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Minutes of Board Meeting 28 October 2010

A Special Meeting of the ICANN Board of Directors was held via teleconference on 28 October 2010 at 20:00 UTC.

Chairman Peter Dengate Thrush promptly called the meeting to order.

In addition to Chairman Peter Dengate Thrush the following Directors participated in all or part of the meeting: Rod Beckstrom (President and CEO), Dennis Jennings (Vice Chairman), Harald Tveit Alvestrand, Steve Crocker, Gonzalo Navarro, Rita Rodin Johnston, Raymond A. Plzak, Rajasekhar Ramaraj, George Sadowsky, Mike Silber, Jean-Jacques Subrenat, Bruce Tonkin, Katim Touray, and Kuo-Wei Wu.

The following Board Liaisons participated in all or part of the meeting: Heather Dryden, GAC Liaison; Thomas Narten, IETF Liaison; Jonne Soininen, TLG Liaison; and Vanda Scartezini, ALAC Liaison.

Ram Mohan, SSAC Liaison, sent apologies.

Also, the following ICANN Management and staff participated in all or part of the meeting: Akram Atallah, Chief Operating Officer; Barbara Clay, Vice President, Communications and Marketing; Jamie Hedlund, Vice President, Government Affairs - Americas; John Jeffrey, General Counsel and Secretary; David Olive, Vice President, Policy Support; Kurt Pritz, Senior Vice President, Services; Elise Gerich, Vice President, IANA; Diane Schroeder, Director of Board Support.

  1. Executive Session

The Board conducted an executive session, without staff present, in confidence.

Peter Dengate Thrush moved and Bruce Tonkin seconded the following resolution:

RESOLVED, (2010.10.28.01) the Board approves the CEO Objectives Matrix.

All Board members present unanimously approved this resolution, 12-0. Rod Beckstrom, Steve Crocker and Katim Touray were not available to vote on this resolution.

  1. Consent Agenda

The Board discussed the content of the Consent Agenda and noted some corrections to be made to the Minutes of the 5 August 2010 Board meeting prior to approval. The following resolutions were approved unanimously 15-0. The Resolutions were moved together by the Chair, and Dennis Jennings seconded the motion.

RESOLVED, the following resolutions in this Consent Agenda are hereby approved:

  1. Approval of Minutes of 5 August 2010 ICANN Special Board Meeting

    RESOLVED (2010.10.28.02) the Board hereby approves the minutes of the 5 August 2010 ICANN Special Board Meeting.

  2. Approval of Minutes of 25 September 2010 ICANN Special Board Meeting

    RESOLVED (2010.10.28.03) the Board hereby approves the minutes of the 25 September 2010 ICANN Special Board Meeting.

  3. From the SSAC – Changes to SSAC Membership:
    1. Approval of Appointment of Merike Kaeo to the SSAC

      Whereas, the SSAC does review its membership and make adjustments from time-to-time.

      RESOLVED (2010.10.28.04) the Board appoints Merike Kaeo to the Security and Stability Advisory Committee (SSAC).

    2. Thanks to Departing SSAC Member Dan Simon

      Whereas, Dan Simon was appointed to the ICANN Security and Stability Advisory Committee on 26 June 2009. Whereas, ICANN wishes to acknowledge and thank Dan Simon for his service to the community by his membership on the Security and Stability Advisory Committee.

      RESOLVED (2010.10.28.05), Dan Simon has earned the deep appreciation of the Board for his service to ICANN by his membership on the Security and Stability Advisory Committee, and that the Board wishes Dan Simon well in all future endeavours.

  4. From the Board Governance Committee – Approval of revised Board Audit Committee Charter and Board Executive Committee Charter

    Whereas, each Committee of the Board of Directors should have a Charter to define the Committee’s work and operations.

    Whereas, the Board Audit Committee has reviewed its Charter approved in 2000 and approved revisions to reflect the scope of the Committee’s work, and to align with language common to all charters as approved by the Board Governance Committee.

    Whereas, the Board Executive Committee approved a Charter incorporating language common to all charters.

    Whereas, the Board Governance Committee recommended the proposed Charter to the Board Executive Committee, and recommends that the Board approve the Board Audit Committee revised Charter.

    RESOLVED (2010.10.28.06) the Board approves the revised Board Audit Committee Charter and the Charter for the Board Executive Committee.

  5. From the Board Governance Committee – Approval of Chair and Vice-Chair Position Descriptions

    Whereas, the Board Governance Committee spent several months reviewing and revising, and has recommended that the Board approve a formal position description for the Chair and the Vice Chair of ICANN’s Board of Directors.

    RESOLVED (2010.10.28.07) the Board approves the position descriptions for the Chair and the Vice Chair of ICANN’s Board of Directors, which are posted at http://www.icann.org/en/board/chair-and-vice-chair-position-descriptions-29oct10-en.htm.

  6. From the Board Governance Committee – Approval for Posting of Bylaw Changes relating to transition of Board terms

    Whereas, the Bylaws require that all incoming members of the ICANN Board of Directors not appointed by the Nominating Committee (NomCom) are seated on the Board six months after the prior year’s Annual General Meeting (AGM);

    Whereas, six months after the prior year’s AGM typically occurs in- between ICANN’s International Public Meetings, and if the Bylaws are amended to allow for a voting Board member to be selected by the At-Large Community, the transition of the new Seat 15 is anticipated to occur between ICANN’s International Public Meetings;

    Whereas, the Board Review Working Group recommended [PDF, 116 KB] that the seating of Board members not appointed by NomCom occur at a mid-year International Public Meeting of ICANN to facilitate the transitioning of the Board;

    Whereas, the Board Governance Committee (“BGC”) has considered this issue and recognized that a mid-year meeting may not occur on an annual basis, and recommended modifications to allow for seating of incoming directors without delay;

    Whereas, the proposed Bylaws amendments reflect the anticipated addition of a voting member selected by the At-Large Community, incorporating amendments already posted for public comment, at http://www.icann.org/en/public-comment/public-comment-201007-en.htm#al-director;

    Whereas, the BGC recommends that the Board approve the posting for public comment of the proposed Bylaws amendments.

    RESOLVED (2010.10.28.08), that the proposed Bylaws amendments be posted for public comment for a period of not less than 30 days.

