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Approved Board Resolutions | Regular Meeting of the ICANN Board

  1. Consent Agenda:
    1. Approval of Board Meeting Minutes
    2. RSSAC Co-Chair Appointments
    3. Redelegation of the .TG domain representing Togo to the Autorite de Reglementation des Secteurs de Postes et de Telecommunications (ART&P)
    4. Delegation of the .ею ("eu") domain representing the European Union in Cyrillic script to EURid vzw/asbl
    5. Delegation of the .澳門 ("Macao") domain representing Macao in Traditional Chinese script to the Bureau of Telecommunications Regulation (DSRT)
  2. Main Agenda:
    1. Consideration of Independent Review Process Panel's Final Declaration in Merck KGaA v. ICANN
    2. Reconsideration Requests 15-19 (the ICANN Business Constituency & the ICANN Noncommercial Stakeholder Group (NCSG)) and 15-20 (The Internet Commerce Association)
    3. Consideration of Expert Determination Re: Objection to Application for .HOSPITAL
    4. Ombudsman Report Regarding Complaint by Hu Yi Global Information Resources (applicant for .招聘 ("recruitment" in Chinese))
    5. GAC Advice: Dublin Communiqué (October 2015)
    6. Board Governance Committee Recommendation Regarding Implementation of Public Interest Commitments for .DOCTOR Registry Agreement
    7. Establishing a Set of KPIs for Board Performance and Improvement Efforts (ATRT2 Rec. 1, 2 & 3)
    8. USG IANA Stewardship Transition – Additional FY16 Expenses and Funding
  3. Executive Session – CONFIDENTIAL
    1. President and CEO FY16 SR1 At-Risk Compensation
    2. [Published on 5 February 2016]

    3. Election of Göran Marby as ICANN's President and CEO (Published on 11 February 2016)

 

  1. Consent Agenda:

    1. Approval of Board Meeting Minutes

      Resolved (2016.02.03.01), the Board approves the minutes of the 21 October, 22 October and 2 December 2015 Meetings of the ICANN Board.

      Resolved (2016.02.03.02), the Board approves the minutes of the 18 October New gTLD Program Committee (NGPC) Meeting.

    2. RSSAC Co-Chair Appointments

      Whereas, Article XI, Section 2 of the Bylaws governs the Root Server System Advisory Committee (RSSAC).

      Whereas, Article XI, Section 2, Subsection 3B of the Bylaws states that the Board of Directors shall appoint the co-chairs and the members of the RSSAC.

      Whereas, on 3 December 2015, the RSSAC conducted an election for one co-chair position and elected Brad Verd (Verisign, A/J-Root Server Operator) to a two-year term as co-chair.

      Whereas, Tripti Sinha (University of Maryland, D-Root Server Operator) will continue to serve as co-chair for the second year of a two-year term.

      Resolved (2016.02.03.03), the Board of Directors accepts the recommendation of the RSSAC and appoints Tripti Sinha and Brad Verd as co-chairs of RSSAC and extends its best wishes to Tripti and Brad in their important new roles.

      Rationale for Resolution 2016.02.03.03

      The ICANN Bylaws call for the Board to appoint the RSSAC co-chairs as selected by the membership. The appointment of RSSAC co-chairs will allow the RSSAC to be properly composed to serve its function within ICANN's policy development work as an advisory committee.

      The appointment of co-chairs is not anticipated to have any fiscal impact on ICANN that has not already been accounted for in the budgeted resources necessary for ongoing support of the RSSAC.

      This is an Organizational Administrative Function for which no public comment is required.

    3. Redelegation of the .TG domain representing Togo to the Autorite de Reglementation des Secteurs de Postes et de Telecommunications (ART&P)

      Resolved (2016.02.03.04), as part of the exercise of its responsibilities under the IANA Functions Contract, ICANN has reviewed and evaluated the request to redelegate the .TG country-code top-level domain to Autorite de Reglementation des Secteurs de Postes et de Telecommunications (ART&P). The documentation demonstrates that the proper procedures were followed in evaluating the request.

      Resolved (2016.02.03.05), 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 2016.02.03.04 – 2016.02.03.05

      Why the Board is addressing the issue now?

      In accordance with the IANA Functions Contract, the ICANN staff has evaluated a request for ccTLD redelegation 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 change the sponsoring organization (also known as the manager or trustee) of the .TG country-code top-level domain to Autorite de Reglementation des Secteurs de Postes et de Telecommunications (ART&P).

      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.

    4. Delegation of the .ею ("eu") domain representing the European Union in Cyrillic script to EURid vzw/asbl

      Resolved (2016.02.03.06), as part of the exercise of its responsibilities under the IANA Functions Contract, ICANN has reviewed and evaluated the request to delegate the ею country-code top-level domain to EURid vzw/asbl. The documentation demonstrates that the proper procedures were followed in evaluating the request.

      Resolved (2016.02.03.07), 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 2016.02.03.06 – 2016.02.03.07

      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 EURid vzw/asbl.

      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.

    5. Delegation of the .澳門 ("Macao") domain representing Macao in Traditional Chinese script to the Bureau of Telecommunications Regulation (DSRT)

      Resolved (2016.02.03.08), as part of the exercise of its responsibilities under the IANA Functions Contract, ICANN has reviewed and evaluated the request to delegate the .澳門 country-code top-level domain to the Bureau of Telecommunications Regulation (DSRT). The documentation demonstrates that the proper procedures were followed in evaluating the request.

      Resolved (2016.02.03.09), 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 2016.02.03.08 – 2016.02.03.09

      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 Bureau of Telecommunications Regulation (DSRT).

      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.

  2. Main Agenda:

    1. Consideration of Independent Review Process Panel's Final Declaration in Merck KGaA v. ICANN

      Whereas, on 11 December 2015, an Independent Review Process (IRP) Panel (Panel) issued its Final Declaration in the IRP filed by Merck KGaA (Merck) against ICANN (Final Declaration).

      Whereas, in its IRP, Merck challenged the Board Governance Committee's (BGC) denial of Reconsideration Request 14-9, which in turn challenged the expert determinations overruling Merck's legal rights objections (LROs) to new gTLD applications submitted by its former affiliate, U.S.-based Merck Sharp & Dohme Corporation, for strings incorporating the "Merck" mark (Expert Determinations).

      Whereas, the Panel denied Merck's IRP Request and, among other things, declared that the Board's actions did not in any way violate ICANN's Articles of Incorporation (Articles), Bylaws, or the Applicant Guidebook (Guidebook). (See Final Declaration, ¶¶ 41-68, https://www.icann.org/en/system/files/files/irp-merck-final-declaration-11dec15-en.pdf [PDF, 1.47 MB].)

      Whereas, in accordance with Article IV, section 3.21 of ICAN's Bylaws, the Board has considered the Panel's Final Declaration.

      Resolved (2016.02.03.10), the Board accepts the findings of the Panel's Final Declaration: (1) ICANN is the prevailing party in the Merck KGaA v. ICANN IRP; (2) the Board acted without conflict of interest in taking its decision; (3) the Board exercised due diligence and care in having a reasonable amount of facts in front of them; (4) the Board exercised independent judgment in taking the decision, believed to be in the best interests of the company; (5) the Board (including the Board Governance Committee) did not violate the Articles, Bylaws, or Guidebook; and (6) Merck shall reimburse ICANN costs in the amount of US$48,588.54.

      Rationale for Resolution 2016.02.03.10

      Merck KGaA (Merck) filed a request for an Independent Review Process (IRP), which arose out of its legal rights objections (LROs) to new gTLD applications submitted by its former affiliate, U.S.-based Merck Sharp & Dohme Corporation, for strings incorporating the "Merck" mark. Merck's LROs were overruled (Expert Determinations). Merck filed Reconsideration Request 14-9 challenging the Expert Determinations. The Board Governance Committee (BGC) denied Reconsideration Request 14-9, finding that Merck had not stated proper grounds for reconsideration and that the Request failed to demonstrate that the expert panel had acted in contravention of established policy or procedure. Merck's IRP Request challenged the denial of Reconsideration Request 14-9 and, among other things, also argued that the Board should have taken further action with respect to the Expert Determinations.

