- Main Agenda:
- Executive Session – Confidential:
Approval of Minutes
Resolved (2019.12.12.01), the Board approves the minutes of the 7 November 2019 Regular Meeting of the ICANN Board and the 7 November 2019 Organizational Meeting of the ICANN Board.
Consideration of Reconsideration Request 19-3: .ORG renewal
Whereas, Electronic Frontier Foundation (Requestor) filed a reconsideration request (Request 19-3) challenging ICANN organization's renewal of the Registry Agreement (RA) with Public Interest Registry (PIR) for the .ORG generic top-level domain (gTLD) (the .ORG Renewed RA) insofar as the renewal permits PIR to, "'at its election, implement additional protections of the legal rights of third parties,' unilaterally and without further consultation with existing .ORG registrants or the ICANN community" and applies the Uniform Rapid Suspension (URS) rules to .ORG registrants (collectively, URS RPMs);1 the Requestor claims that ICANN org's inclusion of the URS RPMs in the .ORG Renewed RA "run[s] contrary to ICANN's bylaws."2
Whereas, the Requestor also seeks reconsideration of an alleged Board inaction insofar as the ICANN Board did not vote on the .ORG Renewed RA; the Requestor claims that the Board's failure to vote on the .ORG Renewed RA was based on the Board's consideration of inaccurate relevant information and the Board's failure to consider material information.3
Whereas, the Board Accountability Mechanisms Committee (BAMC) previously determined that Request 19-3 is sufficiently stated and sent Request 19-3 to the Ombudsman for consideration in accordance with Article 4, Section 4.2(j) and (k) of the ICANN Bylaws.
Whereas, the Ombudsman concluded that the selection of terms to include in RAs is "ICANN org's choice to make as directed by the Board—and as such, the actions of the Staff, acting with the authority vested in the CEO by the Bylaws and the Board, do not merit any kind of recommendation from me to the BAMC or the Board under [Request] 19-3."4 The Ombudsman further concluded that "[i]n action or inaction, the Board did nothing improper in deciding to stay the course, so far as I can see. It heard the Community, it read the public comments (at the very least the comprehensive Staff Report summary), and in the end, it decided that the renewal terms for the Legacy gTLDs (including .org) were acceptable."5
Whereas, the Board issued a Proposed Determination denying reconsideration because ICANN org's execution of the .ORG Renewed RA was consistent with ICANN's Bylaws, policies, and procedures. Further, the Board did not fail to consider material information or rely on false or inaccurate material information by allowing ICANN Staff to execute the .ORG Renewed RA without voting on it prior to execution. (See https://www.icann.org/resources/board-material/resolutions-2019-11-03-en#1.b.)
Whereas, the BAMC has carefully considered the merits of Request 19-3 and all relevant materials, including the Requestor's rebuttal and oral presentation, and has recommended that the Board adopt a Final Determination denying reconsideration on the basis that ICANN org's execution of the .ORG Renewed RA did not contradict ICANN's Bylaws, policies, or procedures; that ICANN Staff did not fail to consider material information or rely on false or inaccurate relevant information in executing the Agreement; that the Board did not fail to consider material information or rely on false or inaccurate material information by allowing ICANN Staff to execute the .ORG Renewed RA without a formal vote by the Board.
Resolved (2019.12.12.02), the Board adopts the Final Determination on Reconsideration Request 19-3.
Rationale for Resolution 2019.12.12.02
Brief Summary and Recommendation
The full factual background is set forth in the Final Determination on Reconsideration Request 19-3, which is incorporated here.
On 3 November 2019, the Board evaluated Request 19-3 and all relevant materials, and issued a Proposed Determination denying reconsideration because ICANN org's execution of the .ORG Renewed RA was consistent with ICANN's Bylaws, policies, and procedures and because the Board did not fail to consider material information or rely on false or inaccurate material information by allowing ICANN Staff to execute the .ORG Renewed RA without a formal vote by the Board. (See https://www.icann.org/resources/board-material/resolutions-2019-11-03-en#1.b.)
