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Minutes - Special Meeting of the ICANN Board of Directors 13 March 2007

A Special Meeting of the ICANN Board of Directors was held via teleconference on 13 March 2007 and was called to order at 8:02 P.M. U.S. Pacific Standard Time (PST) US.

The Board Directors participated in all or part of the meeting: Chairman Vinton G. Cerf, Raimundo Beca, Susan Crawford, Peter Dengate Thrush, Roberto Gaetano, Demi Getschko, Steven Goldstein, Joichi Ito, Alejandro Pisanty, Rajasekhar Ramaraj, Rita Rodin, Vanda Scartezini, Paul Twomey, Dave Wodelet. Njeri Rionge was present for a portion of the Meeting but did not participate in any voting. The following Board Liaisons participated in all or part of the meeting: Vittorio Bertola, ALAC Liaison; Steve Crocker, DNSSEC Liaison; Janis Karklins, GAC Liaison-Elect; Thomas Narten, IETF Liaison; Francisco da Silva, Technical Liaison Group Liaison; Mohammed Sharil Tarmizi, GAC Liaison; and Suzanne Woolf RSSAC Liaison.

John Jeffrey, General Counsel and Secretary; Paul Levins, Executive Officer and Vice President, Corporate Affairs; Doug Brent, Chief Operating Officer; Kurt Pritz, Senior Vice President, Business Operations; Denise Michel, Vice President Policy Development; David Conrad, IANA General Manager; Kim Davies, IANA Technical Liaison; Barbara Roseman, IANA Operations Manager; Theresa Swinehart, Vice President of Global and Strategic Partnerships; and, Dan Halloran, Deputy General Counsel, Patrick Jones, Registry Liaison Manager, also participated in the meeting.

Approval of 12 February 2007 Board Minutes

The Chair introduced the minutes of the meeting of 12 February 2007 and asked for any modifications. Francisco da Silva advised that he should be noted as present at the meeting. This was accepted.

Following this Susan Crawford moved and Vanda Scartezini seconded the following resolution:

Resolved (07.10) the minutes of the Board Meeting of 12 January 2007 are approved.

The Board approved the resolution 14-0 with a unanimous voice vote of all Board Members present.

Susan Crawford expressed appreciation to staff for the very complete set of minutes being produced with regularity. She indicated that it as a very favorable development for ICANN.

Designation of Academic Representative for ICANN's 2007 Nominating Committee

Robero Gaetano spoke to this item explaining that the Board Governance Committee had during its meeting on March 5 2007 voted to name Jose Luiz Ribeiro Filho as the Nominating Committee Academic Representative. Roberto explained that after looking at the candidates for the position, Mr. Filho was the considered the most suitable.

Vint Cerf moved and Demi Getschko seconded the following motion:

Resolved (07.11) that the Board the appointment of Jose Luiz Ribeiro Filho as the 2007 Nominating Committee Academic Representative.

After the motion was placed on the table, Steve Goldstein asked for clarification as to whether the Board appoints this position to the Nominating Committee. Peter Dengate Thrush indicated that the Board had the authority and had done so in previous years, adding that under the ICANN Bylaws there was a requirement for the Board to designate an organization that represents the Academic community to propose the nominee for this position. He said that the Board Governance Committee had not been able to designate an organization to make the nomination and that the Committee was filling the role of the designated organization in providing the individual nominee. Vint Cerf noted that it has been difficult to find a body that represented the academic community globally and suggested that this problem be incorporated in the Nominating Committee review.

The Board approved the resolution (07.11), 14-0 with a unanimous voice vote of all Board Members present.

Consideration of Board Finance Committee's Recommendation regarding Budget Adjustments and Incremental Projects

Vint Cerf asked Raimundo Beca as Chair of the Board Finance Committee (BFC) to introduce this item.

Raimundo explained that at the Sao Paolo ICANN Meeting the Board had been asked to modify the ICANN Budget to provide for improvement to overall staff compensation, which was accepted. Following on from this there were additional adjustments to the ICANN Budget that were proposed and adopted at the BFC level. Accordingly, the BFC was requesting that the full board approve those modifications to the overall budget. In addition, Staff had made a submission to the BFC to increase the Budget for the 2006-2007 Fiscal year by $188,000 to accommodate additional required projects. Raimundo explained that the BFC had reviewed these incremental project changes and had approved them and was recommending to the Board that the budget adjustments for those projects be approved by the full Board.

