In reconsideration request 00-10, Group One Registry, Inc. requests that the ICANN Board reconsider its November 16, 2000, decision not to include its new TLD application in the group of seven proposals selected for negotiations toward registry agreements.
[Because of their direct relevance to this reconsideration request, we repeat these observations about the new TLD process from RC 00-8.]
The Reconsideration Committee has received a number of reconsideration requests relating to the new TLD selection process of last year. Because all of these reconsideration requests relate to the same Board decision, the Committee concluded that it would be most efficient to preface its recommendations in that area with a general introductory statement.
There has been no large introduction of generic TLDs into the DNS for 15 years. Obviously, the Internet has changed dramatically during that period, and has become a critical resource for communication and commerce. Therefore, from the very beginning of the process of considering the introduction of new TLDs, the objective has been to go slowly and carefully to ensure that such introduction did not cause disruption or instability in the DNS or the Internet.
We note that this "walk-before-you-run" objective was the result of an exhaustive consensus development process, endorsed by a wide range of ICANN's stakeholders. Most notably, it was the stated recommendation of the two ICANN Supporting Organizations the Domain Name Supporting Organization (DNSO) and the Protocol Supporting Organization (PSO) that developed recommendations on new TLDs. In particular, we note that the DNSO recommendation was developed through the deliberations of an open working group over a period of nearly a year, with extensive input from the members of the various DNSO constituencies and the broader Internet community.
Given this objective, when the ICANN Board called for proposals for new TLDs, the clearly stated purpose was to find a limited number of diverse proposals which, taken in the aggregate, could safely be introduced and would likely produce enough information to enable ICANN and the community to make educated decisions about the speed and type of future TLD introductions. Since this was a unique process, both for ICANN and the community, the decisions and standards set for reaching this objective were inherently experimental. Thus, the only way to effectively measure the success of the effort is with its conclusion: Did it produce a "limited number" of sufficiently diverse proposals that the experience gained from their introduction will allow more educated decisions about possible future introductions.
This context is critical in determining the proper role of the reconsideration process here, and in the criteria that should be applied to reconsideration petitions, like this one, that assert that different selection decisions should have been made. Given the large number of submitted proposals, compared to the small number to be included in this proof of concept, it was inevitable that many proposals would not be selected. Likewise, given the experimental nature of this unique process, and the inherent subjectivity of many of the criteria established for the evaluation of proposals, it was inevitable that reasonable people could conclude that some different collection of proposals would be as well (or even better) suited for this proof of concept than those chosen. But the reconsideration process is neither intended nor suited for re-arguments on the merits, nor is useful to assert that different subjective judgements could have been made. The only real question is whether the process was fair, and whether the conclusion reached was rational, given the objective of the exercise.
We believe the process was eminently fair. All those proposing new TLDs had equal opportunities to provide information and to react to the evaluation team's report. All proposals were subject to public review and comment on an equal basis. The Board decision process was conducted in public, and resulted in a limited number (seven) of diverse proposals being selected for this initial proof of concept effort. Since it was clear from the beginning that only a limited number would be selected, no applicant could have had any reason to believe that its application would definitely have been selected, and thus no one can reasonably claim that they were misled in any way by the process -- which was in every respect fully open and transparent.
We also believe that the conclusion reached was rational. This is not to say that this particular collection of proposals was the only possible rational collection, nor that it was the "best" in some purely objective way. But it does reflect an appropriate number of proposals, providing a diversity of business models, registration policies, geographic connections and focuses, as well as sufficient technical and financial capacity to serve, in the aggregate, as an effective proof of concept.
Because we conclude the process was fair, and resulted in a rational conclusion that met the objectives of the exercise as announced at the beginning, there is no basis for reconsidering the Board's selections. Even if, for the purposes of argument, there were factual errors made, or there was confusion about various elements of a proposal, or each member of the Board did not fully understand all the details of some of the proposals, this would still not provide a compelling basis for reconsideration of the Board's conclusion. Given the uniqueness of this process, the inherent subjectivity of certain of the criteria involved, the inevitable difficulty of reaching consensus on a fact-intensive evaluation of many times the number of proposals that could possibly have been selected, and the limited objective of finding a small number of acceptable proposals for this initial proof of concept, it would not serve the interests of the community to essentially allow these decisions to be reargued on grounds over which, at best, reasonable people could differ. Given ICANN's stated goal in this process, which we believe has been met, there is no compelling reason to reconsider the Board's selections.
We want to comment specifically on two particular points.
