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Approved Board Resolutions | Special Meeting of the ICANN Board

  1. Consent Agenda:
    1. Approval of Minutes
    2. Revisions to the Code of Conduct, the Board Governance Guidelines, and the Conflicts of Interest Policy
  2. Main Agenda:
    1. Initiating Next Steps on the Uniform Board Member Integrity Screening Process
    2. Consideration of Reconsideration Request 18-1: DotMusic Limited
    3. Consideration of Reconsideration Request 18-2: dotgay LLC
    4. Consideration of Reconsideration Request 18-3: Astutium Ltd
    5. Consideration of Reconsideration Request 18-4: dotgay LLC
    6. Consideration of Reconsideration Request 18-5: DotMusic Limited
    7. Consideration of Reconsideration Request 18-6: Travel Reservations SRL, Minds + Machines Group Limited, Radix FZC, dot Hotel Inc., Fegistry LLC
    8. AOB
  3. Executive Session - Confidential:
    1. President and CEO FY18 SR2 At-Risk Compensation and Goals for FY19
    2. President and CEO Executive Services Agreement – One Year Extension
    3. Officer Compensation
    4. Ombudsman FY18 At-Risk Compensation
    5. Extension of Ombudsman Contract

 

  1. Consent Agenda:

    1. Approval of Minutes

      Resolved (2018.07.18.01), the Board approves the minutes of the 23 June 2018 Meeting of the ICANN Board.

    2. Revisions to the Code of Conduct, the Board Governance Guidelines, and the Conflicts of Interest Policy

      Whereas, on 27 May 2016, the Board approved extensively revised Bylaws, which became effective on 1 October 2016.

      Whereas, the Board Governance Committee has reviewed suggested changes to the Board of Directors' Code of Conduct, the Board Governance Guidelines, and the Board Conflicts of Interest Policy to conform them to the 1 October 2016 Bylaws and recommends that the Board approve the revised documents.

      Resolved (2018.07.18.02), the Board adopts the revised Board of Directors' Code of Conduct, the Board Governance Guidelines, and the Conflicts of Interest Policy.

      Rationale for Resolution 2018.07.18.02

      Adopting the revised Board of Directors' Code of Conduct, the Board Governance Guidelines, and the Conflicts of Interest Policy is consistent with ICANN's commitments to ensuring legitimacy and sustainability of the ICANN multistakeholder model by ensure that the Board members are operating at the highest ethical standards.

      The Board Governance Committee (BGC) has recommended that the Board of Directors' Code of Conduct, the Board Governance Guidelines, and the Conflicts of Interest Policy be revised to conform with the 1 October 2016 version of the Bylaws and the Board agrees. Because these revisions are non-material, a public comment process is not required.

      This decision is squarely within the public interest and consistent with ICANN's mission as it is expected to positively impact the ICANN community through the incorporation of recently adopted Bylaws into the Board's governance documents to ensure that those Bylaws revisions are consistently addressed.

      The adoption of the revised Board of Directors' Code of Conduct, the Board Governance Guidelines, and the Conflicts of Interest Policy is not expected to have a fiscal impact on ICANN organization.

      This decision should not have any negative impact on the security, stability or resiliency of the domain name system.

      This is an Organizational Administrative Function not requiring public comment.

  2. Main Agenda:

    1. Initiating Next Steps on the Uniform Board Member Integrity Screening Process

      Whereas, the Board agrees that the ICANN Community and organization should expect Board members to hold the highest values of integrity and to uphold the reputation and credibility of the Board as a whole.

      Whereas, there is no uniform practice in place today for conducting screening of Directors and Liaisons (collectively Board members) selected to the ICANN Board.

      Whereas, the ICANN Nominating Committee has long maintained a practice of conducting, or having conducted, due diligence screening of their selected candidates prior to finalizing selections, including basic compliance screening, public records reviews, criminal records reviews, and reputational reviews. The Address Supporting Organization and the At-Large Community have also adopted this same due diligence screening process as part of their regular Board-member selection procedures.

      Whereas, on 2 November 2017, the Board directed the President and CEO, or his designee(s), "to develop a proposal paper to be posted for public comment… ask[ing] all of ICANN's Supporting Organizations and Advisory Committees that do not currently employ a due diligence integrity screening process similar to the Nominating Committee to seriously consider utilizing the same or similar due diligence integrity screening process for both voting Directors and non-voting Liaisons."

      Whereas, a public comment proceeding was held from 2 March to 17 April 2018 on the Proposed Integrity Screening Process and all comments received during the public comment period generally supported the Proposed Screening Process.

      Whereas, some of the comments expressed concerns regarding the timing and criteria of the screening process, which are addressed in the Proposed Screening Process document and related information that can be found in the ICANN Bylaws.

      Whereas, the Board re-emphasizes the importance of a relying upon a uniformed due diligence integrity screening process in Board member selection as a good practice towards seating Board members with high levels of integrity.

      Resolved (2018.07.18.03), the Board strongly encourages all Board-member selecting groups that do not currently employ a due diligence screening process similar to the Nominating Committee to adopt the Proposed Screening Process. For any individual selected to serve as a Board member without undergoing the Proposed Screening Process, the Board will ensure that ICANN organization facilitate completion of the screening process upon the announcement of selection by the Board-member selecting group.

      Rationale for Resolution 2018.07.18.03

      Because of the ever-increasing scrutiny of the ICANN Board of Directors, relying upon due diligence integrity screening practices in Board member selection – including interviews, reference checks and external due diligence checks – is a good practice towards seating Board members with high levels of integrity. While conducting such diligence cannot prevent future bad acts of Board members, it does give a level of confidence of the integrity of members at the time of seating. It also serves to uphold confidence in ICANN overall, as seating Board members with red flags in their past undermines the integrity and reputation of ICANN as a whole.

      On 2 November 2017, the ICANN Board passed Resolution 2017.11.02.33 directing the President and CEO, or his designee(s), to develop a proposal paper for public comment calling on ICANN's Supporting Organizations (SOs) and Advisory Committees (ACs) that do not currently employ a due diligence integrity screening process to seriously consider utilizing an integrity screening process similar or identical to the Nominating Committee process to screen both voting Directors and non-voting Liaisons (collectively Board Members).

      Between 2 March through 17 April 2018, the proposed Uniform Board Member Integrity Screening Process (Proposed Screening Process) was published for public comment. (See Proposed Screening Process.)

      ICANN org received six comments from Stephen Deerhake of GDNS, LLC (GDNS), the Noncommercial Stakeholders Group (NCSG), the Registrar Stakeholder Group (RrSG), the Registries Stakeholder Group (RySG), and two individuals, Alfredo Calderon (AC) and Vanda Scartezini (VS). (See Report of Public Comments.)

      In general, the commenters (RrSG, NCSG, AC, VS) were in support of a uniform screening process across all SOs and ACs regardless if certain SOs or ACs currently perform their own screening process.

      Two commenters (NCSG and GDNS) expressed some concerns. The NCSG was concerned about the feasibility of access to documents called for per the screening process in certain regions and its impact on the timelines in the Proposed Screening Process. GDNS suggested that the Proposed Screening Process might impact Board member selection of the SOs and ACs that elect, rather than appoint Board members and noted that the Proposed Screening Process "contains no objective criteria that would govern the disqualification of a prospective Board member." (See Report of Public Comments.)

      As always, the Board thanks and appreciates the commenters for their views and concerns raised. The Board Governance Committee (BGC) has considered the comments provided and recommends no change to the Proposed Screening Process, and the Board agrees. First, the types of screenings set forth in the Proposed Screening Process are guidelines of screening processes commonly used in similar settings. The specified timing for each level are approximations, and not meant to serve as a strict timeline of when a specific screening level should be completed.

      With respect to GDNS' first concern regarding the potential impact on the selection process, the BGC noted, and the Board agrees, that as stated in the Proposed Screening Process document, the Process "is not intended to modify other community-specific selection criteria and processes applied by any of the Board member-selecting groups." (Proposed Screening Process, Pgs. 2, 4.) As for GDNS' second concern relating to objective criteria for disqualification of Board members, the Board notes that the criteria are addressed in the Proposed Screening Process document and related information that can be found in the ICANN Bylaws.

      For any Board member who will undergo the screening process facilitated by ICANN organization upon the announcement of selection by the Board-member selecting group, their screening will be conducted using an external provider with expertise in international due diligence screening of individuals, similar to the process currently employed by the NomCom. The screening process will be conducted in a manner that ensures the confidentiality of information received as part of the process for the Board member.

      When the screening reveals an area of concern, the manner in which the concern is addressed, as well as the end result, may vary depending on the nature of the concern and the timing of the screening results. If raised before the Board member is seated, it is typically up to the selecting body to address any areas of concern. If the concern is identified after the Board member has been seated, the options could range from simply asking the Board member for an explanation which may be all that is needed to address the concern, all the way up to the extraordinary measure of the Board member potentially stepping down or being removed by the Board pursuant to the Bylaws.

      This decision is squarely within the public interest and consistent with ICANN's mission as it is imperative that selected Board members can perform their fiduciary and general obligations of service, and are capable of upholding the reputation and credibility of the Board, ICANN organization and the Community, along with being capable and committed to taking actions that are consistent with ICANN's Bylaws and Articles of Incorporation.

      There is a fiscal impact to this decision, as there is a cost to each external due diligence integrity screening conducted. The Board anticipates that ICANN organization will facilitate and fund these screenings without negative impact on any of the budgets of the selecting entities.

      This decision should not have any negative impact on the security, stability or resiliency of the domain name system.

      This is an Organizational Administrative Function not requiring public comment at this stage as the underlying Proposed Screening Process has already been subject to public comment.

    2. Consideration of Reconsideration Request 18-1: DotMusic Limited

      Whereas, on 10 January 2018, DotMusic Limited (the Requestor) submitted a request for the disclosure of documentary information pursuant to the ICANN Documentary Disclosure Information Policy (DIDP) seeking documents and information relating to the Community Priority Evaluation (CPE) Process Review (DIDP Request).

      Whereas, on 9 February 2018, ICANN organization responded to the DIDP Request (DIDP Response).

      Whereas, on 10 March 2018, the Requestor filed Reconsideration Request 18-1 (Request 18-1) claiming that certain portions of ICANN org's DIDP Response violate the DIDP and ICANN org's Commitments established in the Bylaws concerning accountability, transparency, and openness.

      Whereas, the Board Accountability Mechanisms Committee (BAMC) previously determined that Request 18-1 is sufficiently stated and sent the Request to the Ombudsman for review and consideration in accordance with Article 4, Section 4.2(j) and (k) of the ICANN Bylaws.

      Whereas, the Ombudsman recused himself from this matter pursuant to Article 4, Section 4.2(l)(iii) of the Bylaws.

      Whereas, the BAMC carefully considered the merits of Request 18-1 and all relevant materials and recommended that Request 18-1 be denied because ICANN org adhered to established policies and procedures in its response to the DIDP Request.

      Whereas, the Board has carefully considered the BAMC's Recommendation on Request 18-1 and all relevant materials related to Request 18-1, including the Requestor's rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the rebuttal provides no additional argument or evidence to support reconsideration.

      Resolved (2018.07.18.04), the Board adopts the BAMC Recommendation on Request 18-1.

      Rationale for Resolution 2018.07.18.04

      1. Brief Summary and Recommendation

        The full factual background is set forth in the BAMC Recommendation, which the Board has reviewed and considered, and which is incorporated here.

        On 5 June 2018, the BAMC evaluated Request 18-1 and all relevant materials and recommended that the Board deny Request 18-1 because ICANN org adhered to established policies and procedures in its response to the DIDP Request. (See BAMC Recommendation.)

        On 20 June 2018, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws. (See Rebuttal.) The Requestor claims that the DIDP Response "is clearly improper because (1) ICANN's assertion that the responsive documents fall under [] Nondisclosure Conditions is conclusory and unsupported by any evidence; (2) the public interest outweighs any Nondisclosure Conditions; and (3) ICANN's decision violates its Commitments and Core Values."1

        The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-1, including the Requestor's rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the Rebuttal provides no additional argument or evidence to support reconsideration.

      2. Issues

        The issues for reconsideration are:

        • Whether ICANN org complied with established ICANN policies in responding to the DIDP Request; and
        • Whether ICANN org complied with its Core Values, Mission, and Commitments.2

        These issues are considered under the relevant standards for reconsideration requests and DIDP requests, which are set forth in the BAMC Recommendation.

      3. Analysis and Rationale

        1. ICANN Org Adhered to Established Policies and Procedures in Responding to the DIDP Request.

          1. The DIDP Response Complies with Applicable Policies and Procedures.

            The Requestor's DIDP Request sought the disclosure of documents relating to the CPE Process Review. As noted in the BAMC Recommendation, Request 18-1 focuses on ICANN org's response to Items No. 1-9, 11-15, and 17-19. The DIDP Request sought the disclosure of: (i) emails relating to the CPE process (Items No. 1, 2, 4, 5, and 9); (ii) the CPE Provider's work product (Items No. 6-8, 11, and 12); 3 (iii) FTI's work product in the course of the CPE Process Review (Items No. 3 and 13-15); 4 and (iv) correspondence and documents relating to the CPE Process Review and its scope (Items No. 17-19). 5

            The BAMC determined that ICANN org's response was consistent with the DIDP Process, and the Board agrees. That is, ICANN org identified documents responsive to these Items and determined that they were subject to certain applicable Nondisclosure Conditions. (See BAMC Recommendation, Pgs. 13-14.) The BAMC noted, and the Board agrees, that the Requestor does not challenge the applicability of the Nondisclosure Conditions asserted in the DIDP Response. Instead, the Requestor claims that ICANN org should have determined that the public interest outweighs the Nondisclosure Conditions.6 The BAMC found that this argument constitutes a substantive disagreement with ICANN org's discretionary determination, and is not a challenge to the process by which ICANN org reached that conclusion. On that basis alone, the BAMC concluded that reconsideration is not warranted, and the Board agrees.

            Further, notwithstanding those Nondisclosure Conditions, the BAMC found that ICANN org did consider whether the public interest in disclosing the information outweighed the harm that may be caused by the disclosure and determined that there were no circumstances for which the public interest in disclosure outweighed that potential harm.7 Accordingly, the BAMC concluded, and the Board agrees, that the DIDP Response complied with applicable policies and procedures. The BAMC further concluded, and the Board agrees, that the Requestor provided no evidence to the contrary, because none exists.

          2. ICANN Org Adhered to Established Policy and Procedure in Finding That the Harm in Disclosing the Requested Documents That Are Subject to Nondisclosure Conditions Outweighs the Public's Interest in Disclosing the Information.

            Under the DIDP, information subject to the Nondisclosure Conditions is not appropriate for disclosure unless ICANN org determines that, under the particular circumstances, the public interest in disclosing the information outweighs the harm that may be caused by such disclosure.8 As detailed in the BAMC Recommendation, the BAMC determined, and the Board agrees, that ICANN org undertook such an analysis with respect to each Item requested by the Requestor, and articulated its conclusions in the DIDP Response.

            The Requestor disagrees with ICANN org's conclusions. The Requestor claims that the public interest in disclosure outweighs the harm that may be caused by such disclosure because the documents at issue "are given even greater import because . . . the CPE Provider has not agreed [to disclose the documents] and has threatened litigation."9 The BAMC found, and the Board agrees, that the Requestor provides no explanation as to why the CPE Provider's decision not to permit disclosure of the documents renders those materials more important than they otherwise would be or why it justifies disclosure. (BAMC Recommendation, Pg. 26.)

            The Requestor also claims that the public interest in disclosure outweighs any purported harm because FTI's conclusions are allegedly "contrary to the findings of other panels and experts"10 and that "[w]ithout the underlying documents," it cannot "analyze whether ICANN unduly influenced the CPE Provider."11 As discussed in detail in the BAMC Recommendation, and incorporated herein by reference, the Requestor's claims do not support reconsideration. The Requestor does not provide any support for this argument. The Board did not direct FTI to come to one conclusion over another. FTI was retained to assess the CPE process and reach its own conclusions. The Requestor has provided no evidence to the contrary.

            The BAMC further concluded, and the Board agrees, that there is no merit to the Requestor's argument that "ICANN cannot claim that there is no legitimate public interest in disclosing the requested documents"12 because ICANN org "has not disclosed any 'compelling' reason that outweighs the public interest in disclosure."13 ICANN org did identify compelling reasons in each instance of nondisclosure; the Nondisclosure Conditions that ICANN identified, by definition, set forth compelling reasons for not disclosing the materials.14 There is no policy or procedure requiring ICANN org to provide additional justification for nondisclosure.15 Further, ICANN org did explain why many of the Nondisclosure Conditions applied to the requested items, even though it was not required to do so. Accordingly, reconsideration on this basis is not warranted.

            The Requestor further claims that rather than state compelling reasons for nondisclosure, ICANN org "ensured that critical items that could expose both ICANN and the CPE Provider be withheld based on the attorney-client privilege loophole."16 However, as the BAMC concluded, and the Board agrees, the Requestor provides no support—because there is none for this baseless assertion. (BAMC Recommendation, Pg. 23.) The Requestor does not dispute the application of the attorney-client privilege to these documents; the Requestor merely asserts that ICANN org should waive the privilege in light of the DIDP Request.17 No policy or procedure requires ICANN org to waive the attorney-client privilege at a Requestor's request, and the DIDP explicitly recognizes that the attorney-client privilege is a compelling reason for nondisclosure.18

            Moreover, the BAMC noted, and the Board agrees, that it is a fundamental principle of law that invocation of the attorney-client privilege is not an admission of wrongdoing or a concession that the protected communication contains negative information concerning the entity invoking the privilege. (BAMC Recommendation, Pg. 24.) The BAMC and the Board therefore reject the Requestor's assertion that the attorney-client privilege is merely a "loophole" that ICANN org sought to take advantage of here, and the Requestor's suggestion that ICANN org's invocation of the privilege indicates that ICANN org had anything to hide.

            Finally, the Requestor asserts that the public interest in disclosing the requested documents outweighs the harm that may come from such disclosure because "ICANN reject[ed] participation from all affected applicants and parties in the creation of the CPE Process Review methodology."19 As the BAMC noted, ICANN org did not determine that applicants would not be interviewed or submit materials in the course of the CPE Process Review. (BAMC Recommendation, Pgs. 24-25.) Rather, FTI determined the methodology for its investigation, which it explained in the CPE Process Review Reports. The Requestor has not identified a policy or procedure requiring FTI to conduct interviews after determining that such interviews were unnecessary and inappropriate, nor is there one.20 Accordingly, reconsideration is not warranted on this basis.

        2. ICANN Org Adhered to Its Commitments and Core Values in Responding to the DIDP Request.

          1. ICANN Org Adhered to Its Commitments to Accountability, Openness, and Transparency in Responding to the DIDP Request.

            The Requestor asserts that ICANN org's determination that the requested documents are not appropriate for disclosure was inconsistent with its commitments under the Bylaws to "operate to the maximum extent feasible in an open and transparent fashion,"21 "apply[] documented policies consistently, neutrally, objectively, and fairly, without singling out any particular party for discriminatory treatment,"22 and "[r]emain accountable to the Internet community through mechanisms defined in [the] Bylaws that enhance ICANN's effectiveness."23

            The DIDP, and particularly the Nondisclosure Conditions, balances ICANN org's commitments to transparency and accountability against other competing commitments and obligations.24 This balancing test allows ICANN org to determine whether or not, under the specific circumstances, its commitment to transparency outweighs its other commitments and core values. Accordingly, without contravening its commitment to transparency, ICANN org may appropriately exercise its discretion, pursuant to the DIDP, to determine that certain documents are not appropriate for disclosure.

            ICANN org's Bylaws address this need to balance competing interests such as transparency and confidentiality, noting that "in any situation where one Core Value must be balanced with another, potentially competing Core Value, the result of the balancing test must serve a policy developed through the bottom-up multistakeholder process or otherwise best serve ICANN's Mission."25

            A critical competing Core Value is ICANN org's Core Value of operating with efficiency and excellence26 by complying with its contractual obligation to the CPE Provider to maintain the confidentiality of the CPE Provider's Confidential Information.27 As part of ICANN's commitment to transparency and information disclosure, when it encounters information that might otherwise be proper for release but is subject to a contractual obligation, if appropriate ICANN org seeks consent from the contractor to release information.28 Here, ICANN org endeavored to obtain consent from the CPE Provider to disclose certain information relating to the CPE Process Review, but the CPE Provider has not agreed to ICANN org's request, and has threatened litigation should ICANN org breach its contractual confidentiality obligations. ICANN org's contractual commitments must be weighed against its other commitments, including transparency. The commitment to transparency does not outweigh all other commitments to require ICANN org to breach its contract with the CPE Provider.