    RESOLVED (2010.10.28.09), once the public comment period is concluded and the public comments have been evaluated and summarized, the Board will consider the proposed Bylaws amendments for approval.

  7. From the Board Structural Improvements Committee – Approval of Bylaws Necessary to Seat Director from At-Large Community

    Whereas, on 27 August 2009, the Board approved in principle the recommendation of the Board review Working Group (BRWG) to add one voting director from the At-Large Community to the ICANN Board of Directors and removing the present ALAC Liaison to the Board. http://www.icann.org/en/minutes/minutes-27aug09-en.htm.

    Whereas, the BRWG issued its Final Report containing the recommendation with the expectation that "the selection process will be designed, approved and implemented in time for the new Director to be seated at the 2010 Annual General Meeting."

    Whereas, on 12 March 2010 the Board directed the Structural Improvements Committee (SIC) to present a set of suggested actions to address the recommendations formulated in the BRWG final report. http://www.icann.org/en/minutes/resolutions-12mar10-en.htm#1.6.

    Whereas, on 25 June 2010, the Board approved a recommendation from the SIC and directed the ICANN CEO to post for public comment proposed Bylaws amendments necessary to allow for the seating of a Board Director selected by the At-Large Community and to remove the present ALAC Liaison. http://www.icann.org/en/minutes/resolutions-25jun10-en.htm#1.7.

    Whereas, the proposed Bylaws amendments were posted for public comment for 45 days, ending on 15 August 2010, and staff prepared a full Summary and Analysis of comments determining that no substantive edits were necessary to the proposed amendments. Staff prepared minor revisions to the Bylaws amendments based upon items arising in public comment and identified in the Summary and Analysis.

    Whereas, the SIC, at its 14 October 2010 meeting, considered the further proposed amendments and recommended that the Board approve the Bylaws amendments as modified by Staff.

    Whereas, to address concerns arising in the public comment period, the Board recommends that the At-Large Community consider the possibility that the At-Large Community’s selection process to identify a Director to fill the six-month vacancy in Seat 15 at the conclusion of ICANN’s Annual General Meeting in 2010 could also be declared to select the Director to serve in the first regular term of Seat 15, as defined within the amended Bylaws, without the re-initiation of a Board seat selection process.

    RESOLVED (2010.10.28.10), the Board approves the Bylaws revisions as revised by Staff in response to public comment. The Bylaws as amended will allow for the seating of the Board Director selected by the At-Large Community at the conclusion of the ICANN’s Annual General Meeting in 2010.

  8. From the Board Structural Improvements Committee – Approval of Posting for Comment of SSAC Related Changes to ICANN Bylaws

    Whereas, Article XI, Section 2, Subsection 2 of the Bylaws governs the Security and Stability Advisory Committee (SSAC).

    Whereas, in its final report published 29 January 2010 http://www.icann.org/en/reviews/ssac/ssac-review-wg-final-report-29jan10-en.pdf [PDF, 282 KB], the Security and Stability Advisory Committee (SSAC) recommended that task area one of the SSAC Charter (Section 2(2)(a)(1) http://www.icann.org/en/general/bylaws.htm#XI) should be removed because it is out of scope of the activities of the SSAC.

    Whereas, on 12 March 2010, the Board received the SSAC final report and directed the Structural Improvements Committee (SIC) to identify actions necessary to address the recommendations within the report, at http://www.icann.org/en/minutes/resolutions-12mar10-en.htm#1.6.

    Whereas, the SIC, at its 14 October 2010 meeting, recommended that the Bylaws should be amended to achieve the recommendation of the Working Group on improvements to the SSAC by removing task area one and renumbering the other task areas.

    Whereas, the SIC also considered the SSAC reviewer’s recommendation that the Board should have the power to remove SSAC members, and recommended that the Bylaws should be amended to reflect this companion removal power. Any removal should be formed in consultation with the SSAC.

    RESOLVED (2010.28.10.11), the Board directs that the proposed Bylaws amendment should be posted for public comment for a period of no less than 30 days.

  9. From the Board Structural Improvements Committee – Approval of Posting for Comment of Nominating Committee Chair-Elect Changes to ICANN Bylaws

    Whereas, Article VII, Section 2 and 3 of the Bylaws govern the composition of the Nominating Committee (NomCom) and the terms of the NomCom members.

    Whereas, in its final report published 29 January 2010 http://www.icann.org/en/reviews/nomcom/nomcom-review-finalization-wg-final-report-29jan10-en.pdf [PDF, 361 KB], the NomCom Review Finalization Working Group recommended that the Chair of the NomCom be elected one year in advance, requiring changes to the ICANN Bylaws in Article VII, Section 2 and 3 at http://www.icann.org/en/general/bylaws.htm#VII.

    Whereas, on 12 March 2010, the Board received the NomCom Review final report and directed the Structural Improvements Committee (SIC) to identify actions necessary to address the recommendations within the report, at http://www.icann.org/en/minutes/resolutions-12mar10-en.htm#1.6.

    Whereas, the SIC, at its 14 October 2010 meeting, recommended that the Bylaws should be amended to achieve the recommendation of the NomCom Review Finalization Working Group by electing the NomCom Chair one year in advance, while also highlighting that the related Bylaws amendments must incorporate appropriate flexibility for the Board.

    RESOLVED (2010.10.28.12), the Board directs that the proposed Bylaws amendment should be posted for public comment for a period of no less than 30 days.

  10. Approval of Funding Source for New gTLD Deployment Budget

    Whereas, the Board approved the new gTLD Deployment Budget at its meeting on 25 September 2010 (see Resolution 2010.09.25.01 at: http://www.icann.org/en/minutes/resolutions-25sep10-en.htm).

    Whereas, the Board Finance Committee (BFC) discussed the amount of the new gTLD Deployment Budget and unanimously agreed to recommend that it not exceed $4.0 million.

    Whereas, the BFC discussed the new gTLD Deployment Budget and unanimously agreed that it shall be funded now from the reserve fund and not from the adopted operating expense budget.

    RESOLVED (2010.10.28.13), the funds for the new gTLD Deployment budget shall be available and shall not exceed $4 million.