Steve Goldstein noted that against the approved budget of $30.9million, $188,000 represents an addition of less than one-half of one percent of the previously approved budget. He suggested that there should be a contingency available to staff in future of 2-3 percent of the total budget in order to avoid returns to the Board for budget approval where over runs were relatively small. He also applauded the work of ICANN COO Doug Brent and ICANN's Acting Chief Financial Officer Henrietta Bertlesman in reworking the Budget in such a way as to keep overruns so low. Vint Cerf agreed and suggested that a higher contingency should be considered and that in other companies such pre-approved contingency variances are closer to ten percent.

Paul Twomey reiterated that staff had done good work in keeping overruns as low as they are given the demands on the overall budget. He wanted the community to note that the staff will be proposing a contingency and that will be a changed approach in the future.

Raimundo Beca moved and Vanda Scartezini seconded the following motion:

Whereas, ICANN's currently approved budget and current fiscal year will end on 30 June 2007.

Whereas, ICANN's Board approved in a Special Meeting held on 7 December 2006 in Sao Paulo pursuant to ICANN”S Bylaws Article III, Section 5.3 , a substantial adjustment to the compensation program for ICANN staff, and the Board was assured by management that this adjustment could be implemented in an overall budget neutral fashion, and ICANN was to continue to operate at the budget levels and maintain the fee structure for the fiscal year ending on 30 June 2006 levels previously approved, and a formal budget reforecast effort was to be undertaken by staff and reported back to the Board for approval of the revised expense categories formulated from the implementation of the compensation program.

Whereas, the staff has undertaken the budget reforecast effort, verified its ability to implement the revised compensation program within the overall original budget parameters and prepared a budget with revised expense categories.

Resolved (07.12), the Board Finance Committee agrees to accept the revised budget for the fiscal year ending June 30 2007 reflecting new expense category totals equal to the overall approved budget amount and recommends that the ICANN Board adopt the revised budget for the fiscal year 2006-2007 as presented:

  • Consistent with December board decision
  • Adopting new budget with major spending categories adjusted around new spending priorities

Further, whereas, the staff has undertaken the budget reforecast effort and in the process thereof, identified projects recommended by staff totaling $188,000 which are not part of the approved budget and are critical to the mission of ICANN at this time.

Resolved (07.13), the Board Finance Committee agrees to accept the proposed additions to the budget for the fiscal year ending June 30 2007 and recommends that the ICANN Board adopt the revisions to the budget for the fiscal year 2006-2007 as presented.

The Board approved both resolutions (07.11 and 07.13), 14-0 with a unanimous voice vote of all Board Members present.

Consideration of .MOBI sTLD Contract Amendment regarding ICANN Fees ad Recent Public Comment Period

Kurt Pritz presented this item and explained that at its January 16 meeting the Board had considered this matter. The .MOBI Registry proposes to amend their agreement with ICANN to change the amount of fees paid to ICANN. He reminded the Board of advice previously provided that the .MOBI agreement provides for a $0.75 fee based on a projected $7.50 to $12.00 price. Since the original agreement was struck, negotiations for several sTLD's had been concluded and the transaction fee relative to the proposed fees for registrations were different. Staff provided a chart, setting out the various fees and registrations prices for comparison, demonstrating the appropriateness of .MOBI's proposed fee change.

Kurt said the Board had, at its meeting of January 16, 2007, accepted staff's recommendation to post this matter for public comment period of no less than 21 days. He said that the comment period had taken place and that there had been comment from the Chief Executive Officer of Telnic (operator of the .TEL Registry) that .MOBI should be held to the terms of the original agreement and that the agreement should not be altered to reflect the proposed cap. Notwithstanding this comment staff recommends that the Board approve the contract amendment.

Vint Cerf opened the matter for Board discussion. Vittorio Bertola advised the Board that he would abstain from discussion of this item as he was a member of the .MOBI Policy Advisory Board. Rita Rodin similarly advised of her intention to recuse herself from the discussion and any vote on the matter as she had represented the commenting party, Telnic.

Vint Cerf noted that the fees were complex and referred Board members to the draft language for the amendment to the agreement as publicly posted and provided to the Board.