          2. ICANN Org Adhered to Its Commitment to Conform with Relevant Principles of International Law and International Conventions in Responding to the DIDP Request.

            The Board finds that the Requestor's argument that "[t]here is an 'international minimum standard of due process as fairness-based on the universal views of all legal systems,'" which is "violated when a decision is based on evidence and argumentation that a party has been unable to address"29 does not support reconsideration.

            While ICANN org is committed to conform to relevant principles of international law and conventions,30 constitutional protections do not apply with respect to a corporate accountability mechanism. California non-profit public benefit corporations, such as ICANN org, are expressly authorized to establish internal accountability mechanisms and to define the scope and form of those mechanisms.31 ICANN org was not required to establish a DIDP, but instead did so voluntarily, as part of its commitment to transparency and accountability and with extensive community input. That procedure and those specific commitments are not outweighed by ICANN org's general commitment to conform to relevant principles of international law. Accordingly, the Requestor does not have the "right" to due process or other "constitutional" rights with respect to the DIDP, and the fact that certain Nondisclosure Conditions apply here does not demonstrate that ICANN org violated its commitment to conform to relevant principles of international law.

            Likewise, the Board was not obligated to institute the CPE Process Review, but did so in its discretion pursuant to its best judgment, after considering all the relevant issues. Accordingly, the Board was not obligated to direct ICANN org to undertake the CPE Process Review at all, let alone to set a particularly wide or narrow scope for it, or for the disclosure of supporting materials to the Requestor.32

            The Requestor's conclusory statement that it has been deprived of due process because it did not have access to every document underlying the CPE Process Review Reports does not support reconsideration. The Requestor has no basis for this assertion, as the BAMC has not yet issued a recommendation on Request 16-5.

            Ultimately, the Requestor has not identified any element of ICANN's Mission, Commitments, Core Values, or established ICANN policy(ies) violated by ICANN org's correspondence with the Requestor, as none were violated. Accordingly, reconsideration is not warranted.

        3. The Rebuttal Does Not Raise Arguments or Facts That Support Reconsideration.

          The Board has carefully considered the Requestor's Rebuttal and finds that the Requestor has not provided any additional arguments or facts supporting reconsideration. The Rebuttal claims that the DIDP Response "is clearly improper because (1) ICANN's assertion that the responsive documents fall under [] Nondisclosure Conditions is conclusory and unsupported by any evidence; (2) the public interest outweighs any Nondisclosure Conditions; and (3) ICANN's decision violates its Commitments and Core Values."33 These are the same arguments set forth in the Request 18-1 and which were addressed by the BAMC in its Recommendation.

          With respect to the first claim, the Requestor now asserts that "neither ICANN nor the BAMC provide any analysis on whether each requested document is covered by a Nondisclosure Condition."34 The Board notes that the Requestor does not dispute the BAMC's finding that "the Requestor does not challenge the applicability of the Nondisclosure Conditions asserted in the DIDP Response."35 Nor does the Requestor identify a policy or procedure requiring ICANN org or the BAMC to provide an "analysis" or other explanation for nondisclosure, because there is none. The Nondisclosure Conditions speak for themselves and each condition provides the explanation for why disclosure is not appropriate. Further, as noted in the BAMC's Recommendation, contrary to the Requestor's assertion, ICANN org did explain why many of the Nondisclosure Conditions applied to the requested items, even though it was not required to do so. Accordingly, reconsideration on this basis is not warranted.

          Second, the Requestor repeats its argument that "the public interest outweighs any Nondisclosure Conditions" because the CPE Process Review "not only affects all of the community gTLD applicants but also the entire Internet community, which will benefit from certain community gTLDs, such as .MUSIC."36 While the Requestor believes that ICANN org should have exercised its discretion differently, that is not a basis for reconsideration because the Requestor has not shown that ICANN org contravened the DIDP in any way. Accordingly, the Board finds that this argument was sufficiently considered and addressed in the BAMC Recommendation and the Board adopts the BAMC's Recommendation that reconsideration is not warranted.37 The Requestor also suggests that ICANN org has "restricted [] access to information regarding the independent review in blatantly unfair decisions that keep affected applicants uninformed and endangers the integrity of the independent review itself."38 The Board notes that the BGC and ICANN org have provided several updates concerning the CPE Process Review, including updates on 2 June 2017,39 1 September 2017,40 and 13 December 201741. In addition, ICANN org published three reports on the CPE Process Review, which detailed the methodology and conclusions reached by FTI.42 The suggestion that applicants are "uninformed" about the CPE Process Review is not only unsupported but also irrelevant to the DIDP Response.

          Third, the Requestor repeats its argument that "ICANN must comply with its Commitments and Core Values, even when issuing the DIDP Response, or ICANN will violate its own Bylaws."43 The BAMC addressed this argument and found that the DIDP Response did comply with ICANN org's Commitments and Core Values. As the BAMC concluded, and the Board agrees, neither the DIDP nor ICANN org's Core Value of transparency obligates ICANN org to make public every document in ICANN org's possession.44

          Fourth, the Requestor again asserts that that the DIDP Response contradicted ICANN's Commitments to fairness and accountability, which required ICANN org to disclose the requested materials even if certain Nondisclosure Conditions apply, because the CPE Process Review "is significant not only to Requestor but also to other gTLD applicants."45 The Board finds that this argument is not supported. The "public interest" is not determined by whether any entity deems the matter to be "significant." Instead, "public interest" refers to the benefit or well-being of the general public. As explained in the BAMC Recommendation, consistent with the DIDP, ICANN org exercised its discretion in finding that the harm in disclosing the requested information – some of which comprised privileged materials and other documents which were subject to contractual confidentiality obligations – outweighed the public interest in disclosing the information.

          Nor is there support for the Requestor's claim that "ICANN's refusal to disclose certain documents regarding the independent review lets it avoid accountability to the Internet community . . . ."46 As explained in the BAMC Recommendation, without contravening its commitment to transparency and accountability, ICANN org may appropriately exercise its discretion, pursuant to the DIDP, to determine that certain documents are not appropriate for disclosure.

          Further, the Requestor's assertion that "the CPE Provider may be seeking to intentionally obscure the defects in its review, perhaps aided and abetted by ICANN staff"47 is baseless and does not support the Requestor's claim that ICANN org violated its Commitment to fairness. As support, the Requestor cites to the fact that the CPE Provider refused to produce certain categories of documents to FTI. The CPE Provider claimed that, pursuant to its contract with ICANN org, it was only required to produce CPE working papers, and that internal and external emails were not "working papers."48 This is no evidence of obfuscation by the CPE Provider, nor is it evidence of any complicit action by ICANN org. The CPE Provider asserted its position with respect to its contractual obligations under the parties' Statement of Work; no policy or procedure required ICANN org to litigate that issue. Further, the CPE Provider did produce to FTI, and FTI did review, the CPE Provider's working papers, draft reports, notes, and spreadsheets for all CPE Reports. The CPE Provider also made its staff available for interviews by FTI; ICANN org did the same. FTI also received and reviewed emails (and attachments) produced by ICANN org between relevant CPE Provider personnel and relevant ICANN org personnel related to the CPE process and evaluations. Accordingly, there is no support for the Requestor's assertion that the CPE Provider or ICANN org attempted to "obscure" any facts pertinent to CPE.

          Finally, the Requestor repeats its claim that "[t]he ICANN Bylaws thus require that ICANN comply with principles of international law, which includes due process."49 However, as explained in the BAMC Recommendation, the Requestor has not demonstrated how the DIDP Response violates this commitment. 

          Moreover, the Requestor does not have the "right" to due process with respect to the DIDP. Indeed, the Requestor does not cite any persuasive authority supporting its position that such due process rights exist here. To the contrary, all the Requestor cites is an excerpt from Competing for the Internet: ICANN Gate – An Analysis and Plea for Judicial Review through Arbitration (2017), which was authored by two attorneys representing other gTLD community applicants in connection with the pending reconsideration requests relating to the CPE process and which raise similar issues to those asserted by the Requestor here. The excerpt cited simply posits the authors' unsupported opinion that principles of international law should be placed first before local law and ICANN's Bylaws.50 Indeed, the book even states that it offers only the "recommendations" of the authors, which are "no doubt colored by their perspectives; after all, the authors have been involved in many of the leading IRP proceedings and have counseled innumerable applicants on their right in the domain name system and the new gTLD application process."51 These "recommendations" are not definitive of international law principles, nor do they support reconsideration.

          Accordingly, the Board concludes that nothing in the Requestor's Rebuttal warrants reconsideration.

          This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively 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 Reconsideration Request 18-2: dotgay LLC

      Whereas, on 15 January 2018, dotgay LLC (the Requestor) submitted a request for the disclosure of documentary information pursuant to the ICANN Documentary Disclosure Information Policy (DIDP) seeking documents and information relating to the Community Priority Evaluation (CPE) Process Review (DIDP Request).

      Whereas, on 14 February 2018, ICANN organization responded to the DIDP Request (DIDP Response).

      Whereas, on 15 March 2018, the Requestor filed Reconsideration Request 18-2 (Request 18-2) claiming that certain portions of ICANN org's DIDP Response violate the DIDP and ICANN org's Commitments established in the Bylaws concerning accountability, transparency, and openness.

      Whereas, the Board Accountability Mechanisms Committee (BAMC) previously determined that Request 18-2 is sufficiently stated and sent the Request to the Ombudsman for review and consideration in accordance with Article 4, Sections 4.2(j) and (k) of the Bylaws.

      Whereas, the Ombudsman recused himself from this matter pursuant to Article 4, Section 4.2(l)(iii) of the Bylaws.

      Whereas, the BAMC carefully considered the merits of Request 18-2 and all relevant materials and recommended that Request 18-2 be denied because ICANN org adhered to established policies and procedures in its response to the DIDP Request.

      Whereas, the Board has carefully considered the BAMC's Recommendation on Request 18-2 and all relevant materials related to Request 18-2, including the Requestor's rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the rebuttal provides no additional argument or evidence to support reconsideration.

      Resolved (2018.07.18.05), the Board adopts the BAMC Recommendation on Request 18-2.

      Rationale for Resolution 2018.07.18.05

      1. Brief Summary and Recommendation

        The full factual background is set forth in the BAMC Recommendation, which the Board has reviewed and considered, and which is incorporated here.

        On 5 June 2018, the BAMC evaluated Request 18-2 and all relevant materials and recommended that the Board deny Request 18-2 because ICANN org adhered to established policies and procedures in its response to the DIDP Request. (See BAMC Recommendation.)

        On 20 June 2018, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws. (See Rebuttal.) The Requestor claims that Request 18-2 "is properly within the scope of the reconsideration process, ICANN must recognize and apply international principles, and that both the DIDP Response and [BAMC] Recommendation violate ICANN's commitments and core values."52

        The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-2, including the Requestor's Rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the Rebuttal provides no additional argument or evidence to support reconsideration.

      2. Issues

        The issues for reconsideration are:

        • Whether ICANN org complied with established ICANN policies in responding to the DIDP Request, and particularly with respect to Item Nos. 1-9, 12-16, and 18-21; and
        • Whether ICANN org complied with its Core Values, Mission, and Commitments.53

        These issues are considered under the relevant standards for reconsideration requests and DIDP requests, which are set forth in the BAMC Recommendation.

      3. Analysis and Rationale

        1. ICANN Org Adhered to Established Policies and Procedures in Responding to the DIDP Request.

          1. The DIDP Response Complies with Applicable Policies and Procedures.

            The Requestor's DIDP Request sought the disclosure of documents relating to the Community Priority Evaluation (CPE) process review (CPE Process Review). As noted in the BAMC Recommendation, Request 18-2 focuses on ICANN org's response to Items No. 1-9, 12-16, and 18-21. The DIDP Request sought the disclosure of: (i) emails relating to the CPE process (Items No. 1, 2, 4, 5, and 9); (ii) the CPE Provider's work product (Items No. 6-8, 12, and 13); (iii) FTI's work product in the course of the CPE Process Review (Items No. 3 and 14-16); and (iv) correspondence and documents relating to the CPE Process Review and its scope (Items No. 18-21).54 The BAMC determined that ICANN org's response was consistent with the DIDP Process, and the Board agrees. That is, ICANN org identified documents responsive to these Items and determined that they were subject to certain applicable Nondisclosure Conditions. (See BAMC Recommendation, Pgs. 14-21.) The BAMC noted, and the Board agrees, that the Requestor does not challenge the applicability of the Nondisclosure Conditions asserted in the DIDP Response. Instead, the Requestor claims that ICANN org is "hiding behind" those Nondisclosure Conditions and, in the Requestor's view, ICANN org should have determined that the public interest outweighs the reasons for nondisclosure set forth in the Nondisclosure Conditions.55 The BAMC found, and the Board agrees, that this represents a substantive disagreement with ICANN org's discretionary determination, and not a challenge to the process by which ICANN org reached that conclusion. On that basis alone, reconsideration is not warranted. (BAMC Recommendation, Pg. 12.)

          2. ICANN Org Adhered to Established Policy and Procedure in Finding That the Harm in Disclosing the Requested Documents That Are Subject to Nondisclosure Conditions Outweighs the Public's Interest in Disclosing the Information.

            Under the DIDP, information subject to the Nondisclosure Conditions is not appropriate for disclosure unless ICANN org determines that, under the particular circumstances, the public interest in disclosing the information outweighs the harm that may be caused by such disclosure.56 As detailed in the its Recommendation, the BAMC determined, and the Board agrees, that ICANN org undertook such an analysis with respect to each Item requested by the Requestor, and articulated its conclusions in the DIDP Response. (BAMC Recommendation, Pgs. 24-27.)

            The Requestor disagrees with ICANN org's conclusions. The Requestor claims that the public interest in disclosure outweighs the harm that may be caused by such disclosure because the documents at issue "are given even greater import because . . . the CPE Provider has not agreed [to disclose the documents] and has threatened litigation. 57 The BAMC found, and the Board agrees, that the Requestor provides no explanation as to why the CPE Provider's decision not to permit disclosure of the documents renders those materials more important than they otherwise would be or why it justifies disclosure. (BAMC Recommendation, Pg. 24.)

            The BAMC also found, and the Board agrees, that the Requestor's claims that the public interest in disclosure outweighs any purported harm because "there are clear problems and contradictions contained within the reports,"58 and that it cannot "analyze whether ICANN unduly influenced the [CPE Provider] without the underlying documents"59 do not support reconsideration. The Board did not direct FTI to come to one conclusion over another. FTI was retained to assess the CPE process and reach its own conclusions. The Requestor has provided no evidence to the contrary to support its claims.

            The BAMC further concluded, and the Board agrees, that there is no merit to the Requestor's claim that ICANN org "failed to state compelling reasons for nondisclosure as it pertains to each document request, which it was required to do under its own policy."60 ICANN org did identify compelling reasons in each instance of nondisclosure; the Nondisclosure Conditions that ICANN identified, by definition, set forth compelling reasons for not disclosing the materials.61 There is no policy or procedure requiring that ICANN org to provide additional justification for nondisclosure.62 Further, ICANN org explained why many of the Nondisclosure Conditions applied to the requested items, even though it was not required to do so. Accordingly, reconsideration on this basis is not warranted.

            The Requestor further claims that rather than state compelling reasons for nondisclosure, ICANN org "ensured that critical items that could expose both ICANN and the CPE Provider be withheld based on the attorney-client privilege loophole."63 However, as the BAMC concluded, and the Board agrees, the Requestor provides no support—because there is none for this baseless assertion. (BAMC Recommendation, Pg. 25.) The Requestor does not dispute the application of the attorney-client privilege to these documents; the Requestor merely asserts that ICANN org should waive the privilege in light of the DIDP Request.64 No policy or procedure requires ICANN org to waive the attorney-client privilege at a Requestor's request, and the DIDP explicitly recognizes that the attorney-client privilege is a compelling reason for nondisclosure.65

            Moreover, the BAMC noted, and the Board agrees, that it is a fundamental principle of law that invocation of the attorney-client privilege is not an admission of wrongdoing or a concession that the protected communication contains negative information concerning the entity invoking the privilege. (BAMC Recommendation, Pg. 26.) The BAMC and the Board therefore reject the Requestor's assertion that the attorney-client privilege is merely a "loophole" that ICANN org sought to take advantage of here, and its suggestion that ICANN org's invocation of the privilege indicates that ICANN org had anything to hide.

            Finally, the Requestor asserts that the public interest in disclosing the requested documents outweighs the harm that may come from such disclosure because "ICANN reject[ed] participation from all affected applicants and parties in the creation of the CPE Process Review methodology." 66 As the BAMC noted, ICANN org did not determine that applicants would not be interviewed or submit materials in the course of the CPE Process Review. (BAMC Recommendation, Pgs. 26.) Rather, FTI determined the methodology for its investigation, which it explained in the CPE Process Review Reports. The Requestor has not identified a policy or procedure requiring FTI to conduct interviews after determining that such interviews were unnecessary and inappropriate, nor is there one. Accordingly, reconsideration is not warranted on this basis.

        2. ICANN Org Adhered to Its Commitments and Core Values in Responding to the DIDP Request.

          1. ICANN Org Adhered to Its Commitments to Accountability, Openness, and Transparency in Responding to the DIDP Request.

            The Requestor asserts that ICANN org's determination that the requested documents are not appropriate for disclosure was inconsistent with its commitments under the Bylaws to "operate to the maximum extent feasible in an open and transparent manner,"67 "apply[] documented policies consistently, neutrally, objectively, and fairly, without singling out any particular party for discriminatory treatment,"68 and "[r]emain accountable to the Internet community through mechanisms defined in [the] Bylaws that enhance ICANN's effectiveness." 69 The BAMC concluded, and the Board agrees, that this assertion does not support reconsideration.

            The DIDP, and particularly the Nondisclosure Conditions, balance ICANN org's commitments to transparency and accountability against its competing commitments and obligations.70 This balancing test allows ICANN org to determine whether or not, under the specific circumstances, its commitment to transparency outweighs its other commitments and core values. Accordingly, without contravening its commitment to transparency, ICANN org may appropriately exercise its discretion, pursuant to the DIDP, to determine that certain documents are not appropriate for disclosure.

            ICANN org's Bylaws address this need to balance competing interests such as transparency and confidentiality, noting that "in any situation where one Core Value must be balanced with another, potentially competing Core Value, the result of the balancing test must serve a policy developed through the bottom-up multistakeholder process or otherwise best serve ICANN's Mission."71

            A critical competing Core Value is ICANN org's Core Value of operating with efficiency and excellence72 by complying with its contractual obligation to the CPE Provider to maintain the confidentiality of the CPE Provider's Confidential Information. As part of ICANN's commitment to transparency and information disclosure, when it encounters information that might otherwise be proper for release but is subject to a contractual obligation, if appropriate ICANN org seeks consent from the contractor to release information.73 Here, ICANN org endeavored to obtain consent from the CPE Provider to disclose certain information relating to the CPE Process Review, but the CPE Provider has not agreed to ICANN org's request, and has threatened litigation should ICANN org breach its contractual confidentiality obligations. ICANN org's contractual commitments must be weighed against its other commitments, including transparency. The commitment to transparency does not outweigh all other commitments to require ICANN org to breach its contract with the CPE Provider.

          2. ICANN Org Adhered to Its Commitment to Conform with Relevant Principles of International Law and International Conventions in Responding to the DIDP Request.

            The Board finds the Requestor's argument that the CPE Process Review did not provide due process to the Requestor because "it has been unable to address the evidence supporting the FTI Reports because they have not been made publically available"74 does not support reconsideration. The Requestor claims that "[p]ursuant to [international] laws and conventions, there is an 'international minimum standard of due process as fairness-based on the universal views of all legal systems,'" which is "violated 'when a decision is based on evidence and argumentation that a party has been unable to address.'"75

            As discussed in the BAMC Recommendation, and incorporated herein by reference, while ICANN org is committed to conform to relevant principles of international law and conventions,76 constitutional protections do not apply with respect to a corporate accountability mechanism. California non-profit public benefit corporations, such as ICANN org, are expressly authorized to establish internal accountability mechanisms and to define the scope and form of those mechanisms.77 Accordingly, the Requestor does not have the "right" to due process or other "constitutional" rights with respect to the DIDP, and the fact that certain Nondisclosure Conditions apply here does not demonstrate that ICANN org violated its commitment to conform to relevant principles of international law.