      On 11 December 2015, the three-member IRP Panel (Panel) issued its Final Declaration. After consideration and discussion, pursuant to Article IV, Section 3.21 of the ICANN Bylaws, the Board adopts 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-merck-final-declaration-11dec15-en.pdf [PDF, 1.47 MB].

      Using the applicable standard of review, the Panel found that: (1) ICANN is the prevailing party in the Merck KGaA v. ICANN IRP; (2) the Board acted without conflict of interest in taking its decision; (3) the Board exercised due diligence and care in having a reasonable amount of facts in front of them; (4) the Board exercised independent judgment in taking the decision, believed to be in the best interests of the company; and (5) the Board's actions or inactions did not, in any way, violate the Articles of Incorporation (Articles), Bylaws, or Applicant Guidebook (Guidebook). (See Final Declaration, ¶¶ 41-68.) 

      More specifically, as the Panel found, the standard of review for an IRP is specifically prescribed in Article IV, Section 3.4 of the Bylaws, and "the Panel may not substitute its own view of the merits of the underlying dispute." (Id. at ¶¶ 21-22.) The Panel further found that the reconsideration process is "of limited scope" as set forth in Article IV, Section 2.2 of the Bylaws, and "[n]one of th[e] three bases for the Request for Reconsideration process requires or even permits this Panel to provide for a substitute process for exploring a different conclusion on the merits." (Id. at ¶ 47.) The Panel also found that: "this Panel does not, because of the precise and limited jurisdiction we have, have the power to second guess [the BGC's determination] that the Sole Panel Expert [in the legal rights objection proceedings] did not apply the wrong standards." (Id. at ¶ 49.) The Panel was also clear that "a referral or appeal process for LRO decisions…was not included in the [Guidebook] and it is not open to this Panel to create it." (Id. at ¶ 60.) In summary, the Panel explained that "Merck's complaints are, in short, not focused on the applicable test by which this Panel is to review Board action, but rather are focused on the correctness of the conclusion of the Sole Panel Expert [, which] is not a basis for action by this Panel…." (Id. at ¶ 50.)

      Merck also claimed that ICANN discriminated against Merck through the Board's (and the BGC's) acceptance of the Expert Determinations because the "Board has provided the possibility for third-party review of some prima facie erroneous expert determinations while denying the same to other, similarly situated parties, including the Claimant." (Id. at ¶ 53(emphasis in original).) In response to this claim, the Panel found that:

      As to the claim of discrimination, this Panel finds that it was within the discretion of the BGC and Board…to conclude that the Sole Expert had applied the correct legal standard to the correctly found set of facts. Of course, in different cases, the BGC and Board are entitled to pursue different options depending upon the nature of the cases at issue. It is insufficient to ground an argument of discrimination simply to note that on different occasions the Board has pursued different options among those available to it. [¶] In conclusion, Merck was not discriminated against.

      (Id. at ¶ 61.)

      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 will have no direct financial impact on the organization and no 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.

    2. Reconsideration Requests 15-19 (the ICANN Business Constituency & the ICANN Noncommercial Stakeholder Group (NCSG)) and 15-20 (The Internet Commerce Association)

      Whereas, the ICANN Business Constituency and the ICANN Noncommercial Stakeholders Group filed Reconsideration Request 15-19, and the Internet Commerce Association filed Reconsideration Request 15-20 (collectively, "Requesters"), both of which seek reconsideration of ICANN Board Resolutions 2015.09.28.04 (renewal of .CAT registry agreement), 2015.09.28.05 (renewal of .TRAVEL registry agreement), and 2015.09.28.06 (renewal of .PRO registry agreement).

      Whereas, the Board Governance Committee ("BGC") thoroughly considered the issues raised in Reconsideration Requests 15-19 and 15-20 and all related materials.

      Whereas, the BGC recommended that Reconsideration Requests 15-19 and 15-20 be denied because the Requesters have not stated proper grounds for reconsideration, and the Board agrees.

      Resolved (2016.02.03.11), the Board adopts the BGC's Recommendation on Reconsideration Requests 15-19 and 15-20, which can be found at https://www.icann.org/en/system/files/files/reconsideration-request-15-19-bc-ncsg-request-15-20-ica-bgc-recommendation-13jan16-en.pdf [PDF, 146 KB].

      Rationale for Resolution 2016.02.03.11

      1. Brief Summary

        In passing Board Resolutions 2015.09.28.04, 2015.09.28.05, and 2015.09.28.06 (collectively, the "Resolutions"), the ICANN Board approved the renewal of registry agreements for three legacy TLDs—.CAT, .TRAVEL, and .PRO, respectively. The three renewed registry agreements ("Renewed Registry Agreements") are the result of bilateral negotiations between ICANN staff and the respective registry operators. The Renewed Registry Agreements are based on the form of the registry agreement for new gTLDs ("New gTLD Registry Agreement") and include new gTLD rights protection mechanisms ("RPMs") such as the Trademark Post-Delegation Dispute Resolution Procedure ("Trademark PDDRP") and the Uniform Rapid Suspension system ("URS"), which did not exist under the legacy registry agreements.

        In seeking reconsideration of the Resolutions, the Requesters note that the Generic Names Supporting Organization ("GNSO") has not yet issued a consensus policy regarding the application of new gTLD RPMs to legacy TLDs and suggest that the Renewed Registry Agreements represent an attempt by ICANN staff to preempt that policy development process. The Requesters further assert that, in passing the Resolutions, the Board failed to consider: (1) the details of the relevant contract negotiations, specifically email communications and other documents reflecting communications between ICANN staff and the relevant registry operators; and (2) a later-published preliminary issue report by ICANN staff regarding gTLD RPMs ("Preliminary Issue Report"), which recommends, among other things, that a GNSO policy development process be undertaken to address the application of RPMs to legacy TLDs generally.

        The Requesters' claims do not support reconsideration. The inclusion of the new gTLD RPMs in the Renewed Registry Agreements is part of the package of agreed-upon terms resulting from the bilateral negotiations between ICANN and each registry operator, and not, as Requesters claim, a "unilateral decision by ICANN contractual staff." The Requesters present no evidence to the contrary – i.e., that applying the new gTLD RPMs to the Renewed Registry Agreements was based on a unilateral decision by ICANN staff. The Requesters suggest that the Board should have reviewed all of ICANN staff's communications with the .CAT, .TRAVEL, and .PRO registry operators in order to confirm that the negotiations were in fact bilateral. Such contention, however, does not support reconsideration. Staff provided the Board with all material information, including the comments from the public comment forum, for consideration. In approving the Resolutions, the Board considered all material information provided by staff. No policy or procedure requires the Board to review each and every email or other written exchange between ICANN staff and registry operators during the course of the negotiations and the Requesters do not identify any particular piece of material information that the Board failed to consider. Moreover, as is publicly posted in the respective public comment reports as well as in the Board's rationales for each of the Resolutions, the registry operators specifically "expressed their interest to renew their registry agreement based on the New gTLD Registry Agreement." Indeed, not one of these registry operators has indicated that their renewal negotiations were anything but bilateral or sought reconsideration of either staff or Board action as it relates to the Renewed Registry Agreements. Further, the registry agreements each called for presumptive renewal of the agreements at their expiration so long as certain requirements were met – meaning that, if the parties took no action, the registry agreements would have renewed automatically under the same terms as the original registry agreements so as long as the registry operators were in good standing at the time of renewal as provided in the registry agreements.1 At the time of renewal, these registry operators were in good standing and were therefore subject to the terms of the presumptive renewal. The registry operators, however, elected to enter into negotiations with ICANN based on the existing New gTLD Registry Agreement terms.

        As the Requesters have not demonstrated that the Board failed to consider any material information in passing the Resolutions, they have not stated a basis for reconsideration of the Resolutions.

      2. Facts

        The BGC Recommendation on Reconsideration Requests 15-19 and 15-20, which sets forth in detail the facts relevant to this matter, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Requests 15-19 and 15-20 is available at https://www.icann.org/en/system/files/files/reconsideration-request-15-19-bc-ncsg-request-15-20-ica-bgc-recommendation-13jan16-en.pdf [PDF, 146 KB], and is attached as Exhibit C to the Reference Materials.

