Recommendation of the Reconsideration Committee
On 17 March 2006, Danny Younger, a .com Registrant, submitted a request that ICANN reconsider its 28 February 2006 vote approving the VeriSign settlement. See "Reconsideration Request" (hereinafter, the "Request"). Specifically, Mr. Younger asks that the Board "await a formal response from the GAC on public policy issues raised by the ICANN-VeriSign settlement agreement before proceeding further." Request, p.4.
B. Procedural Requirements
Article IV, Section 2.2 of ICANN's Bylaws states in relevant part that a person or entity may submit a request for reconsideration or review of an ICANN Board action or inaction only if the following factors have been met:
Even if each of these factors are present, however, the Bylaws do not provide for reconsideration if "the party submitting the request could have submitted, but did not submit, the information for the Board's consideration at the time of action or refusal to act." Bylaws, Art. IV, § 2.2. Similarly, the Bylaws do not provide for reconsideration of material information that was considered by the Board. Bylaws, Art. IV, § 2.2(b) (stating that reconsideration addresses Board actions "taken without consideration of material information . . .").
The Bylaws require that any request for reconsideration include, among other things, "a detailed explanation of the material information not considered by the Board and, if the information was not presented to the Board, the reasons the party submitting the request did not submit it to the Board before it acted or failed to act." Bylaws, Art. IV, § 2.6(h). Moreover, the requesting party must provide "any documents the requesting party wishes to submit in support of its request." Bylaws, Art. IV, § 2.6(k).
Dismissal of a request for reconsideration is mandatory if the Reconsideration Committee finds that the requesting party does not have standing (as described above). The Reconsideration Committee may also dismiss a request "where it is repetitive, frivolous, non-substantive, or otherwise abusive, or where the affected party had notice and opportunity to, but did not, participate in the public comment period relating to the contested action, if applicable." Bylaws, Art. IV, § 2.16. In sum, these standing requirements are intended to ensure that the reconsideration process is not simply a request to change a decision that someone disagrees with, but is limited to situations where the Board did not have access to information that, if available, could have resulted in a different decision. It is not just a second bite at the apple.
C. Grounds for Request for Reconsideration
The Request asks that the Board reconsider its 28 February 2006 vote on the grounds that the following information was material to the Board's approval of the .com settlement (including the 2006 .com Registry Agreement) and was not considered by the Board in reaching that decision:
The Request also raises a number of issues that are not directed at the ICANN Board's consideration of material information, but instead are focused on policy concerns surrounding the vote itself. These purported policy concerns center around Article III, Section 6.1(c) and Article XI, Section 2.1(h) of ICANN's Bylaws1 and ask the following questions:
D. Analysis of Grounds for Reconsideration
It is the opinion of the Reconsideration Committee that none of the grounds for reconsideration stated above supports reconsideration.
First, the Request's stated "policy" concerns are not proper topics for reconsideration under Article IV, Section 2.2 of ICANN's Bylaws. As stated earlier, the only appropriate topic of reconsideration of an ICANN Board action or inaction is whether the Board failed to consider material information in reaching its decision. The Request's stated "policy" concerns do not present any material information, and thus do not meet this standing requirement.
Second, nearly all of the information that is presented by the Request was presented to and discussed by the Board at length prior to its 28 February 2006 vote. In particular:
Third, while the Request claims that the Board failed to consider "fully—developed advice of either the GNSO or the GAC" (Request, p.1), the Request does not demonstrate — as it must under the Bylaws — how "fully developed advice" would materially add to or differ from the statements already expressed by the GNSO, the GAC, or any other statement made by the ICANN community to the Board.
Finally, and most significant, the Request fails to explain why Younger (or the GAC or the GNSO) could not and did not bring this information to the Board's attention prior to its 28 February 2006 approval of the settlement. To the contrary, the ICANN community had ample opportunity to bring all information to the Board's attention, including the two public notice periods that the Board established for comment on the October 2005 version of the proposed agreement and the January 2006 version of the agreement. Additionally, there was a public forum at the December 2005 ICANN Meeting in Vancouver, Canada during which ICANN discussed the proposed settlement with the ICANN community. ICANN also held separate conversations with several of ICANN's organizations, committees, constituencies and advisory groups. See, e.g., http://gnso.icann.org/mailing-lists/archives/council/msg01574.html; www.icann.org/topics/vrsn-settlement/ comments-summary-11dec05.pdf.
The fact that the GNSO, ALAC, ccNSO, and the various constituency groups each provided written comments on the settlement -- far in advance of the 28 February 2006 vote -- demonstrates that sufficient time existed for all ICANN Committees and Organization to be heard and that the ICANN Board did not act in haste in approving the settlement. See <http://www.icann.org/topics/verisign-settlement.htm>. The Request's position that ICANN is required to wait to act on the proposed settlement until the GAC provides "fully developed advice" has no foundation in the Bylaws. Indeed, such a reading of the Bylaws would allow the GAC to throttle (or permanently stall) any vote by the ICANN Board that involves "public policy issues" by encouraging the GAC to delay any recommendations to the Board.
For the above reasons, the Reconsideration Committee recommends that the Board take no action on reconsideration request RC 06-2. The Committee concludes that there are no grounds to proceed, as each of the grounds is either: (i) not an appropriate subject for reconsideration; (ii) already considered by the Board, or (iii) could have been brought to the Board's attention prior to the 28 February 2006 approval. Moreover, the Request fails to demonstrate how the GNSO or GAC "fully developed advice" would materially add to the voluminous statements already expressed to the ICANN Board.
1 "With respect to any policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges, ICANN shall in those cases where the policy action affects public policy concerns request the opinion of the Governmental Advisory Committee and take duly into account any advice timely presented by the Governmental Advisory Committee on its own initiative or at the Board's request." ICANN Bylaws, Art. III, § 6.1I(c).
"The Board shall notify the Chair of the Governmental Advisory Committee in a timely manner of any proposal raising public policy issues on which it or any of ICANN's supporting organizations or advisory committees seeks public comment, and shall take duly into account any timely response to that notification prior to taking action." ICANN Bylaws, Art. XI, § 2.1(h).
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