            The Board was not obligated to institute the CPE Process Review, but did so in its discretion pursuant to its best judgment, after considering all the relevant issues. Accordingly, the Board was not obligated to direct ICANN org to undertake the CPE Process Review at all, let alone to set a particularly wide or narrow scope for it, or for the disclosure of supporting materials to the Requestor.78

            The Requestor's conclusory statement that it has been deprived of due process because it did not have access to every document underlying the CPE Process Review Reports does not support reconsideration. The Requestor has no basis for this assertion, as the BAMC has not yet issued a recommendation on Request 16-3.

            Ultimately, the Requestor has not identified any element of ICANN's Mission, Commitments, Core Values, or established ICANN policy(ies) violated by ICANN org's correspondence with the Requestor, as none were violated. Accordingly, reconsideration is not warranted.

        3. The Rebuttal Does Not Raise Arguments or Facts That Support Reconsideration.

          The Board has considered the Requestor's Rebuttal and finds that the Requestor has not provided any additional arguments or facts supporting reconsideration.

          The Requestor claims that Request 18-2 "is properly within the scope of the reconsideration process, ICANN must recognize and apply international principles, and that both the DIDP Response and [BAMC] Recommendation violate ICANN's commitments and core values."79 These are the same arguments set forth in Request 18-2 and which were addressed by the BAMC in its Recommendation.

          With respect to the first claim, the Requestor asserts that ICANN's Bylaws "do not limit reconsideration requests to contesting 'the process by which ICANN reached that decision.'"80 According to the Requestor, the Reconsideration Request process instead provides a vehicle for requestors to seek reconsideration of ICANN organization "actions or inactions that contradict ICANN's Mission, Commitments, Core Values, and/or established ICANN policy(ies) and adversely affect the requestor."81 The Requestor is correct that reconsideration may be appropriate if the Requestor demonstrates that the action or inaction contradicts "ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies)."82 However, a Reconsideration Request that challenges the outcome of ICANN org's action or inaction without any supporting evidence beyond the Requestor's dissatisfaction with that outcome does not meet the standard for reconsideration. Similarly, a Reconsideration Request that does not explain how the challenged action or inaction contradicted ICANN org's Mission, Commitments, Core Values, and/or established ICANN policy(ies), without more, cannot justify reconsideration; if it did, the Board would be compelled to grant reconsideration to every requestor that sought it, which would render the process meaningless.

          Second, the Requestor repeats its argument that "[t]he DIDP Response violates the principle of transparency."83 The Board finds that this argument has been sufficiently addressed by the BAMC and that the Rebuttal provides no new fact or evidence to support reconsideration. (BAMC Recommendation, Pgs. 27-31.)

          Similarly, with respect to the Requestor's argument that the requested documents should be disclosed because the "public is specifically interested" in the CPE Process Review"84 was sufficiently considered and addressed in the BAMC Recommendation and the Board adopts the BAMC's Recommendation that reconsideration is not warranted.85 While the Requestor believes that ICANN org should have exercised its discretion differently, that is not a basis for reconsideration because the Requestor has provided any new facts or evidence on rebuttal warranting reconsideration.

          Nor is there support for the Requestor's suggestion that there was only a "single harm" – namely the "[w]eakening [of] the attorney-client privilege – that ICANN org considered when it determined that the public interest did not warrant the harm that would be caused by disclosure under the circumstances.86 This claim has already addressed by the BAMC and the Requestor provides no additional evidence or facts that would support reconsideration. The Requestor's other arguments concerning the application of the attorney-client privilege confirm that no policy or procedure exists that would require ICANN org to waive the privilege just because the Requestor asks it to do so.  (Rebuttal, Pg. 7).

          Fourth, the Requestor asserts that ICANN org has "restricted interested parties' access to information in a blatantly unfair decision that keeps affected applicants uninformed and raised several read flags regarding the integrity of the independent review itself."87 The Board notes that the Board Governance Committee and ICANN org have provided several updates concerning the CPE Process Review, including updates on 2 June 2017,88 1 September 2017,89 and 13 December 201790. In addition, ICANN org published three reports on the CPE Process Review, which detailed the methodology and conclusions reached by FTI.91 The suggestion that applicants are "uninformed" about the CPE Process Review is not only unsupported but also irrelevant to the DIDP Response.

          Nor is there support for the Requestor's claim that "ICANN's refusal to disclose certain documents regarding the independent review lets it avoid accountability to the Internet community . . . ."92 As explained in the BAMC Recommendation, without contravening its commitment to transparency and accountability, ICANN org may appropriately exercise its discretion, pursuant to the DIDP, to determine that certain documents are not appropriate for disclosure.

          Finally, the Requestor repeats its claim that "[t]he ICANN Bylaws require that ICANN comply with principles of international law, which includes due process."93 However, the Requestor has not demonstrated how the DIDP Response violates this commitment.

          Moreover, the Requestor does not have the "right" to due process with respect to the DIDP. Indeed, the Requestor does not cite any persuasive authority supporting its position that such due process rights exist here. To the contrary, all the Requestor cites is an excerpt from Competing for the Internet: ICANN Gate – An Analysis and Plea for Judicial Review through Arbitration (2017), which was authored by at least two attorneys representing other gTLD community applicants in connection with the pending reconsideration requests relating to the CPE process and which raise similar issues to those asserted by the Requestor here. The excerpt cited simply posits the authors' unsupported opinion that principles of international law should be placed first before local law and ICANN's Bylaws.94 Indeed, the book even states that it offers only the "recommendations" of the authors, which are "no doubt colored by their perspectives; after all, the authors have been involved in many of the leading IRP proceedings and have counseled innumerable applicants on their right in the domain name system and the new gTLD application process."95 These "recommendations" are not definitive of international law principles, nor do they support reconsideration.

          This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.

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

    4. Consideration of Reconsideration Request 18-3: Astutium Ltd.

      Whereas, 5 October 2014, Astutium Ltd. and ICANN organization executed the Registrar Accreditation Agreement (RAA).

      Whereas, on 17 December 2017, ICANN org's contractual compliance team (Contractual Compliance) received a complaint concerning WHOIS inaccuracies regarding the domain name <tomzink.com>, which is registered through Astutium Ltd.

      Whereas, following unsuccessful resolution of the issues through an informal resolution process, Contractual Compliance issued a Notice of Breach, requesting that Astutium Ltd. cure the breaches by 20 March 2018, but the Requestor failed to cure the breaches.

      Whereas, on 21 March 2018, Contractual Compliance issued the Notice of Termination (Termination Notice) to Astutium Ltd; the termination was scheduled to become effective 20 April 2018.

      Whereas, on 30 March 2018, Astutium Ltd. filed Reconsideration Request 18-3 (Request 18-3) challenging the Notice of Termination on the basis that ICANN org: (i) relied on faulty data and misunderstandings; and (ii) failed to adhere to applicable policies and procedures.

      Whereas, 5 May 2018, the Ombudsman submitted his substantive evaluation of Request 18-3 to the Board Accountability Mechanisms Committee (BAMC) and concluded that "nothing [the] Requestor has set forth in Request 18-3 merits a recommendation by the BAMC or the Board to take any of the actions as requested by [the] Requestor."

      Whereas, the BAMC carefully considered the merits of Request 18-3 and all relevant materials and recommended that Request 18-3 be denied because: (i) ICANN org adhered to established policies and procedures when it issued the Termination Notice; (ii) ICANN org did not rely on faulty data or misunderstandings when it issued the Termination Notice; and (iii) ICANN org did not publish any defamatory statements concerning the Requestor on its website.

      Whereas, the Board has carefully considered the BAMC's Recommendation on Request 18-3 and all relevant materials related to Request 18-3, including Astutium Ltd.'s rebuttal, and the Board agrees with the BAMC's recommendation and concludes that the rebuttal provides no additional argument or evidence to support reconsideration.

      Resolved (2018.07.18.06), the Board adopts the BAMC Recommendation on Request 18-3 and directs the President and CEO, or his designee(s), to continue with the termination process of Astutium Ltd.'s RAA.

      Rationale for Resolution 2018.07.18.06

      1. Brief Summary and Recommendation

        The full factual background is set forth in the BAMC Recommendation, which the Board has reviewed and considered, and which is incorporated here.

        On 5 June 2018, the BAMC recommended that Request 18-3 be denied because the Requestor has not demonstrated sufficient basis for reconsideration for the reasons set forth in the BAMC Recommendation, which are incorporated here. (See BAMC Recommendation.)

        On 20 June 2018, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws, which the Board has also carefully reviewed and considered. (See Rebuttal.) In the Rebuttal, the Requestor suggests that: (1) Contractual Compliance failed to communicate with the Requestor during the informal and formal resolution process; (2) the Complaint contained inaccuracies that were not vetted by ICANN org; (3) the Requestor corrected the inaccuracies in the Complaint; (4) ICANN org misunderstood the Requestor's process to validate the information; (5) the Requestor responded to the Notice of Breach; (6) the Requestor was prevented by EU privacy laws from disclosing information to ICANN org; (7) the Requestor complied with the Expired Registration Recovery Policy (ERRP) Section 4.1; and (8) the Requestor maintained a valid correspondence address on its website.96

        The Board has carefully reviewed and considered The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-3, including the Requestor's Rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the Rebuttal provides no additional argument or evidence to support reconsideration.

      2. Issues

        The issues for reconsideration are:

        • Whether ICANN org complied with applicable Commitments, Core Values, and established policies when it issued the Termination Notice;
        • Whether ICANN org relied on faulty data or misunderstandings when it issued the Termination Notice; and
        • Whether ICANN org published defamatory statements on its website, in violation of the applicable Commitments, Core Values, and established policies.

        These issues are considered under the relevant standards for reconsideration requests and the contractual compliance process, which are set forth in the BAMC Recommendation.

      3. Analysis and Rationale

        1. Contractual Compliance Complied with Applicable Policies and Procedures.

          The Requestor claims that Contractual Compliance's decision to issue the Termination Notice was based on an "overall failure of ICANN staff/policies/procedures."97 As discussed below and in further detail in the BAMC Recommendation, Contractual Compliance adhered to the applicable policies and procedures when addressing each of the six areas of noncompliance identified in the Termination Notice.

          1. Contractual Compliance complied with applicable policies and procedures when it issued the Termination Notice for Requestor's failure to take reasonable steps to investigate and correct WHOIS inaccuracies.

            The Requestor claims that the Complaint regarding the <tomzink.com> domain name contained inaccuracies that "were clearly and obviously faults in the ICANN reporting process;" that the Requestor nonetheless contacted the registrant and updated the inaccuracies; and that Contractual Compliance's "demands for copies of communications to 'demonstrate compliance' are both unreasonable and unnecessary."98 The Requestor also claims that Contractual Compliance did not manually review the Complaint and instead automatically forwarded it to the Requestor. The BAMC determined, and the Board agrees, that Requestor's claims are factually incorrect and do not support reconsideration.

            First, Contractual Compliance follows a defined approach and process to ensure compliance with contractual obligations.99 The BAMC determined, and the Board agrees, that Contractual Compliance followed its process with respect to the handling of the Complaint. That is, upon receipt of the Complaint, Contractual Compliance evaluated and confirmed that the Complaint was within the scope of the relevant RAA and consensus policies. While some portions of the Complaint may have been inaccurate, the Complaint contained other portions that were within scope. Thus, Contractual Compliance initiated the "Informal Resolution Process" by sending the first compliance notice to the Requestor, attaching the entire Complaint.100 Contractual Compliance does not modify complaints, except to redact reporter-related data associated with requests for anonymity, even if it determines that portions of the complaint are inaccurate. Registrars are free to explain why portions of a complaint do not need to be addressed, but the fact that a portion of a complaint is inaccurate does not waive the need to address the accurate/in-scope portions of the complaint. (BAMC Recommendation, Pgs. 16-19.)

            Second, the BAMC concluded, and the Board agrees, that the Requestor's claims that Contractual Compliance's "demands for copies of communications to 'demonstrate compliance are unreasonable and unnecessary'"101 do not support reconsideration. The RAA requires the Requestor to "comply with the obligations specified in the Whois Accuracy Program Specification" (WAPS) to maintain and confirm accurate contact information for its Registered Name Holder (RNH). (BAMC Recommendation, Pg. 3.) The Requestor also is required to maintain "all written communications constituting registration applications, confirmations, modifications, or terminations and related correspondence with Registered Name Holders," and must make such data available to ICANN org upon reasonable notice.102 (BAMC Recommendation, Pg. 4.) The Requestor's refusal to provide or make such data available to Contractual Compliance is a breach of its RAA. (BAMC Recommendation, Pgs. 17-18.)

            As discussed in detail in the BAMC Recommendation, the Requestor did not remedy all the WHOIS inaccuracies at issue during the Informal Resolution Process. For example, information in the Administrative and Technical fields (such as street names) appeared to belong to the Requestor rather than the registrant.103 Additionally, the Requestor had not validated the postal address under WAPS to ensure it was in a proper format for the applicable country as defined in the UPU Postal addressing format templates.104

            The Board notes that Contractual Compliance attempted numerous times to resolve the deficiencies with the Requestor through the three separate compliance notices during the Informal Resolution Process before escalating the matter to the Formal Resolution Process by the issuance of the Breach Notice on 27 February 2018.105 (BAMC Recommendation, Pg. 18.)

            The Requestor never responded to the Breach Notice, despite outreach effort from Contractual Compliance.106 As a result, Contractual Compliance escalated the matter to termination in accordance with its process and Section 5.5.4 of the RAA. Accordingly, the BAMC concluded, and the Board agrees, that Contractual Compliance followed applicable policies and procedures throughout this process and therefore, the Requestor's claims do not support reconsideration.

          2. Contractual Compliance complied with applicable policies and procedures when it issued the Termination Notice for Requestor's failure to validate and verify WHOIS contact information, as required by WAPS.

            The BAMC determined, and the Board agrees, that Contractual Compliance complied with established procedures when it issued the Termination Notice based on the Requestor's failure to validate and verify WHOIS contact information as required by WAPS. The Requestor claims that Contractual Compliance "misunderstand[s] … the technologies involved," that "[v]alidation of client submitted data is done prior to acceptance of that data, and [that] manual 'eyeballing' of the data is not a general requirement."107 The Requestor explained that "[i]n the event of certain specific data being updated (and subject to it not already having been verified on other domains) automated processes are then invoked as needed in accordance with [WAPS] 1.f."108 

            The Requestor's claim is factually incorrect. WAPS Section 1 requires the Requestor, upon "any change in the [RNH] with respect to any Registered Name sponsored by" the Requestor, to "[v]alidate the presence of data for all fields required under Subsection 3.3.1 of the Agreement in a proper format," and validate that other contact information is in the proper format.109 It also requires the Requestor to verify "the email address of the [RNH] … by sending an email requiring an affirmative response through a tool-based authentication method…."110 Within 15 days of receiving "any changes to contact information in Whois …, [the Requestor] will validate and, to the extent required by Section 1, verify the changed fields in the manner specified in Section 1 above. If [the Requestor] does not receive an affirmative response from the [RNH] providing the required verification, [the Requestor] shall either verify the applicable contact information manually or suspend the registration…."111 WAPS Section 4 requires that if the Requestor "has any information suggesting that the contact information … is incorrect[,] … [it] must verify or re-verify as applicable…." If the Requestor does not receive an affirmative response, it "shall either verify the applicable contact information manually or suspend the registration."112

            Contractual Compliance requested this information from the Requestor throughout the Informal Resolution and Formal Resolution Processes. However, to date, Contractual Compliance has not received evidence of verification or validation, as required under WAPS Sections 1, 4, and 5.113 Accordingly, the Requestor's claims do not support reconsideration. (BAMC Recommendation, Pgs. 19-20.)

          3. Contractual Compliance complied with applicable policies and procedures when it issued the Termination Notice for Requestor's failure to maintain and make available to ICANN registration data and records relating to the Requestor's communications with the RNH of the domain name <tomzink.com>.

            The BAMC determined, and the Board agrees, that Contractual Compliance complied with established procedures when it issued the Termination Notice based on the Requestor's failure to maintain and make available to ICANN org registration data and records of the Requestor's communications with the RNH of the domain name <tomzink.com>. Sections 3.4.2 and 3.4.3 of the RAA require the Requestor to maintain records "relating to its dealings with Registry Operator(s) and [RNHs]," including correspondence, and to make those available for inspection and copying to ICANN upon reasonable notice.114 If the Requestor "believes that the provision of any such data, information or records to ICANN would violate applicable law or any legal proceedings, ICANN and [the Requestor] agree to discuss in good faith whether appropriate limitations, protections or alternative solutions can be identified to allow the production of such data."115

            In Request 18-3, Requestor claims for the first time that it is prohibited from providing ICANN org the requested data because EU privacy laws limit the types of data that can be exported to the United States.116 Yet, during Informal and Formal Resolution Processes, the Requestor never raised EU privacy law as a basis for withholding the requested information.117 Rather, the Requestor simply refused to comply with Sections 3.4.2 and 3.4.3, stating "we don't provide details of private communications to 3rd parties," but did not provide a reason for withholding such communications.118

            The BAMC noted that Contractual Compliance nevertheless offered to work with the Requestor on how such records could be provided to demonstrate compliance but that such efforts were met with the following response from the Requestor: "There is no requirement in WAPS to provide you with anything at all."119 Accordingly, the BAMC concluded, and the Board agrees, that the Requestor's claims do not support reconsideration. (BAMC Recommendation, Pgs. 20-22.)

          4. Contractual Compliance complied with applicable policies and procedures when it issued the Termination Notice for Requestor's failure to provide domain name data in the specified response format, as required by the RAA.

            The BAMC determined, and the Board agrees, that Contractual Compliance complied with established procedures when it issued the Termination Notice based on the Requestor's failure to provide domain name data in the format required by the RAA. (BAMC Recommendation, Pgs. 22-23.) In accordance with its process when a complaint reaches the third compliance notice phase,120 Contractual Compliance conducted a full compliance check to identify whether there were any additional areas of non-compliance by Astutium Ltd., and confirmed that there were three additional areas of non-compliance as identified in the Breach Notice.121 Contrary to the Requestor's assertion, Contractual Compliance did not create additional "backdoor" requirements, but rather complied with its process when identifying other areas of noncompliance.

          5. Contractual Compliance complied with applicable policies and procedures when it issued the Termination Notice for Requestor's failure to include a link in its registration agreement to its renewal fees and post-expiration renewal fees.

            The BAMC determined, and the Board agrees, that Contractual Compliance complied with established procedures when it issued the Termination Notice based on the Requestor's failure to include a link to its renewal fees and post-expiration renewal fees in its registration agreement as required by Section 4.1 of the Expired Registration Recovery Policy (ERRP).122 The Requestor claims that it complied with Section 4.1 of the ERRP because its fees are displayed on every page of its website.123 However, a link to the Requestor's renewal fees and post-expiration renewal fees on its website was not included in the Requestor's registration agreement as required by Section 4.1 of the ERRP.124

            Accordingly, because Contractual Compliance adhered to applicable policies and procedures, the BAMC concluded, and the Board agrees, that reconsideration is not warranted. (BAMC Recommendation, Pgs. 23-24.)

          6. Contractual Compliance complied with applicable policies and procedures when it issued the Termination Notice for Requestor's failure to publish a correspondence address on Requestor's website.

            The BAMC determined, and the Board agrees, that Contractual Compliance complied with established procedures when it issued the Termination Notice based on the Requestor's failure to publish a correspondence address on its website. The Requestor claims that "[n]o breach has occurred" because the Requestor's website "has a 'Contact' link at the top of every page, has telephone numbers on every page, contains multiple methods of communication (email, telephone, ticket, fax post) listed and clearly shows [its] address at the bottom of every page."125 However, the Requestor's correspondence address on its website must be the same as the address provided in its Registrar Information Specification (RIS).126 Contractual Compliance was unable to locate the correspondence address provided in the Requestor's RIS on the Requestor's website.127 Accordingly, consistent with the RAA and Contractual Compliance's process, Contractual Compliance issued the Termination Notice. (BAMC Recommendation, Pgs. 24-25.)