Steve Goldstein said that he still believed, as he had indicated previously, that .MOBI should be forced to live up to the terms that they had negotiated. Vint Cerf indicated that there had been previous examples of contracts being negotiated during their term, where there was a rationale expressed by the other party to the agreement, so this was not precedent setting. He suggested that to not allow renegotiation would in fact be inconsistent with previous Board approaches to contract renegotiation.

Vint Cerf moved and Alejandro Pisanty seconded that the Board approve the following resolution:

Whereas, mTLD Top Level Domain submitted an amendment to Article VII, Section 7.2 (b) of the agreement to change the fees paid to ICANN.

Whereas, the language of the proposed agreement is similar to that approved in existing agreements, results in fees aligned more closely to other registries than the fees in the existing agreement, and represents a fee reduction,

Whereas, ICANN conducted analysis and review of the requested amendment,

Resolved, [07.14] that the President and General Counsel are authorized to enter into an amendment of the .MOBI Registry Agreement to accept the proposed change in fee structure.

The Chairman asked for a role call vote to be taken on this item and Board members voted 12-1, with one abstention, accordingly:

For: Vinton G. Cerf, Raimundo Beca, Susan Crawford, Peter Dengate Thrush, Roberto Gaetano, Demi Getschko, Joichi Ito, Alejandro Pisanty, Rajasekhar Ramaraj, Vanda Scartezini, Paul Twomey, Dave Wodelet.

Against: Steve Goldstein.

Abstention: Rita Rodin.

Update on Registry Failover Projects and Status of Other Projects

Patrick Jones presented this item to the Board, noting that for the past year ICANN has consulted widely with gTLD registries, ccTLDs, escrow providers and others on registry failover. Two weeks ago, ICANN Staff posted the first gTLD registry data escrow report ( http://www.icann.org/announcements/announcement-05mar07.htm ).

Staff has sent a survey on the existing data escrow requirements to the gTLD registries and has received responses from 2/3 of those registries. A data sample has also been received from Public Interest Registry. The results of the survey will be summarized, along with any comments received on data escrow between now and the end of the Lisbon meeting. This information will be put into a final report on data escrow to be published in late April. In the next few weeks, reports on TLD transition will be posted, along with potential failure scenarios and critical functions of a registry. These reports will feed into the development of the comprehensive plan, best practices document and communications plan.

The purpose of the project is to develop a comprehensive failover plan that would provide a period of ongoing operations until a replacement registry can be engaged or a notice period can be provided to allow registrants sufficient time to find alternatives.

Staff has been working with experienced registries to develop a set of best practices.

Patrick said that as the project team moves forward, it would be helpful to have guidance from the Board on a number of questions including:

  • What is ICANN's duty to registrants in the event of a gTLD registry failure?
  • What triggers ICANN involvement in potential registry failure?
  • Are there scenarios in which a registry would be allowed to fail without such a failover mechanism?
  • Should ICANN take over the short-term operation of a registry or should a registry be required to designate a back-up registry operator that would step in to maintain the registry in the event of a long-term failure.

Vint Cerf noted that if a ccTLD failed, continual updating of entries may be necessary or desirable. He said he thought that those functions could technically be undertaken by ICANN but adding new registrations may not be tasks that would be appropriate or prudent for ICANN to take on considering the issues of sovereignty surrounding country codes. Vint noted that further consultation will take place.

Vint thanked staff and other participants in the development of this work thus far, and said that as Chairman he will ensure that the topic is the subject of discussion at a Board workshop at the ICANN Lisbon meeting.

Consideration of Proposed .XXX Registry Agreement

The Chairman introduced this item by noting that the ICM Registry had in recent days prior to this meeting supplied hundreds of additional pages of information in support of their proposal. This was in addition to the substantive amount of material already supplied. He noted that some of that materials had been made publicly available and some could not be posted given that names of individuals were involved in some of the documentation.

John Jeffrey confirmed that ICM has represented that the identities of people and entities obtained in pre-registrations and from their website form were not cleared for public posting.

The Chairman asked John to refresh the Board's recollection on the status of this matter and the process for decision-making. John read the Board's last resolution from the 12 February 2007 Meeting where staff was requested to do the following: a) post the revised version of the Appendix S to the proposed .XXX registry agreement to the ICANN website to seek additional public comment; and b) consult with ICM and provide further information to the Board about whether the sponsorship criteria has been met for the creation of a new proposed .XXX sTLD.

