ICANN Resolutions » Consideration of Reconsideration Request 19-3

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Consideration of Reconsideration Request 19-3


Resolution of the ICANN Board
Meeting Date: 
Sun, 3 Nov 2019
Resolution Number: 
2019.11.03.02
Resolution Text: 

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, the URS Rights Protection Mechanisms or URS RPMs).7 The Requestor also seeks reconsideration of an alleged Board inaction, insofar as the ICANN Board of Directors did not vote on the .ORG Renewed RA.

Whereas, the Requestor claims that ICANN org's inclusion of the RPMs in the .ORG Renewed RA "run[s] contrary to ICANN's bylaws."8 The Requestor also claims that the Board's inaction (i.e., that the Board did not 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.9

Whereas, pursuant to Article 4, Section 4.2(l), the Ombudsman accepted Request 19-3 for consideration, and, after investigating, 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."10 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."11

Whereas, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests and make recommendations to the Board on the merits of those Requests. (See Bylaws, Art. 4, § 4.2(e).) However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.12

Whereas, the majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-3 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-3. Therefore, the Board is considering Request 19-3 in lieu of a Recommendation by the BAMC.

Whereas, the Board has carefully considered the merits of Request 19-3 and all relevant materials and concludes that reconsideration is not warranted 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. Accordingly, the Board proposes denying Request 19-3.

Resolved (2019.11.03.02), the Board adopts the Proposed Determination on Reconsideration Request 19-3.

Rationale for Resolution: 

The Board is taking this action today pursuant to Article 4, Section 4.2 of the ICANN Bylaws. Under Section 4.2 of the Bylaws, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests before making recommendations to the Board on the merits of those Requests. See Bylaws, Art. 4, § 4.2(e). However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.13 The majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-3 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-3. Therefore, the Board has considered and issues the Proposed Determination in lieu of a Recommendation by the BAMC.

The Board has carefully considered the merits of Request 19-3 and all relevant materials. For the reasons set forth in the Proposed Determination, which are incorporated here, the Board concludes that reconsideration is not warranted 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. Accordingly, the Board proposes denying Request 19-3.

Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the Board's Proposed Determination on Request 19-3 to submit a rebuttal. Following the rebuttal period, the Board will issue a final determination on Request 19-3 in accordance with Article 4, Section 4.2(r) of the Bylaws.

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.