        2. The Requestor Has Not Demonstrated That Contractual Compliance Relied on False or Inaccurate Information When It Issued the Termination Notice.

          The BAMC concluded, and the Board agrees, that the Requestor has not identified any false or inaccurate information that Contractual Compliance purportedly relied upon when it decided to issue the Termination Notice. The only apparent reference to purported reliance on false or misleading information is the Requestor's claim that ICANN org "misunderstands … the technologies involved" in the Requestor's automated validation process of registrant contact information.128 That is not a basis for reconsideration. (BAMC Recommendation, Pgs. 25-26.)

        3. The Requestor Has Not Demonstrated That ICANN Org Published Defamatory Statements on Its Website or Violated Its Commitments by Publishing the Notices on Its Website.

          The BAMC concluded, and the Board agrees, that Contractual Compliance did not violate any established process or procedures when it published the Breach and Termination Notices on the Notices webpage. Notices sent during the Formal Resolution process are published on https://www.icann.org/compliance/notices, and ICANN updates the progress of each enforcement action.129 (BAMC Recommendation, Pgs. 26-27.)

          To the extent that the Requestor is suggesting that the publicly available Breach and Termination Notices contain libelous statements, the BAMC determined and the Board agrees that this is unconvincing. ICANN org takes defamation claims seriously. Accordingly, in the evaluation of Request 18-3, ICANN org reviewed the Breach and Termination Notices and confirmed that there neither the breaches identified nor any statements contained in the Notices are false or defamatory. Moreover, the Requestor has failed to show how any statements in the Notices are defamatory. Accordingly, the Requestor has not identified any element of ICANN's Mission, Commitments, Core Values, or established ICANN policy(ies) violated by ICANN organization, and reconsideration is not warranted on this ground.

        4. The Requestor's Rebuttal Does Not Raise Arguments or Facts That Support Reconsideration.

          The Board has considered the Requestor's Rebuttal and finds that the Requestor has not provided any additional arguments or facts supporting reconsideration.

          The Rebuttal states that: (1) Contractual Compliance failed to communicate with the Requestor during the Informal and Formal Resolution Processes; (2) the Complaint contained inaccuracies that were not vetted by ICANN org; (3) the Requestor corrected the inaccuracies in the Complaint; (4) ICANN org staff misunderstands the process the Requestor used to validate the information; (5) the Requestor responded to the Notice of Breach; (6) the Requestor was prevented by EU privacy laws from disclosing information to ICANN org; (7) the Requestor complied with ERRP Section 4.1; and (8) the Requestor maintained a valid correspondence address on its website.

          With respect to the first claim, the Board finds that this argument is not supported. Rather, the chronologies attached to the Breach and Termination Notices, as well as the detailed written correspondence between Contractual Compliance and the Requestor130 demonstrate that Contractual Compliance repeatedly contacted the Requestor via email, facsimile, courier mail, and telephone to resolve the breaches at issue.

          With respect to the Requestor's claim that there were inaccuracies in the Complaint sent to the Requestor, as detailed above in Section 3.A.1, the Board finds that this argument has been sufficiently addressed by the BAMC. The Requestor has not set forth any new evidence in its Rebuttal supporting reconsideration.

          Similarly, the Board finds that the third and fourth claims in the Rebuttal have been sufficiently addressed by the BAMC for the reasons discussed above and in the BAMC Recommendation. The Requestor has not set forth any new evidence in its Rebuttal supporting reconsideration.

          With respect to the Requestor's rebuttal that it responded to the Breach Notice by contacting Mukesh Chulani, the Registrar Services & Engagement Senior Manager, the Board finds that this claim does not support reconsideration. The Requestor does not provide – nor is ICANN org aware of – anything to show that the Requestor cured the breaches identified in the Breach Notice during the communication with Mr. Chulani. Moreover, Mr. Chulani engaged with the Requestor to encourage the Requestor to cure the breaches with Contractual Compliance before the matter escalated to termination. (See Attachment H to Reference Materials.)

          With respect to the Requestor's rebuttal that it was prevented by EU privacy laws from disclosing information to ICANN org, the Board finds that this claim has been sufficiently addressed by the BAMC for the reasons discussed above and in the BAMC Recommendation. The Requestor acknowledges that it never raised these concerns with Contractual Compliance during the Informal and Formal Resolution Processes. Further, as the BAMC noted, even though the Requestor did not identify privacy regulations as the basis for withholding from ICANN the requested information, Contractual Compliance nevertheless offered to work with the Requestor on how such records could be provided to demonstrate compliance, but the Requestor rejected Contractual Compliance's offer. (Attachment 1 to BAMC Recommendation on Request 18-3, Pgs. 9-10.) The BAMC concluded, and the Board agrees, that the Requestor's response to Contractual Compliance on this matter demonstrates that the Requestor's concerns about this breach item is not the inability to comply due to privacy regulations, but rather that the Requestor believes that "[t]here is no requirement in WAPS to provide [Contractual Compliance] with anything at all." (Id. at Pg. 10.)

          With respect to the Requestor's rebuttal that it complied with ERRP Section 4.1 because it displays its renewal fees and post-expiration renewal fees on its website, the Board finds that this argument has been sufficiently addressed by the BAMC. (See infra at Section 3.A.5.) The Requestor has not provided anything new to show that its Domain Registration Agreement contains a link to the renewal fees as required by the ERRP Section 4.1. Accordingly, reconsideration is not warranted.

          Finally, with respect to the Requestor's claims that the RIS form that ICANN org has on file "is not the current RIS form" and that ICANN has "failed to update/store/file the correct and updated information,"131 the Board finds that the Requestor has not provided anything to support these claims. While the Requestor claims that it updated its RIS through the ICANN Registrar Database RADAR,132 RADAR does not, in fact, contain any RIS information because it does not have the functionality for RIS forms to be submitted on its platform. As specified in the Registrar Contacts Update webpage at https://www.icann.org/resources/pages/registrar-contact-updates-2015-09-22-en, RIS updates should be emailed to registrarupdates@icann.org.133  The Requestor has not provided any evidence demonstrating that it submitted a revised RIS form pursuant to applicable procedures. The only RIS form that ICANN org has received from the Requestor is the RIS form that Contractual Compliance sent the Requestor on 13 March 2018, and that form reflects an address that is different from the address listed on the Requestor's website. 

          Accordingly, the Board concludes that nothing in the Requestor's rebuttal warrants reconsideration.

          This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.

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

    5. Consideration of Reconsideration Request 18-4: dotgay LLC

      Whereas, dotgay LLC submitted a community-based application for the .GAY generic top-level domain (gTLD), which was placed in a contention set with three other .GAY applications.

      Whereas, dotgay LLC participated in Community Priority Evaluation (CPE), but did not prevail.

      Whereas, dotgay LLC challenged the results of the CPE in Reconsideration Request 15-21 (Request 15-21), which the Board Governance Committee (BGC) denied. Thereafter, dotgay LLC filed Reconsideration Request 16-3 (Request 16-3), challenging the BGC's denial of Request 15-21.

      Whereas, while Request 16-3 was pending, the Board directed ICANN organization to undertake a review of the CPE process (the CPE Process Review). The BGC determined that the pending Reconsideration Requests regarding the CPE process, including Request 16-3, would be placed on hold until the CPE Process Review was completed.134

      Whereas, on 13 December 2017, ICANN org published three reports on the CPE Process Review (CPE Process Review Reports).

      Whereas, on 15 March 2018, the Board passed Resolutions 2018.03.15.08 through 2018.03.15.11, in which the Board acknowledged and accepted the findings set forth in the CPE Process Review Reports; declared that the CPE Process Review was complete; concluded that, as a result of the findings in the CPE Process Review Reports, there would be no overhaul or change to the CPE process for this current round of the New gTLD Program; and directed the Board Accountability Mechanism Committee (BAMC) to move forward with consideration of the remaining Reconsideration Requests relating to the CPE process that were placed on hold pending completion of the CPE Process Review.

      Whereas, on 13 April 2018, dotgay LLC submitted Reconsideration Request 18-4 (Request 18-4), claiming that the Board's adoption of the CPE Process Review Reports in Resolutions 2018.03.15.08 through 2018.03.15.11 violates its commitment to fairness, and is inconsistent with ICANN org's commitments to transparency, multistakeholder policy development, promoting well-informed decisions based on expert advice, applying documented policies consistently, neutrally, objectively, and fairly without discrimination, and operating with efficiency and excellence.

      Whereas, the BAMC previously determined that Request 18-4 is sufficiently stated and sent the Request to the Ombudsman for review and consideration in accordance with Article 4, Section 4.2(j) and (k) of the ICANN Bylaws.

      Whereas, the Ombudsman recused himself from this matter pursuant to Article 4, Section 4.2(l)(iii) of the Bylaws.

      Whereas, the BAMC carefully considered the merits of Request 18-4 and all relevant materials and recommended that Request 18-4 be denied because the Board considered all material information when it adopted Resolutions 2018.03.15.08 through 2018.03.15.11, which is consistent with ICANN's Mission, Commitments, Core Values, and established ICANN policy(ies).

      Whereas, the Board has carefully considered the BAMC's Recommendation on Request 18-4 and all relevant materials related to Request 18-4, including the Requestor's rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the rebuttal provides no additional argument or evidence to support reconsideration.

      Resolved (2018.07.18.07), the Board adopts the BAMC Recommendation on Request 18-4.

      Rationale for Resolution 2018.07.18.07

      1. Brief Summary and Recommendation

        The full factual background is set forth in the BAMC Recommendation on Request 18-4 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

         On 14 June 2018, the BAMC evaluated Request 18-4 and all relevant materials and recommended that the Board deny Request 18-4 because the Board considered all material information when it adopted the Resolutions, which is consistent with ICANN's Mission, Commitments, Core Values, and established ICANN policy(ies). Specifically, as noted in Resolutions 2018.03.15.08 through 2018.03.15.11 (the Resolutions), the Board considered the CPE Process Review Reports.135 The CPE Process Review Reports identify the materials considered by FTI.136 Additionally, as noted in the Rationale of the Resolutions, the Board acknowledged receipt of, and took into consideration, the correspondence received after the publication of the CPE Process Review Reports in adopting the Resolutions. (See BAMC Recommendation.)

        On 29 June 2018, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws. (See Rebuttal.) The Requestor claims that: (i) the BAMC "misconstrues Requestor's position regarding the BAMC's invitation to make additional submissions on Reconsideration Request 16-3;" (ii) the Requestor presented significant evidence that the ICANN Board violated its Bylaws by adopting the Resolutions;" (iii) FTI's methodology for the CPE Process Review is materially flawed; and (iv) "the CPE Process Review Reports are substantively flawed."137

        The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-4, including the Requestor's Rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the rebuttal provides no additional argument or evidence to support reconsideration.

      2. Issue

        The issue for reconsideration whether the Board's adoption of the Resolutions contradicted ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies).

        These issues are considered under the relevant standards for reconsideration requests, which are set forth in the BAMC Recommendation.

      3. Analysis and Rationale

        1. The Resolutions Are Consistent With ICANN's Mission, Commitments, Core Values and Established ICANN Policy(ies).

          The Requestor's claims focus on the transparency, fairness, efficiency, methodology, and scope of the CPE Process Reviews. The BAMC noted, and the Board agrees, the Requestor provides no evidence demonstrating how the Resolutions violate ICANN's commitment to fairness, or that the Board's action is inconsistent with ICANN's commitments to transparency, multistakeholder policy development, promoting well-informed decisions based on expert advice, applying documented policies consistently, neutrally, objectively, and fairly without discrimination, and operating with efficiency and excellence. Rather, it appears that the Requestor simply does not agree with findings of the CPE Process Review Reports and the Board's acceptance of those findings. As demonstrated below, these are not sufficient bases for reconsideration.

          1. The Requestor's Challenges to FTI's Methodology Do Not Warrant Reconsideration.

            The Requestor claims that FTI's methodology was flawed because: (1) the CPE Provider did not produce documents in the course of the investigation; (2) FTI did not interview any former employees of the CPE Provider; and (3) FTI did not accept materials from, or interview, CPE applicants in the course of its investigation.138

            The BAMC determined, and the Board agrees, that, FTI, not the Board or ICANN org, defined the methodology for the CPE Process Review.139 The Board selected FTI because it has "the requisite skills and expertise to undertake" the CPE Process Review, and relied on FTI to develop an appropriate methodology.140 The Requestor has not identified a policy or procedure (because there is none) requiring the Board or ICANN org to develop a particular methodology for the CPE Process Review. (BAMC Recommendation, Pg. 11.)

            With respect to the first concern, the BAMC determined, and the Board agrees, that it is inaccurate to suggest that FTI reviewed no materials from the CPE Provider. The CPE Provider did produce to FTI, and FTI did review, the CPE Provider's working papers, draft reports, notes, and spreadsheets for all CPE Reports.141 FTI also received and reviewed emails (and attachments) produced by ICANN org between relevant CPE Provider personnel and relevant ICANN org personnel related to the CPE process and evaluations.142 (BAMC Recommendation, Pgs. 11-12.)

            As noted in the CPE Process Review Reports, FTI requested additional materials from the CPE Provider such as the internal correspondence between the CPE Provider's personnel and evaluators, but the CPE Provider refused to produce certain categories of documents, claiming that pursuant to its contract with ICANN org, it was only required to produce CPE working papers, and internal and external emails were not "working papers."143 The BAMC concluded, and the Board agrees, that no policy or procedure exists that would require ICANN org to cancel the entire CPE Process Review because the CPE Provider did not produce its internal emails. As such, this argument does not support reconsideration. (BAMC Recommendation, Pg. 12.)

            With respect to the second claim, as detailed in the BAMC Recommendation, the Requestor has not identified a policy or procedure requiring FTI to do more because none exists. FTI interviewed the "only two remaining [CPE Provider] personnel," who were both "part of the core team for all 26 evaluations" in the CPE Process Review.144 Other team members were no longer employed by the CPE Provider when FTI conducted its investigation, and were therefore not available for FTI to interview.145 Neither FTI nor the Board were required to search out every former CPE Provider employee who had any role in any CPE evaluation, particularly when FTI already had access to two individuals who were core members of every CPE evaluation team and the working papers of the CPE reports that the entire core team worked on. Accordingly, the BAMC concluded, and the Board agrees, reconsideration is not warranted on this ground. (BAMC Recommendation, Pgs. 12-13.)

            The BAMC also determined, and the Board agrees, that the Requestor has not identified a policy or procedure requiring FTI to interview the CPE applicants or accept materials from the applicants in the course of the review. The BAMC further noted that FTI reviewed all relevant materials regarding the CPE process submitted by the applicants through correspondence, reconsideration requests, and Independent Review Process (IRP) proceedings.146 As discussed in further detailed in the BAMC Recommendation, the claim does not warrant reconsideration.

            The BAMC also concluded and the Board agrees that the comments of one Board member about FTI's methodology also do not support reconsideration. That Board member, Avri Doria, abstained from voting on the Resolutions due to concerns "about the rigor of the study and some of its conclusions,"147 does not render the vote invalid. Further, and notwithstanding her concerns, Ms. Doria nonetheless "accept[ed] the path forward" that the Board was setting.148

          2. FTI was Not Required to Agree with the Findings of Prior Third-Party Reports.

            The Requestor argues that the Board should not have accepted the findings of the CPE Process Review Reports because those findings are inconsistent with conclusions that third parties have reached concerning the CPE process.149 As detailed in the BAMC Recommendation, the Requestor asserts that certain third parties identified concerns with the CPE process before FTI completed the CPE Process Review that the Requestor believes are inconsistent with and not addressed in the CPE Process Review Reports. (BAMC Recommendation, Pgs. 13-16.) According to the Requestor, these reports should be taken to mean that any conclusion other than that the CPE Provider's process was inconsistent with the Applicant Guidebook and that ICANN org exerted undue influence over the CPE Provider must be incorrect.150

            The BAMC determined, and the Board agrees, that the Requestor's argument is both contrary to the facts and completely inconsistent with proper investigative methodology. As discussed in the BAMC Recommendation, the Association of Certified Fraud Examiners (ACFE), the anti-fraud organization that has codified the international investigative methodology that FTI followed, required that FTI form an investigative plan, collect all potentially relevant evidence and information, then analyze the relevant evidence and arrive at their conclusion based on that evidence151—not based on the opinions or investigations of prior investigators or commentators. Consistent with this methodology, FTI "carefully considered the claims raised in Reconsideration Requests and [IRP] proceedings related to CPE," specifically allegations that the CPE criteria "were applied inconsistently across the various CPEs as reflected in the CPE reports."152 Second, as noted in the CPE Process Review Reports, FTI considered all available evidence, including but not limited to, relevant IRP documents, relevant Reconsideration Requests, and the report from the Ombudsman's Own Motion Investigation on the CPE process.153

            Based upon the evidence available, FTI concluded that the CPE Provider applied the CPE criteria in a consistent manner, and differences in scoring outcomes "were not the result of inconsistent application of the criteria," but rather of different underlying circumstances.154

            FTI was not directed to conduct an investigation that supported (or contradicted) the third parties opinions that identified concerns with the CPE process.155 Nor was the Board obligated to direct ICANN org to undertake the CPE Process Review. Rather, the Review was "intended to have a positive impact on the community" and "provide greater transparency into the CPE evaluation process."156 Contrary to the Requestor's claim, the Board's decision to initiate the CPE Process Review was not an acknowledgement that the CPE process was flawed, but a directive to consider whether the process had flaws or could otherwise be improved. If FTI conducted its investigation under the assumption that it should or would reach one particular conclusion, there would be no purpose to conducting the review in the first place. The Requestor's arguments do not support reconsideration.

          3. Professor Eskridge's Criticisms of the CPE Process Review Do Not Support Reconsideration.

            The BAMC determined, and the Board agrees, that the "Second Expert Opinion of Professor William N. Eskridge, Jr." (Second Eskridge Opinion), which the Requestor submitted in support of Request 16-3 and referenced in Request 18-4,157 does not warrant reconsideration. (BAMC Recommendation, Pgs. 16-17.) The claims set forth in the Second Eskridge Opinion will be addressed as part of the BAMC and Board's consideration of Request 16-3.

            Moreover, as the BAMC noted, Professor Eskridge's primary complaint is that FTI did not re-evaluate the merits of the CPE applications or consider the substance and reasonableness of the CPE Provider's research.158 However, that was not what FTI was tasked to do and the Requestor provides no evidence of any policy or procedure requiring that the Board instruct FTI to re-evaluate the applications.

            With respect to the Requestor's "assertion that 'a strong case could be made that the purported investigation was undertaken with a pre-determined outcome in mind,'" neither the Requestor nor Professor Eskridge "offers any support for this baseless claim, and there is none."159 Accordingly, these claims do not support reconsideration.

          4. The Third-Party Letters of Support Do Not Support Reconsideration.

            The BAMC considered three letters submitted to the Board by third parties in support of the dotgay Application, criticizing the CPE Process Review.160 Although all three letters express "frustration" or dissatisfaction with the findings of the CPE Process Review, the BAMC determined, the Board agrees, that none states grounds for reconsideration, nor do they identify any policy or procedures that ICANN organization or FTI violated in the course of the CPE Process Review. Accordingly, they do not support reconsideration.

          5. The BAMC Will Consider All of the Evidence Submitted by the Requestor as Part of its Consideration of Request 16-3.

            The BAMC determined, and the Board agrees, that the Requestor claims that the BAMC's "reliance on" the CPE Process Review Reports would "directly affect its consideration of [Request] 16-3"161 does not support reconsideration. When the Board acknowledged and accepted the CPE Process Review Reports, it directed the BAMC to consider the Reports along with all of the materials submitted in support of the relevant reconsideration requests.162 The BAMC will consider the CPE Process Review Reports in the course of its evaluation of Request 16-3 (just as the Board will consider all of the materials submitted by the Requestor in connection with Request 16-3), but this does not mean that the BAMC will find the CPE Process Review Reports to be determinative to its Recommendation on Request 16-3. (BAMC Recommendation, Pg. 18.)