      3. Issues

        In view of the claims set forth in Requests 15-19 and 15-20, the issues for reconsideration are whether ICANN's Board failed to consider material information in passing the Resolutions approving the renewal of the registry agreements for .CAT, .TRAVEL, and .PRO.

      4. The Relevant Standards for Evaluating Reconsideration Requests

        The BGC Recommendation on Reconsideration Requests 15-19 and 15-20, which sets forth the relevant standards for evaluating reconsideration requests, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Requests 15-19 and 15-20 is available at https://www.icann.org/en/system/files/files/reconsideration-request-15-19-bc-ncsg-request-15-20-ica-bgc-recommendation-13jan16-en.pdf [PDF, 146 KB], and is attached as Exhibit C to the Reference Materials.

      5. Analysis and Rationale

        The Requesters claim, without support, that ICANN staff unilaterally imposed the New gTLD Registry Agreement as a starting point for the Renewed Registry Agreements and, therefore, "transform[ed] the PDDRP and URS into de facto Consensus Policies without following the procedures laid out in ICANN's Bylaws for their creation." Contrary to what the Requesters claim, while the registry operators had a presumptive right of renewal under the terms of their existing legacy registry agreement, they chose to re-negotiate and renew their agreements based upon the New gTLD Registry Agreement terms.

        The Board's Rationales for the Resolutions as well as the public comment reports make clear that the Renewed Registry Agreements were "based on the bilateral negotiations between ICANN and the [respective] Registry Operator[s], where [the] Registry Operator[s] expressed their interest to renew their registry agreement based on the New gTLD Registry Agreements." The Board further stated in the Rationales for the Resolutions that the "inclusion of the URS was developed as part of the proposal in bilateral negotiations," and confirmed that the URS "has not been adopted as a consensus policy and ICANN has no ability to make it mandatory for any TLDs other than new gTLD applicants who applied during the first round," and that "the Board's approval of the Renewal Registry Agreements[s] for .CAT, .PRO, and .TRAVEL] is not a move to make the URS mandatory for any legacy TLDs, and it would be inappropriate to do so." In short, the Requesters' claim that the provisions of the New gTLD Registry Agreement were in some way imposed on the registry operators is unsupported.

        Reconsideration of a Board action, the process that Requesters have invoked here, is warranted only where the Board took action without consideration of material information or with reliance upon false or inaccurate information. Here, the Requesters do not identify any material information that the Board purportedly failed to consider in passing the Resolutions. More specifically, the Requesters provide no support for their argument that the Board failed to consider "the actual record of exchanges—emails and other correspondence, as well as notes and minutes of meeting and discussions—between [ICANN] staff and officers and the personnel of these three registries that would support the conclusion that [the parties engaged in] bilateral negotiations…" The Requesters also present no support for their claim that the Board failed to consider the Preliminary Issue Report (because it "did not exist at the time of the Board's decision"). As a result, the BGC concluded and the Board agrees that reconsideration is not appropriate.

        First, the Requesters do not identify any material information that the Board purportedly failed to consider. That is, the Requesters do not identify any evidence that the negotiations between ICANN and the registry operators were not bilateral in nature because no such evidence exists. As there is no policy or procedure that requires the Board to review each and every email or other written exchange between ICANN staff and registry operators during the course of the contract negotiations, the Requesters do not and cannot identify such a policy or procedure. The Requesters' substantive disagreement with the Board's actions does not mean that the Board's actions were taken without consideration of all relevant material information.

        Second, the Requesters claim that the Board failed to consider the Preliminary Issue Report, which invited community feedback regarding the inclusion of several topics in a GNSO policy development process charter, including "whether any of the new [RPMs] (such as the URS) should, like the UDRP, be Consensus Policies applicable to all gTLDs." The Requesters claim that, in light of the Preliminary Issue Report, the Renewed Registry Agreements will "interfer[e] with the standard policy development process." However, as the Requesters acknowledge, the Preliminary Issue Report did not exist at the time the Resolutions were approved, and thus could not constitute "material information" the Board failed to consider in approving the Resolutions. As such, no reconsideration is warranted on this basis.

        In addition, the Board does not find, as the Requesters suggest, that the Renewed Registry Agreements will "interfere[e] with the standard policy development process." As discussed above, the Board explicitly acknowledged, in the Rationales for the Resolutions, that the URS has not been adopted as consensus policy and that ICANN therefore has no ability to impose the URS (or other new RPMs applicable to new gTLDs) on legacy TLDs. The existence of certain RPMs in the Renewed Registry Agreements, therefore, has no bearing on the GNSO policy development process to determine whether (or not) any of the new RPMs should be consensus policies applicable to all gTLDs. Accordingly, reconsideration is not appropriate.

        The full BGC Recommendation on Reconsideration Requests 15-19 and 15-20, which sets forth the analysis and rationale in detail and with which the Board agrees, is hereby incorporated by reference and shall be deemed a part of this Rationale. The BGC Recommendation on Reconsideration Requests 15-19 and 15-20 is available at https://www.icann.org/en/system/files/files/reconsideration-request-15-19-bc-ncsg-request-15-20-ica-bgc-recommendation-13jan16-en.pdf [PDF, 146 KB], and is attached as Exhibit C to the Reference Materials.

      6. Decision

        The Board had the opportunity to consider all of the materials submitted by or on behalf of the Requesters or that otherwise relate to Reconsideration Requests 15-19 and 15-20. Following consideration of all relevant information provided, the Board reviewed and has adopted the BGC's Recommendation on Reconsideration Requests 15-19 and 15-20 (https://www.icann.org/en/system/files/files/reconsideration-request-15-19-bc-ncsg-request-15-20-ica-bgc-recommendation-13jan16-en.pdf [PDF, 146 KB]), which shall be incorporated by reference here and deemed a part of this Rationale and is attached as Exhibit C to the Reference Materials to the Board Paper on this matter.

        Adopting the BGC's recommendation has no direct financial impact on ICANN and will not impact the security, stability and resiliency of the domain name system.

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

    3. Consideration of Expert Determination Re: Objection to Application for .HOSPITAL

      Whereas, on 16 December 2013, an Expert Panel upheld the Independent Objector's (IO) Limited Public Interest (LPI) objection to Ruby Pike, LLC's (Ruby Pike) application for .HOSPITAL (.HOSPITAL Expert Determination).

      Whereas, Ruby Pike contends that the .HOSPITAL Expert Determination deviates from the expert determinations for all other heath-related LPI objections and that the outlying result is, at a minimum, as inconsistent and unreasonable as the string confusion objection determinations for which ICANN has directed re-evaluation.

      Whereas, Ruby Pike initiated a Cooperative Engagement Process (CEP) regarding the .HOSPITAL Expert Determination upholding the IO's LPI objection to Ruby Pike's application for .HOSPITAL.

      Whereas, as part of the CEP, the Board has been asked to evaluate this matter and to take action to deal with what Ruby Pike believes to be the inconsistent and unreasonable .HOSPITAL Expert Determination.

      Whereas, the Board Governance Committee (BGC): (i) has carefully considered the .HOSPITAL Expert Determination and Ruby Pike's arguments about it; (ii) agrees with Ruby Pike that the Objection proceedings leading to the .HOSPITAL Expert Determination should be re-evaluated, particularly in comparison to the other eight health-related LPI expert determinations; and (iii) recommends that the Board send the .HOSPITAL Objection back for re-evaluation by a new three-party expert panel.

      Whereas, the Board has carefully considered the BGC's recommendation and the information and arguments Ruby Pike has presented, as well the .HOSPITAL Expert Determination in comparison to the other eight health-related LPI expert determinations.

      Whereas, after consideration, the Board finds that the .HOSPITAL Expert Determination is seemingly inconsistent with the Expert Determinations resulting from all other health related LPI objections.

      Whereas, as set out in the Applicant Guidebook, ICANN has reserved the right to individually consider any application for a new gTLD to determine whether approval would be in the best interest of the Internet community.