    RESOLVED (2010.10.28.14), the new gTLD Deployment Budget shall be funded now from the ICANN reserve fund and not from the annual adopted operating expense budget.

Resolutions 2010.10.28.01, 2010.10.28.02, 2010.10.28.03, 2010.10.28.04, 2010.10.28.05, 2010.10.28.06, 2010.10.28.07, 2010.10.28.08, 2010.10.28.09, 2010.10.28.10, 2010.10.28.11, 2010.10.28.12, 2010.10.28.13 and 2010.10.28.14 were approved in a single vote approving the consent agenda items. All Board Members present unanimously approved these resolutions.

Main Agenda

  1. Ratification of MOU with Global Cyber Security Center

The Chair noted that the discussion of this item would be moved to upcoming the Board retreat at the beginning of November 2010.

  1. President & CEO’s Report

The Chair commended the CEO on the breadth of activities underway within ICANN and on the continuing low turnover in staff. The Chair also noted his congratulations to the new At-Large Structures and the continued growth of representation in the At-Large Community. Finally, the Chair inquired about the status of registrar voting on fees.

The CEO reported that the registrars had reached the threshold required for approval of fees and congratulated Kurt Pritz and the Registrar Liaison team on their work.

Dennis Jennings inquired about the financial commitments made by operators of IDN ccTLDs.

The CEO noted that work is ongoing to request contributions and commit to future voluntary contributions based upon registration volume.

Kurt Pritz clarified that the process doesn’t include commitments to annual fees, though conversations are underway.

Dennis recommended that conversations regarding contributions happen as early as possible in the process.

The CEO noted that this may be a topic to be address by the new Board Global Relationships Committee, to address the scope of conversations will remaining attentive to ICANN’s impartiality in the fast-track and delegation process, regardless of contribution status.

Dennis agreed with that suggestion, and noted the import of the issue of the financial liability of the IDN ccTLD process.

The CEO shared a report on the first trimesterly global staff meeting, with over 90% participation worldwide, and the positive remarks arising out of the meeting, particularly in terms of communications from management. The meetings will continue to align with the internal operations planning cycles.

Vanda Scartezini thanked the CEO for the recognition of the work of the At-Large Advisory Committee in the CEO Report.

  1. IDN ccTLDs (for information)
    1. Update on IDN ccTLDs

The Chair noted that due to the discussion of IDN ccTLDs within the CEO Report section, no further update was needed. With no objections, the Board proceeded to the next item.

    1. Issues Report on Variant Management – No resolution

The Chair inquired of the members of the Board Working Group addressing variants on the issues report presented by staff.

Harald Alvestrand commented that the report provides more of a plan than was expected, and satisfies the need for such a plan as a requested.

The Chair asked about next steps to implement the detailed plan.

Dennis Jennings noted that the plan is comprehensive, and inquired as to resources to execute on the plan.

The CEO noted that Kurt Pritz and Akram Atallah will both be involved in the initiative, and asked Kurt to provide input into staffing plans.

Kurt noted that the plan provides for five months to complete the staffing plan, which may pose challenges to find and enlist expertise. Some work has already begun on a dialogue of provision of DNS expertise and attempting to find in house expertise. Five months could be an ambitious timeline due to staffing challenges. There may be a need to ask the Board to approve a budget for this work, but the resources needed for staffing have to be better understood prior to seeking approval.

The Chair suggested the following next steps: (1) the Working Group addressing variants needs to approve the contents of the plan and check that the problem is properly identified; and (2) after the Working Group signs off, the Finance Committee should work with staff regarding funding.

The CEO agreed to follow that process.

Dennis, as chair of the Working Group, agreed to take the suggested process on Board.

  1. Delegation of قطر. ("Qatar")

Elise Gerich provided an introduction to the two resolutions before the Board, one for the delegation of the IDN ccTLD as processed through the Fast Track process, and the other for the redelegation of the ASCII ccTLD to the same sponsoring organization, the Supreme Council of Information and Communication Technology.

Dennis Jennings questioned the sufficiency of documentation regarding community support outside of the representations made by the government, and suggested that the Board seek additional documentation of community consultations.

Jean-Jacques Subrenat supported Dennis’ suggestions.

Heather Dryden restated her concerns raised at the prior meeting, that when a government makes representations in response to staff questions, there really is no further appropriate means for following up or taking action. It’s imperative to ask questions and assure the responses are provided. Heather noted her disagreement with Dennis and Jean-Jacques.

Harald Alvestrand discussed the ongoing work in the Board IANA Committee on this topic. While work is ongoing, Harald noted that ICANN should first flag that it is reconfirming existing policies prior to changing its practices. The ongoing work with the IANA Committee will be turned into a staff proposal that will be presented to the Board.

The Chair inquired as to where a consultation with the ccNSO is envisioned under this work; this may be a policy development process issue for the ccNSO. In addition, there is a consistency problem if the Board were to vote against these pending requests, as this issue has arisen in the past and ongoing work has been initiated, and Qatar may not be aware of this work.

Dennis confirmed that rejecting the requests at this time without notice would be inappropriate, and there will be a recommendation forthcoming on the appropriate way forward for the future. To respond to Heather’s concern, Dennis notes that there may not be contention between ICANN and governments in making sure that the wishes of the local internet community are taken into consideration. Dennis noted that he will vote no on these resolutions, though he does not wish to block the Board’s consideration of this item.

    1. Approval of Delegation

The Chair then moved and George Sadowsky seconded the following resolution:

Whereas, Qatar is a country currently listed in the ISO 3166-1 standard;

Whereas, قطر (“Qatar”), encoded as “xn--wgbl6a”, is a string that has been deemed to appropriately represent Qatar through the IDN Fast Track process;

Whereas, ICANN has received a request for delegation of قطر. to the Supreme Council of Information and Communication Technology;

Whereas, ICANN has reviewed the request, and has determined that the proposed delegation would be in the interests of the local and global Internet communities;

RESOLVED (2010.10.28.15), the proposed delegation of the قطر. top-level domain to the Supreme Council of Information and Communication Technology is approved.

Eleven Board members voted in favor of the resolution. Dennis Jennings and Ray Plzak opposed the resolution. Mike Silber and Jean-Jacques Subrenat abstained from voting on the resolution. The resolution carried.