          6. ICANN Org Adhered to its Transparency Obligations.

            Finally, the Requestor asserts that ICANN org "has been remarkably nontransparent throughout" the CPE Process Review, and "has, and continues to, rebuff all efforts to obtain detailed information about FTI's independent review," because the "only substantive information available to the public about the independent review is the CPE Process Review Reports themselves."163

            As discussed in the BAMC Recommendation, the Requestor has not explained how making the CPE Process Review Reports public somehow falls short of ICANN organization's transparency obligations. The Board addressed and resolved this claim in its determination on the Requestor's Request 18-2,164 which is incorporated herein, and will not repeat itself here, except to say that the Requestor has raised no additional argument here that warrants reconsideration based on this assertion. (BAMC Recommendation, Pgs. 18-19.)

        2. The Rebuttal Does Not Raise Arguments or Facts That Support Reconsideration.

          The Board has carefully considered the Requestor's Rebuttal and finds that the Requestor has not provided any additional arguments or facts supporting reconsideration. The Rebuttal claims that: (i) the BAMC "misconstrues Requestor's position regarding the BAMC's invitation to make additional submissions on Reconsideration Request 16-3;" (ii) the Requestor presented significant evidence that the ICANN Board violated its Bylaws by adopting the Resolutions;" (iii) FTI's methodology for the CPE Process Review is materially flawed; and (iv) "the CPE Process Review Reports are substantively flawed."165 These are the same arguments set forth in Request 18-4 and were addressed by the BAMC in its Recommendation.

          First, the Requestor asserts that ICANN org "oversimplifies Requestor's response to the BAMC's limited invitation" to make a telephonic oral presentation to the BAMC in support of Request 16-3.166 The Requestor concedes that it rejected ICANN org's invitation, but asserts that ICANN org did not respond to its demand that ICANN org permit the Requestor a more "meaningful opportunity to make additional submissions to ICANN regarding the CPE Process Review Reports."167 This claim does not support reconsideration. The Requestor does not have a right to dictate the manner in which it is permitted to present to the BAMC. Under the Bylaws in effect when Request 16-3 was filed, the BAMC's decision on the opportunity to be heard is final.168 Indeed, the same invitation was extended to all requestors with pending reconsideration requests; were ICANN org to treat the Requestor differently, that would be unfair to other applicants in contravention of ICANN's commitments in its Bylaws.

          Second, the Requestor claims that it "provided ICANN with significant evidence supporting its claims," and thus takes issue with the BAMC's conclusion that "no evidence [exists] demonstrating how the Resolutions violate ICANN's commitment to fairness, or that the Board's action is inconsistent with ICANN's [other] commitments."169 This represents a substantive disagreement with the BAMC's conclusions, and is not a basis for reconsideration. The Requestor otherwise attempts to import arguments it made in connection with Reconsideration Request 18-2, which challenges ICANN org's response to the Requestor's request for documents (DIDP Request) pursuant to ICANN's Documentary Information Disclosure Policy (DIDP), relating to the CPE Process Review. The Board addressed and resolved the Requestor's claims concerning ICANN org's response to the DIDP Request in its determination on Request 18-2, which is incorporated herein, and will not be repeated here, except to say that the Requestor has raised no additional argument that warrants reconsideration based on this assertion.

          Third, with respect to the Requestor's claim that FTI's methodology for the CPE Process Review is materially flawed, the Board finds that this argument has been sufficiently addressed by the BAMC. The Requestor has not set forth any new evidence in its Rebuttal supporting reconsideration. Moreover, there is no support for the Requestor's assertion that FTI "simply accepted statements and information [from the CPE Provider and ICANN org] without further investigation or critical analysis."170 While the Requestor disagrees with the conclusions reached by FTI, that is not evidence that FTI failed to critically and impartially analyze the issues relevant to the CPE Process Review. As the BAMC concluded, and the Board agrees, FTI considered all available evidence, and did so in a fair and impartial manner. (See BAMC Recommendation, Pgs. 13-16.)

          Fourth, the Requestor repeats its assertion that the CPE Process Review Reports are substantively flawed because they "did not address any of the relevant independent evaluations," and "failed to consider divergent views on the CPE Process."171 The Board finds that this argument has been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 16-17.) The Requestor has not set forth any new evidence in its Rebuttal supporting reconsideration.

          This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.

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

    6. Consideration of Reconsideration Request 18-5: DotMusic Limited

      Whereas, DotMusic Limited submitted a community-based application for the .MUSIC generic top-level domain (gTLD), which was placed in a contention set with other .MUSIC applications.

      Whereas, DotMusic Limited participated in Community Priority Evaluation (CPE), but did not prevail.

      Whereas, DotMusic Limited challenged the results of the CPE in Reconsideration Request 16-5 (Request 16-5).

      Whereas, while Request 16-5 was pending, the Board directed ICANN organization to undertake a review of the CPE process (the CPE Process Review). The Board Governance Committee (BGC) determined that the pending Reconsideration Requests regarding the CPE process, including Request 16-5, would be placed on hold until the CPE Process Review was completed.172

      Whereas, on 13 December 2017, ICANN org published three reports on the CPE Process Review (CPE Process Review Reports).

      Whereas, on 15 March 2018, the Board passed the Resolutions 2018.03.15.08 through 2018.03.15.11, in which the Board acknowledged and accepted the findings set forth in the CPE Process Review Reports; declared that the CPE Process Review was complete; concluded that, as a result of the findings in the CPE Process Review Reports, there would be no overhaul or change to the CPE process for this current round of the New gTLD Program; and directed the Board Accountability Mechanism Committee (BAMC) to move forward with consideration of the remaining Reconsideration Requests relating to the CPE process that were placed on hold pending completion of the CPE Process Review.

      Whereas, on 14 April 2018, DotMusic Limited submitted Reconsideration Request 18-5 (Request 18-5), claiming that the CPE Process Review is procedurally and methodologically deficient; that the CPE Process Review failed to perform a substantive analysis of the CPE process; and that the Board's adoption of Resolutions 2018.03.15.08 through 2018.03.15.11 were in violation of ICANN's Bylaws.

      Whereas, the BAMC previously determined that Request 18-5 is sufficiently stated and sent the Request to the Ombudsman for review and consideration in accordance with Article 4, Section 4.2(j) and (k) of the ICANN Bylaws.

      Whereas, the Ombudsman recused himself from this matter pursuant to Article 4, Section 4.2(l)(iii) of the Bylaws.

      Whereas, the BAMC carefully considered the merits of Request 18-5 and all relevant materials and recommended that Request 18-5 be denied because the Board considered all material information when it adopted Resolutions 2018.03.15.08 through 2018.03.15.11, which is consistent with ICANN's Mission, Commitments, Core Values, and established ICANN policy(ies).

      Whereas, the Board has carefully considered the BAMC's Recommendation on Request 18-5 and all relevant materials related to Request 18-5, including the Requestor's rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the rebuttal provides no additional argument or evidence to support reconsideration.

      Resolved (2018.07.18.08), the Board adopts the BAMC Recommendation on Request 18-5.

      Rationale for Resolution 2018.07.18.08

      1. Brief Summary and Recommendation

        The full factual background is set forth in the BAMC Recommendation on Request 18-5 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

         On 14 June 2018, the BAMC evaluated Request 18-5 and all relevant materials and recommended that the Board deny Request 18-5 because the Board considered all material information when it adopted the Resolutions, which is consistent with ICANN's Mission, Commitments, Core Values, and established ICANN policy(ies). Specifically, as noted in Resolutions 2018.03.15.08 through 2018.03.15.11 (the Resolutions), the Board considered the CPE Process Review Reports.173 The CPE Process Review Reports identify the materials considered by FTI.174 Additionally, as noted in the Rationale of the Resolutions, the Board acknowledged receipt of, and took into consideration, the correspondence received after the publication of the CPE Process Review Reports in adopting the Resolutions. (See BAMC Recommendation.)

        On 29 June 2018, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws. (See Rebuttal.) The Rebuttal claims that: (i) the BAMC "misconstrues Requestor's position regarding the BAMC's invitation to make additional submissions on Reconsideration Request 16-5;" (ii) the Requestor presented "significant evidence that the ICANN Board violated its Bylaws by adopting the Resolutions;" (iii) FTI's methodology for the CPE Process Review is flawed; and (iv) "the CPE Process Review Reports are substantively flawed."175

        The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-5, including the Requestor's Rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the Rebuttal provides no additional argument or evidence to support reconsideration.

      2. Issue

        The issue for reconsideration whether the Board's adoption of the Resolutions contradicted ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies).

        These issues are considered under the relevant standards for reconsideration requests, which are set forth in the BAMC Recommendation.

      3. Analysis and Rationale

        1. The Resolutions Are Consistent With ICANN's Mission, Commitments, Core Values and Established ICANN Policy(ies).

          The Requestor's claims focus on the transparency, fairness, efficiency, methodology, and scope of the CPE Process Reviews. The BAMC noted, and the Board agrees, the Requestor provides no evidence demonstrating how the Resolutions violate ICANN's commitment to fairness, or that the Board's action is inconsistent with ICANN's commitments to transparency, multistakeholder policy development, promoting well-informed decisions based on expert advice, applying documented policies consistently, neutrally, objectively, and fairly without discrimination, and operating with efficiency and excellence. Rather, it appears that the Requestor simply does not agree with findings of the CPE Process Review Reports and the Board's acceptance of those findings. As demonstrated below, these are not sufficient bases for reconsideration.

          1. The Requestor's Challenges to FTI's Methodology Do Not Warrant Reconsideration.

            The Requestor claims that FTI's methodology was flawed because: (1) the CPE Provider did not produce documents in the course of the investigation; (2) FTI did not interview any former employees of the CPE Provider; and (3) FTI did not interview CPE applicants or accept materials from them in the course of its investigation.176 

            The BAMC determined, and the Board agrees, that, FTI, not the Board or ICANN org, defined the methodology for the CPE Process Review.177 The Board selected FTI because it has "the requisite skills and expertise to undertake" the CPE Process Review, and it relied on FTI to develop an appropriate methodology.178 The Requestor has not identified a policy or procedure (because there is none) requiring the Board or ICANN org to develop a particular methodology for the CPE Process Review. (BAMC Recommendation, Pgs. 9-12.)

            With respect to the first concern, the BAMC determined, and the Board agrees, that it is inaccurate to suggest that FTI reviewed no materials from the CPE Provider. The CPE Provider did produce to FTI, and FTI did review, the CPE Provider's working papers, draft reports, notes, and spreadsheets for all CPE Reports.179 FTI also received and reviewed emails (and attachments) produced by ICANN org between relevant CPE Provider personnel and relevant ICANN org personnel related to the CPE process and evaluations.180

            As noted in the CPE Process Review Reports, FTI requested additional materials from the CPE Provider such as the internal correspondence between the CPE Provider's personnel and evaluators, but the CPE Provider refused to produce certain categories of documents, claiming that pursuant to its contract with ICANN org, it was only required to produce CPE working papers, and internal and external emails were not "working papers."181 The BAMC concluded, and the Board agrees, that no policy or procedure exists that would require ICANN org to cancel the entire CPE Process Review because the CPE Provider did not produce its internal emails. As such, this argument does not support reconsideration. (BAMC Recommendation, Pgs. 10-11.)

            With respect to the second claim, as detailed in the BAMC Recommendation, the Requestor has not identified a policy or procedure requiring FTI to do more because none exists. FTI interviewed the "only two remaining [CPE Provider] personnel," who were both "part of the core team for all 26 evaluations" in the CPE Process Review.182 Other team members were no longer employed by the CPE Provider when FTI conducted its investigation, and were therefore not available for FTI to interview.183 Neither FTI nor the Board were required to search out every former CPE Provider employee who had any role in any CPE evaluation, particularly when FTI already had access to two individuals who were core members of every CPE evaluation team and the working papers of the CPE reports that the entire core team worked on. Accordingly, the BAMC concluded, and the Board agrees, reconsideration is not warranted on this ground. (BAMC Recommendation, Pgs. 9-12.)

            The BAMC also determined, and the Board agrees, that the Requestor has not identified a policy or procedure requiring FTI to interview the CPE applicants or accept materials from the applicants in the course of the review.  The BAMC further noted that FTI reviewed all relevant materials regarding the CPE process submitted by the applicants through correspondence, reconsideration requests, and Independent Review Process (IRP) proceedings.184 As discussed in further detailed in the BAMC Recommendation, the claim does not warrant reconsideration.  (BAMC Recommendation, Pgs. 9-12.)

            The BAMC also concluded and the Board agrees that the comments of one Board member about FTI's methodology also do not support reconsideration. That Board member, Avri Doria, abstained from voting on the Resolutions due to concerns "about the rigor of the study and some of its conclusions,"185 does not render the vote invalid. Further, and notwithstanding her concerns, Ms. Doria nonetheless "accept[ed] the path forward" that the Board was setting.186

          2. FTI Was Not Required to Agree with Others' Substantive Conclusions and Did Not Fail to Engage in "Substantive Analysis."

            The Requestor argues that reconsideration is warranted because, according to the Requestor, "FTI not only performed no substantive review of the CPE process in order to reach its ultimate conclusions on [Scope 1 and Scope 2] but also concluded there are no issues with the CPE despite the significant evidence to the contrary."187 The BAMC determined, and the Board agrees, that the Requestor's argument is both contrary to the facts and completely inconsistent with proper investigative methodology. As detailed in the BAMC Recommendation and incorporated herein by reference, the Association of Certified Fraud Examiners (ACFE), the anti-fraud organization that has codified the international investigative methodology that FTI followed, required that FTI form an investigative plan, collect all potentially relevant evidence and information, then analyze the relevant evidence and arrive at their conclusion based on that evidence188—not based on the opinions or investigations of prior investigators or commentators. Consistent with this methodology, FTI "carefully considered the claims raised in Reconsideration Requests and [IRP] proceedings related to CPE," specifically allegations that the CPE criteria "were applied inconsistently across the various CPEs as reflected in the CPE reports."189 Based upon the evidence available, FTI concluded that the CPE Provider applied the CPE criteria in a consistent manner, and differences in scoring outcomes "were not the result of inconsistent application of the criteria," but rather of different underlying circumstances.190 The fact that others reached different conclusions than FTI does not invalidate FTI's Reports, nor does it warrant reconsideration of the Board's action in adopting the Resolutions.191 (BAMC Recommendation, Pgs. 12-16.)

            FTI was not directed to conduct an investigation that supported (or contradicted) the third party's opinions that identified concerns with the CPE process.192 Nor was the Board obligated to direct ICANN org to undertake the CPE Process Review. Rather, the Review was "intended to have a positive impact on the community" and "provide greater transparency into the CPE evaluation process."193 Contrary to the Requestor's claim, the Board's decision to initiate the CPE Process Review was not an acknowledgement that the CPE process was flawed, but a directive to consider whether the process had flaws or could otherwise be improved. If FTI conducted its investigation under the assumption that it should or would reach one particular conclusion, there would be no purpose to conducting the review in the first place. The Requestor's arguments do not support reconsideration. (BAMC Recommendation, Pgs. 12-13.)

            The BAMC concluded, and the Board agrees, that the Requestor's claim that "FTI simply defended the CPE process without performing substantive analysis,"194 does not support reconsideration. (BAMC Recommendation, Pg. 16.) FTI did not conduct a de novo redetermination of the scores awarded to each applicant. That was not within the scope of the CPE Process Review, and it would have been improper for FTI to do so. Instead, FTI "examined all aspects of the CPE Provider's evaluation process in evaluating whether the CPE Provider consistently applied the CPE criteria throughout each CPE."195 The methodical nine-step process FTI laid out and followed cannot plausibly be described as lacking "substantive analysis." Accordingly, reconsideration is not warranted.

          3. The ICANN Board's Adoption of the Resolutions Complied with the ICANN Bylaws.

            The Requestor contends that the adoption of the Resolutions violated ICANN organization's Bylaws in three ways: (1) that the Board's action violated international law and conventions with which the Bylaws require compliance; (2) that the Board's action violated the Commitments and Core Values set out in the Bylaws; and (3) that the Board's action violated the Bylaws' requirement of fairness. The BAMC determined, and the Board agrees, that none of these arguments warrant reconsideration.

            With respect to the first claim, the Requestor asserts that the CPE Process Review did not provide due process to the Requestor because "it has been unable to address the evidence supporting the CPE Review because they [sic] have not been made publically available."196 As detailed in the BAMC Recommendation, the Requestor has not demonstrated how the Board's action in adopting the Resolutions violates its commitment to "carrying out its activities in conformity with relevant principles of international law and international conventions and applicable local law."197 Rather, the Requestor is attempting to reassert the claims it presented in Request 18-1, challenging ICANN organization's response to its 2018 DIDP Request seeking documents related to the CPE Process Review. However, for the reasons set forth in the BAMC's Recommendation of Request 18-1, which are incorporated herein by reference, ICANN org's response to the Requestor's 2018 DIDP request did not violate any relevant international law or convention; while the Requestor has a right to full consideration of its position, which the BAMC is committed to giving, the Requestor does not have the "right" to due process or other "constitutional" rights with respect to the DIDP.198 (BAMC Recommendation, Pgs. 17-18.)

            Likewise, the Board was not obligated to institute the CPE Process Review, but did so in its discretion pursuant to its oversight of the New gTLD Program, after considering all the relevant issues.199 As noted by the Panel in the Booking v. ICANN IRP Final Declaration, "the fact that the ICANN Board enjoys . . . discretion and may choose to exercise it at any time does not mean that it is bound to exercise it, let alone at the time and in the manner demanded" by the Requestor.200 Accordingly, the Board was not obligated to direct ICANN org to undertake the CPE Process Review at all, let alone set a particularly wide or narrow scope for it or for the disclosure of supporting materials to the Requestor. The Requestor's conclusory statement that it has been deprived due process because it did not have access to every document underlying the CPE Process Review Reports201 does not support reconsideration. (BAMC Recommendation, Pg. 18.)

            With respect to the Requestor's second claim that the Board purportedly violated its Commitments and Core Values set out in the Bylaws, the Requestor bases its claim on its earlier criticisms of the CPE Process Review, which does not warrant reconsideration for many of the reasons outlined above and in further detail in the BAMC Recommendation.202

            The Board also finds no basis for reconsideration as to the Requestor's claim that the Board's action violated the Bylaws' requirement of fairness because the CPE Review is purportedly "based on an incomplete and unreliable universe of documents biased in favor of ICANN."203 As discussed above, FTI's choice of investigative methodology provides no reason for reconsideration, and it likewise does not when made again through the lens of this particular Bylaws provision.

          4. The BAMC Will Consider All of the Evidence Submitted by the Requestor as Part of its Consideration of Request 16-5.

            The BAMC determined, and the Board agrees, that the Requestor claims that it is "materially affected by the Resolutions, which accept the findings of the CPE Review, because the BAMC intends to rely on the CPE Review to decide Requestor's Reconsideration Request 16-5"204 does not support reconsideration. When the Board acknowledged and accepted the CPE Process Review Reports, it directed the BAMC to consider the Reports along with all of the materials submitted in support of the relevant reconsideration requests.205 The BAMC will consider the CPE Process Review Reports in the course of its evaluation of Request 16-5 (just as the Board will consider all of the materials submitted by the Requestor in connection with Request 16-5), but this does not mean that the BAMC will find the CPE Process Review Reports to be determinative to its Recommendation on Request 16-5. (BAMC Recommendation, Pgs. 19-20.)

        2. The Rebuttal Does Not Raise Arguments or Facts That Support Reconsideration.

          The Board has carefully considered the Requestor's Rebuttal and finds that the Requestor has not provided any additional arguments or facts supporting reconsideration. The Rebuttal claims that: (i) the BAMC "misconstrues Requestor's position regarding the BAMC's invitation to make additional submissions on Reconsideration Request 16-5;" (ii) the Requestor presented "significant evidence that the ICANN Board violated its Bylaws by adopting the Resolutions;" (iii) FTI's methodology for the CPE Process Review is flawed; and (iv) "the CPE Process Review Reports are substantively flawed."206 These are the same arguments set forth in Request 18-5 and were addressed by the BAMC in its Recommendation.