On 25 November 2019, the Requestor made an oral telephonic presentation to the BAMC,7 reiterating the arguments made in its Request and Rebuttal, and additionally suggesting that ICANN Staff may have been aware of the sale of PIR before 30 June 2019, but failed to consider the information in renewing the .ORG Renewed RA.8
On 3 December 2019, the BAMC considered Request 19-3 and all relevant materials, including the Requestor's rebuttal and oral presentation, and recommended that the Board adopt a Final Recommendation to deny reconsideration because: (1) ICANN org's execution of the .ORG Renewed RA did not contradict ICANN's Bylaws, policies, or procedures; (2) ICANN Staff did not fail to consider material information or rely on false or inaccurate relevant information in executing the Agreement; (3) the Board did not fail to consider material information or rely on false or inaccurate material information by allowing ICANN Staff to execute the .ORG Renewed RA without a formal vote by the Board. (See https://www.icann.org/en/system/files/files/reconsideration-19-3-electronic-frontier-bamc-action-proposed-final-determination-03dec19-en.pdf.)
The Board has considered the BAMC's recommendation, as well as all relevant materials for Request 19-3, and concludes that Request 19-3 is denied and that no further action be taken in response to the Request for the reasons set forth in the Final Determination.
Analysis and Rationale
- The Requestor's Arguments Concerning the Merits of the URS Do Not Support Reconsideration.
The Requestor's claims concerning the merits of the URS are not supported and therefore do not warrant reconsideration. ICANN org carefully considered its renewal options for the .ORG Registry and the public comments, including the Requestor's opposition to incorporating the URS, before deciding to proceed with migrating the .ORG Registry to the Base RA (and employing the URS). The Requestor also has not shown that it is unreasonable to employ URS in the .ORG Renewed RA. As discussed in detail in the Final Determination, the URS was developed and adopted into the Base RA after extensive community input, including review by the Generic Names Supporting Organization (GNSO) Council. Specifically, the URS was recommended by the Implementation Recommendation Team (IRT) as a mandatory rights protection mechanism for all new gTLDs from the 2012 round of the New gTLD Program. The GNSO was asked to provide its view on whether certain proposed rights protection mechanisms (including the URS) were consistent with the GNSO's proposed policy on the introduction of new gTLDs and were the appropriate and effective option for achieving the GNSO's stated principles and objectives. The GNSO concluded that the URS was not inconsistent with any of its existing policy recommendations. The URS has not been adopted as a Consensus Policy and ICANN has no ability to make it mandatory for any TLDs other than those delegated as a result of the 2012 round of the New gTLD Program. As a result, when considering a similar challenge to migrating legacy gTLD RAs to the Base RA during the renewal process, the Board concluded that including the URS RPMs was not inconsistent with ICANN Bylaws or established policies or procedures.
There is no support for the Requestor's assertion that the URS is "ill equipped" for issues likely to arise involving .ORG registrants. The Requestor also argues in its Rebuttal that "the URS was developed in response to a very specific situation and was not intended for more complicated cases." The Requestor has not shown that these "more complicated cases" are unique to .ORG registrants. They are not. The Requestor implies that URS is the sole RPM applicable to .ORG. But as discussed below, all registrars must employ the UDRP. The URS does not replace the UDRP; it supplements it. The Requestor has not shown that including the URS among the RPMs applicable to .ORG registrants contradicts any established ICANN policy or procedure. For these reasons and the reasons set forth in the Final Determination, reconsideration is not warranted.
- ICANN org's Execution of the .ORG Renewed RA Was Consistent With ICANN's Bylaws.
There is no evidence to support the Requestor's claim that the execution of the .ORG Renewed RA violated ICANN's Mission, Commitments, and Core Values, because it did not. As discussed in further detail in the Final Determination, which is incorporated herein, ICANN org's action was consistent with its Commitment to "ensure that those entities are most affected can assist in the policy development process." The Requestor asserts that "bilateral negotiations are not a sufficient substitute for multistakeholder policy development"9 and that substantive changes to the .ORG RA "should be initiated, if at all, through the multistakeholder policy development process, not bilateral negotiations between a registry operator and ICANN staff."10
The multistakeholder model is an important mechanism for ICANN's policy development. But no ICANN Bylaws provision, policy, or procedure requires that every "substantive change" to the .ORG RA or other new or legacy gTLD RAs must result from the multistakeholder policy development process. Such a requirement would eliminate ICANN's and the Registry Operators' ability to negotiate the terms of the RAs.
