Request for Reconsideration
From: Karl Auerbach <karl@CaveBear.com>
Date: Wednesday, November 17, 1999, 12:49pm
Re: Request for Reconsideration
======== Begin Request ========
- name, address, and contact information for the requesting party, including postal and email addresses;
218 Carbonera Drive
Santa Cruz, California 95060-1500
- the specific action of ICANN for which review or reconsideration is sought;
The specific actions of ICANN for which review or reconsideration is sought are the November 4, 1999 adoption of the DOC/ICANN/NSI Agreement and the November 10, 1999 signing of that Agreement. Taken together, Article VI Section 2(b) and Article VI-B Section 1(a) of the ICANN bylaws clearly and unambiguously designate the DNSO as the body with "primary responsibility for developing and recommending substantive policies regarding" the Domain Name System. Under Article VI Section 2(c) of the ICANN bylaws, the ICANN board is obligated to refer to the Domain Name Supporting Organization those proposals "not received from a Supporting Organization" and which pertain to the domain name system. The Agreement entered into between ICANN, the United States Department of Commerce, and Network Solutions on November 10, 1999 was "not received from a Supporting Organization". And that Agreement directly pertains to the domain name system. Indeed that Agreement creates many policies that directly affect the domain name system. As such, the Agreement falls squarely under Article VI Section 2(c) of the ICANN bylaws. The ICANN board refered neither the Agreement nor the policies created by the action of that Agreement to the DNSO. As such, the ICANN board has failed to adhere to Article VI Section 2(c) of its bylaws. Because the Board failed to follow the procedures that are clearly set forth in the By-Laws, the actions of the board are lacking both authority and power. As such ICANN's acceptance of the Agreement is not valid and the Agreement is not binding.
- the date of the action;
The adoption occurred on November 4, 1999 and the Agreement was signed on November 10, 1999.
- the manner by which the requesting party will be affected by the action;
I have several domain names registered with Network Solutions. As the result of provisions in the registration agreements between NSI and myself, the terms of the DOC/ICANN/NSI Agreement will substantially affect the policies that NSI imposes on me. The DOC/ICANN/NSI Agreement will affect those rights, contractual or property, that I have in those domain names and my rights vis-a-vis third parties, such as holders of trade and service marks, who may make claims on those domain names. These impacts are shared with over 5.5 million others who have domain name registrations with Network Solutions. In addition, I am a stockholder in several corporations that derive a significant part of their revenue from operations using their domain name. The DOC/ICANN/NSI Agreement changes the likelihood that those corporations' domain names may be rescinded or lost. Thus the Agreement has a financial impact on the valuation of those corporations and of my portfolio.
- whether a temporary stay of the action is requested;
A temporary stay is requested.
- what specific steps the requesting party asks ICANN to take - i.e., whether and how the action should be reversed, cancelled, or modified;
First, ICANN must notify the other parties to the Agreement that ICANN's acceptance was done ultra vires and is not valid. Second, ICANN must both rescind its decision to enter into the agreements and revoke its acceptance of the agreements Third, ICANN must follow the procedures defined by Article VI Sections 2(c), 2(d), 2(e), and 2(f) Only after those procedures have been followed, and only after adequate time has been given to the DNSO to act on the matter, may ICANN again consider whether to enter into the Agreement. - the grounds on which the action should be reversed, cancelled, or modified; and As described above, the Board's action contravenes Article VI Section 2(c)
- any documents the requesting party wishes to submit in support of its request.
None are required. However, the above cited sections of ICANN's bylaws are attached.
- If a temporary stay of the action is requested, the requesting party should identify what harms will result if the action is not stayed.
Failure to immediately suspend performance of the Agreement will create subsidiary relationships between registrars, registries, and registrants that will be difficult to reconcile with whatever decisions the DNSO may reach.
The cited sections of the bylaws are attached:
ARTICLE VI: SUPPORTING ORGANIZATIONS ...
Section 2. RESPONSIBILITIES AND POWERS ...
(b) The Supporting Organizations shall serve as advisory bodies to the Board, with the primary responsibility for developing and recommending substantive policies regarding those matters falling within their specific responsibilities, as described in this Article VI (including VI-A, VI-B and VI-C).
(c) The Board shall refer proposals for substantive policies not received from a Supporting Organization to the Supporting Organization, if any, with primary responsibility for the area to which the proposal relates for initial consideration and recommendation to the Board.
(d) Any recommendation forwarded to the Board by a Supporting Organization shall be transmitted to all other Supporting Organizations so that each Supporting Organization may comment to the Board regarding the implications of such a recommendation on activities within their individual scope of primary responsibility.
(e) Subject to the provisions of Article III, Section 3, the Board shall accept the recommendations of a Supporting Organization if the Board finds that the recommended policy (1) furthers the purposes of, and is in the best interest of, the Corporation; (2) is consistent with the Articles and Bylaws; (3) was arrived at through fair and open processes (including participation by representatives of other Supporting Organizations if requested); and (4) is not reasonably opposed by any other Supporting Organization. No recommendation of a Supporting Organization shall be adopted unless the votes in favor of adoption would be sufficient for adoption by the Board without taking account of either the Directors selected by the Supporting Organization or their votes.
(f) If the Board declines to accept any recommendation of a Supporting Organization, it shall return the recommendation to the Supporting Organization for further consideration, along with a statement of the reasons it declines to accept the recommendation. If, after reasonable efforts, the Board does not receive a recommendation from the Supporting Organization that it finds meets the standards of Section 2(e) of this Article VI or, after attempting to mediate any disputes or disagreements between Supporting Organizations, receives conflicting recommendations from Supporting Organizations, and the Board finds there is a justification for prompt action, the Board may initiate, amend or modify and then approve a specific policy recommendation.
ARTICLE VI-B: THE DOMAIN NAME SUPPORTING ORGANIZATION
Section 1. DESCRIPTION
(a) The DNSO shall advise the Board with respect to policy issues relating to the Domain Name System.