          First, the Requestor asserts that ICANN org "oversimplifies Requestor's response to the BAMC's invitation" to make a telephonic oral presentation to the BAMC in support of Request 16-5.207 The Requestor concedes that it rejected ICANN org's invitation, but asserts that ICANN org did not respond to its demand that ICANN org permit the Requestor a more "meaningful opportunity to make additional submissions to ICANN regarding the CPE Process Review Reports."208 This claim does not support reconsideration. The Requestor does not have a right to dictate the manner in which it is permitted to present to the BAMC. Under the Bylaws in effect when Request 16-5 was filed, the BAMC's decision on the opportunity to be heard is final.209 Indeed, the same invitation was extended to all requestors with pending reconsideration requests; were ICANN org to treat the Requestor differently, that would be unfair to other applicants in contravention of ICANN's commitments in its Bylaws.

          Second, the Requestor claims that it "provide[d] ICANN with significant evidence supporting its claims," and thus takes issue with the BAMC's conclusion that "no evidence [exists] demonstrating how the Resolutions violate ICANN's commitment to fairness, or that the Board's action is inconsistent with ICANN's [other] commitments."210 This represents a substantive disagreement with the BAMC's conclusions, and is not a basis for reconsideration. The Requestor otherwise attempts to import arguments it made in connection with Reconsideration Request 18-1, which challenges ICANN org's response to the Requestor's request for documents (DIDP Request) pursuant to ICANN's Documentary Information Disclosure Policy (DIDP), relating to the CPE Process Review. The Board addressed and resolved the Requestor's claims concerning ICANN org's response to the DIDP Request in its determination on Request 18-1, which is incorporated herein, and will not be repeated here, except to say that the Requestor has raised no additional argument that warrants reconsideration based on this assertion.

          Third, with respect to the Requestor's claim that FTI's methodology for the CPE Process Review is materially flawed, the Board finds that this argument has been sufficiently addressed by the BAMC. The Requestor has not set forth any new evidence in its Rebuttal supporting reconsideration. Moreover, there is no support for the Requestor's assertion that FTI "simply accepted that the documents and interview statements [from the CPE Provider and ICANN org] were accurate and free of bias" without further investigation or analysis.211 While the Requestor disagrees with the conclusions reached by FTI, that is not evidence that FTI failed to critically and impartially analyze the issues relevant to the CPE Process Review. As the BAMC concluded, and the Board agrees, FTI considered all available evidence, and did so in a fair and impartial manner. (See BAMC Recommendation, Pgs. 9-16.)

          Fourth, the Requestor repeats its assertion that the CPE Process Review Reports are substantively flawed because they "did not address any of the independent evaluations," and "fail[ed] to consider divergent views on the CPE Process."212 The Board finds that this argument has been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 19-20.) The Requestor has not set forth any new evidence in its Rebuttal supporting reconsideration.

          This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.

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

    7. Consideration of Reconsideration Request 18-6: Travel Reservations SRL, Minds + Machines Group Limited, Radix FZC, dot Hotel Inc., Fegistry LLC

      Whereas, Travel Reservations SRL, Minds + Machines Group Limited, Radix FZC (and its subsidiary applicant dotHotel Inc.), and Fegistry LLC (collectively the Requestors) submitted standard applications for the .HOTEL generic top-level domain (gTLD), which was placed in a contention set with other .HOTEL applications. One of the other application for the .HOTEL gTLD, was a community application filed by HOTEL Top-Level-Domain S.a.r.l. (HTLD).

      Whereas, HTLD participated in Community Priority Evaluation (CPE) and prevailed.

      Whereas, the Requestors have challenged the CPE Provider's determination that the HTLD Application satisfied the requirements for community priority, and the Board's decision not to cancel the HTLD Application, via numerous DIDP Requests, Reconsideration Requests, and Independent Review Process. All of those challenges have been resolved, with the exception of Reconsideration Request 16-11 (Request 16-11), which is pending.

      Whereas, while Request 16-11 was pending, the Board directed ICANN organization to undertake a review of the CPE process (the CPE Process Review). The Board Governance Committee (BGC) determined that the pending Reconsideration Requests regarding the CPE process, including Request 16-11, would be placed on hold until the CPE Process Review was completed.213

      Whereas, on 13 December 2017, ICANN org published three reports on the CPE Process Review (CPE Process Review Reports).

      Whereas, on 15 March 2018, the Board passed the Resolutions 2018.03.15.08 through 2018.03.15.11, in which the Board acknowledged and accepted the findings set forth in the CPE Process Review Reports, declared that the CPE Process Review was complete, concluded that, as a result of the findings in the CPE Process Review Reports, there would be no overhaul or change to the CPE process for this current round of the New gTLD Program, and directed the Board Accountability Mechanism Committee (BAMC) to move forward with consideration of the remaining Reconsideration Requests relating to the CPE process that were placed on hold pending completion of the CPE Process Review.

      Whereas, on 14 April 2018, the Requestors submitted Reconsideration Request 18-6 (Request 18-6), claiming that the Board's adoption of the CPE Process Review Reports in Resolutions 2018.03.15.08 through 2018.03.15.11 are contrary to ICANN org's commitments to transparency and to applying documented policies in a consistent, neutral, objective, and fair manner.

      Whereas, the BAMC previously determined that Request 18-6 is sufficiently stated and sent the Request to the Ombudsman for review and consideration in accordance with Article 4, Section 4.2(j) and (k) of the ICANN Bylaws.

      Whereas, the Ombudsman recused himself from this matter pursuant to Article 4, Section 4.2(l)(iii) of the Bylaws.

      Whereas, the BAMC carefully considered the merits of Request 18-6 and all relevant materials and recommended that Request 18-6 be denied because the Board considered all material information when it adopted Resolutions 2018.03.15.08 through 2018.03.15.11, which is consistent with ICANN's Mission, Commitments, Core Values, and established ICANN policy(ies).

      Whereas, the Board has carefully considered the BAMC's Recommendation on Request 18-6 and all relevant materials related to Request 18-6, including the Requestor's rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the rebuttal provides no additional argument or evidence to support reconsideration.

      Resolved (2018.07.18.09), the Board adopts the BAMC Recommendation on Request 18-6.

      Rationale for Resolution 2018.07.18.09

      1. Brief Summary and Recommendation

        The full factual background is set forth in the BAMC Recommendation on Request 18-6 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

         On 14 June 2018, the BAMC evaluated Request 18-6 and all relevant materials and recommended that the Board deny Request 18-6 because the Board considered all material information when it adopted the Resolutions, which is consistent with ICANN's Mission, Commitments, Core Values, and established ICANN policy(ies). Specifically, as noted in Resolutions 2018.03.15.08 through 2018.03.15.11 (the Resolutions), the Board considered the CPE Process Review Reports.214 The CPE Process Review Reports identify the materials considered by FTI.215 Additionally, as noted in the Rationale of the Resolutions, the Board acknowledged receipt of, and took into consideration, the correspondence received after the publication of the CPE Process Review Reports in adopting the Resolutions. (See BAMC Recommendation.)

        On 29 June 2018, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws. (See Rebuttal.) The Requestor claims that "the BAMC's Recommendation is based on both factual errors and on a misrepresentation of Requestors' position and of the applicable rules."216

        The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-6, including the Requestor's rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the Rebuttal provides no additional argument or evidence to support reconsideration.

      2. Issue

        The issue is whether the Board's adoption of the Resolutions contradicted ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies). These issues are considered under the relevant standards for reconsideration requests, which are set forth in the BAMC Recommendation.

        The Board notes that it agrees with the BAMC's decision to not consider Request 16-11 in conjunction with Request 18-6 (as requested by the Requestors) because the Requests were filed under different Bylaws with different standards for Reconsideration and involve different subject matters.

      3. Analysis and Rationale

        1. The Resolutions Are Consistent With ICANN's Mission, Commitments, Core Values and Established ICANN Policy(ies).

          The Requestor's claims focus on the transparency, methodology, and scope of the CPE Process Review. The BAMC noted, and the Board agrees, the Requestor provides no evidence demonstrating how the Resolutions violate ICANN's commitment to fairness, or that the Board's action is inconsistent with ICANN's commitments to transparency, multistakeholder policy development, promoting well-informed decisions based on expert advice, applying documented policies consistently, neutrally, objectively, and fairly without discrimination, and operating with efficiency and excellence. Rather, it appears that the Requestor simply does not agree with findings of the CPE Process Review Reports and the Board's acceptance of those findings. As demonstrated below and in further detail in the BAMC Recommendation which is incorporated herein, these are not sufficient bases for reconsideration.

          1. The CPE Process Review Satisfied Applicable Transparency Obligations.

            The Requestors argue that the CPE Process Review—and therefore the Resolutions—are contrary to ICANN's commitments to transparency and to applying documented policies in a consistent, neutral, objective, and fair manner.217 Specifically, the Requestors believe that the CPE Process Review lacked transparency concerning: (1) "the selection process for the CPE process reviewer ([FTI]), and the names and curricula vitae of the FTI individuals involved in the review"; (2) the "instructions FTI received from ICANN [organization]"; (3) the "criteria and standards that FTI used to perform the CPE process review"; (4) the "documents or the recordings of the interviews on which [FTI's] findings are based"; and (5) the "questions that were asked during [FTI's] interviews."218

            With respect to the first three claims, ICANN org provided details concerning the selection process for the CPE process reviewer almost one year ago, in furtherance of its effort to operate to the maximum extent feasible in an open and transparent manner.219 In the same document, ICANN org provided information concerning the scope of FTI's investigation.220 Similarly, the CPE Process Review Reports themselves provide extensive detail concerning FTI's "criteria and standards" for conducting the CPE Process Review.221 Accordingly, the BAMC concluded, and the Board agrees, that none of these arguments support reconsideration. (BAMC Recommendation, Pg. 13.)

            Concerning FTI's documents, recordings, and interview questions, as noted in the CPE Process Review Reports, many of the materials that FTI reviewed are publicly available documents, and are equally are available to the Requestors.222 Additionally, FTI requested, received, and reviewed (1) emails from ICANN org (internal to ICANN personnel as well external emails exchanged with the CPE Provider) and (2) the CPE Provider's working papers, including draft reports, notes, and spreadsheets.223 While the Requestors did not file a request for documentary information pursuant to the Documentary Information Disclosure Policy (DIDP), these materials are the subject of two DIDP Requests, which were submitted by parties in January 2018. ICANN organization considered the request and concluded that ICANN organization explained that those documents would not be made publicly available because they were subject to certain Nondisclosure Conditions.224 These same Nondisclosure Conditions apply to the Requestors' claim. Moreover, the reasoning set forth in the BAMC's Recommendations on Reconsideration Requests 18-1 and 18-2, denying reconsideration on those DIDP Responses are applicable here and are therefore incorporated herein by reference.225  The Requestors here provide no evidence that ICANN org's decision not to disclose these materials contravened any applicable policies, or ICANN's Mission, Commitments, or Core Values. Accordingly, the BAMC determined, and the Board agrees, this argument does not support reconsideration. (BAMC Recommendation, Pgs. 13-15.)

          2. The Requestors' Challenges to FTI's Methodology Do Not Warrant Reconsideration.

            The Requestors assert that the Board should not have acknowledged or accepted the CPE Process Review Reports because FTI's methodology was flawed.226 Specifically, the Requestors complain that FTI: (1) did not explain why the CPE Provider refused to produce email correspondence; and (2) did not try to contact former employees of the CPE Provider.227

            As discussed in the detail in the BAMC Recommendation, FTI, not the Board or ICANN org, defined the methodology for the CPE Process Review Reports.228 The Board selected FTI because it has "the requisite skills and expertise to undertake" the CPE Process Review, and relied on FTI to develop an appropriate methodology.229 The Requestors have not identified a policy or procedure (because there is none) requiring the Board or ICANN org to develop a particular methodology for the CPE Process Review.

            With respect to the Requestor's first concern, the BAMC concluded, and the Board agrees, that the claim does not support reconsideration. The CPE Provider did produce to FTI, and FTI did review, the CPE Provider's working papers, draft reports, notes, and spreadsheets for all CPE Reports.230 FTI also received and reviewed emails (and attachments) produced by ICANN organization between relevant CPE Provider personnel and relevant ICANN organization personnel related to the CPE process and evaluations.231 The Requestors are correct that FTI requested additional materials from the CPE Provider such as the internal correspondence between the CPE Provider's personnel and evaluators, but the CPE Provider refused to produce certain categories of documents, claiming that pursuant to its contract with ICANN org, it was only required to produce CPE working papers, and internal and external emails were not "working papers."232 The BAMC determined, and the Board agrees, no policy or procedure exists that would require ICANN organization to reject the CPE Process Review Reports because the CPE Provider did not produce internal emails. This argument does not support reconsideration. (BAMC Recommendation, Pgs. 15-16.)

            The BAMC concluded, and the Board agrees, that the Requestors' concern that FTI interviewed the "only two remaining [CPE Provider] personnel" does not warrant reconsideration. Other team members were no longer employed by the CPE Provider when FTI conducted its investigation, and were therefore not available for FTI to interview. 233 Neither FTI nor the Board were required to search out every former CPE Provider employee who had any role in any CPE evaluation, particularly when FTI already had access to two individuals who were core members of every CPE evaluation team and the working papers of the CPE reports that the entire core team worked on. The Requestor has not identified a policy or procedure requiring FTI to do more (including to explain why it did not seek out former employees) because none exists. Reconsideration is not warranted on this ground. (BAMC Recommendation, Pg. 16.)

            The Requestors also claim that FTI's methodology was flawed because FTI did not identify that the CPE Provider determined that the HTLD Application "provided for an appeal system," when in fact the application "d[id] not provide for an appeal system" as required under Criterion 3, Registration Policies.234 The Requestors claim that "[t]he Despegar et al. IRP Panel considered [this] inconsistenc[y] to have merit," and the "existence of said inconsistencies has never been contested."235 As discussed in detail in the BAMC Recommendation and incorporated herein by reference, this assertion is an overstatement of the Despegar IRP Panel's findings. (BAMC Recommendation, Pgs. 16-17.)  The Despegar IRP Panel stated that: (1) ICANN org had confirmed that the CPE Provider did not have a "process for comparing the outcome of one CPE evaluation with another in order to ensure consistency," nor did ICANN org have a process for doing so; and that (2) "[m]uch was made in this IRP of the inconsistencies, or at least apparent inconsistencies, between the outcomes of different CPE evaluations, . . . some of which, on the basis solely of the arguments provided by [the Requestors], have some merit."236 The Despegar IRP Panel did not make a determination concerning these arguments, nor was it asked to. Accordingly, the IRP Panel's side note concerning the Requestors' allegations of inconsistencies does not support reconsideration.

          3. The Requestors' Challenge to the Scope of the CPE Process Review Does Not Warrant Reconsideration.

            The BAMC determined, and the Board agrees, that the Requestors' complaints about the scope of FTI's investigation do not support reconsideration.237 The Requestors believe that FTI "sum[med] up" but did not "analyse" "the different reasons that the CPE Provider provided to demonstrate adherence to the community priority criteria," that it did not analyze "the inconsistencies invoked by applicants in [reconsideration requests], IRPs or other processes," and that FTI "did not examine the gTLD applications underlying the CPE [evaluations]."238 Essentially, the Requestors wanted FTI to substantively re-evaluate the CPE applications, which was beyond the scope of the CPE Process Review. The requestor's substantive disagreement with FTI's methodology is not a basis for reconsideration. (BAMC Recommendation, Pgs. 17-18.)

          4. The Resolutions Are Consistent with ICANN's Mission, Commitments, Core Values, and Established Policy(ies).

            The BAMC concluded, and the Board agrees, that there is no merit to the Requestors' assertions that the Resolutions are contrary to ICANN's commitments to transparency and to applying documented policies in a consistent, neutral, objective, and fair manner,239 and they will prevent Requestors from obtaining "a meaningful review of their complaints regarding HTLD's application for .hotel, the CPE process and the CPE Review Process."240 In the Resolutions, the Board directed the BAMC to consider the CPE Reports along with all of the materials submitted in support of the relevant reconsideration requests.241 The BAMC will consider the CPE Process Review Reports in the course of its evaluation of Request 16-11 (just as the BAMC will consider all of the materials submitted by the Requestors in connection with Request 16-11), but this does not mean that the BAMC will find the CPE Process Review Reports to be determinative to its Recommendation on Request 16-11. (BAMC Recommendation, Pg. 18.)

            The BAMC notes that it provided the Requestors an opportunity to make a telephone presentation concerning the effect of the CPE Process Review on Request 16-11, which the Requestors accepted.  The BAMC will carefully review and consider all of the materials that the Requestors submitted in support of Request 16-11, as well as the CPE Process Review Reports as one of many reference points in its consideration of Request 16-11. Accordingly, reconsideration is not warranted.

            With respect to the Requestors' due process claims, as discussed in the BAMC Recommendation and incorporated herein by reference, while ICANN org is committed to conform with relevant principles of international law and conventions, any commitment to provide due process is voluntary and not coextensive with government actors' obligations. Constitutional protections do not apply with respect to a corporate accountability mechanism. California non-profit public benefit corporations, such as ICANN organization, are expressly authorized to establish internal accountability mechanisms and to define the scope and form of those mechanisms.242 ICANN organization was not required to establish any internal corporate accountability mechanism, but instead did so voluntarily. Accordingly, the Requestor does not have the "right" to due process or other "constitutional" rights with respect to ICANN's accountability mechanisms. (BAMC Recommendation, Pgs. 19-20).

            Even if ICANN organization did have due process obligations, and even though the "rights" the Requestors invoke do not apply to corporate accountability mechanisms, the Requestors have not explained how the alleged misapplication of ICANN org's policies resulted in a denial of due process. ICANN org did take due process into account when it designed the accountability mechanisms, including the Reconsideration Request process that the Requestors exercised by submitting Request 16-11 and the IRP Process that the Requestors exercised in the Despegar IRP. ICANN org's accountability mechanisms—that is, Reconsideration Requests and the Independent Review Process—consider the CPE Provider's compliance with the Guidebook and with ICANN organization's Articles of Incorporation and Bylaws. They consider whether the CPE Provider complied with its processes, which requires the adjudicator (the BAMC, Board, or an Independent Panel) to consider the outcome in addition to the process. Accordingly, the accountability mechanisms, including this reconsideration request, provide affected parties like the Requestor with avenues for redress of purported wrongs, and substantively review the decisions of third-party service providers, including the CPE Provider. This is not grounds for reconsideration. (See id.)

        2. The Rebuttal Does Not Raise Arguments or Facts That Support Reconsideration.

          The Board has carefully considered the Requestors' Rebuttal and finds that the Requestors have not provided any additional arguments or facts supporting reconsideration. The Rebuttal claims that "the BAMC's Recommendation is based on both factual errors and on a misrepresentation of Requestors' position and of the applicable rules." (Rebuttal, Pg. 1)

          First, the Requestors assert that the ICANN Board did not consider the claims raised in the Requestors' 16 January 2018 and 22 February 2018 correspondence when the Board adopted the 2018 Resolutions. This claim is factually incorrect and does not support reconsideration. The Requestors' 16 January 2018 letter did not identify any specific challenges to the CPE Process Review Reports, but instead only made passing references to the Requestors' broad "concerns" about transparency, the methodology employed by FTI, due process, and alleged disparate treatment and inconsistencies.243 These "concerns" were then detailed in the Requestors' 1 February 2018 letter, which the Board acknowledged and considered in the 2018 Resolutions.244 Further, contrary to the Requestors' claim, the Board did acknowledge and consider the Requestors' 22 February 2018 letter.245

          Second, the Requestors assert that ICANN org has "largely ignored" many of the Requestors' challenges to the CPE Provider's determination that the HTLD Application satisfied the requirements for community priority, and the Board's decision not to cancel the HTLD Application.246 This claim is unsupported and does not warrant reconsideration because, as the BAMC explained (see BAMC Recommendation, Pgs. 4, 14-15), and the Board agrees, ICANN org responded to Requestors' DIDP Requests,247 Reconsideration Requests, and the Despegar IRP in accordance with established policies and procedures. With respect to Reconsideration Request 16-11, ICANN org has not "ignored" it, as the Requestors claim. Rather, it remains pending and will be considered on the merits as soon as practicable following the completion of the Requestors' oral presentation to the Board. Regarding the Requestors' claim that ICANN org has not provided details concerning the selection process for FTI, the Board finds that this argument has been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 13-14.) The Requestors have not set forth any new evidence in the Rebuttal supporting reconsideration.

          Third, the Requestors repeat their argument that Board's adoption of the 2018 Resolutions will prevent Requestors from obtaining a "meaningful review of their complaints made in the framework of [Request] 16-11."248 The Board finds that this argument has been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 18-19.) The Requestors have not set forth any new evidence in the Rebuttal supporting reconsideration.

