In reconsideration request 00-8, Abacus America, Inc., requests that the ICANN Board reconsider its November 16, 2000, decision on new TLDs, which did not include Abacus America among the seven registry proposals selected.
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 judgments 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 evaluation team's 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.
The specific reasons for reconsideration set forth in the Abacus America reconsideration request are discussed below.
The Abacus America request argues that some of the opinions of its proposal stated by the ICANN evaluation team in its report were mistaken. In particular, Abacus America argues that the staff report underestimated Abacus America's technical and marketing expertise and its business plan.
These arguments concern the judgments rendered by the ICANN evaluation team and the independent experts they retained to produce a joint set of technical and business evaluations. The Reconsideration Committee does not consider Abacus America's disagreements on these points to be a basis for reconsideration, for two primary reasons:
First, the evaluation team's report was only one source of input among many for the ICANN Directors to consider and the Directors ultimately reached their own conclusions about the proposals. As a number of ICANN Directors made clear during the new TLD process, the evaluation team's report was regarded as a valuable aid in their deliberations, but was not given decisive weight. Several of the proposals advocated by individual Directors were the subject of strong reservations in the evaluation team's report, and several proposals that were evaluated favorably in the report were not ultimately selected.
Second, Abacus America had sufficient opportunities to point out to the ICANN Board any disagreements it had with the conclusions of the evaluation team's report. Applicants could (and many did) post a response in the public comment forum, send it to ICANN Directors directly via email, state it publicly during the November 15 Public Forum, or distribute it to the Board in hard copy at the Marina del Rey meetings.
In sum, Abacus America's disagreements with the evaluation team's report do not constitute a basis for reconsideration of the Board's decision on new TLDs.
Abacus America complains that it "was never afforded time to properly address the comments made by the Staff Report" and that "ICANN pushed back the initially announced schedule, and did not change the date for the final decision. This resulted in summary proceedings which did not allow Abacus America to address the Board and the Staff Report." These objections do not warrant reconsideration.
First, Abacus America had an adequate set of avenues by which it could inform the Board of its disagreements with the evaluation team's report, through the online public comment forum or by written document. In fact, in the six days between posting of the report and the Board meeting, ICANN received over 1,000 public comments on the evaluation team's report, many from applicants responding to the evaluation of their particular application.
Second, the actual schedule for the new TLD process mirrored the initially announced schedule, except that the actual schedule allowed approximately three additional weeks of public comment. The initially announced schedule provided for: the description of the New TLD application process to become available August 3, 2000; application forms and instructions to be available as of August 15, 2000; September 4, 2000 to be the first day for applications to be accepted; the deadline for completed applications to be October 2, 2000; non-confidential portions of applications to be posted on October 5, 2000; the public comment period to conclude October 19, 2000; and application selection in mid-November, during or shortly after the ICANN annual meeting. In contrast to the initially announced schedule, the actual schedule permitted public comments on the applications to be submitted beyond October 19, the originally scheduled date, and up to November 5, 2000. This modification in the schedule did not deprive Abacus America of its opportunity to be heard; rather it provided Abacus America, and others, with greater opportunity to post their views in the public comment forum.
Concluding the public comment period earlier may have resulted in earlier publication of the evaluation team's report; the Committee is sensitive to the concern that the evaluation team's report was not available to the public -- and thus to Abacus America -- until November 10, only days before the annual Board meeting. The timing of the release of the evaluation team's report was, however, largely the product of the bottom-up process that ICANN follows to generate consensus. An important ingredient in the evaluation team's reports was the substance of the voluminous public comments produced in the month after the applications were posted (October 5, 2000 to November 5, 2000). ICANN's job is to identify consensus, and therefore input from the community was a critical part of the Board's decision-making process. Getting the community input, considering it, and completing the technical and financial evaluations was a massive job. The ultimate question is whether the Board received sufficient timely information on which to base its selection decisions. The Committee believes that it did.
Abacus America states that its "application was never properly reviewed by the Board" and that "the Board followed the recommendations of the Staff Report without any independent review of its own, turning the Staff Reports recommendations into policy." On the contrary, the ICANN Directors spent many hours reviewing each of the individual applications, the submissions on the public comment forum, the evaluation team's report, and any responses from the applicants themselves.
Indeed, some proposals given serious consideration by the Board had been given unfavorable marks by the evaluation team's report. Likewise, some proposals given a strong evaluation were not selected. The Directors obviously regarded the evaluation team's report as one source of input, and the Board made an independent collective judgment on the basis of many competing considerations to achieve the goals of the new TLD program.
Abacus America states that "[o]nly a handful of applications were presented to ICANN Board of Directors at the voting procedure. A careful reading of the minutes of that proceeding shows that the name 'Abacus' was never mentioned at all." This objection suggests a misunderstanding of the Board's selection procedure. The minutes of the Board meeting reflect that it did not take a separate vote on each proposal; rather, individual Directors put forward particular proposals for further consideration. The fact that no Director put forward Abacus America's proposal for further consideration apparently reflected the fact that no Director felt that its proposal should be among the limited group of new TLDs in this "proof of concept" phase.
