Request for Reconsideration
Request 01-7
Submitted by: Edward Hasbrouck
Date: 4 December 2001

Subject: .aero sponsorship agreement with SITA
Date: Tue, 04 Dec 2001 08:47:53 -0800
From: Edward Hasbrouck <edward@hasbrouck.org>
Organization: The Practical Nomad
To: reconsider@icann.org
CC: ICANN.Board.of.Directors@localhost.localdomain

This is a request for reconsideration submitted 4 December 2001 to the Committee on Reconsideration of the Board of Directors of ICANN <reconsider@icann.org>, pursuant to the Reconsideration Policy adopted 4 March 1999 by the Board of Directors and Article 3, Section 4 (a) of ICANN's Bylaws.

I'm sorry that the Reconsideration Policy requires this request to be somewhat legalistic in format. Please contact me if you have any questions or if you would like any additional information or clarification. I will be traveling from 21 December 2001 through 11 January 2002, primarily in Vietnam. I will have minimal, if any, access to the Internet and my files during that time. So it will be easier for me to respond to you before (or after) those dates. I will, however, respond to any requests from you as soon as I am able to do so.

I also apologize that this request was prepared in some haste. This was necessary to give you a meaningful opportunity to consider my request for a stay before the draft .aero sponsorship agreement with SITA is signed, which might otherwise happen within the next few days.

I am also asking ICANN's President not to sign the .aero agreement until you have acted on my request for a stay. I appeal to you to consider my request for a temporary stay as soon as possible, since meaningful reconsideration might not be possible if the .aero agreement is already signed.

Above all, I'm sorry that it is necessary for me to take up your time on this matter. In August 2001, as soon as I began to suspect that the .aero agreement might be significantly different from the oroginal .aero proposal, I made my concerns known to ICANN in my comments to the ALSC, and I asked SITA for more information and for an opportunity to participate in the policy-making process. I deeply regret that both ICANN staff and SITA chose to proceed with the drafting and negotiation of an agreement which they knew was objectionable to affected stakeholders, without providing any opportunity for participation in the process until the draft was complete and posted for Board approval.

This request and all supporting documents are available at: http://hasbrouck.org/icann/reconsider.html

Other related documents are linked at: http://hasbrouck.org/icann

======================================================

Contents:

(1) Contact information for the requesting party

(2) Date of the action

(3) Action for which review or reconsideration is sought

(4) Manner in which the requesting party will be affected by the action

(5) A temporary stay is requested

(6) Harms that will result if the action is not stayed

(7) Steps the requesting party asks ICANN to take

(8) Grounds on which the action should be modified

(9) Supporting documents

======================================================

(1) NAME, ADDRESS, AND CONTACT INFORMATION FOR THE REQUESTING PARTY, INCLUDING POSTAL AND EMAIL ADDRESSES:

Edward Hasbrouck
1130 Treat Avenue
San Francisco, CA 94110
USA

edward@hasbrouck.org

telephone/fax +1-415-824-0214

(2) DATE OF THE ACTION:

For the purpose of this request, I am considering the action (or inaction) of ICANN's Board on the draft .aero sponsorship agreement to have been taken 27 November 2001.

The following resolutions were adopted by the ICANN Board of Directors for the .aero sponsorship agreement with SITA:

Resolved [01.84] that the Board shall be notified of the complete posting of the agreement and appendices for each of .aero and .coop and after that notification seven days shall be allowed for Board members to make any additional comments to the President and General Counsel;

<http://www.icann.org/minutes/prelim-report-10sep01.htm#01.83>

Resolved [01.85] that in the absence of the request of any Board member to the contrary based on policy considerations, the President is authorized to sign the posted agreements for .aero and .coop after the conclusion of those seven days; and

<http://www.icann.org/minutes/prelim-report-10sep01.htm#01.84>

Resolved [01.86] that, upon signature of the agreements for .aero, .coop, and .museum, the President is authorized to take such actions as appropriate to implement the agreements, including causing reports to be made to the United States Department of Commerce and accrediting registrars for those top-level domains.

