In reconsideration request 00-16, Telnic Limited requests that the ICANN Board reconsider its November 16, 2000 decision on new TLDs, which did not include Telnic's ".tel" application among the seven registry proposals selected for the proof of concept phase.
CONTEXT OF RECONSIDERATION DECISIONS
[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.
ANALYSIS OF REQUEST
Telnic requests reconsideration of the ICANN Board's November 16, 2000 decision on new TLDs, which did not include Telnic's ".tel" application among the seven registry proposals selected for the proof of concept phase.
At the outset, the Committee notes that Cathy Horton originally submitted Telnic's request as a letter addressed to ICANN's General Counsel. Requests for reconsideration are required to be submitted via e-mail to <email@example.com>, and to be clearly labeled as such. In this case, failure to follow ICANN's reconsideration policy resulted in significant delays in the posting and resolution of Telnic's request.
The Telnic request seeks a copy of the minutes of the Board's recess "to consider in private [Mr. Touton's] request that the Telnic Application should be removed from the telephony-related group and considered separately." Since there was no private Board meeting during the coffee breaks of November 16, it is unclear what Ms. Horton might be referring to. Since her letter is addressed to ICANN's General Counsel, and not to the Reconsideration Committee, it is also unclear what light the Committee would be able to shed on the General Counsel's side conversations during coffee breaks. The Board's new TLD decisions were made in public on November 16. Accordingly, this query does not provide any basis for reconsideration of the Board's new TLD selections for the initial proof of concept phase.
The Telnic request questions why the .tel application was "dealt with in the same way as the other telephony-related applications when it is clear that the Telnic Application is fundamentally different to those other applications." The Telnic request does not expand upon this claim in a way that would permit the Board or its Reconsideration Committee to respond to it. We find no indication that the Telnic application was not given full, proper, equal consideration on its merits. The fact that the evaluation team grouped an application in a particular category, such as "telephony," for comparative analytic purposes did not determine whether it would be selected by the Board for the proof of concept phase. Rather, each Director reviewed each application on its merits, drawing input from the application and supporting materials, the report of the evaluation team, third-party commentary, and so forth.
The Telnic request also seeks the "[b]asis upon which ICANN's staff drew the conclusions it did with respect to the Telnic Application . . . ." This request for information does not constitute a basis for reconsideration. As a matter of clarification, the ICANN evaluation team's primary source of information about the Telnic application was the application itself. The evaluation team that reviewed the applications was made up of technical, business, financial, and legal experts all of whom analyzed the applications from the standpoint of their particular area of expertise. The members of the evaluation team drew their own conclusions about the Telnic application based on their in-depth review and analysis of the application and other sources of information available to it. Additional sources of information included the online public comment forum and Telnic's responses to questions from ICANN.
During the ICANN meetings in Melbourne, Telnic physically handed ICANN staff an additional letter and supporting documents, dated 13 March 2001. The letter essentially amplifies the points made in Ms. Horton's original request, which criticize the approach taken by the independent evaluation team. In making its decision, the Board considered the evaluation team's report, along with the entire substance of the Telnic proposal and a variety of other inputs. Telnic's points may well be persuasive in a future round of TLD expansion, but they do not provide a basis for reconsideration of the Board's selections for the proof of concept phase.
The Reconsideration Committee finds in this request no errors of fact or failures of process that warrant the reconsideration of the Board's November 16, 2000 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 00-16.]
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