      Resolved (2016.02.03.12), the Board has identified the .HOSPITAL Expert Determination as not being in the best interest of the New gTLD Program and the Internet community.

      Resolved (2016.02.03.13), the Board directs the President and CEO, or his designee(s), to take all steps necessary to address the perceived inconsistency and unreasonableness of the .HOSPITAL Expert Determination by sending all of the materials for the relevant objection proceeding back to the International Centre of Expertise of the International Chamber of Commerce (ICC), which should in turn establish a new three-member expert panel to re-evaluate those materials in accordance with the criteria for LPI objections as set forth in the Applicant Guidebook. In doing so, the new three-member expert panel should also review as background the "Related LPI Expert Determinations" referenced in the following chart.

      Related LPI Expert Determinations String
      Independent Objector v. DotHealth, LLC [PDF, 154 KB] .HEALTH
      Independent Objector v. Goose Fest, LLC [PDF, 153 KB] .HEALTH
      Independent Objector v. Afilias Limited [PDF, 406 KB] .HEALTH
      Independent Objector v. Silver Glen, LLC [PDF, 437 KB] .HEALTHCARE
      Independent Objector v. HEXAP SAS [PDF, 474 KB] .MED
      Independent Objector v. Medistry LLC [PDF, 396 KB] .MED
      Independent Objector v. Charleston Road Registry Inc. [PDF, 427 KB] .MED
      Independent Objector v. Steel Hill, LLC [PDF, 536 KB] .MEDICAL

      Rationale for Resolutions 2016.02.03.12 – 2016.02.03.13

      The Board's action today, addressing how to deal with inconsistent and/or unreasonable Expert Determinations from the New gTLD Program LPI process, is part of the Board's role to provide general oversight of the New gTLD Program. The action being approved today is to direct re-evaluation of the .HOSPITAL LPI objection proceeding which resulted in the .HOSPITAL Expert Determination. Pursuant to the Applicant Guidebook (Guidebook), the Board has the discretion to individually consider an application for a new gTLD. (Guidebook Module 6.3, http://newgtlds.icann.org/en/applicants/agb/terms-04jun12-en.pdf [PDF, 130 KB].) The Board's action arises from Ruby Pike's arguments that the .HOSPITAL Expert Determination deviates from all other health-related LPI expert determinations and that the result is inconsistent and unreasonable such that it warrants further action. (See Letter from J. Genga to A. Stathos, dated 15 April 2015, at 8, attached as Attachment A to the Reference Materials.) As set forth in further detail in the Reference Materials, which are incorporated herein by reference, Ruby Pike, an affiliate of Donuts, Inc., argues that the Board (via the New gTLD Program Committee (NGPC)) has previously taken steps to address other inconsistent and unreasonable results by initiating a re-evaluation of a certain string confusion objection (SCO) expert determinations (SCO Final Review Mechanism) and should do so here as well. (See id.)

      The Board notes that when it provided for a limited SCO Final Review Mechanism for just a very few expert determinations from string confusion objection proceedings, the NGPC specifically considered, but excluded its application to other forms of objections.

      The NGPC considered whether it was appropriate, as suggested by some commenters, to expand the scope of the proposed review mechanism to include other Expert Determinations, such as some resulting from Community and Limited Public Objections, as well as other String Confusion Objection Expert Determinations, and possibly singular and plural versions of the same string. The NGPC determined that to promote the goals of predictability and fairness, establishing a review mechanism more broadly may be more appropriate as part of future community discussions about subsequent rounds of the New gTLD Program. Applicants have already taken action in reliance on many of the Expert Determinations, including signing Registry Agreements, transitioning to delegation, withdrawing their applications, and requesting refunds. Allowing these actions to be undone now would not only delay consideration of all applications, but would raise issues of unfairness for those that have already acted in reliance on the Applicant Guidebook.

      (See https://www.icann.org/resources/board-material/resolutions-new-gtld-2014-10-12-en#2.b.)

      Here, although not directly on point, the Board is uniquely swayed, as was the BGC, by Ruby Pike's assertions that the .HOSPITAL Expert Determination is inconsistent with the other eight health-related LPI Expert Determinations, thereby rendering it potentially unreasonable, and thereby warranting re-evaluation. As part of its deliberations, the Board took into consideration the following factors, which the BGC had previously evaluated in making its recommendation:

      • The .HOSPITAL Expert Determination is inconsistent with the results of the eight other health related LPI objections that resulted in expert determinations, all of which were filed by the IO. The materials submitted by the IO and the Applicant to the Expert Panels in each instance were very similar and, in some instances, nearly identical (i.e., .HOSPITAL, .MEDICAL, and .HEALTHCARE).
      • The .HOSPITAL Expert Determination is the only LPI objection, out of the total of ten LPI objections that resulted in expert determinations, where the expert determination was in favor of the objector rather than the applicant.
      • The .HOSPITAL Determination is the only LPI expert determination with a split panel decision.
      • The .HOSPITAL Determination is the only LPI expert determination where a dissenting opinion was issued.
      • Four of the nine health related LPI objections filed by the IO were against applications by subsidiaries of Donuts, Inc. (Steel Hill, LLC (.MEDICAL); Goose Fest, LLC (.HEALTH); Silver Glen, LLC (.HEALTHCARE); and Ruby Pike, LLC (.HOSPITAL). The objections filed by the IO in all four objections are virtually identical. The .HOSPITAL Determination is the only determination in favor of the objector.
      • The .HOSPITAL Expert Panel is the only health related LPI expert panel that evaluated the sufficiency of certain protections and safeguards as part of its determination while other expert panels deferred to ICANN to implement and enforce such safeguards as necessary. (See http://newgtlds.icann.org/sites/default/files/drsp/06dec13/determination-2-1-1492-32589-en.pdf [PDF, 437 KB]).
      • Because there are no other competing applications of the .HOSPITAL TLD, this action would not impact other .HOSPITAL applications and therefore would not contradict the NGPC's concern that expanding that re-review would delay consideration of competing applications. (See https://www.icann.org/resources/board-material/resolutions-new-gtld-2014-10-12-en#2.b).

      Given these circumstances, the Board is a persuaded, as was the BGC, that, consistent with the manner in which the Board had addressed previous inconsistent or unreasonable expert determinations, a re-evaluation of the objection proceedings against Ruby Pike's application for .HOSPITAL is warranted at this time. The re-evaluation proceeding will be administered in accordance with the ICC Expert Rules for Administration of Expert Proceedings, which include the following:

      • The review panel will consist of three members appointed by the ICC (the "Review Panel").
      • The only issue subject to review shall be the .HOSPITAL objection proceedings and the resulting Expert Determination.
      • The record on review shall be limited to the documentary evidence admitted into evidence during the original proceeding. No additional documents, briefs or other evidence may be submitted for consideration, except that the Review Panel shall also consider the identified "Related LPI Expert Determinations" in the above chart as part of its review of the .HOSPITAL objection proceeding and resulting Expert Determination.
      • The standard of review to be applied by the Review Panel is: whether the original Expert Panel could have reasonably come to the decision reached in the underlying .HOSPITAL LPI objection proceeding through an appropriate application of the standard of review as set forth in the Guidebook.
      • ICANN will pay the applicable fees of the Review Panel.
      • The possible outcomes of the review are: (1) the original .HOSPITAL Expert Determination is supported by the standard of review and reference to the identified Related LPI Expert Determinations, and will stand as is; or (2) the original .HOSPITAL Expert Determination reasonably cannot be supported based on the standard of review and reference to the identified Related LPI Expert Determinations, and will be reversed. The Review Panel will submit a written determination including an explanation and rationale for its determination.

      There will be a fiscal impact associated with the adoption of this resolution, but nothing that will not or cannot be covered by the existing New gTLD Program budget. Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS.

      This is an Organizational Administrative Action not requiring public comment.

    4. Ombudsman Report Regarding Complaint by Hu Yi Global Information Resources (applicant for .招聘 ("recruitment" in Chinese))

      Whereas, a String Confusion Objection was filed against Hu Yi Global Information Resources Company's (Hu Yi's) application for the new gTLD .招聘 (meaning "recruitment" in Chinese) (Application) by Employ Media LLC.