Although all new gTLD registry operators must adopt the Base RA (but may request deviations from it), no consensus policy requires a legacy registry operator to adopt the Base RA. All RAs include a presumptive right of renewal clause. This clause provides a registry operator the right to renew the RA at its expiration, provided the registry operator is in good standing (e.g., the registry operator does not have any uncured breaches), and subject to the terms of their presumptive renewal clauses.11 In the course of engaging with a legacy registry operator on renewing its RA, ICANN org prefers to and proposes that the registry operator adopts the Base RA that is used by new gTLDs as the starting point for the negotiations. The Base RA includes several enhancements that benefit the domain name ecosystem such as better safeguards in dealing with domain name infrastructure abuse, emergency backend support, as well as adoption of new bilaterally negotiated provisions that ICANN org and the gTLD Registries Stakeholder Group conduct from time to time for updates to the form agreement, and adoption of new services (e.g., RDAP) and procedures. Although ICANN org proposes the Base RA as a starting place for the renewal discussions, because of the registry operator's presumptive right of renewal, ICANN org is not in a position to mandate the new form as a condition of renewal. If a registry operator states a strong preference for maintaining its existing legacy agreement form, ICANN org would accommodate such a position, and has done so in at least one such instance.
Contrary to the Requestor's assertion, the inclusion of the URS RPMs in the .ORG Renewed RA does not contravene the GNSO's policy development process and is thus not a violation of ICANN's Core Value of
[s]eeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent.12
The Rights Protection Mechanisms Policy Development Process Working Group (RPM PDP Working Group) has not concluded its work. Once the RPM PDP Working Group concludes its inquiry and to the extent the GNSO makes a community recommendations on RPMs, the Board will take the recommendations under consideration. ICANN org will then follow any Board directives and comply with any new policy set by or procedure adopted by the Board in light of those recommendations. Consistent with this approach, ICANN Staff adhered to its standard existing practice by negotiating with PIR to renew the RA pursuant to the Base RA, which includes the URS. The inclusion of the URS RPMs in the .ORG Renewed RA resulted from bilateral negotiations between PIR and ICANN organization. PIR was free to elect not to include the URS RPMs in the renewed agreement, but it did not do so. The Requestor presents no evidence demonstrating that PIR objected to the inclusion of the URS RPMs in the .ORG Renewed RA. As such, there is no evidence that the voluntary inclusion of the URS RPMs into the .ORG Renewed RA in any way contravenes the work of the RPM PDP Working Group. The existence of the RPM PDP Working Group is not, in itself, grounds for reconsidering Staff's action.
The Board further concludes that ICANN org's decision to include the URS RPMs in the .ORG Renewed RA was consistent with its Commitment to seek public input and act for the public benefit, and its Core Value of seeking broad participation. ICANN org sought broad participation, including public comment, and considered each of the comments submitted during the public comment period. ICANN Staff presented and discussed the public comments and "key issues raised in the public comment process and correspondence"—including the URS RPMs—with the Board before executing the .ORG Renewed RA. That ICANN org ultimately decided to include the URS RPMs in the bilaterally negotiated Renewed .ORG RA despite public comments opposing this approach does not "exclude" the voice of registrants from the RA renewal process or otherwise demonstrate that ICANN org failed to act for the public benefit. ICANN Staff's careful consideration of the public comments—in its Report of Public Comments and discussion with the Board —demonstrate the exact opposite, namely that the propriety of the URS RPMs and the other aspects of the Base RA for .ORG were carefully considered. The Requestor has not demonstrated that ICANN Staff failed to seek or support broad participation, ascertain the global public interest, or act for the public benefit. To the contrary, ICANN org's transparent processes reflect the Staff's continuous efforts to ascertain and pursue the global public interest by migrating the legacy gTLDs to the Base RA.
The Board Considered All Material Information And Did Not Rely On False Or Inaccurate Relevant Information.
As discussed in further detail in the Final Determination, which is incorporated herein, the Board considered all material information and did not rely on false or inaccurate information by allowing ICANN Staff to execute the .ORG Renewed RA without voting on it prior to execution. The Requestor provides no evidence to the contrary.
- The Rebuttal Does Not Raise Arguments or Facts that Support Reconsideration.
The Requestor makes four arguments in its Rebuttal. The Requestor also asserted during its oral presentation that ICANN Staff may have been aware of the sale of PIR before 30 June 2019, but failed to consider the information in renewing the .ORG Renewed RA.13 None of these arguments support reconsideration. As discussed in further detail in the Final Determination, the Requestor's Rebuttal reiterates the arguments made in its Request that the Board addressed in the Proposed Determination. The Requestor's responses to the Proposed Determination rely on the assumption that legacy gTLDs should be treated differently than new gTLDs and should not migrate to the Base RA; Requestor still offers no evidence supporting this argument, and is incorrect, as demonstrated by the legacy gTLDs that have migrated to the Base RA over the past several years.
