ICANN | Minutes | 7 May 2001

Minutes

Special Meeting of the Board
7 May 2001

INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS
MINUTES OF SPECIAL MEETING
7 May 2001

A meeting of the Board of Directors of the Internet Corporation for Assigned Names and Numbers ("ICANN") was held by teleconference on 7 May 2002. The following Directors of the Corporation were present by telephone: Vint Cerf (chairman), Amadeu Abril i Abril, Karl Auerbach, Ivan Moura Campos, Phil Davidson, Ken Fockler, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Andy Mueller-Maguhn, Jun Murai, Nii Quaynor, and Linda S. Wilson. Director Alejandro Pisanty joined the call while it was in progress. Also present on the teleconference were Louis Touton, Vice-President, Secretary, and General Counsel of the Corporation and Joe Sims, outside counsel to the Corporation. Andrew McLaughlin, Chief Financial Officer and Chief Policy Officer of the Corporation, joined the meeting while in progress.

The meeting was called to order by Vint Cerf at 13:07 UTC (6:07 am U.S. Pacific Daylight Time).

Independent Review

Mr. Touton gave a report on implementation of the Independent Review policy adopted by the Board at its meeting in Cairo in March 2000.

The implementation of the Independent Review Committee requires formation of a nominating committee consisting of six members, two appointed by each of the Supporting Organizations. After considerable delay and difficulty, the Supporting Organizations completed their appointments on 10 April 2001. The appointments are:

Tim Berners-Lee (PSO-appointed) (2-year term)
Scott Hemphill (DNSO-appointed) (3-year term)
Olivier Iteanu (DNSO-appointed) (2-year term)
Ching-Yi Liu (ASO-appointed) (3-year term)
Yun Park (ASO-appointed) (2-year term)
Houlin Zhao (PSO-appointed) (3-year term)

The next step in implementation of the policy is convening the nominating committee and requesting it to nominate a slate of nine Independent Review Panel members within 45 days. The Independent Review Policy states:

5.6 The IRP Nominating Committee will be convened only upon notification from the ICANN Board that a vacancy exists on the IRP.

Once that notification is made, the policy states that the nominating committee is to present the slate of nine to the Board within forty-five days. The slate is subject to confirmation by a 2/3 vote of the Board.

In discussion, Board members indicated that more than forty-five days should be allowed for the initial nominations so that the Nominating Committee can organize itself and because in the initial phase nine suitable panelists must be found.

Upon motion made by Dr. Wilson and seconded by Mr. Fockler, the Board adopted the following resolutions by a vote of 14-0:

Whereas, on 10 March 2000 the Board adopted ICANN's Independent Review Policy based on the recommendations of the Advisory Committee on Independent Review;

Whereas, the Address Council, the Names Council, and the Protocol Council have each appointed two members to serve on the Independent Review Panel Nominating Committee;

Whereas, the policy contemplates that nine initial members will be appointed to the Independent Review Panel;

Whereas, the Board has concluded that the Independent Review Panel Nominating Committee should be afforded 90 days to convene for the first time and to find qualified nominees for all nine initial vacancies; it is therefore

Resolved [01.49] that Board notes that there are presently nine vacancies on the Independent Review Panel;

Further resolved [01.50] that the Secretary is directed on behalf of the Board to notify the appointed members of the Independent Review Panel Nominating Committee of the vacancies and to request that the Nominating Committee convene to make nominations to fill those vacancies; and

Further resolved [01.51] that the Independent Review Panel Nominating Committee should be allowed 90 days after the date of notification to forward its nominations for the nine initial members of the Independent Review Panel to the Board, notwithstanding the provision, in Section 5.9 of the Independent Review Policy, setting a 45-day deadline for the nominations to fill vacancies generally.

At this point, Mr. McLaughlin joined the meeting.

Recommendations of Reconsideration Committee

Mr. Kraaijenbrink gave a report on several recommendations recently made by the Reconsideration Committee that arise from the Board's selection in November 2000 of seven new top-level domains for introduction (subject to successful negotiations of agreements) into the domain-name system. He noted that all of the recommendations ultimately concluded that the Board should take no action as a result of the reconsideration requests.

At this point in the meeting, Dr. Pisanty joined.