      Whereas, the International Centre for Dispute Resolution (ICDR) sustained the objection because the ICDR "determined that the Applicant is deemed to be in default as it has failed to file a timely Response to the Objection."

      Whereas, Hu Yi filed a complaint with the Ombudsman on 9 June 2015 explaining that Employ Media LLC no longer objected to its Application for .招聘.

      Whereas, the Ombudsman issued a report to the ICANN Board regarding Hu Yi's complaint, and set out facts based on his investigation and made specific recommendations in his report.

      Whereas, the Board reviewed the Ombudsman Report and thoroughly considered his recommendations.

      Resolved (2016.02.03.14), the Board directs the President, Global Domains Division, or his designee(s), to change the status of the Application from "Will Not Proceed" to "Evaluation Complete," and to permit Hu Yi's Application for .招聘 to proceed through the remainder of the new gTLD application process.

      Rationale for Resolution 2016.02.03.14

      The ICANN Ombudsman reports directly to the ICANN Board. The Ombudsman is an important Accountability Mechanism found in ICANN's Bylaws. The purpose of the Ombudsman is to help evaluate whether members of the ICANN community have been treated fairly. The Ombudsman acts as a neutral in attempting to resolve complaints using alternative dispute resolution (ADR) techniques. Where, in the course of an investigation of a complaint, the Ombudsman forms an opinion that there has been an issue of administrative fairness, the Ombudsman may notify the Board of the circumstances.

      The Ombudsman has issued a report to the Board regarding the closing out of Hu Yi Global Information Resources Company's (Hu Yi's) application for the new gTLD .招聘 (meaning "recruitment" in Chinese) (Application) as a result of the default determination issued on the String Confusion Objection. The Ombudsman has recommended that the Board "revive" (or cause to be revived) the Application and permit it to proceed through the remainder of the new gTLD application process. Hu Yi is the only applicant for the new gTLD .招聘 ("recruitment" in Chinese); and Employ Media LLC is the only entity that filed an objection to the Application. Since its initial filing of the objection, Employ Media has explicitly indicated to ICANN and to the Ombudsman that it no longer objects to the Application. Thus, the Ombudsman determined that permitting the Application to proceed would have no impact on any other applicant and would have no impact on any objector (because there is none). In addition, the Board understands that there are no further evaluation or objection proceedings to which the Application would need to be subjected. The next step in the application process is the contracting phase.

      In light of the unique set of circumstances presented here (namely, the fact that the objection was sustained only on procedural grounds, and that the objector later explicitly rescinded the objection and in fact supported the Application), and after a review of the Ombudsman Report, the Board has determined to follow the Ombudsman's recommendation, and direct the President, Global Domains Division or his designee(s) to proceed with processing Hu Yi's Application for the gTLD .招聘 through the remainder of the new gTLD application process. Taking this action will have a positive impact on ICANN's accountability to the community, as it is appropriate to review all applicable circumstances and recommendations resulting from one of ICANN's long-standing Accountability Mechanisms when taking decisions that have significant impact on applicants.

      This decision has no direct financial impact on ICANN and will not impact the security, stability and resiliency of the domain name system.

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

    5. GAC Advice: Dublin Communiqué (October 2015)

      Whereas, the Governmental Advisory Committee (GAC) met during the ICANN 55 meeting in Dublin, Ireland and issued a Communiqué [PDF, 165 KB] on 21 October 2015 ("Dublin Communiqué").

      Whereas, the ICANN Board New gTLD Program Committee, which was decommissioned in October 2015, previously adopted a series of scorecards to respond to certain items of the GAC's advice concerning the New gTLD Program. The Board has developed another iteration of the scorecard to respond to the advice in the Dublin Communiqué.

      Resolved (2016.02.03.15), the Board adopts the scorecard titled "GAC Advice – Dublin Communiqué 21 October 2015: Actions and Updates (3 February 2016)" [PDF 136 KB] in response to items of GAC advice in the Dublin Communiqué.

      Rationale for Resolution 2016.02.03.15

      Article XI, Section 2.1 of the ICANN Bylaws permit the GAC to "put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies." The GAC issued advice to the Board on various matters, including the New gTLD Program, in its Dublin Communiqué (21 October 2015). The ICANN Bylaws require the Board to take into account the GAC's advice on public policy matters in the formulation and adoption of the polices. If the Board decides to take an action that is not consistent with the GAC advice, it must inform the GAC and state the reasons why it decided not to follow the advice. The Board and the GAC will then try in good faith to find a mutually acceptable solution. If no solution can be found, the Board will state in its final decision why the GAC advice was not followed.

      The ICANN Board New gTLD Program Committee (NGPC) previously addressed items of the GAC's advice concerning new gTLDs issued in Communiqués from Beijing (April 2013), Durban (July 2013), Buenos Aires (November 2013), Singapore (March 2014), London (June 2014), Los Angeles (October 2014), Singapore (February 2015), and Buenos Aires (June 2015). The NGPC was decommissioned in October 2015, and the Board continues to maintain general oversight and governance over the New gTLD Program and provide strategic and substantive guidance on New gTLD-related topics as the current round of the Program comes to a conclusion. The Board is taking action to address the new advice from the GAC in the Dublin Communiqué related to the New gTLD Program, as well as other advice. The Board's actions are described in scorecard dated 3 February 2016 [PDF, 136 KB].

      In adopting its response to the GAC advice in the Dublin Communiqué, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      The adoption of the GAC advice as provided in the scorecard will have a positive impact on the community because it will assist with resolving the advice from the GAC on the New gTLD Program and other matters. There are no foreseen fiscal impacts associated with the adoption of this resolution. Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS.

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

    6. Board Governance Committee Recommendation Regarding Implementation of Public Interest Commitments for .DOCTOR Registry Agreement

      Whereas, at its 6 May 2015 meeting, the Board Governance Committee (BGC) recommended that "the NGPC again review the proposed implementation of a public interest commitment for the .DOCTOR TLD, and to re-evaluate the NGPC's 12 February 2015 determination."

      Whereas, the ICANN Board New gTLD Program Committee (NGPC) was decommissioned on 22 October 2015 and the Board continues to maintain general oversight and governance over the New gTLD Program and provide strategic and substantive guidance on New gTLD-related topics as the current round of the Program comes to a conclusion.

      Resolved (2016.02.03.16), the Board reaffirms the NGPC's acceptance of the Governmental Advisory Committee's (GAC) advice [PDF, 97 KB] issued in the Buenos Aires Communiqué (20 November 2013) regarding .DOCTOR, and clarifies that the President and CEO, or his designee(s), is directed to implement the GAC's advice by including in the .DOCTOR Registry Agreement the eight additional Public Interest Commitments associated with highly-regulated TLDs.

      Rationale for Resolution 2016.02.03.16

      In response to a recommendation from the Board Governance Committee (BGC), the Board is taking action at this time to clarify the proposed implementation of public interest commitments for the .DOCTOR TLD. The .DOCTOR TLD was included as one of the Category 1 strings requiring additional safeguards in the Governmental Advisory Committee's (GAC) Beijing Communiqué [PDF, 156 KB] (11 April 2013). ICANN initiated a public comment period (23 April 2013) to solicit input on how the ICANN Board New gTLD Program Committee (NGPC) should address the GAC's safeguard advice in the Beijing Communiqué.

      On 29 October 2013, the NGPC sent a letter [PDF, 664 KB] to the GAC about its proposed implementation of the Category 1 Safeguard advice in the Beijing Communiqué. The NGPC proposed to modify the text of the Category 1 Safeguards as appropriate to meet the spirit and intent of the advice in a manner that allowed the requirements to be implemented as Public Interest Commitments (PICs) in Specification 11 of the New gTLD Registry Agreement. The NGPC also proposed to distinguish the list of strings between those that the NGPC considered to be associated with market sectors or industries that have highly-regulated entry requirements in multiple jurisdictions, and those that do not. The Category 1 Safeguards in the PIC would apply to the TLDs based on how the TLD string was categorized (i.e. the highly-regulated TLDs would have eight additional PICs, and the others would have three additional PICs). In the NGPC's October 2013 proposal, .DOCTOR was not proposed to be classified as "highly-regulated".

