Reconsideration Request 01-3
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 Protocol Supporting Organization issued a statement on 9 August 2000 supporting this approach, stating in part:
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.
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.
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.
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