Minutes | Board Governance Committee (BGC) Meeting 21 July 2016

BGC Attendees: Rinalia Abdul Rahim, Cherine Chalaby, Chris Disspain (Chair), Erika Mann Mike Silber, and Bruce Tonkin

BGC Member Apologies: Suzanne Woolf

ICANN Executive and Staff Attendees: Akram Atallah (President, Global Domains Division), Michelle Bright (Board Operations Content Manager), Samantha Eisner (Deputy General Counsel), John Jeffrey (General Counsel and Secretary), Melissa King (VP, Board Operations), Wendy Profit (Board Operations Specialist), Amy Stathos (Deputy General Counsel), Russell Weinstein (Director, GDD Operations), and Christine Willett (VP of gTLD Operations)

---

The following is a summary of discussions, actions taken, and actions identified:

1. Minutes – The BGC approved the Minutes from the meeting on 26 June 2016.
2. Reconsideration Request 16-6 – At the BGC’s request, staff briefed the BGC regarding the request submitted by DotKids Foundation (Requester) seeking reconsideration of the Community Priority Evaluation panel’s (CPE Panel’s) report, and ICANN’s acceptance of that report, finding that the Requester’s application for .KIDS did not prevail in CPE (CPE Report). Staff explained that the Requester’s application for .KIDS received six out of a possible 16 points in CPE and therefore did not prevail. Staff further explained that, in Request 16-6, the Requester claimed that the CPE Panel misapplied the CPE criteria, the CPE Panel should have been comprised of subject matter experts about children, and that the CPE Panel should have evaluated the community definition that the Requester provided in a letter that was submitted in November 2015 instead of the definition provided in the application. In preparation for the meeting, the BGC reviewed the materials related to Request 16-6 (including Request 16-6, the attachments to Request 16-6, and the additional letters of support submitted for Request 16-6). As set forth in the BGC Determination, after evaluating the CPE Panel’s conduct, the BGC concluded that the CPE Panel adhered to the applicable policies and procedures in rendering the CPE Report. The BGC determined that the Guidebook does not require the constitution of a CPE panel with particularized knowledge of the issues involved with each proposed community. The BGC also concluded that the CPE Panel evaluated the proper community definition because, pursuant to the Guidebook, the CPE Panel must evaluate the community definition provided in the application, and not as it may have been restated in a letter or elsewhere. The BGC also acknowledged that even if the Requester had submitted a change request, established policies and procedures call for ICANN to defer consideration of a proposed amendment to a community definition until after the completion of CPE so an applicant with an application going through CPE does not gain an unfair advantage through learnings from previously posted CPE results. The BGC therefore determined that Request 16-6 be denied and that the Determination be issued as the BGC directed.
3. Reconsideration Request 16-9 – Staff briefed the BGC regarding the request submitted by Ruby Glen, LLC and Radix FZC (Requesters) seeking urgent reconsideration of ICANN staff’s decision not to delay the .WEB/.WEBS auction following staff’s investigation into the Requesters’ allegations that there had been material changes in Nu Dotco LLC’s (“Nu Dotco’s”) application for .WEB. Akram Atallah, Christine Willett and Russ Weinstein, from the Global Domains Division and gTLD Operations also participated in this portion of the meeting in order to provide additional background information to the BGC. At the BGC’s request, staff provided the BGC with an overview of the circumstances surrounding Request 16-9. Specifically, staff explained the following. Seven applications for .WEB (including applications from both of the Requesters and from Nu Dotco) and one application for .WEBS are in a contention set that is scheduled for an auction of last resort on 27 July 2016. The auction process was initiated on 27 April 2016. The Requesters contacted ICANN staff on or about 23 June 2016, and submitted a complaint to the Ombudsman during ICANN56 in June 2016, alleging that Nu Dotco had experienced changes in leadership and/or control without notifying ICANN. Upon receiving the Requesters’ notification, ICANN staff proceeded to investigate the claims. The BGC asked staff what evidence or information was reviewed and what communications were conducted in order to investigate the Requesters’ allegations. Staff explained that it reached out to Nu Dotco on several occasions, as did the Ombudsman, to inquire about any potential changes in Nu Dotco’s organization that would need to be reported to ICANN requiring a change to Nu Dotco’s application. Nu Dotco’s primary contact responded several times, both by phone and email, indicating that no such changes had occurred in the organization. Both staff and the Ombudsman concluded that there was no basis to postpone the auction. Staff further explained that its investigation into the allegations about Nu Dotco is fully consistent with other investigations that have taken place when there have been suggestions that a change may be required to an application. The BGC also asked whether a search of public company records (such as the relevant Secretary of State resource) was conducted to determine if there was public information regarding the structure and management of Nu Dotco. Staff explained that Nu Dotco is incorporated in the state of Delaware, that a search of the Delaware Secretary of State records was conducted, but that no useful information was obtained because Nu Dotco is a privately held company. The BGC took note of the allegations of the Requesters, including the information that the Requesters have provided, as well as the responses to those claims. The BGC noted that ICANN is entitled to rely upon the representations received from Nu Dotco during ICANN’s investigation absent other authoritative contradictory evidence. The BGC discussed the timing of the Requesters’ allegations as well as staff’s investigation of those allegations. The BGC noted the Requesters’ argument in Request 16-9 that the auction should be postponed because there were pending accountability mechanisms (namely, the complaint made to the Ombudsman and Request 16-9). The BGC concluded that the existence of pending accountability mechanisms did not require postponement of the auction since those accountability mechanisms were not submitted prior to the initiation of the auction process (on 27 April 2016). The BGC further concluded that staff diligently investigated the Requesters’ allegations and properly relied upon Nu Dotco’s responses indicating that no change in leadership and/or control had occurred. The BGC also noted that an applicant is permitted to enter into a commercial agreement (e.g., in terms of fundraising, etc.), which would not be a change in control or leadership requiring a change in the application. Based upon the BGC’s discussion and review of all materials relevant and related to Request 16-9, the BGC determined that Request 16-9 be denied and that the Determination be issued as the BGC directed.
4. Expressions of Interest for 2017 Nominating Committee Chair and Chair-Elect – The BGC discussed the Expressions of Interest (EOIs) for 2017 Nominating Committee (NomCom) Chair and Chair-Elect positions that were submitted. The BGC noted that the 360-degree reviews of the NomCom leadership should be completed in August and will be taken into consideration. The BGC requested that staff coordinate and schedule interviews for the BGC with the six candidates.
   • Action: Staff to coordinate and schedule interviews for the BGC with the candidates for 2017 NomCom Chair and Chair-Elect positions.
5. Updates:

   Committee and Board Leadership 360-Degree Evaluations – The BGC discussed the previous iterations and uses of 360-degree evaluations, and the current development of the 360-degree evaluation questionnaire for Board and Committee leadership positions. The BGC noted that it has requested that the group that is facilitating that 360-degree evaluation, make adjustments to the questionnaire to tailor it to the Board and Committee leadership positions, and has requested that they provide a proposal regarding a feedback process that would enable community leadership (such as council members of the SOs and ACs) to provide feedback to the Board as a whole. The BGC noted that they will discuss this further once the BGC has received the adjusted questionnaire.

   Upcoming Committee Slating Process – The BGC noted that Board members are currently in the process of providing their committee participation preferences to the BGC and that, once all such preferences are submitted, the information will be summarized and discussed by the BGC during the slating process.

Published 12 September 2016