      In the GAC's Buenos Aires Communiqué [PDF, 97 KB] (20 November 2013), the GAC advised the Board "to re-categorize the string .doctor as falling within Category 1 safeguard advice addressing highly regulated sectors, therefore ascribing these domains exclusively to legitimate medical practitioners. The GAC notes the strong implications for consumer protection and consumer trust, and the need for proper medical ethical standards, demanded by the medical field online to be fully respected." The NGPC considered the GAC's Buenos Aires advice, and in the iteration of the Scorecard from 5 February 2014 [PDF, 371 KB], the NGPC (1) adopted the proposed implementation [PDF, 61 KB] of Category 1 Safeguards that was sent to the GAC in October 2013; and (2) accepted the GAC's Buenos Aires advice to "re-categorize the string .doctor as falling within Category 1 safeguard advice addressing highly regulated sectors and ensure that the domains in the .doctor TLD are ascribed exclusively to legitimate medical practitioners."

      One of the contending applicants for the .DOCTOR TLD raised some concerns in Reconsideration Request 15-3 about the proposed implementation of the GAC's advice and with respect to what Public Interest Commitments will be required in the .DOCTOR Registry Agreement. At its 6 May 2015 meeting, the Board Governance Committee began discussions about Reconsideration Request 15-3, and postponed making a final determination on the Reconsideration Request. The BGC recommended that "the NGPC again review the proposed implementation of a public interest commitment for the .DOCTOR TLD, and to re-evaluate the NGPC's 12 February 2015 determination." The NGPC has since been decommissioned and the Board continues to maintain general oversight and governance over the New gTLD Program and provide strategic and substantive guidance on New gTLD-related topics as the current round of the Program comes to a conclusion.

      With this action, the Board clarifies that to implement the GAC advice that the NGPC accepted in February 2014, the following eight Category 1 Safeguards should be included in the .DOCTOR Registry Agreement:

      1. Registry Operators will include a provision in their Registry-Registrar Agreements that requires registrars to include in their Registration Agreements a provision requiring registrants to comply with all applicable laws, including those that relate to privacy, data collection, consumer protection (including in relation to misleading and deceptive conduct), fair lending, debt collection, organic farming, disclosure of data, and financial disclosures.
      2. Registry Operators will include a provision in their Registry-Registrar Agreements that requires registrars at the time of registration to notify registrants of the requirement to comply with all applicable laws.
      3. Registry Operators will include a provision in their Registry-Registrar Agreements that requires registrars to include in their Registration Agreements a provision requiring that registrants who collect and maintain sensitive health and financial data implement reasonable and appropriate security measures commensurate with the offering of those services, as defined by applicable law.
      4. Registry Operators will proactively create a clear pathway for the creation of a working relationship with the relevant regulatory or industry self-regulatory bodies by publicizing a point of contact and inviting such bodies to establish a channel of communication, including for the purpose of facilitating the development of a strategy to mitigate the risks of fraudulent and other illegal activities.
      5. Registry Operators will include a provision in their Registry-Registrar Agreements that requires registrars to include in their Registration Agreements a provision requiring registrants to provide administrative contact information, which must be kept up-to-date, for the notification of complaints or reports of registration abuse, as well as the contact details of the relevant regulatory, or industry self-regulatory, bodies in their main place of business.
      6. Registry Operators will include a provision in their Registry-Registrar Agreements that requires registrars to include in their Registration Agreements a provision requiring a representation that the registrant possesses any necessary authorizations, charters, licenses and/or other related credentials for participation in the sector associated with the TLD.
      7. If a Registry Operator receives a complaint expressing doubt with regard to the authenticity of licenses or credentials, Registry Operators should consult with relevant national supervisory authorities, or their equivalents regarding the authenticity.
      8. Registry Operators will include a provision in their Registry-Registrar Agreements that requires registrars to include in their Registration Agreements a provision requiring registrants to report any material changes to the validity of the registrants' authorizations, charters, licenses and/or other related credentials for participation in the sector associated with the TLD in order to ensure they continue to conform to appropriate regulations and licensing requirements and generally conduct their activities in the interests of the consumers they serve.

      By clarifying the implementation details of the NGPC's 5 February 2014 action, the Board notes that other potential registrants of .DOCTOR domains – such as professors, doctors of law and those who perform repairs or have "doctor" in their business name (e.g., "Shoe Doctor," "Computer Doctor") would not be limited by the PICs from being able to register names in the TLDs. Additionally, directories, review sites, commentators and services that provide information about medical and other types of doctors could be permitted. In clarifying the implementation details of the NGPC's 5 February 2014 action, the Board notes that it considered a review of a sample of regulatory schemes in multiple jurisdictions to determine whether the term "doctor" is associated with market sectors that have clear and/or regulated entry requirements in multiple jurisdictions, or is strongly associated with a highly-regulated industry in multiple jurisdictions. The review indicates that the term "doctor" is associated with medical practitioners in many countries, and in this context, has highly-regulated entry requirements (e.g. Kenya Medical Practitioners and Dentists Act, the German Approbationsordnung für Ärzte (Regulation of the Licensing of Doctors), and the Medical Board of Australia). The term "doctor" in various jurisdictions around the world also applies to persons who have earned doctoral degrees. In this context, the term "doctor" is also associated with clear and/or regulated entry requirements in multiple jurisdictions for obtaining such degrees (e.g. Doctor of Philosophy (PhD), Doctor of Education (EdD) and Doctor of Psychology (PsyD)). The review also shows that the term "doctor" is used in a general sense to refer to a person having expertise in a particular field without reference to formalized licensing requirements as noted above by the examples "Shoe Doctor," "Computer Doctor".

      It should be noted, however, that a registry operator may impose additional registration restrictions that may otherwise limit eligible registrants in the TLD. For example, the registry operator may impose registration restrictions that require potential registrants to validate their credentials as licensed medical practitioners in order to register a name in the TLD. Imposing such a restriction would be at the discretion of the registry operator.

      In adopting its response to the BGC recommendation, the Board reviewed various materials, including, but not limited to, the following materials and documents:

      The adoption of the Board's resolution will have a positive impact on the community because it will provide greater clarity to the GAC, the applicants and the community about the implementation of the Public Interest Commitments applicable to the .DOCTOR TLD. This clarification will also allow the contending applicants for the .DOCTOR TLD to move forward with resolving the contention set.

      There are no foreseen fiscal impacts associated with the adoption of this resolution. Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS.

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

    7. Establishing a Set of KPIs for Board Performance and Improvement Efforts (ATRT2 Rec. 1, 2 & 3)

      Whereas, on 26 June 2014, the ICANN Board accepted the recommendations of the Final Report of the Second Accountability and Transparency Review Team (ATRT2) published on 31 December 2013.

      Whereas, ATRT2 Recommendation 1 stated "The Board should develop objective measures for determining the quality of ICANN Board members and the success of Board improvement efforts, and analyze those findings over time."

      Whereas, ATRT2 Recommendation 2 stated "The Board should develop metrics to measure the effectiveness of the Board's functioning and improvement efforts, and publish the materials used for training to gauge levels of improvement."

      Whereas, ATRT2 Recommendation 3 stated "The Board should conduct qualitative/quantitative studies to determine how the qualifications of Board candidate pools change over time and should regularly assess Directors' compensation levels against prevailing standards."

      Whereas, the Board Governance Committee (BGC) considered ATRT2 Recommendations and provided the Board with recommendations on implementation, including among other things the development of Key Performance Indicators (KPIs) to help measure the Board's function and improvement efforts.

      Whereas, the Board recognizes the importance of measuring how well the Board functions, including its logistical aspects, and of measuring the Board's improvement efforts.

      Whereas, the Board is engaged, through the BGC, in an ongoing process to review the Board's working practices and develop comprehensive and holistic KPIs and other relevant metrics with which the Board can measure its effectiveness and improvement over time.