  1. Redelegation of .QA (QATAR) top-level

Peter Dengate Thrush moved and Harald Alvestrand seconded the following resolution:

Whereas, QA is the ISO 3166-1 two-letter country-code designated for Qatar;

Whereas, ICANN has received a request for redelegation of .QA to the Supreme Council of Information and Communication Technology.

Whereas, ICANN has reviewed the request, and has determined that the proposed redelegation would be in the interests of the local and global Internet communities;

RESOLVED (2010.10.28.16), the proposed redelegation of the .QA top to the -level domain Supreme Council of Information and Communication Technology is approved.

Eleven Board members voted in favor of the resolution. Dennis Jennings and Ray Plzak opposed the resolution. Mike Silber and Jean-Jacques Subrenat abstained from voting on the resolution. The resolution carried.

Ray Plzak noted that his vote in opposition to Resolutions 2010.10.28.15 and 2010.10.28.16 were made on the same grounds as set forth by Dennis.

Jean-Jacques Subrenat noted that his abstentions were based upon the same reasoning as set forth by Dennis.

Mike Silber provided the following rationale for his abstentions: there appear to be significant concerns regarding community participation in each of these applications. As such, I cannot approve the delegation. At the same time, previous delegations which have been approved also suffered similar deficiencies. Accordingly I feel unable to reject the delegation either. As such, I am forced to abstain.

  1. New gTLD Program
    1. Update on Timeline

Kurt Pritz made a presentation to the Board on proposed timelines to publish a final version of the Applicant Guidebook and not preclude additional comment, recommending the adoption of a model like ICANN’s budget model. Kurt noted that with the outstanding remaining issues, there is still the ability to publish a proposed final Guidebook, including the anticipated publication of the economic study, as the Board has the option to require further consideration of issues at its meeting in Cartagena.

The Chair noted the applicability of the budget process to this situation, and noted that whatever timetable that is set up is likely to slip if there is unexpected opposition or the need for unexpected changers. Therefore, it seems better to adopt a tight but achievable time line, though there’s the possibility that it may take longer than planned.

Kurt noted his agreement with signaling that approval in Cartagena is the best case scenario on a timeline, though there could be slippage. Kurt confirmed that there’s time to form a position on all remaining issues prior to posting the Guidebook, and the Board still has the flexibility to require more time for comment or input.

George noted his concern about forming a position on vertical integration prior to the consideration of the conclusions of the economic study.

Kurt responded that the economic study is about the benefits and costs associated with the introduction of the New gTLD program, and is not expected to address whether vertical integration will result in increased transaction costs or increased or decreased benefits.

Harald questioned the likelihood that the community response to the economic study will cause a change to the Applicant Guidebook.

Kurt noted that the economic study might requests changes to trademark protections or suggest that there be consideration of how to lower transaction costs through increased trademark protections. Otherwise, the response to the economic study will be to support conclusions that ICANN should or should not launch New gTLDs.

Thomas Narten suggested that any comment period be structured as in the IETF – flag that ICANN is interested in new comments only, and that comments on closed issues will be dismissed absent a compelling argument. However, ICANN has to be careful to not close off comments completely.

The Chair noted the validity of Thomas’ point, however, there are new people always entering the debate at ICANN. The Chair suggested that Kurt work with the Marketing and Communications department on how to present the request for comments in a way to focus away from resolved issues.

Bruce Tonkin suggested that the proposed final Guidebook be posted with the briefing note that substantial new issues raised by the community may result in changes and possibly delaying a decision on the Guidebook from Cartagena to the next meeting. It’s important to communicate on this point, that we want to close the process, but still take into account new issues and not ignore community feedback. On the form of receiving comments, staff should confirm that we can answer the questions that come up – even questions that arise with every round of publishing the Guidebook – and point to where the response was given in the past.

Dennis Jennings commented that any comment period should be increased so that it does not substantially overlap with the December holiday season.

Steve Crocker raised the issue of abuse of consumer information, and requested that there be strong and clear statements of how registrants are protected from misuse of query and registration information.

The Chair inquired as to whether this statement would be a result of the Working Group on this issue.

Steve responded that it’s a general issue and the protections need to be put in place.

Ray Plzak noted his concurrence with Dennis’ statement. Ray also noted that he would modify Bruce’s proposal and have a note that states “this is the last call for comments” to indicate that the Board will act on the proposed final Guidebook but is still open for hearing the community.

Rita Rodin Johnston noted her agreement with Ray, that ICANN shouldn’t attempt to pre-define limitations on the types of comments it will consider on the proposed final Guidebook. Rita noted that she has heard from many and is learning towards trying to get this approved in Cartagena. Rita recommended that the Board hold a separate workshop dedicated to the proposed Guidebook at the meeting in Cartagena to hear comments and get the sense of the community prior to taking decision. If it looks like there has been some tremendous change in peoples’ minds, the Board can get a sense of that and assess the ability to move forward.

The Chair noted that he will see if there can be some time on the Cartagena schedule to accommodate Rita’s suggestion. The Chair then inquired about the need to wait until approval of the final Guidebook for the launch of the communications plan, and encouraged staff to provide advance communications that this is coming.

Jonne Soininen noted his agreement with the Chair.

Kurt Pritz clarified that ICANN has been communicating on New gTLDs all along, attending outreach events and communicating through press releases and other means to inform people of the progress. To meet the policy recommendation, however, the countdown to accepting applications will be four months after announcing a date certain.

The Chair inquired as to whether anything else could be done so as to ramp up communications and not take people by surprise.

Barbara Clay confirmed that launching the four-month communication plan after the approval of the Guidebook is the preferred way to go, though there will be a gradual ramp-up to the launch of the communication plan. The plan allows the resources of the organization to be used in the most effective way.

The Chair thanked Kurt and Barbara for their explanations. The Chair then moved to consideration of a formal timetable to guide the remainder of the work on the New gTLD program, noting that recording a resolution on this topic will assist in getting the community prepared. The Chair requested that the launch scenario discussed be posted with the Resolutions from the meeting.

The Chair then moved and Bruce Tonkin suggested the following resolution:

RESOLVED (2010.10.28.17), the Board directs staff to adopt as a working plan the Launch Scenario with launch date of Q2 2011, as contained in the graphic attached here [PDF, 112 KB].