          Fourth, with respect to the Requestors' due process claim, the Requestors now assert that "the fact that the BAMC refuses to hear [Requests] 16-11 and 18-6 together limits Requestors' due process rights even further."249 The Requestors state that they "cannot accept the BAMC's reasoning that both [Requests] cannot be handled together because [Request] 16-11 was filed under different (previous) Bylaws," and summarily conclude that this will result in Request 16-11 being determined under "less robust accountability standards" than Request 18-6.250 However, the Requestors do not provide any basis for this assertion, because there is none. As the BAMC explained, "the Requests were filed under different Bylaws with different standards for Reconsideration and involve different subject matters." (BAMC Recommendation, Pg. 11.) Accordingly, reconsideration is not warranted.

          Finally, the Requestors again disagree with the scope of the CPE Process Review and the methodology employed by FTI. The Board finds that these arguments have been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 15-20.) The Requestors have not set forth any new evidence in the Rebuttal supporting reconsideration.

          This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. Adopting the BAMC's Recommendation has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.

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

    8. AOB

      No Resolutions taken.

  3. Executive Session - Confidential:

    1. President and CEO FY18 SR2 At-Risk Compensation and Goals for FY19

      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 FY18 SR2 at-risk compensation payment.

      Whereas, the Compensation Committee recommended that the Board approve payment to the President and CEO for his FY18 SR2 at-risk compensation.

      Whereas, the Compensation Committee has worked with the President and CEO to develop a set of goals for his FY19 at-risk compensation component.

      Resolved (2018.07.18.10), the Board hereby approves a payment to the President and CEO for his FY18 SR2 at-risk compensation component.

      Resolved (2018.07.18.11), the Board hereby approves the President and CEO goals for his FY19 at risk compensation component.

      Rationale for Resolutions 2018.07.18.10 – 2018.07.18.11

      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 personnel with the ICANN organization, the President and CEO is to be evaluated against specific goals, which the President and CEO sets in coordination with the Compensation Committee and the Board.

      Following FY18 SR2, which is a scoring period that ran from 16 November 2017 through 15 May 2018, the President and CEO provided to the Compensation Committee his self-assessment of his achievements towards his goals for the FY18 SR2 measurement period. After reviewing, the Compensation Committee discussed and agreed with the President's self-assessment. Following discussion, the Compensation Committee recommended that the Board approve the President and CEO's at-risk compensation for the second scoring period of FY18. The Board agrees with the Compensation Committee's recommendation.

      The Compensation Committee also discussed a set of goals for the President and CEO for his FY19, which the Compensation Committee Chair discussed with the President and CEO. The Board has evaluated these goals and agrees that they are appropriate and consistent with ICANN's Strategic and Operating plans.

      Taking this decision is in furtherance of ICANN's Mission and is in the public interest in that it helps ensure that President and CEO is sufficiently compensated in line with his performance in furtherance of the Mission, and which reflects that his goals are consistent with ICANN's Strategic and Operating plans.

      While the decision to pay the President and CEO his at-risk compensation for FY18 SR2 will have a fiscal impact on ICANN, it is an impact that was contemplated in the FY18 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.

    2. b. President and CEO Executive Services Agreement – One Year Extension

      Whereas, the President and CEO's Executive Services Agreement (Agreement) has a term of 23 May 2016 through 23 May 2021.

      Whereas, the President and CEO has requested that the Board extend his Agreement by an additional year so that the Agreement will run through May 2022.

      Whereas, the Compensation Committee has recommended that the Board approve a one-year extension to the Agreement.

      Whereas, all members of the Board have determined that they have no conflict in relation to making this decision.

      Resolved (2018.07.18.12), the Board hereby approves a one-year extension to the President and CEO's Executive Services Agreement term, which as extended will now expire on 23 May 2022.

      Resolved (2018.07.18.13), the Board hereby authorizes the General Counsel and Secretary to take all steps necessary to amend the President and CEO's Executive Services Agreement term in accordance with and limited to the amendment approve through this resolution.

      Rationale for Resolutions 2018.07.18.12 – 2018.07.18.13

      The President and CEO has asked the Board to consider a one year extension to his current Executive Services Agreement (Agreement). The President and CEO's current term began on 23 May 2016, and runs for a term of five years, or through 23 May 2021. With such a one-year extension, the President and CEO's Agreement will expire in May 2022 rather than May 2021.

      The President and CEO has asked for this extension now because, among other things, it helps ensure that he can properly live and perform his duties while he is based in Los Angeles, as required by his Agreement. In particular, this short extension helps align the expiration of the Agreement with the President and CEO's Visa renewal which, when obtained, will have a three-year term and will expire in 2022.

      The Compensation Committee has discussed the President and CEO's request for a one-year extension with the Committee, as well as with the President and CEO directly. The Compensation Committee evaluated the request, as well as the President and CEO's performance to date, and has recommended that the Board approve the President and CEO's request.

      The Committee has noted, and the Board agrees, that the President and CEO has a very demanding job. Approving this short extension to his contract will, among other things, help reduce the burden on the President and CEO to perform his job and remain based in the Los Angeles region where the Board wants him to remain during the pendency of his Agreement.

      Following a discussion with the full Board, the Board agrees that it makes sense to approve the one-year extension to the President and CEO's Agreement. Easing the burden on the President and CEO's ability to perform his duties while remaining based in Los Angeles will have a beneficial impact on ICANN, and will help ensure that ICANN continues to fulfill its mission and act in the public interest.

      While the decision to extend the President and CEO's Agreement will have a fiscal impact on ICANN, payment of compensation to any President and CEO will be accounted for in the FY21 and FY22 budget development processes. This decision will not have a 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.

    3. Officer Compensation

      Whereas, it is essential to ICANN's operations that ICANN offer competitive compensation packages for its personnel.

      Whereas, independent market data provided by outside expert compensation consultants indicates that current and proposed increases to compensation amounts for the President, GDD, the General Counsel & Secretary, the SVP, Policy Development Support, the SVP & CFO, and the SVP, Engineering & CIO are within ICANN's target of the 50th to 75th percentile for total cash compensation based on comparable market data for the respective positions.

      Whereas, the proposed maximum increase for the above Officers is less than the 2018 reported U.S. inflation rate and less than the reported Consumer Price Index cost-of-living increases for the geographic regions in which the Officers reside.

      Whereas, independent market data provided by outside expert compensation consultants indicates that current compensation for the SVP & COO is slightly above ICANN's target of the 50th to 75th percentile for total cash compensation based on comparable market data for the respective job.

      Whereas, given the additional responsibilities that the SVP & COO has assumed in the last fiscal year, falling slightly above ICANN's target of between 50% and 75% of comparable market positions is entirely reasonable in this circumstance.

      Whereas, each Board member has confirmed that they are not conflicted with respect to compensation packages for any of ICANN's Officers.

      Resolved (2018.07.18.14), the Board grants the President and CEO the discretion to adjust the compensation for FY19, effective 1 July 2018, of: (i) Akram Atallah, President, GDD; (ii) John Jeffrey, General Counsel & Secretary; (iii) David Olive, SVP, Policy Development Support; (iv) Susanna Bennett, the SVP & COO; and (v) Ashwin Rangan, the SVP Engineering & CIO, in accordance with the independent study on comparable compensation, subject to a limitation that their annual base salaries shall not increase by more than 1.8% per annum from their current rates.

      Resolved (2018.07.18.15), the Board grants the President and CEO the discretion to adjust the compensation for FY19, effective 1 July 2018, of Xavier Calvez, the SVP & CFO, in accordance with the independent study on comparable compensation, subject to a limitation that his annual base salary shall not increase by more than 4.79% per annum from his current rate.

      Rationale for Resolutions 2018.07.18.14 – 2018.07.18.15

      The goal of the organization's compensation program is to provide a competitive compensation package. The organization's general compensation philosophy is to pay base salaries within a range of the 50th – 75th percentile of the market for a particular position, including an annual cost of living adjustment (COLA) based on local inflation and market conditions.

      Each of the Officers at issue in this resolution resides in the United States, with five residing in the greater Los Angeles area and one in the District of Columbia. As of May 2018, the U.S. inflation rate was reported as 2.8%, while the Consumer Price Index (CPI), the commonly accepted metric for cost-of-living increases, increased in the greater Los Angeles area by 4.1% and increased in the District of Columbia by 2.5%.

      ICANN's President and CEO has requested that he be granted the discretion to increase the FY18 base salaries of: (i) the President, GDD, the General Counsel & Secretary, the SVP, Policy Development Support, the SVP & COO and the SVP, Engineering & CIO by up to 1.8% of their current base salaries; and (ii) the SVP & CFO, by up to 4.79% of his current base salary. The President and CEO has also informed the Board that he intends to also exercise the same discretion with respect to the other members of ICANN's Executive Team who are not Officers (which does not require Board approval).

      The requested increases for each of the Officers listed in (i) in the immediately above paragraph, are less than both the standard U.S. inflation rate and the local CPI increases. The increase for the SVP & CFO listed in (ii) in the immediately above paragraph, includes an additional 2.99% increase. The additional increase is based on the independent market data provided by the organization's outside compensation experts. The market data indicates that the overall 4.79% increase will align the salary for the SVP & CFO to the 50th percentile of the market for that position – the low end of the compensation range.

      The salary adjustments provided under this resolution will assist these officers and the organization in fulfilling its mission and in ensuring ICANN acts in the public interest.

      There will be some fiscal impact to the organization, but that impact will be covered in the FY19 budget. This resolution will not have any 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.

    4. Ombudsman FY18 At-Risk Compensation

      Whereas, the Compensation Committee recommended that the Board approve payment to the Ombudsman of his FY18 at-risk compensation.

      Resolved (2018.07.18.16), the Board hereby approves a payment to the Ombudsman of his FY18 at-risk compensation component.

      Rationale for Resolution 2018.07.18.16

      Annually the Ombudsman has an opportunity to earn a portion of his compensation based on specific performance goals set by the Board, through the Compensation Committee. This not only provides incentive for the Ombudsman to perform above and beyond his regular duties, but also leads to regular touch points between the Ombudsman and Board members during the year to help ensure that the Ombudsman is achieving his goals and serving the needs of the ICANN community.

      Evaluation of the Ombudsman's objectives results from both the Ombudsman self-assessment as well as review by the Compensation Committee, leading to a recommendation to the Board.

      Evaluating the Ombudsman's annual performance objectives is in furtherance of the goals and mission of ICANN and helps increase the Ombudsman's service to the ICANN community, which is in the public interest.

      While there is a fiscal impact from the results of the scoring, that impact was already accounted for in the FY18 budget. This action will have no impact on the security, stability or resiliency of the domain name system.

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

    5. Extension of Ombudsman Contract

      Whereas, the current Ombudsman's contract concluded on 30 June 2018.

      Whereas, the scope and breadth of the Ombudsman's office is still being reviewed by the Community through its Work Stream 2 work.

      Whereas, in order to ensure that the Office of the Ombudsman remains operational, the Compensation Committee has recommended that the Board extend the Ombudsman's contract by two years following the recent conclusion of his contract term, which expired on 30 June 2018; the extension will cover the period from 1 July 2018 through 30 June 2020, or until the Board selects ICANN's next Ombudsman, whichever is sooner.

      Resolved (2018.07.18.17), the Board approves the extension of Herb Waye's contract to serve as ICANN's Ombudsman for two additional years, covering the time period from 1 July 2018 through 30 June 2020, or until the Board selects ICANN's next Ombudsman, whichever is sooner.

      Resolved (2018.07.18.18), the Board directs the President and CEO, or his designee(s), to take all steps necessary to effectuate the Ombudsman's contract extension.

      Resolved (2018.07.18.19), the Board directs the President and CEO, or his designee(s), to ensure that, following the community work relating to the Ombudsman, and the Board's adoption of any relevant recommendations, the search for the next Ombudsman begins as soon as feasible and practicable.

      Rationale for Resolutions 2018.07.18.17 – 2018.07.18.19

      ICANN's Bylaws require ICANN to maintain an Office of the Ombudsman. (See Article 5 of the Bylaws at https://www.icann.org/resources/pages/governance/bylaws-en/#article5.) Having an ICANN Ombudsman positively affects the transparency and accountability of ICANN as the Ombudsman is one of the three main accountability mechanisms within ICANN. Accordingly, maintaining an appropriate Office of the Ombudsman squarely supports ICANN's mission, and is within the public interest.

      Currently, the Community is involved in discussing ICANN's accountability mechanisms, including the scope and breadth of the Ombudsman's office. Once the Community work is completed, and the Board adopts the relevant recommendations there will almost certainly be changes to the role and responsibilities of ICANN's Ombudsman, which could significantly impact the position description for the role.

      The current Ombudsman, Herb Waye, was appointed as ICANN's Ombudsman in July 2016, and his current contract expired on 30 June 2018. A new Ombudsman has not yet been selected since searching for ICANN's next Ombudsman before the Work Stream 2 work relating to the scope of the Ombudsman's office is completed may prove inefficient and premature. However, ICANN must ensure that the Ombudsman's office remains operational during this time period. Mr. Waye, has been serving as the Ombudsman for approximately two years, and served as the Adjunct Ombudsman for 10 years prior to that. He is extremely familiar with and well versed in the complex issues facing ICANN. By all accounts, Mr. Waye has been serving ICANN well as the Ombudsman since his term began in July 2016.

      The Board also notes that there are discussions to possibly add a new Adjunct Ombudsman, a role that the current Ombudsman served for 10 years before becoming ICANN's Ombudsman. This is, in part, specific response to make sure the Office can address complaints that may be submitted pursuant to the Community Anti-Harassment Policy.

      As there has been a budget for an ICANN Ombudsman since 2004 when the first Ombudsman was appointed, this decision does not have a financial impact on ICANN, the community, or the public that was not already anticipated or included in the budget, outside of the anticipated potential costs of the search for the new Ombudsman. This decision will not have any impact on the security, stability or resiliency of the domain name system.

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

Published on 20 July 2018


1 Rebuttal at Pg. 3.

2 Request 18-1.

3 DIDP Request No. 20180110-1, https://www.icann.org/en/system/files/files/didp-20180110-1-ali-request-redacted-10jan18-en.pdf (internal citations omitted).

4 DIDP Request No. 20180110-1, https://www.icann.org/en/system/files/files/didp-20180110-1-ali-request-redacted-10jan18-en.pdf (internal citations omitted).

5 DIDP Request No. 20180110-1, https://www.icann.org/en/system/files/files/didp-20180110-1-ali-request-redacted-10jan18-en.pdf (internal citations omitted).

6 Id., § 6, at Pg. 9-10.

7 Id. The 2018 DIDP Response noted that the Requestor had previously requested certain of these materials in its prior DIDP Requests. See id.

8 https://www.icann.org/resources/pages/didp-2012-02-25-en

9 Request 18-1, § 6, at Pg. 9 (internal quotation marks omitted).

10 Id., § 6, at Pg. 8.

11 Id.

12 Request 18-1, § 6, at Pg. 8.

13 Request 18-1, § 6, at Pg. 10.

14 2018 DIDP Response at Pg. 9-21.

15 Amazon EU S.A.R.L. v. ICANN, ICDR Case No. 01-16-000-7056, Procedural Order (7 June 2017), at Pg. 3, available at https://www.icann.org/en/system/files/files/irp-amazon-procedural-order-3-07jun17-en.pdf.

16 Request 18-1, § 6, at Pg. 9.

17 Id.

18 DIDP Nondisclosure Conditions.

19 Request 18-1, § 6, at Pg. 9.

20 Id.

21 ICANN Bylaws, 22 July 2017, Art. 3, § 3.1.

22 ICANN Bylaws, 22 July 2017, Art. 1, § 1.2(a)(v).

23 ICANN Bylaws, 22 July 2017, Art. 1, § 1.2(a)(vi); see Request 18-1, § 6, Pg. 7, § 8, Pg. 12. The Requestor appears to have quoted from the 11 February 2016 Bylaws, although it references the 22 July 2017 Bylaws in the footnotes of Request 18-1. See Request 18-1, § 6, Pg. 7, § 8, Pg. 12. The BAMC considers Request 18-1 under the Bylaws in effect when the Requestor submitted the reconsideration request, which are the current Bylaws, enacted 22 July 2017. Accordingly, the BAMC evaluates the Requestor's claims under the 22 July 2017 version of the Bylaws.

24 Amazon EU S.A.R.L. v. ICANN, ICDR Case No. 01-16-000-7056, Procedural Order (7 June 2017), at Pg. 3, available at https://www.icann.org/en/system/files/files/irp-amazon-procedural-order-3-07jun17-en.pdf.

25 ICANN Bylaws, 22 July 2017, Art. 1, § 1.2(c).

26 ICANN Bylaws, Art. 1, Section 1.2(b)(v).

27 See New gTLD Program Consulting Agreement between ICANN organization and the CPE Provider, Exhibit A, § 5, at Pg. 6, 21 November 2011, available at https://newgtlds.icann.org/en/applicants/cpe.

28 See, e.g., Response to Request 20150312-1 at Pg. 2, available at https://www.icann.org/en/system/files/files/didp-response-20150312-1-gannon-25mar15-en.pdf.

29 Request 18-1, § 6, at Pg. 6-7 (quoting Charles T. Kotuby Jr., "General Principles of Law, International Due Process, and the Modern Role of Private International Law," 23 Duke J. of Comparative and Int'l L. 411, 422 (2013) and Charles T. Kotuby & Luke A. Sobota, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes 179 (Mar. 15, 2017)).

30 ICANN Bylaws, 22 July 2017, Art. 1, § 1.2(a).

31 Cal. Corp. Code § 5150(a) (authorizing the board of a nonprofit public benefit corporation to adopt and amend the corporation's bylaws).

32 For the same reasons, the Board was not required to direct FTI to "attempt[] to gather additional information and alternate explanations from community priority applicants, including DotMusic, to ensure that it was conducting a fair and thorough investigation about the CPE Process" or to instruct FTI to evaluate the substance of the research or interview or accept documents from CPE applicants. See 16 January 2018 letter from Ali to ICANN Board, at Pg. 3, 5, https://www.icann.org/en/system/files/correspondence/ali-to-icann-board-16jan18-en.pdf.

33 Rebuttal at Pg. 3.

34 Rebuttal at Pg. 8.

35 BAMC Recommendation at Pg. 12.

36 Rebuttal at Pgs. 7-8.

37 BAMC Recommendation at Pgs. 19-25.

38 Rebuttal at Pg. 8.

39 https://www.icann.org/news/announcement-4-2017-06-02-en.

40 https://www.icann.org/news/announcement-2017-09-01-en.

41 https://www.icann.org/news/announcement-2017-12-13-en.

42 https://newgtlds.icann.org/en/applicants/cpe.

43 Rebuttal at Pg. 3.

44 Amazon EU S.A.R.L. v. ICANN, ICDR Case No. 01-16-000-7056, Procedural Order (7 June 2017), at Pg. 3.

45 Rebuttal at Pg. 6.

46 Rebuttal at Pg. 9.

47 Rebuttal at Pg. 7, n. 29.

48 See Scope 2 Report at Pg. 7-8, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf. See also EIU Consulting Agreement Statement of Work #2 – Application Evaluation Services 12 Mar 2012, at Pg. 8, available at https://newgtlds.icann.org/en/applicants/cpe#process-review.

49 Rebuttal at Pg. 4.

50 Rebuttal at Pg. 4.

51 Flip Petillion, Competing for the Internet: ICANN Gate – An Analysis and Plea for Judicial Review through Arbitration (2017), p. XXIV.

52 Rebuttal, at Pg. 1.

53 Request 18-2.

54 See Request 18-2.

55 Id. § 6, at Pg. 10.

56 https://www.icann.org/resources/pages/didp-2012-02-25-en.

57 Request 18-2, § 6, at Pg. 10 (internal quotation marks and citations omitted).

58 Id., § 6, at Pg. 10.

59 Id.

60 Id., § 6 at Pg. 10-11.

61 2018 DIDP Response at Pg. 9-22.

62 Amazon EU S.A.R.L. v. ICANN, ICDR Case No. 01-16-000-7056, Procedural Order (7 June 2017), at Pg. 3, available at https://www.icann.org/en/system/files/files/irp-amazon-procedural-order-3-07jun17-en.pdf.