      Whereas, the BGC has recommended that the Board accept a first set of KPIs specifically in response to the ATRT2 recommendations, with the understanding that additional and more comprehensive KPIs will continue being developed and modified over time as part of the BGC and the Board's standard operating procedures and activities.

      Resolved (2016.02.03.17), the Board approves the KPIs set forth in Attachment 1 to the Reference Materials, and agrees with the BGC that the Board should continue to develop of more comprehensive, richer set of KPIs and other relevant metrics with which the Board can measure its effectiveness and improvement over time.

      Resolved (2016.02.03.18), with respect to the portion of ATRT2 Recommendation 3 recommending that the Board "conduct qualitative/quantitative studies to determine how the qualifications of Board candidate pools change over time", the Board will undertake to commence discussions with the Nominating Committee and electing bodies that are responsible for the selection of Directors and that have access to the qualifications of candidate pools.

      Rationale for Resolutions 2016.02.03.17 – 2016.02.03.18

      The implementation of recommendations [PDF, 3.46 MB] from the Second Accountability and Transparency Review Team (ATRT2) began in June 2014, shortly after the Board accepted the recommendations. The initial Implementation Plan scheduled the completion of Recommendations 1, 2 and 3 in June 2015, which was later revised to February 2016, to allow Board Governance Committee (BGC) to further discuss the overall process, including the development of Key Performance Indicators (KPIs) to help measure the efforts called for in ATRT2 Recommendations 1, 2 and 3.

      The BCG is working with the Board to review comprehensively the Board's performance and improvement efforts and to develop relevant and substantive KPIs to measure both. The first set of KPIs (see Attachment A to the Reference Materials) that the Board has approved today was developed directly in response to the ATRT2 recommendations. However, the Board is dedicated to pursuing the development of even more meaningful KPIs as an ongoing effort to help improve the metrics by which the Board measures its performance overtime. Accordingly, the Board now considers this effort as part of its ongoing activities to help enhance its performance, which the BGC is tasked with in Section I.A of its charter (see https://www.icann.org/resources/pages/charter-06-2012-02-25-en).

      With respect to ATRT 2 Recommendation 1, the Board has previously stated that it is difficult to determine the quality of individual Board members as this terminology could be interpreted in many different ways. In accepting this recommendation, the Board agreed to measure its improvement efforts (training programs) over time, which is what the first approved KPIs address.

      With respect to ATRT 2 Recommendation 2, which is partly redundant to Recommendation 1, the proposed first KPIs measure the Board's current logistical functioning.

      With respect to ATRT 2 Recommendation 3, the Board has previously indicated that it does not have access to the information related to the Board candidate pools, and in particular as it relates to the Nominating Committee candidates, that would allow for assessment or measurement by the Board of Board candidate qualifications. Accordingly, the Board will undertake to commence discussions with the Nominating Committee and the electing bodies that are responsible for the selection of Directors and that have access to the qualifications of candidate pools.

      Adopting this initial set of KPIs will have no direct fiscal impact on ICANN or the community that is not already budgeted, and will not have an impact of the security, stability and resiliency of the domain name system.

      This is an Organization Administrative Function that does not require public comment.

    8. USG IANA Stewardship Transition – Additional FY16 Expenses and Funding

      Whereas, on 25 June 2015, the Board approved the FY16 Operating Plan and Budget, which included an estimated budget envelope of US$7 million for the USG IANA Stewardship Transition Project (the Project) to be funded by the Reserve Fund.

      Whereas, that budget envelope was fully utilized during the first five months of FY16, including a US$4 million cost of external legal advice (as referred to at https://www.icann.org/resources/pages/iana-stewardship-project-costs-2015-10-16-en) during that five-month period.

      Whereas, it is projected that the cost to complete the Cross-Community Working Group on Enhancing ICANN Accountability's (CCWG) Work Stream 1 recommendation development work and, to carry out the implementation work (including bylaws drafting) during the remaining seven months of FY16 to be US$8 to 9 million, including US$3.5 million for additional external legal advice.

      Whereas, the Board Finance Committee (BFC), the co-chairs of the CCWG and the Cross-Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (CWG) met on 28 January 2016 to address this escalating cost issue.

      Whereas, the BFC recommended the following three actions: (a) the CFO to work with the CCWG and CWG co-chairs to review and confirm the estimates for the remainder of FY16; (b) ICANN to facilitate a discussion on how to establish proper budgetary estimates and cost control mechanisms for the next phase of Cross Community Work in FY16 (Implementation including Bylaws Drafting), to take place between the CCWG and CWG co-chairs and the SO/AC Chairs/Chartering Organizations; (c) the ICANN Board should initiate a community discussion on how to replenish the Reserve Fund.

      Whereas, the Board Finance Committee met on 2 February 2016 to follow up on the actions agreed during the call on 28 January 2016, and determined as an interim measure to recommend to the Board to approve an expenditure of US$4.5 million to cover the current estimate of costs of the Project from December 2015 until the end of the ICANN 55 meeting in Marrakech, and that cost would be funded from the Reserve Fund.

      Whereas the Board reiterates on its 25 June 2015 statement that the Board is "committed to supporting the community in obtaining the advice it needs in developing recommendations in support of the transition process, and also notes the importance of making sure that the funds entrusted to ICANN by the community are used in responsible and efficient ways. Assuring the continuation of cost-control measures over the future work of the independent counsel is encouraged." (See https://www.icann.org/resources/board-material/resolutions-2015-06-25-en#2.c.)

      Resolved (2016.02.03.19), the Board approves a budget envelope of up to US$4.5 million, as an interim measure, to cover the costs of the Project incurred from December 2015 to the end of the ICANN55 in Marrakech (in addition to the budgeted envelope of US$7 million included in the already approved FY16 Operating Plan and Budget) to be funded through a fund release from the Reserve Fund.

      Rationale for Resolution 2016.02.03.19

      The USG IANA Stewardship Transition is a major initiative to which the ICANN Community as a whole is dedicating a significant amount of time and resources. ICANN's support for the community's work towards a successful completion of the Project (including both the USG IANA Stewardship transition proposal development and the CCWG's work) is critical for ICANN.

      Considering its exceptional nature and the significant amount of costs anticipated to be incurred, the funding of this Project could not be provided through the Operating Fund. Accordingly, when the Board approved the FY15 and FY16 Operating Plans and Budgets, it included the anticipated funding of the transition initiative costs through a corresponding withdrawal from the Reserve Fund.

      ICANN is not able to unilaterally decide to fund these expenses through the New gTLD auction proceeds, or potential excess from New gTLD application fees, as the Board has committed in the past to organize community consultation on the future use of these funds.

      The costs on the USG Stewardship Transition Initiative incurred through the first five months of FY16 totaled US$7 million, an amount equal to the total envelope budgeted for the entire of FY16. Furthermore, the expenses projected for the remaining seven months of FY16 are estimated at US$8 to US$9 million, including US$3.5 million in external legal advice expenses.

      Considering the strategic importance for this initiative to be successfully completed, the Board needs to approve additional expense envelopes for FY16 and identify the funding source.

      Based on the extracts from Section 4 of the Charters of the CCWG and CWG, the Board acknowledges that the CCWG and CWG, through their co-chairs, are responsible for defining and requesting staff support, meeting support, experts and facilitators. The CCWG and CWG co-chairs are also responsible for defining and requesting additional advisors or experts and, doing so by providing ICANN with rationale and expected costs.

      The CCWG Charter states:

      The ICANN Staff assigned to the CCWG­Accountability will fully support the work of the CCWG­Accountability as requested by the co-chairs, including meeting support, document drafting, editing and distribution and other substantive contributions when deemed appropriate by the CCWG­Accountability. ICANN will provide access to relevant experts and professional facilitators as requested by the CCWG­Accountability Chairs.

      The CWG charter contains the same statement as above.

      The CCWG Charter continues

      […] the CCWG-­Accountability may also identify additional advisors or experts to contribute to its deliberations […]. Should additional costs be involved in obtaining input from additional advisors or experts, prior approval must be obtained from ICANN. Such a request for approval should at a minimum include the rationale for selecting additional advisors or experts as well as expected costs.

