Reconsideration Request 01-3
Recommendation of the Committee
Date: 30 August 2001

In reconsideration request 01-3, Monsoon Assets Limited requests that the ICANN Board reconsider its 16 November 2000 decision on new TLDs, which did not include Monsoon's .yp proposal among the seven TLDs selected for the proof of concept phase.

Monsoon's request was received on 2 May 2001, meaning it was received 167 days after the Board made its initial round of new TLD selections on 16 November 2000. ICANN's reconsideration policy requires reconsideration requests to be filed within 30 days of the decision being challenged. A key reason for that requirement is a concern for fairness to the broad stakeholder communities: entities seeking reconsideration should do so quickly, so that Board decisions can be reliably finalized and implemented rapidly. In light of the fact that Monsoon's reconsideration request was received 137 days late, the Committee believes that it was not timely filed; on that basis, the Committee recommends that the Board take no action in response to the Monsoon request.

Monsoon attempts to overcome the acknowledged lateness of its request by pointing to testimony given by ICANN Chairman Vint Cerf before the United States Congress, claiming that Dr. Cerf revealed some new facts about the ICANN new TLD process. However, there are flaws in this argument. Although the request attributes to Dr. Cerf testimony from 8 February and 14 February, the 14 February testimony was actually given by ICANN's then-President Mike Roberts. The Monsoon request, moreover, does not actually identify any statement by Dr. Cerf to support its claim that in his testimony Dr. Cerf "revealed the ICANN TLD submission process as a subjective 'beauty contest' to use Dr. Cerf's words in discussions with Representative Tauzin." A review of the testimony shows that (1) Dr. Cerf never referred to the ICANN selection process of TLDs as a "beauty contest" and that (2) Dr. Cerf's testimony before the US Congress was entirely consistent with ICANN's statements and documents relating to the new TLD process, and entirely consistent with what the Reconsideration Committee has stated about it in our earlier recommendations. Dr. Cerf's testimony provides no reason to overlook the exceptional lateness of the Monsoon Reconsideration request. In addition, Monsoon's request was received fully 83 days after Dr. Cerf's 8 February testimony, so that the request was long overdue even when compared to the time of that testimony.

Dr. Cerf's testimony was in full accord with ICANN's statements and documents relating to the new TLD process. His statement that it "was not a contest to find the most qualified, or the most worthy or the most attractive", does not imply that the selection process was done for different goals than those that were known to the community--and to applicants--all along. The goals of the selection process were developed in a very public way as the result of extensive consultation, public postings, and public debate. The debate is reflected in the topic paper, entitled "Introduction of New Top-Level Domains," which formed the basis on which ICANN decided to undertake the selection program.

In embarking on the proof-of-concept introduction of a limited number of new TLDs, ICANN followed recommendations developed after extensive bottom-up consensus building through its supporting organizations. The consensus supported introducing a limited number of TLDs and then evaluating the results before proceeding further. This approach was formally recommended in the DNSO Names Council resolution of 19 April 2000, which stated:

"The Names Council determines that the report of Working Group C and related comments indicate that there exists a consensus for the introduction of new gTLDs in a measured and responsible manner. The Names Council therefore recommends to the ICANN Board that it establish a policy for the introduction of new gTLDs in a measured and responsible manner, giving due regard in the implementation of that policy to (a) promoting orderly registration of names during the initial phases; (b) minimizing the use of gTLDs to carry out infringements of intellectual property rights; and (c) recognizing the need for ensuring user confidence in the technical operation of the new TLD and the DNS as a whole.

"Because there is no recent experience in introducing new gTLDs, we recommend to the Board that a limited number of new top-level domains be introduced initially and that the future introduction of additional top-level domains be done only after careful evaluation of the initial introduction. The Names Council takes note of the fact that the WG C report indicates that several types of domains should be considered in the initial introduction, these being: fully open top-level domains, restricted and chartered top- level domains with limited scope, non-commercial domains and personal domains. Implementation should promote competition in the domain-name registration business at the registry and registrar levels. The Names Council recognizes that any roll-out must not jeopardize the stability of the Internet, and assumes a responsible process for introducing new gTLDs, which includes ensuring that there is close coordination with organizations dealing with Internet protocols and standards.

"To assist the Board in the task of introducing new gTLDs, the Names Council recommends that the ICANN staff invite expressions of interest from parties seeking to operate any new gTLD registry, with an indication as to how they propose to ensure to promote these values.

