Board Governance Committee (BGC) Meeting Minutes
BGC Attendees: Chris Disspain, Olga Madruga-Forti, Ray Plzak, Mike Silber, and Bruce Tonkin – Chair.
Executive and Staff Attendees: John Jeffrey – General Counsel and Secretary; Megan Bishop, Elizabeth Le, and Amy Stathos
BGC Apologies: Cherine Chalaby, Ram Mohan
The following is a summary of discussion, actions taken, and actions identified:
Minutes – The BGC approved the minutes from the meeting on 8 January 2014.
Reconsideration Request 13-19 – Staff briefed the BGC regarding HOTREC's Request 13-19 seeking reconsideration of the New gTLD Program Committee's (NGPC) alleged failure (inaction) to stay HOTREC's community objection to the application for the .HOTELS gTLD following the NGPC's 25 June 2013 resolution deferring the contracting process for the .HOTELS string pending a dialogue with the Governmental Advisory Committee. The Requester claims that the NGPC'S failure to stay the Objection violated certain provisions of ICANN's Articles of Incorporation and Bylaws, and caused a breach of due process. After discussion and consideration of the Request, the BGC concluded that the stated grounds are improper bases for reconsideration under ICANN's Bylaws because the Requester makes no argument and provides no evidence that the NGPC took an action or inaction without considering material information or as a result of reliance on false or inaccurate material information, which are the grounds for challenging Board conduct under the reconsideration process. The BGC further concluded that, even if these were proper bases for reconsideration, the stated grounds do not support reconsideration because there is no policy or process that requires the NGPC to stay objection proceedings while ICANN considers and/or communicates with the GAC regarding advice on new gTLDs. The BGC recommended that the NGPC deny Request 13-19.
- Action: Staff to submit the BGC Recommendation to the NGPC for consideration.
Reconsideration Request 13-20 – Staff briefed the BGC regarding DotSecure, Inc.'s Request 13-20 seeking consideration of ICANN's alleged failure: (1) to properly prepare the ICC1 to decide community objections and to ensure compliance with the established procedures concerning sensitive strings; and (ii) to provide a mechanism to appeal expert determinations based on grounds outside the Applicant Guidebook. The Requester claims that ICANN staff failed to assure the preparedness of the ICC and the ICC panelists to apply the established polices in determining community objections concerning sensitive strings, such as .BANK. The Requester further claims that ICANN staff failed to provide an appeal mechanism if the decision was based on grounds outside the Guidebook. After discussion and consideration of the Request, the BGC concluded that the Requester failed to state the proper grounds for reconsideration because it failed to demonstrate a policy or process violation. Specifically, the BGC determined that: (i) the Requester does not cite any established policy or process that was allegedly violated by ICANN's purported inaction or that required ICANN to take action beyond the action that ICANN took; (ii) there is no support for the Requester's claim that the Panel applied the wrong standard of review; and (iii) the Requester has not identified any established policy or process that required ICANN to implement any additional appeal or review mechanism (upon request or otherwise) than those already provided for under the Guidebook and in ICANN's Bylaws. The BGC noted that the Bylaws authorize the BGC to make a final determination on Reconsideration Requests brought regarding staff action or inaction; the BGC still has the discretion, but is not required, to recommend the matter to the Board for consideration, as the BGC deems necessary. Accordingly, the BGC concluded that its determination on Request 13-20 is final; no consideration by the NGPC is warranted.
Reconsideration Request 13-21 – Staff briefed the BGC regarding the European State Lotteries and Toto Association's Request 13-21 seeking reconsideration of the Expert Determination, and ICANN's acceptance of that Determination, dismissing the Requester's community objection to the application for .LOTTO. The Requester claims that the actions of the Expert Panel were inconsistent with ICANN policies, which influenced the Panel's decision to dismiss the Objection. Specifically, the Requester contends that the Panel incorrectly applied the six factors for evaluating the likelihood of material detriment element of a community objection. After discussion and consideration of the Request, the BGC concluded that the Requester failed to state the proper grounds for reconsideration because it failed to demonstrate a policy or process violation. With respect to each claim asserted by the Requester, there is no evidence that the Panel misapplied any factor in evaluating the likelihood of material detriment. The Requester has failed to demonstrate that the Panel applied the wrong standard in contravention of established policy or procedure. The BGC noted that the Bylaws authorize the BGC to make a final determination on Reconsideration Requests brought regarding staff action or inaction; the BGC still has the discretion, but is not required, to recommend the matter to the Board for consideration, as the BGC deems necessary. Accordingly, the BGC concluded that its determination on Request 13-21 is final; no consideration by the NGPC is warranted.
Published on 19 February 2014
1 International Centre for Expertise of the International Chamber of Commerce.