Dr. Lynn stated that reconsideration of prior Board actions should focus on whether an appropriate process was followed in reaching the prior decision, and that reconsideration should not be a mechanism to repeatedly present the same arguments to the Board. Mr. Auerbach expressed the opinion that a more liberal standard of reconsideration was appropriate.

Mr. Abril i Abril noted that he had recused himself on the original new TLD selections because of his afiliation with one of the applicants. In line with that recusal, he had not participated in the deliberations of the Reconsideration Committee and would similarly recuse himself in the Board's vote on the recommendations.

Mr. Auerbach indicated that he was the holder in a single domain within the .web registry oeprated by Image Online Design. Mr. Touton gave the opinion that Mr. Auerbach's holding of a single domain name within the Image Online Design registry did not require recusal.

Mr. Kraaijenbrink moved, and Mr. Katoh seconded, the following resolution:

Resolved [01.52] that the Reconsideration Committee's Recommendations RC 00-8, RC 00-9 and RC 00-10 are adopted for the reasons stated in those recommendations.

This resolution was adopted 12-1 as to RC 00-8 and RC 00-9 and 11-1 as to RC 00-10. As to RC 00-8 and RC-00-9, Vint Cerf, Ivan Moura Campos, Phil Davidson, Ken Fockler, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Jun Murai, Alejandro Pisanty, Nii Quaynor, and Linda S. Wilson voted in favor; Karl Auerbach voted against; and Amadeu Abril i Abril and Andy Mueller-Maguhn abstained. As to RC 00-10, Vint Cerf, Ivan Moura Campos, Ken Fockler, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Jun Murai, Alejandro Pisanty, Nii Quaynor, and Linda S. Wilson voted in favor; Karl Auerbach voted against; and Amadeu Abril i Abril, Andy Mueller-Maguhn, and Phil Davidson abstained.

Mr. Kraaijenbrink described the reconsideration recommendation in RC 00-11 (Sarnoff), and then moved for adoption (with Dr. Wilson's second) of the following resolution:

Resolved [01.53] that the Reconsideration Committee's Recommendation RC 00-11 is adopted for the reasons stated in that recommendation.

This resolution was adopted 11-3. Vint Cerf, Ivan Moura Campos, Phil Davidson, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Jun Murai, Alejandro Pisanty, Nii Quaynor, and Linda S. Wilson voted in favor; Karl Auerbach, Ken Fockler, and Andy Mueller-Maguhn voted against; and Amadeu Abril i Abril abstained.

The Board discussed recommendation RC 00-12 (.tv Corporation). Upon Mr. Kraaijenbrink's motion, duly seconded, the Board adopted the following resolution 12-1:

Resolved [01.54] that the Reconsideration Committee's Recommendation RC 00-12 is adopted for the reasons stated in that recommendation.

Vint Cerf, Ivan Moura Campos, Phil Davidson, Ken Fockler, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Jun Murai, Alejandro Pisanty, Nii Quaynor, and Linda S. Wilson voted in favor; Karl Auerbach voted against; and Amadeu Abril i Abril and Andy Mueller-Maguhn abstained.

The Board considered reconsideration recommendation RC 00-13 (Image Online Design, Inc.). Mr. Kraaijenbrink made the following motion, which Dr. Kyong seconded:

Resolved [01.55] that the Reconsideration Committee's Recommendation RC 00-13 is adopted for the reasons stated in that recommendation.

This resolution was adopted 11-1. Vint Cerf, Ivan Moura Campos, Phil Davidson, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Jun Murai, Alejandro Pisanty, Nii Quaynor, and Linda S. Wilson voted in favor; Karl Auerbach voted against; and Amadeu Abril i Abril, Ken Fockler, and Andy Mueller-Maguhn abstained.

Mr. Kraaijenbrink described the recommendation in RC 00-14 (SRI International/.geo). Upon Mr. Kraaijenbrink's motion, seconded by Mr. Katoh, the Board adopted the following resolution by a 12-1 vote:

Resolved [01.56] that the Reconsideration Committee's Recommendation RC 00-14 is adopted for the reasons stated in that recommendation.