All Board members present unanimously approved of this resolution.

    1. Vertical Integration

In the interests of time, the Chair passed on this item of discussion.

    1. GNSO New gTLD Recommendation 6 Objection Process

Kurt Pritz provided an introduction to the Board on the report issued by the cross Supporting Organization/Advisory Committee working group convened on Recommendation Six and the work to simplify the report and make specific staff recommendations. Staff simplified the 14 recommendations arising from the group’s work into five categories. Kurt provided a short overview of staff’s recommendations, including the areas where staff recommends adoption. Kurt noted that staff disagrees with the Working Group recommendations on the Board role in the objection and dispute resolution process; the Board should not be ultimate arbiter of disputes. That responsibility should rest with an independent dispute resolution provider, as part of the risk mitigation of the New gTLD process. Staff would not fully adopt the recommendations of the Working Group regarding the role of the independent objector, as ICANN needs to include a process for the ability to objection to a clearly objectionable string. Staff also doesn’t support the Working Group’s recommendation for the relaxing of a standing requirement for objections by the ALAC and the GAC, nor to affording ALAC and the GAC reduced fees or a different set of standards for carrying an objection. Staff does not recommend treating the ALAC or the GAC differently from other objectors. Kurt reported that staff commits to having a working session in Cartagena to resolve differences with the working group and to get to agreement on as many issues as possible.

The Chair inquired about the ability to reach out to the Working Group prior to Cartagena, and to keep working on this issue as necessary. The Chair requested that there be staff time with the Working Group to explain the staff positions, even if by phone call.

Heather Dryden noted that the Working Group would likely be open to that suggestion, and that the GAC may comment separately on the issues in the report, as the report is not GAC advice.

Kurt confirmed that staff could coordinate calls with the working group and that he would work with David Olive to convene a session.

Heather noted that there was some discussion regarding the meaning of the Board’s resolution in Trondheim, and that it would be useful for the calls to provide some clarity on those.

Bruce Tonkin requested that a briefing paper be provided to the Working Group in advance of a call, as that would go a long way to settling some fo the concerns raised by Heather regarding the sense that the Working Group’s work was ignored.

The Chair agreed with Bruce’s suggestion and confirmed that is the proper way forward.

    1. GAC Issues Letter including Geographic Names

Kurt Pritz provided a short introduction to the Board regarding consideration of whether an additional consultation with the GAC is required due to some specific areas of difference between GAC advice and what is in the Guidebook. Kurt noted that there have been multiple conversations and consultations over the years.

The Chair inquired about the path forward. The Bylaws require consultation when the Board is ready to take an action that is inconsistent with the GAC advice, and asked if staff was suggested a sort of pre-consultation, or if this was to be the Bylaws consultation.

Bruce Tonkin stated his concern of the logistics of how the Board would consult with the GAC; would it be the full Board meeting with the full GAC? That would not be a the most functional forum for this discussion. Bruce also questioned where the GNSO would fit into any conversation on this. Bruce suggested that prior to a full Board/full GAC meeting, a smaller group get together in Cartagena, including representatives from the Board, the GAC and the GNSO to talk the issues through and see if there are any further areas of compromise. Bruce suggests the presence of the GNSO because of the work done in developing the policy recommendations, so as not to lock the GNSO out of discussions regarding the recommendations arrived at through the GNSO.

The CEO noted that he has provided suggestions to Kurt on what a consultation process could look like, and staff recommendation would be forthcoming.

Heather Dryden noted that she would return to the GAC for further guidance on ideas of how to proceed, and stated that any consultation would likely be expected to be between the full Board and open to the full GAC if the members wish to participate.

Bruce clarified that he proposed a smaller working group for the purpose of preparing for the full Board/GAC discussion.

Heather noted that the need for a full meeting would likely not preclude the ability to have a smaller working group convene earlier.

Rita Rodin Johnston questioned whether the Bylaws require the full Board to meet with the full GAC to engage in a good faith consultation. Rita noted her concern of the productivity of such large meetings. Rita suggested that the GAC, using staff’s work, review to determine if there are issues to be discussed, so that the issues can be limited in some way prior to working toward compromise.

John Jeffrey noted that while an outside reading of the Bylaws may lead to a full Board/GAC meeting, the General Counsel does not interpret the Bylaws to say that is what is required. However, some agreement about what a consultation would look like is required. John noted that a preconsultation between the Chairs, as suggested here, is a good model to get to deciding on a process and reaching a clarification on where there’s GAC advice and what may be in conflict with that advice.

Jean-Jacques Subrenat inquired as to whether any current committee of the Board may be useful in the preparatory phase.

The Chair noted that there is no current committee that would be the natural home for working through this process, though maybe a group of Directors familiar with or interested in the geographic names issues could populate a working group.

The CEO suggested that the Chair have a call with the Chair of the GAC to determine if there are any issues that could be taken off the table, and staff support could be provided for that call.

The Chair noted that he is happy to do so, though the starting point is to get a paper on geographic names presented to the GAC, and have Heather, as Chair of the GAC, check that there really is disagreement, and on what issues. Following that, the Chairs can discuss the process for resolution.

John noted that staff is starting to create reference numbers for GAC advice and charting with relevant information, which may be used in the future to refine discussions with the GAC.

The Chair confirmed that he, along with Heather and staff, will move this issue forward prior to Cartagena.

    1. Affirmation of Commitment Considerations

Kurt introduced a paper describing how ICANN thinks its met the conditions set our in the Affirmation of Commitments in launching New gTLDs in a way that fosters competition, enables security, stability, and resiliency, protects consumers, addresses sovereignty concerns, and provides for rights protection. Kurt inquired as to how the paper can be sharpened for publication and to whom it should be published.

The Chair noted that this would likely be published to the ICANN website with a courtesy copy to U.S. Department of Commerce as the partner in the Affirmations document. The Chair inquired to as to how a ranking can be done on how the work was performed.

Kurt responded that processes for transparent, fact-based decisions are important to demonstrate.

Dennis Jennings stated that there has to be some effort into identifying objective standards against which to measure performance.