John further indicated that ICM had held two briefing sessions for the Board during the previous week on sponsorship issues and questions; and that in addition ICM had presented or re-presented a number of documents for the board to consider. John noted that these materials, in their redacted form has been posted on the ICANN website. John indicated that ICM has represented that the identities of people and entities obtained in pre-registration materials, and webmaster information obtained from their website form were not cleared for public posting.

John asked Kurt Pritz to summarize the public comment postings. Kurt Pritz advised that the most recent public comment periods on the changes to Appendix S had produced 946 comments against the establishment of the .XXX registry and that these fell into two categories: comments that considered the domain would see an increase in adult content on the Internet, and those contending that there was little support for the creation of the domain amongst the sponsoring community. Kurt noted that there had also been comments in favor and these were outlined in a memorandum to the Board from ICM which stated that the sponsoring community was a self identified group that works together to provide adult content on-line. A full summary of those comments was provided to the board for their review and consideration.

John referred the Board to the decision-making 'tree' outlined at the last meeting on the pending issues. He identified three issue areas: 1) Community Review Issues — whether there had been sufficient community review and public comment on the application and agreement and the sufficiency of the proposed agreement; 2) Government Advisory Committee Public Policy Advice — raising questions regarding: a) the status of advice from the Government Advisory Committee (GAC); b) a request for clarification of the letter from the GAC Chair and Chair-Elect; and c) whether additional public policy advice had been received or was expected following the GAC's Wellington Communique; and 3) A determination of of how ICM's proposed agreement, application and materials submitted measure up against the RFP requirements.

John noted in relation to community input that since the initial application on the proposed application and revised contract, there had been over 200,000 emails sent to ICANN and additionally over 1300 separate comments had been received in the public comment forums established by ICANN. Paul Twomey added that he had personally received many personal emails, mainly from the American Family Association, opposed to the creation of the domain. John confirmed that those emails were included in the overall count and that Staff had attempted to post all of them. John stressed that it was important that the ICANN Board take into account the unprecedented public comments regarding this matter relating to any decision that might be made on this topic.

Vint Cerf then raised an issue regarding whether the sponsorship criteria is met for the creation of a new .XXX sTLD, and noted that there had been an assertion by ICM that 76,000 pre- registrations indicated significant support for its creation. Vint noted that he could not tell whether those had been verified in any way. That is, whether there was a way of determining whether they were from webmasters in adult on-line industry or individuals. Kurt Pritz indicated that ICM had indicated that they had been verified and indicated that in addition to this 1217 webmasters from the adult entertainment industry had identified themselves as being in support of the sTLD. He said that each person so registering had to provide a url so it was possible to track that back to see if it represented an adult content site.

In relation to the GAC Communiqué in Wellington, the Chairman said that he still believed that the GAC was to provide advice on whether the proposal met the requirements of a sTLD. GAC Chairman and GAC Board Liaison, Sharil Tarmizi, said that he believed that it had been addressed.

John Jeffrey advised that it was an open question as to whether the GAC Communiqué in Wellington was intended to address the current proposed contract for the creation of the .XXX domain. He noted that the letter from Sharil and from Janis Karklins of February 2, 2007 had indicated that further advice would be sought at ICANN's Lisbon meeting. GAC Chair-Elect and GAC Liaison-Elect, Janis Karklins pointed out that the letter had been written with the input of a number of delegates of the GAC endorsed by using silent procedure on the GAC mailing list, but always in the understanding that further input would be discussed by the full GAC at the GAC meeting to be held in Lisbon. Janis further indicated that it remained unclear on whether there would be any additional advice from the GAC during Lisbon or at any time in the future, noting the strong stated positions of some GAC Members on this issue.

The Chairman then put some suggestions for moving forward on the decision to approve the contract to enable the creation of .XXX domain. He said that if the Board were to make a decision on this matter, it would need a very clear rationale for reaching its decision.

He said he believed that Board members needed to contribute to the development of these rationales regardless of which way they intended to vote. He also asked whether the Board was of a mind to vote at this meeting. He called for a vote to determine whether members were prepared to vote at this meeting.