Abacus America argues that the Board did not achieve a proper "proof of concept," because "only the largest and best funded of the applicants" was selected. The Committee finds no basis for this claim in either the text of the Abacus America request or in the results of the TLD selection process. The seven selected TLD proposals include a wide range of companies from large to small.
Abacus America complains that several of the DNSO constituency groups produced independent evaluations of the new TLD proposals, and that ICANN failed to inform applicants that "these groups were going to be allowed to comment on each application."
The application materials made it quite clear that any individual or group, anywhere, would be free to comment on the various new TLD applications through the public comment forum. Indeed, over 4100 comments were submitted. It is not surprising that some of the constituency groups of the Domain Name Supporting Organization ICANN's primary advisory body for domain name issues produced their own independent evaluations of the proposals. The very openness and transparency of the new TLD process was designed to encourage as many such submissions from as many different and diverse contributors as possible. Again, the Board members had access to many sources of information; reports authored by constituency groups of the DNSO provide just one example.
Abacus America next claims that "some applicants were given insights to such information, which was obscured from others like Abacus America, giving ICANN insiders an advantage over others." The Reconsideration Committee finds no support for this statement. The DNSO constituency groups were open to Abacus America on the same basis as any other applicant. Indeed, Abacus America is an accredited registrar and member of the DNSO's registrar constituency. Moreover, neither the ICANN staff nor the Board participated in the independent evaluations produced by the DNSO constituency groups. Accordingly, the Reconsideration Committee finds no substance to this objection.
It appears that Abacus America also believes that the Board should not have made choices among the new TLD proposals, and should instead have relied exclusively on the results of an online "poll" conducted by MSNBC. Abacus America suggests this "poll" identified the domains users "feel are most needed." Aside from any reservations about the reliability of Internet polling, it is important to recall that the choice of new TLD string was only one factor among many underlying the Board's decision, alongside the various technical, business, and diversity factors set forth in the criteria for selection. Selecting a limited set of proposals on the basis of the articulated criteria does not, as Abacus America argues, amount to "setting social policy." Rather, it provides a means of creating a useful "proof of concept" for the new TLD program.
Abacus America complains that "ICANN went against its own principles by approving organizations to be both registries and registrars" and that ICANN's new TLD selections create "monopolies" by "granting the same players more and more business, while banning independents like Abacus America the right to operate new TLD Registry."
The Committee does not agree. The seven new TLD proposals selected for negotiation will provide more competition at both the registry and registrar levels, and are consistent with the principle of registry-registrar separation. All of the new TLDs will entail the operation of registries by "independent" organizations, and all will be required to conduct their registry operations in a way that does not competitively disadvantage any non-affiliated registrars .
Significantly, neither Abacus America nor any of the other applicants whose applications were not selected were "banned" from operating a new TLD registry. Rather, they were not selected as one of the registries for this first "proof of concept" phase. If this phase is successful and future rounds of new TLD applications are instituted, Abacus America will have an equal opportunity to participate in that process..
Abacus America complains that its chances of being selected were harmed by its inability to pay "contributions and sponsorship to ICANN", or to "send our staff to expensive overseas trips to Cairo, Santiago, Yokohama, to 'rub shoulders' with ICANN executives." Abacus America also states that this, "apparently, from the applicants that were selected, did affect our chances of being selected to operate a registry."
The Reconsideration Committee finds no basis for this complaint. Even a cursory review of the proposals, the applicants, and the selections shows no relationship between "contributions", "sponsorships", or attendance at ICANN meetings and the Board's final decision. Numerous well-funded applicants were not selected, while several of the selected TLD proposals came from organizations that have not been closely involved in the ICANN process.
Abacus America argues for reconsideration on the basis of a paper produced by "several prominent members of the Berkman Center at Harvard Law School" which recommended Abacus America's application for approval. The Committee's understanding of that paper is that it is a comparison chart, not an "independent study", that was produced by several law students for a pre-meeting conference, and that the paper was not officially endorsed by Harvard Law School. The paper was no doubt a valuable contribution to the new TLD process, and may well have been considered by some Directors in reaching their conclusions, but it was only one of several sources of input for the Directors to consider. The fact that the paper supported a different conclusion from that of the full Board provides no basis for reconsideration of the Board's eventual decision.
In sum, the Abacus America reconsideration request focuses on two points: that "Abacus was not afforded with a sufficient opportunity to present its application" and that "the criteria used were other than those identified in the application guidelines."
The Committee disagrees on both points. Abacus America had the same opportunities as every other applicant to submit a first-rate application, to make or respond to public comments on the public comment forum, to respond to the report of the expert evaluation team, to respond to any other evaluations, and to make a public presentation to the Board. And, as demonstrated above, the selection criteria for all applicants were posted in advance of the application process, and each individual Director endeavored to apply the criteria on the basis of the many inputs, and toward the goal of achieving an effective "proof of concept" for the new TLD program.
The Reconsideration Committee finds in this request no basis for 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 00-8.]
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