Bruce Tonking stated that he supports posting a document such as this on the New gTLD site, and it’s worth trying to document how we feel we measure against the Affirmation of Commitments. Bruce agreed with Dennis’ statement and noted that metrics have to be defined so that ICANN can measure success from the New gTLD program.

The Chair requested for Kurt to consider what known performance indicators for the New gTLD program may be, what the adequacy scale is for measuring, and try to set that out for future conversation.

  1. ICM Registry Sponsored Top-Level Domains – Next Steps

John Jeffrey provided a brief overview of the history of GAC advice on the .XXX sTLD application, and staff’s recommendation of a process of consultation between the GAC Chair and the ICANN Board Chair to determine whether there is clarity around the GAC advice that’s been offered or whether a deeper consultation is needed. John stressed that the goal is to get to a timely and effective resolution of this matter.

The Chair raised a similar question as earlier, regarding whether the Board is about to take an action that would need to be discussed with the GAC, or if this is a preliminary consultation. If this is a preliminary consultation, the Chair stated that he’s not sure why this is needed, as the issues are well known. If the Board were to proceed in approving the Registry Agreement, the requirement to consult with the GAC would arise then. Alternatively, the Board could try to speak with the GAC now, if the consultation will have to happen in any event.

Jean-Jacques Subrenat requested Heather Dryden’s view as Chair of the GAC.

Heather Dryden noted that if the ICANN Board Chair could send a letter outlining the issues that have been identified, that letter could be taken to the GAC to see if additional advice will be provided.

Jean-Jacques noted that the GAC seems keen to not give further advice where it had previously been perceived that they wanted to be consulted on this matter. As a result, Jean-Jacques joined the Chair in questioning the usefulness of the consultation at this stage.

The Chair questioned why the staff recommendation is for consultation prior to the Board determining that it will take advice. Here, the GAC advice in front of the Board is not sufficient to prevent the Board from moving forward if it chooses to, and then going an explaining the action to the GAC and seeking to resolve conflict. For example, the Wellington Communiqué asked for information – that’s information that can be given to the GAC. The statement that some members are opposed, are not, in the Chair’s view, advice from the GAC; it’s information. None of these items keep the Board from moving forward. Regarding supervision of content, based on the information from the applicant and from staff, the role in technical oversight is no different from the kind of oversight exercised over other TLDs. Finally, the suggestion that the letter from 4 August 2010 could retroactively apply to ICM’s application is not coherent; the Independent Review Process focused on issues of trying to impose new conditions on the applicant at a later state, and an attempt to impose new conditions by the GAC cannot be intended or acceptable. The Chair asked for help in determining how to move forward.

Jean-Jacques asked the General Counsel for further information on the need for the resolution.

John Jeffrey noted that the model proposed seeks to de-escalate potential conflict between the Board and the GAC, and not have a later decision brought to a stop because of a need to consult to consult with the GAC. The suggested path is a means to determine whether GAC communications are GAC advice and if there is any conflict necessary to consult about that as early as possible. In addition, the Board could obtain more information regarding the GAC advice to make its applicability to the Board’s action clearer.

Katim Touray noted that it would be preferable to manage the process of communicating decisions to the GAC as opposed to taking action without a consultative process. Therefore, it would be helpful to have some preliminary communications regarding the Board’s intended actions, as that will strengthen the relationship between the Board and the GAC on this and other issues. The focus should be on consultation, and not simply consultation as required in the Bylaws.

Bruce Tonkin asked about the content regulation issues. Another sTLD, .CAT, has a registration rule that it applies, and ICANN’s concern is that the registry treats people fairly and abides by the terms of the Registry Agreement. How would the .XXX sTLD be different? There will be a sponsoring organization and compliance monitoring activity, and it appears that ICANN would be in a position of monitoring that the compliance process is appropriate – and not about ICANN checking the content.

John Jeffrey noted that that this issue could apply to other existing registry agreements as well as to future agreements under the New gTLD program for community TLDs, therefore it’s important to clarify this advice point. There’s a benefit to having this discussion regarding content issues.

The Chair noted that here’s consensus for a pre-decision consultation with the GAC, with the GAC Chair forwarding a paper from staff regarding the GAC advice identified on the ICM application, and the GAC Chair and the ICANN Board Chair will then discuss a mechanism for the pre-decision consultation.

John Jeffrey confirmed that staff would provide the requested chart to the GAC Chair on this and the Geo Names issue, as well as post the chart with the Approved Resolutions arising out of the meeting.

Ray Plzak questioned whether a Board resolution was necessary on this item, as the liaison process should be sufficient in starting the consultative process; the resolution should come after the liaison work has completed.

John noted that proceeding with the liaison process as well as a formal resolution is advisable, because it allows the Board to be very clear about the steps it is taking and remain open and transparent in its processes.

The Chair agreed with the suggestion to proceed with the liaison process and a formal resolution to engage in a process of consultation. The Chair suggested amendment to the resolutions to specify that the consultation is on GAC advice about ICM’s application, and that consultation should conclude prior to the end of the ICANN Public Meeting in Cartagena.

George Sadowsky then moved and Dennis Jennings seconded Resolution 2010.10.28.18 below.

Whereas, the Governmental Advisory Committee communicated to the ICANN Board regarding the application for the .XXX sTLD through: (1) the Wellington Communiqué; (2) a 2 February 2007 Letter [PDF, 19 KB] from the Chair and Chair-Elect of the GAC to the Chair of the ICANN Board; (3) the Lisbon Communiqué; and (4) a 4 August 2010 [PDF, 235 KB] Letter from the Chair of the GAC to the Chair of the ICANN Board;

Whereas, ICM provided a proposed Registry Agreement to ICANN that was posted for public comment for 30 days;

Whereas staff recommends that, though the proposed Registry Agreement provides sufficient measures to address many GAC concerns, entering into the proposed Registry Agreement may not be consistent with some of the broader-reaching communications from the GAC, and the GAC and the Board could benefit from consultation on those items [PDF, 48 KB].

RESOLVED (2010.10.28.18) the Board Chair shall engage the GAC Chair on developing a process for consultation with the GAC on its advice about the ICM application.

All Board members present unanimously approved of this Resolution.

Dennis Jennings then moved and Jean-Jacques Subrenat seconded Resolution 2010.10.28.19.

