to the version posted for public comment can be viewed here: https://www.icann.org/sites/default/files/tlds/com/com-amend-1-pdf-redline-26sep16-en.pdf.

2 For additional information on the amendment to the .COM registry agreement, refer to the FAQ available here: https://www.icann.org/sites/default/files/tlds/com/com-amend-1-faqs-26sep16-en.pdf.

Published on 10 November 2016.

Domain Name System
Internationalized Domain Name ,IDN,"IDNs are domain names that include characters used in the local representation of languages that are not written with the twenty-six letters of the basic Latin alphabet ""a-z"". An IDN can contain Latin letters with diacritical marks, as required by many European languages, or may consist of characters from non-Latin scripts such as Arabic or Chinese. Many languages also use other types of digits than the European ""0-9"". The basic Latin alphabet together with the European-Arabic digits are, for the purpose of domain names, termed ""ASCII characters"" (ASCII = American Standard Code for Information Interchange). These are also included in the broader range of ""Unicode characters"" that provides the basis for IDNs. The ""hostname rule"" requires that all domain names of the type under consideration here are stored in the DNS using only the ASCII characters listed above, with the one further addition of the hyphen ""-"". The Unicode form of an IDN therefore requires special encoding before it is entered into the DNS. The following terminology is used when distinguishing between these forms: A domain name consists of a series of ""labels"" (separated by ""dots""). The ASCII form of an IDN label is termed an ""A-label"". All operations defined in the DNS protocol use A-labels exclusively. The Unicode form, which a user expects to be displayed, is termed a ""U-label"". The difference may be illustrated with the Hindi word for ""test"" — परीका — appearing here as a U-label would (in the Devanagari script). A special form of ""ASCII compatible encoding"" (abbreviated ACE) is applied to this to produce the corresponding A-label: xn--11b5bs1di. A domain name that only includes ASCII letters, digits, and hyphens is termed an ""LDH label"". Although the definitions of A-labels and LDH-labels overlap, a name consisting exclusively of LDH labels, such as""icann.org"" is not an IDN."