63 Id.

64 Id.

65 DIDP Nondisclosure Conditions.

66 Request 18-2, § 6, at Pg. 11.

67 ICANN Bylaws, 22 July 2017, Art. 3, § 3.1.

68 ICANN Bylaws, 22 July 2017, Art. 1, § 1.2(v).

69 Id., Art. 1, § 1.2(a)(vi); Request 18-2, § 6, at Pg. 9-10. The Requestor appears to have quoted from the 11 February 2016 Bylaws, although it references the 22 July 2017 Bylaws in the footnotes of Request 18-2. See Request 18-2, § 6, at Pg. 9. The BAMC considers Request 18-2 under the Bylaws in effect when the Requestors submitted the reconsideration request which are the current Bylaws, enacted 22 July 2017. Accordingly, the BAMC evaluates the Requestor's claims under the 22 July 2017 version of the Bylaws.

70 Amazon EU S.A.R.L. v. ICANN, ICDR Case No. 01-16-000-7056, Procedural Order (7 June 2017), at Pg. 3, available at https://www.icann.org/en/system/files/files/irp-amazon-procedural-order-3-07jun17-en.pdf.

71 ICANN Bylaws, 22 July 2017, Art. 1, § 1.2(c).

72 ICANN Bylaws, Art. 1, Section 1.2(b)(v).

73 See, e.g., Response to Request 20150312-1 at Pg. 2, available at https://www.icann.org/en/system/files/files/didp-response-20150312-1-gannon-25mar15-en.pdf.

74 Id.

75 Request 18-2, § 6, at Pg. 8 (quoting Charles T. Kotuby Jr., "General Principles of Law, International Due Process, and the Modern Role of Private International Law," 23 Duke J. of Comparative and Int'l L. 411, 422 (2013) and Charles T. Kotuby and Luke A. Sobota, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes 179 (Mar. 15, 2017)).

76 ICANN Bylaws, 22 July 2017, Art. 1, § 1.2(a).

77 Cal. Corp. Code § 5150(a) (authorizing the board of a nonprofit public benefit corporation to adopt and amend the corporation's bylaws).

78 For the same reasons, the Board was not required to "seek . . . input from ICANN stakeholders and affected parties regarding the scope or methodology for the investigation," or to instruct FTI to evaluate the substance of the research or interview or accept documents from CPE applicants. See 15 January 2018 letter from Ali to ICANN Board, at Pg. 3, https://www.icann.org/en/system/files/correspondence/ali-to-icann-board-15jan18-en.pdf.

79 Rebuttal, at Pg. 1.

80 Rebuttal, at Pg. 1.

81 ICANN Bylaws, Art. 4, Section 4.2(c)(i).

82 Id.; see also, e.g., Board Determination on Request 17-3, https://www.icann.org/resources/board-material/resolutions-2017-09-23-en#2.b; Board Determination on Request 17-1, https://www.icann.org/resources/board-material/resolutions-2017-06-24-en#2.d. Reconsideration also is appropriate if the requestor shows that it was adversely affected by Board or Staff action or inaction taken without consideration of material information, or taken as a result of reliance on false or inaccurate relevant information. (ICANN Bylaws, Art. 4, Section 4.2(c)(ii), (iii).)

83 Rebuttal, at Pg. 3.

84 Id.

85 BAMC Recommendation, Pgs. 21-27.

86 Rebuttal, at Pgs. 6-7.

87 Rebuttal, at Pg. 9.

88 https://www.icann.org/news/announcement-4-2017-06-02-en.

89 https://www.icann.org/news/announcement-2017-09-01-en.

90 https://www.icann.org/news/announcement-2017-12-13-en.

91 https://newgtlds.icann.org/en/applicants/cpe.

92 Rebuttal at Pg. 9.

93 Rebuttal, at Pg. 2.

94 Rebuttal at Pg. 2.

95 Flip Petillion, Competing for the Internet: ICANN Gate – An Analysis and Plea for Judicial Review through Arbitration (2017), p. XXIV.

96 See generally Rebuttal.

97 Request 18-3, § 5, at Pg. 2.

98 Request 18-3, § 9, at Pgs. 4-5.

99 See About ICANN's Contractual Compliance Approach and Processes webpage, available at https://www.icann.org/resources/pages/approach-processes-2012-02-25-en.

100 See Notice of Termination, at Pg. 4.

101 Request 18-3, § 9, at Pgs. 4-5.

102 See also RAA, §§ 3.4.2.2; 3.4.3

103 Contractual Compliance staff confirmed this fact during investigation of Request 18-3.

104 See, e.g., Attachment E, at Pg. 25.

105 Id., at Pg. 5.

106 Id.

107 Request 18-3, § 9, at Pg. 5.

108 Id.

109 RAA, WAPS § 1.

110 Id. § 1.f.i.

111 Id. § 2.

112 Id. § 4.

113 See Notice of Termination, at Pg. 5. This was further confirmed with Contractual Compliance staff during investigation of Request 18-3.

114 RAA §§ 3.4.2, 3.4.3.

115 Id. § 3.4.3.

116 Request 18-3, § 9, at Pgs. 6-7.

117 See generally, Attachment E.

118 Id., at Pgs. 13-14, 18.

119 Attachment E, Pg. 9.

120 See Informal Resolution Process, available at https://www.icann.org/en/system/files/files/informal-resolution-07mar17-en.pdf.

121 Notice of Breach, at Pgs. 1-2.

122 ERRP § 4.1, available at https://www.icann.org/resources/pages/errp-2013-02-28-en.

123 Request 18-3, § 9, at Pg. 8.

124 See Notice of Breach, at Pg. 2; Notice of Termination, at Pg. 2. This fact was confirmed by Contractual Compliance staff during investigation of Request 18-3.

125 Request 18-3, § 9, at Pg. 9 (emphasis added).

126 RAA, § 3.17; RAA, RIS § 7.

127 Notice of Breach, at Pg. 2; Notice of Termination, at Pg. 2.

128 Id.

129 See Complaints and Disputes FAQ, Question 32, available at https://www.icann.org/resources/pages/faqs-84-2012-02-25-en#32.

130 See Attachment 1 to BAMC Recommendation on Request 18-3, available at https://www.icann.org/en/system/files/files/reconsideration-18-3-astutium-bamc-recommendation-attachment-1-05jun18-en.pdf.

131 Rebuttal (citing Pg. 25 of BAMC Recommendation).

132 Id. ("I went through the convoluted procedure of updating ICANN with new details and forms when access to RADAR was restored. . . .").

133 Registrar Information Specification Updates, available at https://www.icann.org/resources/pages/registrar-contact-updates-2015-09-22-en.

134 https://www.icann.org/en/system/files/correspondence/disspain-letter-review-new-gtld-cpe-process-26apr17-en.pdf.

135 https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

136 https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

137 See generally Rebuttal.

138 Request 18-4, § 8, at Pg. 12-13. See also, e.g., 23 March 2018 letter from Ali to ICANN Board, at Pg. 3, https://www.icann.org/en/system/files/files/reconsideration-16-3-et-al-dotgay-dechert-to-icann-board-bamc-redacted-23mar18-en.pdf (FTI did not interview applicants); 15 January 2018 letter from Ali to ICANN Board, at Pg. 3, https://www.icann.org/en/system/files/correspondence/ali-to-icann-board-15jan18-en.pdf (FTI did not interview or accept materials from applicants, and "received almost no input from the CPE Provider")

139 See, e.g., Scope 2 Report at Pg. 3-9, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf.

140 See CPE Process Review Update, 2 June 2017, available at https://newgtlds.icann.org/en/applicants/cpe.

141 See Scope 2 Report at Pg. 7-8, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf.

142 See Scope 2 Report at Pg. 7-8, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf.

143 See Scope 2 Report at Pg. 7-8, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf. See also CPE Provider Consulting Agreement Statement of Work #2 – Application Evaluation Services_12Mar2012, at Pg. 8, available at https://newgtlds.icann.org/en/applicants/cpe#process-review.

144 Id. at Pg. 9.

145 Scope 1 Report, at Pg. 14, available at https://www.icann.org/en/system/files/files/cpe-process-review-scope-1-communications-between-icann-cpe-provider-13dec17-en.pdf.

146 Id.

147 San Juan ICANN Board Meeting, 15 March 2018, at Pg. 12-13, available at https://static.ptbl.co/static/attachments/170857/1522187137.pdf?1522187137.

148 Id.

149 Request 18-4, § 8, at Pg. 13.

150 Request 18-4, § 8, at Pg. 13; 15 Nov. 2016 letter from A. Ali to ICANN Board at Pg. 8-10. The Requestor also points to reports that the Requestor and other CPE applicants submitted in support of their CPE applications. For the same reasons that the independent reports identified in text are not determinative of the outcome of the CPE Process Review, the CPE applicants' expert reports are likewise not determinative. See Request 18-4, § 8, at Pg. 10, 13.

151 See Scope 1 Report at Pg. 3, available at https://www.icann.org/en/system/files/files/cpe-process-review-scope-1-communications-between-icann-cpe-provider-13dec17-en.pdf.

152 Scope 3 Report, at Pg. 3.

153 Scope 1 report, at Pgs. 3-6.

154 Id.

155 See Transcript of ICANN Cross Community Working Group's Community gTLD Applications and Human Rights Webinar, 18 January 2017, comments of M. Carvell and C. Chalaby, at Pg. 12, 20-21, available at https://community.icann.org/download/attachments/53772757/transcript_ccwphrwebinar_180117.doc?version=1&modificationDate=1484926687000&api=v2.

156 https://www.icann.org/resources/board-material/resolutions-2016-09-17-en.

157 Request 18-4, § 8, at Pg. 14.

158 Request 18-4, § 8, at Pg. 13.

159 ICANN Board Rationale for Resolutions 2018.03.15.08-2018.03.05.11, available at https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

160 https://www.icann.org/en/system/files/correspondence/strub-to-chalaby-18feb18-en.pdf; https://www.icann.org/en/system/files/correspondence/lovitz-to-board-01mar18-en.pdf; https://www.icann.org/en/system/files/correspondence/mazzone-to-baxter-06mar18-en.pdf.

161 Request 18-4, § 6, at Pg. 4.

162 See ICANN Board Rationale for Resolutions 2018.03.15.08-2018.03.05.11, available at https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

163 Request 18-4, § 8, at Pg. 12.

164 See BAMC Recommendation on Request 18-2, available at https://www.icann.org/en/system/files/files/reconsideration-18-2-dotgay-bamc-recommendation-request-05jun18-en.pdf.

165 See generally Rebuttal.

166 Rebuttal, Pg. 1.

167 Id.

168 Bylaws, Art. IV, § 2.12, effective 11 February 2016. Prior to 22 July 2017, the BGC was tasked with reviewing reconsideration requests. See ICANN Bylaws, 1 October 2016, Art. 4, § 4.2(e), available at https://www.icann.org/resources/pages/bylaws-2016-09-30-en#article4. Following 22 July 2017, the Board Accountability Mechanisms Committee (BAMC) is tasked with reviewing and making recommendations to the Board on reconsideration requests. See ICANN Bylaws, 22 July 2017, Art. 4, § 4.2(e), available at https://www.icann.org/resources/pages/governance/bylaws-en/#article4.

169 Rebuttal, Pg. 2.

170 Rebuttal, Pg. 6.

171 Rebuttal, Pg. 8.

172 https://www.icann.org/en/system/files/correspondence/disspain-letter-review-new-gtld-cpe-process-26apr17-en.pdf.

173 https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

174 https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

175 See generally Rebuttal.

176 Request 18-5, § 6, at Pg. 3. See also, e.g., 23 March 2018 letter from Ali to ICANN Board, at Pg. 3, https://www.icann.org/en/system/files/files/reconsideration-16-3-et-al-dotgay-dechert-to-icann-board-bamc-redacted-23mar18-en.pdf (FTI did not interview applicants); 16 January Letter from Ali to ICANN Board, https://www.icann.org/en/system/files/correspondence/ali-to-icann-board-16jan18-en.pdf (alleging that FTI "deliberately ignored the information and materials provided by the applicants").

177 See, e.g., Scope 2 Report at Pg. 3-9, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf.

178 See CPE Process Review Update, 2 June 2017, https://newgtlds.icann.org/en/applicants/cpe.

179 See Scope 2 Report at Pg. 7-8, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf.

180 See Scope 2 Report at Pg. 7-8, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf.

181 See Scope 2 Report at Pg. 7-8, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf. See also CPE Provider Consulting Agreement Statement of Work #2 – Application Evaluation Services_12Mar2012, at Pg. 8, available at https://newgtlds.icann.org/en/applicants/cpe#process-review.

182 Id. at Pg. 9.

183 Scope 1 Report, at Pg. 14, available at https://www.icann.org/en/system/files/files/cpe-process-review-scope-1-communications-between-icann-cpe-provider-13dec17-en.pdf.

184 Id.

185 San Juan ICANN Board Meeting, 15 March 2018, at Pg. 12-13, available at https://static.ptbl.co/static/attachments/170857/1522187137.pdf?1522187137.

186 Id.

187 Request 18-5, § 6, at Pg. 6.

188 See Scope 1 Report at Pg. 3, available at https://www.icann.org/en/system/files/files/cpe-process-review-scope-1-communications-between-icann-cpe-provider-13dec17-en.pdf.

189 Scope 3 Report, at Pg. 3.

190 Id.

191 This is equally true of the reports of Dr. Blomqvist and Professor Eskridge that Requestor cites for their disagreement with the CPE Review's conclusion. See Request 18-5, § 6, at Pg. 8.

192 See Transcript of ICANN Cross Community Working Group's Community gTLD Applications and Human Rights Webinar, 18 January 2017, comments of M. Carvell and C. Chalaby, at Pg. 12, 20-21, available at https://community.icann.org/download/attachments/53772757/transcript_ccwphrwebinar_180117.doc?version=1&modificationDate=1484926687000&api=v2.

193 https://www.icann.org/resources/board-material/resolutions-2016-09-17-en.

194 Request 18-5, § 6, at Pg. 10.

195 Scope 2 Report, at Pg. 8.

196 Id., § 6, at Pg. 11.

197 ICANN Bylaws, 22 July 2017, Art. 1, § 1.2(a).

198 Recommendation of the BAMC on Request 18-1, available at https://www.icann.org/en/system/files/files/reconsideration-18-1-dotmusic-bamc-recommendation-request-05jun18-en.pdf.

199 https://www.icann.org/resources/board-material/resolutions-2016-09-17-en.

200 Booking.com v. ICANN, ICDR Case No. 50-20-1400-0247, Final Declaration, ¶ 138, available at https://www.icann.org/en/system/files/files/final-declaration-03mar15-en.pdf.

201 Request 18-5, § 6, p. 11-12.

202 See generally BAMC Recommendation.

203 Request 18-5, § 6, at Pg. 13.

204 Request 18-5, § 6, at Pg. 3.

205 See ICANN Board Rationale for Resolutions 2018.03.15.08-2018.03.05.11, available at https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

206 See generally Rebuttal.

207 Rebuttal, Pg. 1.

208 Id.

209 Bylaws, Art. IV, § 2.12, effective 11 February 2016. Prior to 22 July 2017, the BGC was tasked with reviewing reconsideration requests. See ICANN Bylaws, 1 October 2016, Art. 4, § 4.2(e), available at https://www.icann.org/resources/pages/bylaws-2016-09-30-en#article4. Following 22 July 2017, the Board Accountability Mechanisms Committee (BAMC) is tasked with reviewing and making recommendations to the Board on reconsideration requests. See ICANN Bylaws, 22 July 2017, Art. 4, § 4.2(e), available at https://www.icann.org/resources/pages/governance/bylaws-en/#article4.

210 Rebuttal, Pg.

211 Rebuttal, Pg. 6.

212 Rebuttal, Pg. 8.

213 https://www.icann.org/en/system/files/correspondence/disspain-letter-review-new-gtld-cpe-process-26apr17-en.pdf.

214 https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

215 https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

216 Rebuttal, Pg. 1.

217 Request 18-6, § 7, at Pg. 6-7.

218 1 February 2018 letter from Petillion to BAMC at Pg. 1-2, available at https://www.icann.org/en/system/files/files/reconsideration-16-11-trs-et-al-petillion-to-icann-bamc-redacted-01feb18-en.pdf.

219 See CPE Process Review Update, 2 June 2017, available at https://newgtlds.icann.org/en/applicants/cpe.

220 See id.

221 See, e.g., FTI Scope 1 Report at Pg. 3, available at https://www.icann.org/en/system/files/files/cpe-process-review-scope-1-communications-between-icann-cpe-provider-13dec17-en.pdf.

222 Scope 1 Report at Pgs. 3-6.

223 Id. at Pg. 6.

224 See ICANN organization Response to DIDP Request 20180115-1, at Pg. 21-22, available at https://www.icann.org/en/system/files/files/didp-20180115-1-ali-response-redacted-14feb18-en.pdf.

225 See BAMC Recommendation on Request 18-1, available at https://www.icann.org/en/system/files/files/reconsideration-18-1-dotmusic-bamc-recommendation-request-05jun18-en.pdf; see also BAMC Recommendation on Request 18-2, available at https://www.icann.org/en/system/files/files/reconsideration-18-2-dotgay-bamc-recommendation-request-05jun18-en.pdf.

226 1 February 2018 letter from Petillion to BAMC at Pg. 2,, available at https://www.icann.org/en/system/files/files/reconsideration-16-11-trs-et-al-petillion-to-icann-bamc-redacted-01feb18-en.pdf. See also Request 18-6, § 7, at Pg. 7.

227 1 February 2018 letter from Petillion to BAMC, at Pg. 2.

228 See, e.g., Scope 2 Report at Pg. 3-9, https://www.icann.org/en/system/files/files/cpe-process-review-scope-2-cpe-criteria-analysis-13dec17-en.pdf.

229 See CPE Process Review Update, 2 June 2017, available at https://newgtlds.icann.org/en/applicants/cpe.

230 See Scope 2 Report at Pg. 7-8.

231 See Scope 2 Report at Pg. 7-8.

232 See id. See also CPE Provider Consulting Agreement Statement of Work #2 – Application Evaluation Services_12Mar2012, at Pg. 8, available at https://newgtlds.icann.org/en/applicants/cpe#process-review.

233 Scope 1 Report, at Pg. 14, available at https://www.icann.org/en/system/files/files/cpe-process-review-scope-1-communications-between-icann-cpe-provider-13dec17-en.pdf.

234 1 February 2018 letter from Petillion to BAMC, at Pg. 3, citing Despegar IRP Panel Declaration, ¶ 146.

235 Id. at Pg. 4

236 Despegar IRP Panel Declaration, ¶ 146 (emphasis added).

237 See 1 February 2018 letter from Petillion to BAMC, available at https://www.icann.org/en/system/files/files/reconsideration-16-11-trs-et-al-petillion-to-icann-bamc-redacted-01feb18-en.pdf. See also Request 18-6, § 7, at Pg. 7.

238 Id.

239 Request 18-6, § 7, at Pg. 6-7.

240 Id. § 5, at Pg. 3.

241 See ICANN Board Rationale for Resolutions 2018.03.15.08-2018.03.05.11, available at https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

242 Cal. Corp. Code § 5150(a) (authorizing the board of a nonprofit public benefit corporation to adopt and amend the corporation's bylaws).

243 https://www.icann.org/en/system/files/files/reconsideration-16-11-trs-et-al-petillion-to-icann-bamc-redacted-16jan18-en.pdf.

244 https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a.

245 https://www.icann.org/resources/board-material/resolutions-2018-03-15-en#2.a ("The Board also acknowledges the 22 February 2018 letter from applicants Travel Reservations SRL, Minds + Machines Group Limited, Radix FXC, dot Hotel Inc. and Fegistry LLC (regarding "Consideration of Next Steps in the Community Priority Evaluation Process Review (Reconsideration Request 16-11).").

246 Rebuttal, Pg. 2.

247 In the Rebuttal, the Requestors repeat their challenge ICANN org's response to DIDP Requests submitted by other parties in January 2018. See Rebuttal, Pgs. 6-8. The Board finds that this argument has been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 14-15.) The Requestors have not set forth any new evidence in the Rebuttal supporting reconsideration.

248 Rebuttal, Pg. 4.

249 Rebuttal, Pg. 6.

250 Id.

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."