Ray Plzak inquired of Heather Dryden if the consultation could be concluded in the timeframe suggested.

Heather agreed that the timeframe as proposed is reasonable.

The Board then took the following action:

RESOLVED (2010.10.28.19) the Board Chair will suggest to the GAC Chair that any consultation process conclude prior to the ICANN Public Meeting in Cartagena, Colombia.

All Board members present unanimously approved of this Resolution.

  1. Status Report on AOC Reviews
    1. Update on Meeting the Commitments

The CEO provided a short introduction regarding the work of all staff across the organization to identify how the Affirmation of Commitments affected the operations in their groups. The CEO then introduced Denise Michel to further discuss the ongoing work.

Denise Michel noted that staff is periodically updated their analysis and brainstorming on meeting the Affirmation of Commitments, and that regular briefings and introductions for new staff members are continuing periodically. The work on the Affirmation of Commitments will be moved to a public Wiki to allow community access to information.

Jean-Jacques Subrenat inquired about the additional work that the Affirmation of Commitments is putting on staff.

The CEO noted that support of the review teams requires the equivalent of nearly two to three full time employees, and the other work around the organization probably requires the equivalent of an additional one or two. In addition, meeting the Affirmation of Commitments could require financial studies and economic studies that could cost millions of dollars per year. On documentation of Board decisions, staff is producing great Board books with documentation. However, if you compare to the FCC standard as discussed during the Accountability and Transparency review process, the FCC spends approximately $3 million per policy paper, and ICANN has approximately 30 policy tracks ongoing at this time. Therefore, to live up to the FCC standard, ICANN would have to spend millions of dollars – resources that ICANN does not have.

Dennis Jennings noted that it would be useful to set some level of expectation as to what is reasonable to achieve. There has to be some objective standard, or ICANN will be judged to an arbitrary and possibly impossible standard.

The Chair noted that the setting of those standards must be done in public by the community and noted that Dennis’ suggestion is a good practice to follow.

Katim Touray noted that a wonderful job was done in preparing the metrics of work done to meeting the Affirmation of Commitments. Katim would like to see where the activities relate to ICANN’s strategic plan, as that measure has to be kept in mind as well. Katim also noted that ICANN should get other countries to sign up for hate Affirmation of Commitments so we can give these commitments to other countries as well.

The Chair noted his disagreement with Katim, clarifying that the Affirmation of Commitments are commitments that ICANN has given to the world, promised through an agreement with the US Government.

Katim asked for a communication plan to note to other countries what we’re doing to meet the Affirmation of Commitments.

The Chair returned to the item raised by the CEO regarding the commitment that ICANN’s decisions are in the public interest: “ To ensure that its decisions are in the public interest, and not just the interests of a particular set of stakeholders, ICANN commits to perform and publish analyses of the positive and negative effects of its decisions on the public, including any financial impact on the public, and the positive or negative impact (if any) on the systemic security, stability and resiliency of the DNS.” The Chair raised a concern that ICANN may not be fully meeting this commitment, and it will require a considerable amount of resources to meet; this has to be dealt with in the next iteration of the strategic and operational plan, so that there’s an indication of future work to be done on this.

    1. Review Teams – Update on Logistics & Budget Issues

The CEO reported that the Whois Review Team had its first meeting, and the DNS Security, Stability and Resilience Review was having its first meeting in the coming days.

Akram Atallah then discussed the proposed budgets for the work of these two new review teams, anticipating face-to-face meetings and administrative and teleconference cost. The two review teams have budgets that total to approximately $440,000 for the year when added together.

The CEO noted that the Whois team is already having some discussion about hiring external consultants, which would require additional funding. There also may be some suggestion that the budget for each team be closer to the nearly $1 million spent on the ATRT. The Whois team has invited the chair of the ATRT, Brian Cute, to provide some lessons learned within the review process.

The Chair commented that a Board working group has been comprised to address some of these budget issues without impinging on the independence of the review teams. Given the scope of each review, there could be justification on why varying budgets are appropriate. The Chair then provided an update on the work of the ATRT and the three-day meeting with the outside consultants, the Berkman Institute, and the consolidation of that work with the work of the four working teams on the ATRT. The Chair noted that due to obvious conflicts, he has not worked on the individual working teams, but has acted as a liaison to the ATRT. The report is now with ICANN staff ro translation. The result is a useful set of recommendations, as well as useful and positive discussion.

Dennis Jennings noted a financial concern regarding the need to tap into ICANN’s reserve fund to support the Review Teams, and recommended that the Finance Committee take a look at this issue. There is a particular concern because the reserve fund has already been used to prepare for the New gTLD program.

Rajasekhar Ramaraj clarified that the expenditures to the New gTLD program are an advance, with the expectation that the funds will be returned to the Reserve Fund after the launch of the process. The review team expenses are a different concern, as they represent expenses over the operating plan.

Jean-Jacques Subrenat requested that the ICANN Board Chair and the GAC Chair jointly provide an overview on the work of the Affirmation of Commitments and where ICANN is headed to next, including the anticipated resources to continue meeting the commitments, as the resources are quite burdensome at this time.

The Chair requested that Jean-Jacques raise this question again when discussing the strategic plan, as the future funding of commitments can be discussed there. The Chair agreed that this is an essential item to discuss.

  1. Oversight of Board Committees

The Chair introduced a new mechanism for the Board to be aware of the work of the committees of the Board. The committees are doing extensive amounts of work, as noted by the work on the Agenda. The Chair noted in particular work done by the SIC for all the recommendations arising out of it, including the recommendation in relation to seating the Board member selected by the At-Large. The Chair explained that over the course of the year, each committee will now provide a report to Board on its work, beginning with the Finance and Audit Committees.

Rajasekhar Ramaraj introduced the members of the Board Finance Committee, George Sadowsky and Gonzalo Navarro, with observers Bruce Tonkin, Katim Touray and Dennis Jennings. Ramaraj reported that the focus has been on budgeting, including better interactions in preparing budgets and helping to frame what that process should look like, receiving community inputs earlier and in a better fashion. The Finance Committee has also overseen a review of the investment policy, where indications are that it’s more or less fine, and the investment policy has been performing satisfactorily, with the Reserve Fund recovering the losses incurred in 2008 and 2009. The Finance Committee also has been addressing how to address the budget overages from the Affirmations review.