Next Mr. Kraaijenbrink moved, with Dr. Campos' second, to adopt recommendation RC 00-15 (ICM Registry). In the ensuing discussion, some Board members expressed concerns over some of the language of the recommendation, including references to "phony" TLDs, where the Board members felt a term such as "pseudo" TLDs would be more appropriate. Mr. Kraaijenbrink withdrew his motion and stated that the Reconsideration Committee would make adjustments to the recommendation according to the Board's wishes.

The Board discussed recommendation RC 00-16 (Telnic Limited). Upon Mr. Kraaijenbrink's motion, seconded by Dr. Pisanty, the Board adopted the following resolution by a 12-1 vote:

Resolved [01.57] that the Reconsideration Committee's Recommendation RC 00-16 is adopted for the reasons stated in that recommendation.

Mr. Kraaijenbrink described reconsideration recommendation RC 01-1 (Beltraide). This request seeks to have the Board's selection of the JVTeam .biz proposal retracted. Upon Mr. Kraaijenbrink's motion, duly seconded, the Board adopted the following resolution by a vote of 14-0:

Resolved [01.58] that the Reconsideration Committee's Recommendation RC 01-1 is adopted for the reasons stated in that recommendation.

Vint Cerf, Karl Auerbach, Ivan Moura Campos, Phil Davidson, Ken Fockler, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Andy Mueller-Maguhn, Jun Murai, Alejandro Pisanty, Nii Quaynor, and Linda S. Wilson voted in favor; Amadeu Abril i Abril abstained.

Finally, the Board considered reconsideration recommendation RC 01-2 (.kids Domains, Inc.) Mr. Kraaijenbrink moved, with Dr. Pisanty's second, that the following resolution be adopted:

Resolved [01.59] that the Reconsideration Committee's Recommendation RC 01-2 is adopted for the reasons stated in that recommendation.

The resolution was adopted 12-1. Vint Cerf, Ivan Moura Campos, Phil Davidson, Ken Fockler, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Jun Murai, Alejandro Pisanty, Nii Quaynor, and Linda S. Wilson voted in favor; Karl Auerbach voted against; and Amadeu Abril i Abril and Andy Mueller-Maguhn abstained.

New Top-Level Domains

Mr. Touton gave a presentation on the registry agreements for the .biz and .info top-level domains. At its March 2001 meeting in Melbourne, the Board adopted a seven-day last-call procedure under which the agreements (including their appendices) for the unsponsored top-level domains are posted as they are completed, the Board is notified when all parts of a particular agreement are completed, and the agreement is then deemed approved unless a Board member makes a request to the contrary based on policy considerations within seven days. The posting of the .info and .biz agreements was completed on 26 and 27 April 2001. Mr. Auerbach submitted objections to their approval within the seven-day period.

Mr. Touton explained that ICANN had three main goals in negotiating the agreements:

a. To require that the operators comply with existing ICANN/IANA policies (UDRP, registrar competition policy, etc.);

b. To provide the mechanisms for the Internet community, through the ICANN process, to revise or supplement policies within ICANN's scope, by which the registry operators must abide; and

c. To embody the proposal made by the operator in enforceable contractual commitments.

These goals were mostly parallel, since the selected operators tended to propose things (c) that did not conflict with existing policy (a).

The resulting agreements and their appendices are extensive. Most of the bulk of these agreements arises from the task of setting forth the substance of the registry operator's proposals (item (c) above). Since the proposals were the basis on which the selections were made, it seems reasonable to put in place contractual commitments that the proposers will follow their proposals. Mr. Touton stated his view that it would be unfair to those that were not selected to allow the selected ones to disregard their proposals in their agreements.

Because most of the material in the agreements and appendices is actually just what the operators proposed, Mr. Touton noted that it is not surprising that the operators have agreed to include these provisions in their agreements. Some commentators have attributed their agreement to the supposed weak bargaining position of the new TLD operators; that argument, however, overlooks that VeriSign (which is clearly in a strong bargaining position) has agreed to the same types of commitments as the new TLD operators. ICANN's goal has been to make the contracts as uniform as feasible while accommodating the different aspects of the diferent TLDs.