With respect to the Requestor's claim that the sale of PIR to private equity firm Ethos Capital "invites additional scrutiny," the Board concludes that PIR's corporate structure is not relevant to Request 19-3. Request 19-3 concerns the 30 June 2019 renewal of the .ORG RA and must be evaluated in accordance with the grounds for reconsideration as set forth in ICANN's Bylaws. The recent acquisition of PIR, which was announced more than four months after the execution of the .ORG Renewed RA, did not impact ICANN Staff's determination that ICANN's Mission and Core Values were best served by migrating the .ORG RA to the Base RA. Request 19-3 is not the appropriate vehicle for challenging Ethos Capital's acquisition of PIR. The recently announced acquisition of PIR, the current .ORG registry operator, and the results of that transaction is something that ICANN organization will be evaluating as part of its normal process in such circumstances.
The Requestor's assertion that ICANN Staff and/or the Board failed to consider material information because it may have known about—but not considered— the contemplated sale of PIR prior to execution of the .ORG Renewed RA on 30 June 2019 does not support reconsideration because neither ICANN Staff or the Board were aware of the transaction before entering into the .ORG Renewed RA. In order to state a proper reconsideration request, the Requestor would have to show that the ICANN Staff action was taken without consideration of material information available "for the Board's or Staff's consideration at the time of action or refusal to act."14 Since neither the Board nor ICANN Staff were aware of the PIR acquisition when the decision to renew the .ORG RA was made, there was no material information not considered, and therefore this is not a proper basis for 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. This accountability includes 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.
This action should have 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.
- The Requestor's Arguments Concerning the Merits of the URS Do Not Support Reconsideration.
Executive Session – Confidential:
Review of Board Compensation Committee's Recommendation Re: CEO Compensation for FY20 At-Risk
Whereas, each Board member has confirmed that he/she does not have a conflict of interest with respect to establishing the amount of payment to the President and CEO for the first half of FY20 at-risk compensation component.
Whereas, the Compensation Committee recommended that the Board approve payment to the President and CEO for the first half of his FY20 SR2 at-risk compensation.
Resolved (2019.12.12.03), the Board hereby approves a payment to the President and CEO for his annual at-risk compensation component for the first half of FY20.
Rationale for Resolutions 2019.12.12.03
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.
The President and CEO provided to the Compensation Committee his self-assessment of his mid-year achievements towards his FY20 goals. After reviewing, the Compensation Committee discussed and agreed with the President and CEO's self-assessment. Following discussion, the Compensation Committee recommended that the Board approve payment to the President and CEO for his at-risk compensation for the first half of FY20. The Board agrees with the Compensation Committee's recommendation.
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 the first half of FY20 will have a fiscal impact on ICANN, it is an impact that was contemplated in the FY20 budget. This decision will not have an impact on the security, stability or resiliency of the domain name system.
This is an Organizational Administrative Function that does not require public comment.
Published on 16 December 2019
1 Request 19-3, § 3, at Pg. 2.
2 Id., § 8, at Pg. 5.
3 Id., § 8, at Pgs. 8-9.
4 Evaluation by the ICANN Ombudsman of Request for Reconsideration 19-3, at Pg. 3, 7 September 2019, https://www.icann.org/en/system/files/files/reconsideration-19-3-electronic-frontier-evaluation-icann-ombudsman-request-07sep19-en.pdf.
5 Id., at Pg. 6.
6 The BAMC's membership changed on 7 November 2019.
7 The BAMC's membership changed on 7 November 2019. See Proposed Determination on Request 19-3, at Pg. 1 n.1.
8 Requestor's Presentation Materials for Oral Presentation to the BAMC, https://www.icann.org/en/system/files/files/reconsideration-19-3-electronic-frontier-requestor-presentation-redacted-25nov19-en.pdf.
9 Request 19-3, § 8, at Pg. 7.
10 Id. § 6, at Pg. 3.
11 See, e.g., .ORG 2013 RA, Art. 4, § 4.2, https://www.icann.org/resources/unthemed-pages/org-agmt-html-2013-09-12-en.
12 Request 19-3, § 8, at Pgs. 5-6.
13 Requestor's Presentation Materials for Oral Presentation to the BAMC, https://www.icann.org/en/system/files/files/reconsideration-19-3-electronic-frontier-requestor-presentation-redacted-25nov19-en.pdf.
14 See Bylaws, Article 4, Section 4.2(c)(ii).