The Chair asked if there are any issues that the Board can help the Finance Committee address.

Ramaraj responded that there is a flattening of revenue in the current business lines, therefore there has to be focus on where future revenues could come from beyond the new gTLD program. Input is also needed on the capping of the reserve fund, as well as disciplining expenses. Any help with those items would be useful. The Finance Committee is having a three-year projection of income and expense streams produced to assist the Board in this discussion.

The Chair inquired as to the continued need of the Finance Committee, particularly in light of the Boston Consulting Group recommendation that the Board may not need a Finance Committee.

Ramaraj replied that the Board needs the Finance Committed, particularly in light of the current circumstances of the organization. The Finance Committee has tried to reduce the number meetings to reduce the burden on members, and have been more cognizant of moving toward oversight instead of getting involved in the staff tasks. Ramaraj noted the great work that Kevin Wilson has performed as CFO in helping the Finance Committee.

The Chair then informed the Board of the very good report received from the external auditors, and turned the floor to Rita Rodin Johnston, Chair of the Audit Committee.

Rita described that the Audit Committee has been trying to enhance the oversight role with respect to the external audit, and move from just receiving the audited financials to taking a more proactive role in trying to build the practices of the Audit Committee and the internal and financial controls of the organization. The Audit Committee surveyed best practices in terms of Audit Committee activities, and adopted a Best Practices document to incorporate into standard operating procedures. The Audit Committee has overseen the institution of an internal audit function at a level that is practical for an organization of ICANN’s size, to assist in reviewing items noted as “other matters” in the auditor’s report. The Audit Committee is expecting the first draft in a matter of weeks. The Audit Committee also worked in conjunction with the Finance Committee on the development of Cost Accounting Guidelines and Procurement Guidelines. In addition, the Audit Committee has been overseeing a comprehensive accounting guideline manual to show the cost revoery mechanism in connection with the New gTLD program. Finally, the Audit Committee has instituted executive sessions with senior staff, to identify possibilities for fraud or identify issues of concern. The Audit Committee is also working to identify independent outside financial expertise to remain available to the Audit Committee in the event that the membership was light on financial expertise. Staff produced an RFP for volunteer applicants, and the Audit Committee will review those applications in Cartagena. Rita also noted her thanks to Kevin and the Finance Department for their work.

The Chair asked if the Board could provide any assistance to make the Audit Committee’s work more effective.

Rita replied that this is a somewhat formal oversight committee as operated to date. However, the work of the internal audit function may reveal some items for follow-up by the Board. Rita noted that she will let the Board know if assistance is needed. Rita also recommended that the Board may wish to consider that other external auditors may be of value after the launch of the New gTLD program and assist in soliciting interest. Currently, after an RFP, ICANN retained the same audit firm for the fifth year, though following best practices, rotated the partner responsible for the audit to bring a new perspective to the audit.

The Chair thanked Rita for her report and noted that under California law, ICANN is required to maintain an Audit Committee, therefore the question of the need for continuation of the Audit Committee does not need to be addressed.

  1. New gTLD Applicant Support

Katim Touray introduced a resolution to address the efforts put forward by the joint working group formed in response to the Board’s resolution in Nairobi regarding New gTLD Applicant Support. The Board’s resolution in Trondheim did not do justice to the efforts of the working group, including a lack of formally acknowledging receipt of the proposal. Katim suggests a formal response to the working group’s report, which included concrete examples and steps to sort out issues such as defining who is needy. Katim therefore is proposing a resolution to thank the group, to encourage the work to continue to ensure a sustainable program, and that the Board is looking forward to working with them on further discussions of next steps.

George Sadowsky noted that he was not in complete agreement with Katim’s proposal, and reminded the Board that though he believes that ICANN has an obligation to make its products and services available to the global community, the resolution as suggested did not suggest the proper way forward as it focused on the narrow issue of subsidization of applications. George provided a suggested edit to Katim’s resolution.

Katim Touray moved and Peter Dengate Thrush seconded the resolutions below.

Katim Touray then noted his agreement with George’s edits.

Ray Plzak supported George’s statements, and inquired of the status of the working group and whether they are able to continue work.

The Chair noted that the resolution specifically calls for the working group to continue, and concern regarding a formal extension to a charter, if needed, could be addressed separately.

Bruce Tonkin clarified that a sustainable funding model might exist outside of ICANN, and ICANN itself may not have to create a fund. Bruce suggested edits to the resolution to note this possibility.

Dennis Jennings stressed that the word “sustainable” could be confused between a sustainable support program and a sustainable TLD, and ICANN should be careful not to confuse the concepts.

The Board then took the following action:

Whereas, the Board at its March 2010 meeting in Nairobi, Kenya, passed resolutions recognizing the importance of an inclusive New gTLD Program, and requesting stakeholders to form a Working Group to develop sustainable support needy applicants for new gTLDs;

Whereas ALAC and the GNSO Council, in response to the Nairobi Board resolutions, formed a Joint Supporting Organization/Advisory Committee (SO/AC) Working Group on New gTLD Applicant Support (the JAS WG);

Whereas the JAS WG worked with various stakeholders and presented a report on their findings and recommendations to the Board, and the Board also received a statement on the matter from the African community;

Whereas the Board, at its September, 2010 meeting in Trondheim, Norway, made some statements on providing needy applicants with support such as outreach and education, and matching them with sources of support;

Whereas the Board, along the lines of its Nairobi meeting resolutions, is still committed to working with the community to ensure an inclusive new gTLD program;

RESOLVED (2010.10.28.20), the Board thanks the JAS WG and those members of the community who have devoted their time and energy on finding sustainable ways to support needy applicants for new gTLDs.

RESOLVED (2010.10.28.21), the Board encourages the JAS WG and other stakeholders to continue their work on the matter, and in particular, provide specific guidelines on the implementation of their recommendations such as determining the criteria for eligibility for support.

RESOLVED (2010.10.28.22), the Board further stresses that any needy applicant support program must have a sustainable funding model that may be independent of ICANN and can be implemented transparently, and effectively to the benefit of the global Internet community.

All Board Members present unanimously approved of these resolutions.

The meeting was adjourned.