"We would like to extend our deep appreciation to the substantial number of participants who worked so diligently in Working Groups B and C, and want to thank them for their significant efforts in evaluating the issues that were referred to them. Recognizing the Working Group C has recently approved additional principles and that Working Group B's formal report was provided to us yesterday, we advise the Board that we will be providing supplemental recommendations in the near future."

The Protocol Supporting Organization issued a statement on 9 August 2000 supporting this approach, stating in part:

"1) We see no technical problems caused by the creation of a relatively small number of new gTLDs.

"2) We recommend that the root servers be monitored for increased load caused by these new gTLDs."

At its 16 July 2000 meeting in Yokohama, the ICANN Board issued a series of resolutions, which were publicly posted the same day, again making clear the limited proof-of-concept nature of the introduction being contemplated.

There is no reason to think that Monsoon was not aware of the nature of the proof-of-concept introduction being undertaken. Extensive explanations of the process were posted as part of the application materials. Applicants were advised that "a limited number of proposals will be selected for negotiations toward agreements between ICANN and the TLD sponsors and operators" and that "ICANN seeks a group of TLDs that will provide a vehicle for proving a diverse range of concepts for innovative uses of the DNS." Like all applicants, Monsoon signed an application form under which it acknowledged that it had no right to expect any special handling or treatment of its application. Following are a few examples of what Monsoon agreed to by submitting its proposal:

"The applicant understands and acknowledges that ICANN has the right to reject all applications for new top-level domains that it receives and that there is no assurance that any additional top-level domain will ever be created in the future."

* * *

"The applicant hereby agrees, acknowledges, and represents that it has no legally enforceable right to acceptance or any other treatment of this application or to the delegation in any particular manner of any top-level domain that may be established in the authoritative DNS root. It further agrees, acknowledges, and represents that it has no legally enforceable rights in, to, or in connection with any top-level domain by virtue of its preparation or submission of this application or by virtue of ICANN's receipt of this application, ICANN's acceptance of the application fee, ICANN's consideration or other handling of this application, or statements made in connection with this or other applications ICANN receives."

* * *

"In consideration of ICANN's review of the application:

"the applicant, for itself and each of its officers, directors, employees, consultants, attorneys, agents, partners, and joint venturers, hereby agrees that neither ICANN, nor any of its officers, directors, employees, consultants, attorneys, and agents, shall have any liability for its/his/her receipt, consideration, evaluation, analysis, or other activities in any way connected with this application; and

"the applicant hereby releases and forever discharges ICANN and each of its officers, directors, employees, consultants, attorneys, and agents from any and all claims and liabilities relating in any way to (a) any action or inaction by or on behalf of ICANN in connection with this application or (b) the establishment or failure to establish a new TLD."

These clauses, agreed to by Monsoon, reinforce our conclusion that Monsoon got what it was promised, in the form of a careful and fair independent review and full consideration by the ICANN Board.

The Committee notes that implicit (and sometimes explicit) in Monsoon's reconsideration request is a threat of litigation against ICANN on the basis of a breach of contract, arguing that ICANN failed to give the .yp application the consideration it was promised for its $50,000 application fee. The Committee rejects this contention: the Monsoon .yp proposal was given full consideration by the Board, along with the other proposals, with Directors conducting their own independent reviews of the proposals, informed by a number of helpful analyses from a range of different sources, including the independent evaluation team's report that is the focus of much of Monsoon's complaints. Monsoon's reconsideration request focuses almost exclusively on the evaluation team's report, ignoring that it was one source of input to the Board among many. Like any proposer, Monsoon had an equal opportunity to comment on and correct the evaluation team's report after it was posted for public comment.

The Monsoon reconsideration request repeats very insistently a demand for the return of all or a "significant majority" of Monsoon's $50,000 application fee. In that sense, the Monsoon submission is not so much a request for reconsideration as it is a demand for a refund. Because the Committee does not find in Monsoon's request any substantiation of unfair treatment in the new TLD process, we find no reason to recommend a refund to the Board.

CONCLUSION

Due to the request's untimeliness and failure to substantiate its claims of unfairness or failure of process, the Reconsideration Committee recommends that the Board take no action in response to Monsoon's request for reconsideration.

[NOTE: Director Abril i Abril did not participate in the committee's consideration of Reconsideration Request 01-3.]