ICANN Resolutions » Further Consideration of the Dot Registry IRP Final Declaration

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Further Consideration of the Dot Registry IRP Final Declaration


Resolution of the ICANN Board
Meeting Date: 
周四, 15 九月 2016
Resolution Number: 
2016.09.15.15
Resolution Text: 

Whereas, upon adopting the Panel majority's findings that Dot Registry LLC is the prevailing party in the Dot Registry v. ICANN Independent Review Process (IRP) proceedings (Dot Registry IRP), the Board resolved to consider next steps in relation to Dot Registry's Reconsideration Requests or the relevant new gTLDs before the Board takes any further action. (See https://www.icann.org/resources/board-material/resolutions-2016-08-09-en - 2.g.)

Whereas, the Board has noted that the Panel majority in the Dot Registry IRP did not make any specific recommendations to the Board as to next steps.

Whereas, the Board has also taken note of the various correspondence and input received from Dot Registry and others with respect to this matter.

Whereas, the Panel majority in the Dot Registry IRP declared that the Board Governance Committee (BGC) acted in a manner inconsistent with the Articles of Incorporation or Bylaws in evaluating Reconsideration Requests 14-30, 14-32 and 14-33. (See Final Declaration, ¶ 151, available at https://www.icann.org/en/system/files/files/irp-dot-registry-final-decla... [PDF, 12.9 MB].)

Whereas, specifically, the Panel majority declared that "the Board (acting through the BGC) failed to exercise due diligence and care in having a reasonable amount of facts in front of them and failed to fulfill its transparency obligations including both the failure to make available the research on which the EIU and ICANN staff purportedly relied and the failure to make publically available the ICANN staff work on which the BGC relied). The Panel majority further concludes that the evidence before it does not support a determination that the Board (acting through the BGC) exercised independent judgment in reaching the reconsideration decisions." See id., at ¶ 152.

Resolved (2016.09.15.15), the Board directs the Board Governance Committee to re-evaluate Dot Registry's Reconsideration Requests 14-30, 14-32 and 14-33 in light of the Panel majority's Final Declaration in the Dot Registry IRP and the issues it identified with respect to the BGC's actions in evaluating these Reconsideration Requests.

Rationale for Resolution: 

Dot Registry, LLC (Dot Registry) initiated Independent Review Process (IRP) proceedings challenging the Board Governance Committee's (BGC's) denial of Dot Registry's Reconsideration Requests regarding the Community Priority Evaluation (CPE) reports finding that Dot Registry's applications for .INC, .LLC, and .LLP, respectively, did not prevail in CPE (Dot Registry IRP).

Dot Registry applied for the opportunity to operate the new top-level domains .LLC, .INC, and .LLP. Dot Registry is one of nine applicants for .LLC, one of eleven applicants for .INC, and one of four applicants for .LLP. Dot Registry, however, is the only applicant that submitted community-based applications for these gTLDs.

The CPE panels evaluating Dot Registry's applications (CPE Panels) determined that the applications did not meet the criteria required to prevail in CPE, awarding only five of the 14 points needed to prevail in CPE (CPE Reports). Dot Registry filed Reconsideration Requests 14-30, 14-32, and 14-33, seeking reconsideration of the CPE Reports. On 24 July 2014, the Board Governance Committee (BGC) denied the Reconsideration Requests, finding that Dot Registry had "failed to demonstrate that the Panels acted in contravention of established policy or procedure in rendering their respective CPE Reports…."

Dot Registry initiated the Dot Registry IRP on 22 September 2014, challenging the BGC's denial of Dot Registry's Reconsideration Requests, as well as purportedly challenging ICANN's appointment of the Economist Intelligence Unit (EIU) as the third party provider to conduct CPEs, and the Board's response to advice from ICANN's Governmental Advisory Committee regarding .LLC, .INC, and .LLP.

In a 2-1 decision, the Panel majority declared Dot Registry to be the prevailing party, and determined that "the actions and inactions of the Board were inconsistent with ICANN's Articles of Incorporation and Bylaws." (Final Declaration at ¶ 151.) Specifically, the Panel majority declared that "the Board (acting through the BGC) failed to exercise due diligence and care in having a reasonable amount of facts in front of them and failed to fulfill its transparency obligations" and that there was not sufficient evidence to "support a determination that the Board (acting through the BGC) exercised independent judgment in reaching the reconsideration decisions." (Id. at ¶¶ 151-152.) The Panel majority further declared that ICANN "shall pay to Dot Registry, LLC $235,294.37 representing said fees, expenses and compensation previously incurred by Dot Registry, LLC upon determination that these incurred costs have been paid in full." (Id. at ¶ 154.)

The Board noted that the Panel majority stated that "in reaching these conclusions, the Panel is not assessing whether ICANN staff or the EIU failed themselves to comply with obligations under the Articles, the Bylaws, or the [Applicant Guidebook (Guidebook)]." (Id. at ¶ 152.) Further, it is also noted that "[t]he Panel majority decline[d] to substitute its judgment for the judgment of the CPE as to whether Dot Registry is entitled to Community priority." (Id. at ¶ 153.)

During its initial consideration of the Final Declaration, the Board accepted the findings of the Final Declaration that: (i) Dot Registry is the prevailing party in the Dot Registry, LLC v. ICANN IRP; and (ii) ICANN shall pay to Dot Registry US$235,294.37 upon demonstration that these incurred costs have been paid in full." (See https://www.icann.org/resources/board-material/resolutions-2016-08-09-en....)

The Board also "noted the other findings in the Declaration and the findings regarding the Panel majority's statements with respect to the standard of review for Reconsideration Requests referenced above, and will consider next steps in relation to Dot Registry's Reconsideration Requests or the relevant new gTLDs before the Board takes any further action." See Id. Additionally, the Board took note that the Panel majority did not make any specific recommendation regarding next steps for the Board to take.

As the Board has now had the opportunity to thoroughly evaluate some of those other findings in the Final Declaration, the Board has determined that the best approach at this time would be for the BGC to re-evaluate Dot Registry's Reconsideration Requests 14-30, 14-32 and 14-33 in light of the Panel majority's Final Declaration in the Dot Registry IRP and the issues it identified with respect to the BGC's actions in evaluating these Reconsideration Requests.

As part of its deliberations in taking this action, the Board reviewed various materials, including, but not limited to, the following materials and documents:

Reconsideration Request 14-30: Dot Registry, LLC (25 June 2014)
Reconsideration Request 14-32: Dot Registry, LLC (26 June 2014)
Reconsideration Request 14-33: Dot Registry, LLC (26 June 2014)
Dot Registry v. ICANN Independent Review Process
Letter [PDF, 1.13 MB] from Steve Crocker to Heather Dryden re: NGPC Meeting of 5 February 2014 (10 February 2014)
Letter [PDF, 148 KB] from Jeffrey W. Bullock to ICANN Board re: IRP Declaration in Dot Registry LLC. V. ICANN (8 August 2016)
Letter [PDF, 1.5 MB] from Shaul Jolles to ICANN Board re: 9 August 2016 Special Meeting of the ICANN Board of Directors regarding agenda item Dot Registry LLC v. ICANN (01-14-0001-5004) Independent Review Process ("IRP") Declaration of 29 July 2016 (6 August 2016)
This action is not expected to have any material direct financial impact on the organization. This action will not have any direct impact on the security, stability or resiliency of the domain name system.

This is an Organizational Administrative function that does not require public comment.