It was moved Rita Rodin and seconded Steve Goldstein that there be a vote to determine whether Board Members were prepared to vote at this meeting.

The Chairman conducted a roll call vote on this item and Board members voted accordingly:

Voted in favor of taking a vote at this meeting: Raimundo Beca, Susan Crawford, Demi Getschko, Joichi Ito, Dave Wodelet, Steve Goldstein, Alejandro Pisanty, and Rita Rodin.

Against: Vinton G. Cerf, Peter Dengate Thrush, Roberto Gaetano, Rajasekhar Ramaraj, Vanda Scartezini, and Paul Twomey,

A number of Board members including Peter Dengate Thrush, Roberto Gaetano, Vanda Scartezini and Rajasekhar Ramaraj believed that it was not appropriate to vote until after the Lisbon meeting given its proximity. Paul Twomey indicated that a clear rationale for any vote must be discussed by the Board Members before such a vote.

John Jeffrey raised a point of order regarding whether it was clear from the dialogue what the proposed motion was to be and the rationale for it. John recommended that it be made very clear what the Board would be voting on in a proposed motion and that the Board should discuss their rationale before a vote should occur. A point was raised by Vint Cerf regarding the limited amount of time left in the meeting to conclude this vote. Rita Rodin indicated that she believed it was important for the Board to decide to vote, but given the position of the General Counsel that it had not yet been made clear what was to be voted on, she would defer to General Counsel and change her previous position regarding taking a vote during this meeting. Rita indicated that the Board and staff must commit to clearly determining what the Board was voting on before Lisbon and commit to voting on the issue at Lisbon.

Sharil Tarmizi said that with the Lisbon meeting being under two weeks away that it was appropriate to seek additional advice from the GAC. He emphasized however that the request, if any, would need to be made expeditiously to meet GAC timetables. He also noted the strong and stated positions of some of the GAC members on this issue.

Janis Karklins said that he understood Sharil's view, and believed that the GAC was still waiting for responses to specific questions raised in the Wellington Communiqué and reiterated in the 2 February GAC communication.

Paul Twomey responded that one of the difficulties in providing a response to the GAC is that they asked in Wellington what they already asked at the ICANN Mar del Plata meeting. Those questions related to information to do with the aspects of the implementation of the name, that could only be provided after the decision to create the name had been taken.

Notwithstanding this Janis Karklins asked if a response to the GAC Chair and Chair-Elect's Letter of 2 February 2007 could be expected prior to Lisbon and the Chairman said that a response would be provided. This was confirmed by Paul Twomey, who indicated that some of the questions raised had been responded to in previous letters and that additional clarity around the GAC's advice could be presented on this matter.

The Chairman asked if the Board would be prepared to vote on this matter at the Lisbon meeting and suggested that it would be useful for the Board Members to engage in additional deliberation on the materials already received and that they spend time setting out their positions in writing and reaching a clear rationale regarding to any proposed board action.

The Board Members made comments in support of this approach. The Chairman asked Board Members to make contributions to the preparation of these positions for the Lisbon Meeting discussions.

Discussion of ICANN Bylaws-Mandated Reviews

The Chairman explained that the Board Governance Committee had recommended the Board approve the publishing of: a) Terms of Reference for the Nominating Committee Review and b) a Request for Proposals for Nominating Committee Independent Review. It was noted that the Terms of Reference had been posted for public comment and that ICANN Policy Staff had provided a summary of that public comment.

It was moved Demi Getschko and seconded Roberto Gaetano that the Board approve the publishing of Terms of reference for the Nominating Committee review. Steve Goldstein abstained from the vote as he had been unable to access the proposed terms of reference.

Resolved (07.15) that the Board hereby adopts the Final Terms of Reference for the Nominating Committee Review and directed Staff to formally post it.

It was also moved Vint Cerf and seconded Vanda Scartezini that the Board approve the publishing of a request for proposal for Nominating Committee Independent review.

Resolved (07.16) that the Board hereby approves and directs staff to post a Request for Proposals for Nominating Committee Independent Review.

Both resolutions (07.15 and 07.16 were passed 14-0 by a voice vote of all Board Members present.

Conclusion of Meeting

The Chair moved for an adjournment of the Meeting at 10.05 PM PST and multiple board members seconded that motion.