Reconsideration Request 99-4
Recommendation of the Committee
Date: May 2, 2000

From: Andrew McLaughlin
To: karl@CaveBear.com
Cc: Hans Kraaijenbrink; Ken Fockler; Amadeu Abril i Abril
Subject: Reconsideration Request 99-4: Recommendation of the Reconsideration Committee

Dear Karl:

The ICANN Board's Reconsideration Committee has made the attached recommendation on RR 99-4.  The recommendation will be considered by the Board at its next teleconference meeting.

Let me know if you have any questions.

Best regards,



[RC 99-4]  The Reconsideration Committee recommends that the Board deny Reconsideration Request 99-4.  This request for reconsideration was submitted by Mr. Karl Auerbach, seeking reconsideration of "the November 4, 1999 adoption of the DOC/ICANN/NSI Agreement and the November 10, 1999 signing of the agreement."  The challenged Board action is Resolution 99.132 (adopted on November 4, 1999), which authorized the president to sign various agreements with Network Solutions (NSI) and the United States Department of Commerce (DOC).

RR 99-4 was submitted on November 17, 1999, well within the 30 day period required by the Reconsideration Policy.

Article III, Section 4(a) of the ICANN bylaws permit "person[s] affected by an action of the Corporation" to seek Board reconsideration of that action.  Under the Reconsideration Policy, requests must explain "the manner by which the requesting party will be affected by the action."  In response, Mr. Auerbach states:

"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  The DOC/ICANN/NSI Agreement changes the likelihood that those corporations' domain names may be rescinded or lost.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."

As a preliminary observation, the Reconsideration Committee notes that Mr. Auerbach appears to be describing effects which did did not result from the Board’s November 4, 1999 action to authorize of the signing of the DOC/ICANN/NSI agreements (Resolution 99.132).  Rather, Mr. Auerbach describes effects that, as he describes them, flow from a prior action of the Board, namely the adoption of the uniform dispute resolution policy on August 26, 1999 (Resolutions 99.81 through 99.85). 

Setting aside the issue of timeliness, the point is important because the essence of Mr. Auerbach’s request is the contention that the ICANN/NSI/DoC agreements should first have been submitted to the DNSO before being considered by the Board, as was the case with the uniform dispute resolution policy.  In other words, the request complains that the agreements should have gone through the DNSO, but the harm he cites is clearly attributable to a policy which did, in fact, come through the DNSO.

In Resolution 99.81, the Board accepted a DNSO recommendation that a uniform dispute resolution policy be adopted for all ICANN-accredited registrars.  Since October 7, 1998 – the date on which NSI and the DOC entered Amendment 11 to their Cooperative Agreement – NSI was legally obligated to become an ICANN-accredited registrar.  NSI’s adoption of the uniform dispute resolution policy was thus the result of its legal obligation formed in October 1998, combined with NSI’s decision to comply with this obligation by approving the proposed ICANN/NSI/DoC agreements in late September 1999.  Thus, the effects cited by Mr. Auerbach in his request are the result not of the Board’s November 4, 1999, resolution, but of earlier actions establishing the relationship between ICANN and accredited registrars and implementing the uniform dispute resolution policy.

Thus, in a strict sense, Mr. Auerbach is not a “person affected” by the November 4, 1999 Board action, in that his “rights, contractual or property, that [he has] in those domain names and [his] rights vis-a-vis third parties” were not altered by Resolution 99.132.

Nevertheless, the Committee notes that Mr. Auerbach has in good faith raised a substantial issue with respect to the Board’s authority to take action in the absence of a recommendation from a Supporting Organization council.  Though the issue is not technically required to resolve RR 99-4, the Committee believes that Mr. Auerbach deserves a detailed response to his claims.

Mr. Auerbach asks the Board to rescind its November 4, 1999 authorization to sign the ICANN/NSI/DoC agreements.  As grounds for rescission, the request asserts that “the Board’s action contravenes Article VI[,] Section 2(c)” of the Bylaws.  The request states:

"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."

While this accurately states the general tenor of Section 2(c), it fails to note the effect of Article VI, Section 2(g):

"Nothing in this Section 2 is intended to limit the powers of the Board or the Corporation to act on matters not within the scope of primary responsibility of a Supporting  Organization or to take actions that the Board finds are necessary or appropriate to further the purposes of the Corporation."

This provision confers on the Board the ability to act when necessary or appropriate to promote ICANN’s purposes, even without a referral to one or more of the supporting organizations.  Although the Board uses this ability sparingly, it is particularly appropriate – indeed, essential – in matters relating to the formalization and implementation of ICANN’s basic relationships with the other entities (name and address registries and registrars, for example) and that are necessary to accomplish the smooth transition to private-sector technical management of the Internet.  The timely establishment of this initial set of relationships – subject, of course, to public review and comment – is vital to ICANN’s fulfillment of the mission envisioned for it in the White Paper.  The Committee believes, therefore, that these were appropriate matters for Board action under Articcle VI, Section 2(g).  The Committee also notes that the ICANN/NSI/DoC agreements were posted for public review and comment for over a month prior to their approval.  The agreements were the subject of considerable public discussion and debate, both online and at the Los Angeles meetings, and were the subject of extensive Board deliberations.  In approving these agreements, the Board was aware that it had the power to act pursuant to Article VI, Section 2(g), deeming this situation to be one of those rare instances in which action without a supporting organization recommendation was necessary.

Finally, RR 99-4 also seeks reconsideration of the President’s November 10, 1999 signing of the agreements.  The President was specifically authorized by resolution 99.132 to sign the agreements.  For the reasons stated above, the request for reconsideration of the signing is not justified.

Accordingly, the Reconsideration Committee recommends that Reconsideration Request 99-4 be denied.

NOTE:  Director Abril i Abril did not participate in the discussion of Reconsideration Request 99-4, and abstains from the Committee's vote on it.

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