Mr. Touton stated that, in a review of the agreements to to evaluate whether various provisions might be eliminated as unnecessary, it becomes clear many provisions in the agreements reflect important policies that have been developed through the ICANN process. For example, many of the agreement provisions and appendices are devoted to reflecting the registrar-competition policy that has been so successful in .com, .net, and .org. (Appendices F, G, H, I, N, Y.) According to Mr. Touton, these provisions are vital to preserve the one level of competition–at the registrar level–that has already been demonstrated to be effective. The current proof of concept may demonstrate that robust inter-TLD competition is also possible, but there are substantial questions that have been raised (based on lock-in, etc.) as to how effective that competition will be.

Similarly, Mr. Touton noted that a few of the appendices (O, P, Q) reflect the Whois requirements that were developed leading up to and at the March and November 1999 meetings and continue to be important to substantial segments of the community.

Dr. Kyong stressed his concern that the new TLD operators be treated as equally as possible as VeriSign. He stated that although he was initially concerned that the new TLD operators would suffer competitively because VeriSign has received more favorable terms, he noted that his concern has been satisfied for the time being. He stated his view that it is appropriate to hold the new TLD operators to the commitments they made in their proposals. He proposed, however, that steps be taken to review in the future whether some requirements are unnecessary and may be appropriately relaxed.

Mr. Auerbach expressed concerns regarding some of the provisions of Appendices K, U, W, and Y, which he felt go beyond the proper scope of ICANN's responsibilities.

Drs. Wilson, Cerf, and Lynn commented in support of Dr. Kyong's proposal to schedule a future review of the appropriateness of ICANN's agreements with the new TLD operators, and suggested that a committee be established at the Board's June 2001 meeting in Stockholm to begin the work of evaluating the new TLD program, including the provisions of the registry agreements.

Upon Dr. Kyong's motion, seconded by Dr. Lynn, the Board adopted the following resolution by a vote of 14-0:

Whereas, in adopting the new TLD program (at its July 2000 Yokohama meeting) and selecting seven TLDs for negotiations of agreements to be included in the new TLD program (at its November 2000 annual meeting), the Board committed to a continuing evalaution of the process for the introduction of new TLDs,

Resolved [01.60] that the Board directs the President to prepare and present to the Board at its Stockholm meeting in June 2001 a proposal to form a committee to recommend processes for monitoring the implementation of the new TLDs and evaluating the new TLD program, including any ongoing adjustments of agreements with operators or sponsors of new TLDs.

Vint Cerf, Amadeu Abril i Abril, Karl Auerbach, Ivan Moura Campos, Phil Davidson, Ken Fockler, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Jun Murai, Alejandro Pisanty, Nii Quaynor, and Linda S. Wilson voted in favor; Andy Mueller-Maguhn abstained.

Dr. Kyong then moved, with Dr. Wilson's second, that the Board adopt the following resolutions:

Whereas, the posting of the .info and .biz registry agreements, with all their appendices, was completed on 26 and 27 April 2001;

Whereas, under resolution 01.25 seven days were allowed for Board members to make any additional comments on the agreements to the President and General Counsel;

Whereas, such comments were received and the Board has discussed them;

Whereas, the General Counsel has recommended several minor changes to the wording of the agreements and appendices in response to recent comments received from the Board and community;

Resolved [01.61], that the President is authorized to enter the .biz and .info registry agreements, with suitable revisions and additions to reflect the changes recommended by the General Counsel and further corrections as the President determines are consistent with the intention of the agreements as posted; and

Further resolved [01.62], that the President is authorized to implement the agreements once they are signed, including by accrediting registrars for the .biz and .info top-level domains (in that regard, registrars already accredited and in good standing for .com, .net, and .org may be accredited for .biz and/or .info without additional qualifying procedures upon entering an accreditation agreement that the President determines is consistent with the existing accreditation agreement for .com, .net, and .org, conformed to variations in contractual terminology and circumstances of the new TLDs).

The motion carried 12-1. Vint Cerf, Ivan Moura Campos, Phil Davidson, Ken Fockler, Masanobu Katoh, Hans Kraaijenbrink, Sang-Hyon Kyong, Stuart Lynn, Jun Murai, Alejandro Pisanty, Nii Quaynor, and Linda S. Wilson voted in favor; Karl Auerbach voted against; and Amadeu Abril i Abril and Andy Mueller-Maguhn abstained.

The meeting was adjourned at 15:04 UTC (8:04 am U.S. Pacific Daylight Time).

_______________________
Louis Touton
Secretary

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