      The CWG Charter reads:

      The chairs of this charter's drafting team, Jonathan Robinson and Byron Holland, will write to ICANN seeking reasonable travel resources for CWG members to participate in face-to-face CWG meetings, but on the understanding that the CWG will make every effort to hold any face-to-face meetings concurrent, or in conjunction with regularly scheduled ICANN meetings.

      As a result, the BFC recommended to the CCWG and CWG co-chairs the following three actions: (a) the CFO to work with the CCWG and CWG co-chairs to review and confirm the estimates for the remainder of FY16; (b) ICANN to facilitate a discussion on how to establish proper budgetary estimates and cost control mechanisms for the next phase of Cross Community Work in FY16 (Implementation including Bylaws drafting), to take place between the CCWG and CWG co-chairs and the SO/AC Chairs/Chartering Organizations; (c) the ICANN Board should initiate a community discussion on how to replenish the Reserve Fund.

      The above requests are consistent with previous communication issued by ICANN's CFO:

      • to the CCWG co-chairs on 14 October 2015 through a letter on the ICANN website (see https://community.icann.org/display/acctcrosscomm/Costs+of+independent+legal+advice) requesting the co-chairs to provide estimates for external legal advice.
      • to the CWG and CCWG co-chairs, an email dated 30 November 2015, providing actual costs incurred by the four-month period ending 31 October 2015 and requesting to provide the ICANN CFO with cost estimates for the external legal advice expected to be incurred from 31 October 2015 until 30 June 2016.

      In addition, as the amount of expenses incurred for this initiative totals an estimated US$24.7 million for FY15 and FY16, it is expected that the Reserve Fund balance will be approximately reduced to US$60 million, corresponding to approximately 6 to 7 months of Operating Expenses, well below its current target level of 12 months of Operating Expenses or approximately US$113 million. As a result, the Board will initiate a process to identify a solution to replenish the Reserve Fund by the estimated amount of US$24.7 million (or its actual amount once known). The ICANN Board plans to initiate a community discussion on how to replenish the Reserve Fund.

      The Board expects that as the community groups continue to incur costs for the initiative, they will perform cost management exercises. Guidelines will be developed on cost management practices.

      This action will not have a direct impact on the security, stability and resiliency of the domain name system.

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

  3. Executive Session – CONFIDENTIAL

    1. President and CEO FY16 SR1 At-Risk Compensation

      Whereas, each Board member has confirmed that he/she does not have a conflict of interest with respect to establishing the amount of payment for the President and CEO's FY16 SR1 at-risk compensation payment.

      Whereas, the Compensation Committee recommended that the Board approve payment to the President and CEO for his FY16 SR1 at-risk compensation.

      Resolved (2016.02.03.20), the Board hereby approves a payment to the President and CEO for his FY16 SR1 at-risk compensation component.

      Rationale for Resolution 2016.02.03.20

      When the President and CEO was hired, he was offered a base salary, plus an at-risk component of his compensation package. This same structure exists today. Consistent with all ICANN staff members, the President and CEO is to be evaluated against specific goals, which the President and CEO has set in coordination with the Compensation Committee.

      Following FY16 SR1, which is a scoring period that ran from 16 May 2015 through 15 November 2015, the President and CEO provided to the Compensation Committee his self-assessment of his achievements towards his goals for FY16 SR1 the measurement period. After seeking input from other Board members, the Compensation Committee reviewed with the President and CEO his FY16 SR1 goals and discussed his achievements against those goals. Following that discussion, the Compensation Committee recommended that the Board approve the President and CEO's at-risk compensation for the first scoring period of FY16 and the Board agrees with that recommendation.

      While this will have a fiscal impact on ICANN, it is an impact that was contemplated in the FY16 budget. This decision will not have an impact on the security, stability or resiliency of the domain name system.

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

    [Published on 5 February 2016]

    1. Election of Göran Marby as ICANN's President and CEO (Published on 11 February 2016)

      Whereas, Fadi Chehadé will step down as President and Chief Executive Officer (CEO) of ICANN on 15 March 2016.

      Whereas, in order to conduct a search for a new President and CEO, the Board established a CEO Search Committee consisting of eight Board members.

      Whereas, a description of the position of the ICANN President and CEO was posted on the ICANN website at http://www.icann.org/en/groups/other/ceo-search.

      Whereas, the CEO Search Committee engaged Odgers Berndtson, an international executive search firm, to identify candidates for the President and CEO position.

      Whereas, the executive search firm conducted a detailed, thorough, global and international search for a CEO candidate, and identified numerous candidates for the CEO Search Committee to consider.

      Whereas, the CEO Search Committee carefully considered the qualifications of all identified candidates and chose a number to interview at length.

      Whereas, approximately 115 candidate resumes were received, 16 candidates were chosen for further evaluation by the CEO Search Committee, eight candidates were interviewed in face-to-face meetings by the CEO Search Committee, and four candidates were interviewed in face-to-face meetings by the full Board.

      Whereas, after lengthy interviews and deliberations, the Board identified Göran Marby as the leading candidate for the President and CEO position.

      Whereas, the Board finds that Göran Marby possesses the leadership, political, technical and management skills necessary to lead ICANN as President and CEO.

      Whereas, the CEO Search Committee has recommended that Göran Marby be elected President and CEO and the Compensation Committee has recommended a reasonable compensation package for Göran Marby.

      Whereas, Göran Marby will not be able to begin his full time position with ICANN as President and CEO for several weeks following Fadi Chehadé's final date of employment.

      Whereas, the Board has determined that Akram Atallah should be appointed President and CEO for the time period of 16 March 2016 and until Göran Marby is able to begin his full time position with ICANN as President and CEO.

      Resolved (2016.02.03.21), beginning on 16 March 2016 and until Göran Marby is able to begin his full time position with ICANN as President and CEO, Akram Atallah shall serve as President and CEO at the pleasure of the Board and in accordance with ICANN's Bylaws, and shall hold this office until his resignation, removal, or other disqualification from service, or until his successor shall be elected and qualified.

      Resolved (2016.02.03.22), beginning on the date that Göran Marby is able to begin his full time position with ICANN as President and CEO, and contingent upon the execution of a formal written Agreement based on terms that have been approved by the Board, Göran Marby is elected as President and CEO, to serve at the pleasure of the Board and in accordance with the ICANN's Bylaws, and shall hold this office until his resignation, removal, or other disqualification from service, including termination of his Agreement, or until his successor shall be elected and qualified.

      Resolved (2016.02.03.23), ICANN's Board Chair and its General Counsel are authorized to finalize a formal written Agreement with Göran Marby, and ICANN's Board Chair is authorized to execute that Agreement on behalf of ICANN.

      Resolved (2016.02.03.24), the Board wishes to thank Odgers Berndtson for its assistance with the CEO search process.

      Resolved (2016.02.03.25), this resolution shall remain confidential as an "action relating to personnel or employment matters", pursuant to Article III, section 5.2 of the ICANN Bylaws, pending public announcement of the selection of the new President and CEO.

    [Published on 11 February 2016]


1 Article IV, Section 2 of the .CAT, .TRAVEL, and .PRO registry agreements provide that the agreements shall be renewed upon the expiration of the initial term for successive terms, unless the following has occurred:

  1. an arbitrator or court has determined that Registry has been in fundamental and material breach of Registry's obligations set forth in Sections 3.1(a), (b), (d) or (e); Section 5.2 or Section 7.3 despite notice and an opportunity to cure in accordance with Article VI hereof and (ii) following the final decision of such arbitrator or court, Registry has failed to correct the conduct found to constitute such breach.…

.CAT Registry Agreement, available at https://www.icann.org/resources/unthemed-pages/cat-agreement-2005-09-23-en; .TRAVEL Registry Agreement, available at https://www.icann.org/resources/unthemed-pages/travel-agreement-2006-04-12-en; .PRO Registry Agreement, available at https://www.icann.org/resources/unthemed-pages/pro-agreement-2010-04-22-en.

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."