First, the selection process provided for rigorous review of each proposal, while at the same time remaining open and transparent at every stage. Forty-seven applications were submitted by the deadline established; three of those were withdrawn for various reasons, and the remaining forty-four were published on ICANN's website and open to public comments. More than 4,000 public comments were received. The applications and the public comments were carefully reviewed by technical, financial, and legal advisors, who applied the criteria set forth in the various materials previously published by ICANN. The result of that extensive evaluation was a 326-page report, which summarized both the public comments and the analysis of the evaluation team. The evaluation team's report was posted on the ICANN website for public comment and review by ICANN's Board of Directors. More than 1,000 additional public comments were received on the staff report. The Board had access to the applications and the public comments as they were filed. Thus, the Board's decision on new TLDs was the product of many inputs from many sources. The sources of information the Board had at its disposal while making the decision on new TLDs were, among other things, the applications themselves, the comments posted on the on-line public comment forum, the independent expert evaluations of the applications, the applicants' responses to the expert evaluations, the public presentations, and a number of other reports and analyses such as those from ICANN constituencies and outside groups. The Board took into account these many different and sometimes competing information sources in seeking to achieve a reasonable proof of concept for the new TLD program.
Second, it should be clear that no applications were rejected; the object was not to pick winners and losers, but to select a limited number of appropriate proposals for a proof of concept. All of the proposals not selected remain pending, and those submitting them will certainly have the option to have them considered if and when additional TLD selections are made.
While the above analysis could, in and of itself, justify a recommendation by this Committee to deny each of the reconsideration requests dealing with the new TLD process, we have chosen to also deal with each of the specific factual and procedural issues raised in those requests.
In its reconsideration request, Group One Registry argues the Board's decision not to accept its <.ONE> application was the result of "uncertainties," which it believes it could have clarified to the Board's satisfaction had it been given the opportunity.
In its discussion of the new TLD selection process, Group One Registry states that there was a very short period of time between publication of the staff report and the Board consideration. This claim does not constitute a failure of process as to the Group One Registry proposal. There is no indication that the Group One Registry's application was treated unfairly relative to the other applications received. All applicants had the same amount of time to respond to the staff report before Board consideration. Indeed, in the six days between the issuance of the staff report and the annual meeting over 1,000 public comments were received on the staff report, many from the applicants responding to the evaluation of their particular application.
Group One Registry complains that its "representatives were not asked any questions by the review panel (unlike representatives from other applicants)." This objection does not reflect a failure of process warranting reconsideration. The Board's decision on new TLDs was the product of inputs from multiple sources including, among other things, the applications themselves, the comments posted on the on-line public comment forum, the staff and expert evaluations of the applications, the applicants' responses to the staff and expert evaluation, and the public presentations. ICANN staff also obtained additional information about the potential technical impact of the <.ONE> application from the International Telecommunication Union to obtain technical input. The fact that the review panel did not ask Group One Registry representatives questions directly does not mean ICANN did not have sufficient information to evaluate the application, nor does it mean that Group One Registry representatives were deprived of the opportunity to communicate with ICANN through public comments and public presentations.
Group One Registry argues that the Board made its decision on new TLDs under a cloud of "uncertainty" about a central feature of the <.ONE> proposal: its intended relationship to the numbering system for the global telephone network. Group One Registry argues that "the application stated clear reasons for using numeric names that were unrelated to the provision of telephony services" and therefore, given the Board's otherwise favorable review of the application, reconsideration is warranted.
The Reconsideration Committee does not believe that Group One Registry's argument justifies a reconsideration of its application for inclusion in the "proof of concept" phase. In the context of a limited, cautious, "proof of concept" process, the Reconsideration Committee believes that unresolved concerns about a new TLD proposal provide ample justification for a decision not to include it in the proof of concept phase.
Group One Registry also argues for reconsideration on the basis of praise from several technical experts. While these communications are impressive support for the <.ONE> proposal on the merits, they do not constitute a basis for reconsideration of the Board's November 16 decision. As noted above, the process of selecting new TLDs was not an effort to find the most worthy or the most attractive applications, but rather to select a "limited number" of appropriate proposals for this initial proof of concept phase. Given this objective and the large number of applications, it was likely that worthy proposals might not be selected.
Finally, the Group One Registry argues that a failure to select the <.ONE> TLD in the "proof of concept" phase will harm the Internet by encouraging the proliferation of proprietary systems to identify Internet-connected devices. Says Group One Registry: "If proprietary systems expand in importance, there will be more problems of standards compatibility and less of the accountability that exists with an ICANN-administered top level domain." While this is a strong argument on the merits, it does not provide a basis for reconsideration of the Board's new TLD selections. There is no evidence to suggest that the Board failed to appreciate concerns of this type. The new TLD selection process was always intended to bring a small number of diverse new TLDs into the DNS namespace in a prudent fashion, see what happened, and then, if appropriate, based on those results, move forward with additional new TLDs.
The Reconsideration Committee finds in this request no basis for the reconsideration of the Board's November 16 new TLD decision. We recommend that the Board take no action in response to this request.
[NOTE: Director Abril i Abril did not participate in the committee's consideration of Reconsideration Request 00-10.]
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