<http://www.icann.org/minutes/prelim-report-10sep01.htm#01.85>

According to the ICANN Web site, "on 20 November 2001, posting was completed of the TLD Sponsorship and all attachments with SITA, the Sponsor for .aero. Under ICANN Board resolution 01.84, seven days are allowed for additional comments on these documents; absent a contrary request by a ICANN Board member during that period the ICANN President is authorized to sign the agreement under ICANN Board resolution 01.85." <http://www.icann.org/tlds/>

No notice has been posted (as of today, 4 December 2001) of any request by an ICANN Board member that the draft .aero sponsorship agreement with SITA not be signed. ICANN's Web site was updated 2 December 2001 to state, "signing of a final agreement with .aero has been authorized." It therefore appears that the draft .aero sponsorship agreement with SITA might be considered (at least by ICANN's Webmaster) to have been "constructively approved" by inaction by the Board, as of 27 November 2001.

For the record, I note that ICANN's Bylaws require the Board to hold a public forum on any "policies that are being considered by the Board for adoption that substantially affect ... third parties", as I discuss further below.

Since the "without objection" or "opt out" process of approval established by Resolutions 01.84 - 01.86 did not include a public forum, it could only be used for decisions that do not set policy, or that do not substantially affect third parties.

As I also discuss further below, the changes made between SITA's original proposal to ICANN for .aero, and the draft .aero sponsorship agreement, placed before the Board for consideration policies that substantially affect third parties.

Accordingly, the draft .aero agreement, and the policies it incorporates, cannot be approved without a public forum.

I therefore note, also for the record, that the draft .aero sponsorship agreement has not been "approved" by the Board in accordance with the Bylaws. Therefore, ICANN's President is not "authorized" to sign the agreement, unless and until the Board holds a public forum on those policies in the agreement that were not in the proposal.

I am making these statements so that it cannot later be claimed that I conceded that the agreement has been "approved", or that the President is "authorized" to sign it, without a public forum. It is my position that the Board's actions to date do not constitute a valid approval of the agreement, and the President is not authorized to
sign it. If the President signs the draft agreement, the validity of that purported contract would properly be subject to challenge by affected parties. If ICANN makes recommendations to the U.S. Department of Commerce on the basis of such an "approval" or "agreement", those recommendations should properly be disregarded by DOC/NTIA as unauthorized and invalid under ICANN's Bylaws.

Whether that Board action or inaction of 27 November 2001 constitutes "approval" of the .aero agreement, and whether the President is now "authorized" to sign that agreement or use it as a basis for recommendations, are matters for the Reconsideration Committee, the Board, and those who will later decide whether to accept the validity of any such agreement and/or recommendations.

As a final note for the record, this request concerns a Board action "alleged by an affected party to have violated the Corporation's ... bylaws." If this request is denied, or if ICANN's internal reconsideration process has not been completed within 45 days after the filing of this request, this request will therefore be eligible for submission to ICANN's Independent Review Panel in accordance with the Independent Review Policy adopted 20 March 2000 by ICANN's Board, and Article 3, Section 4 (b) of the ICANN Bylaws.

(3) SPECIFIC ACTION OF ICANN FOR WHICH REVIEW OR RECONSIDERATION IS SOUGHT:

The purported "approval" of the draft .aero sponsorship agreement with SITA as posted to the ICANN Web site 20 November 2001, and the purported "authorization" to ICANN's President to sign that agreement and make recommendations based on it to the U.S. Department of Commerce (NTIA).

(4) MANNER IN WHICH THE REQUESTING PARTY WILL BE AFFECTED BY THE ACTION:

(1) As a member of the Air Transport Community (as defined in the original .aero proposal), and as a member of the aviation media (as included in the .aero proposal), I have been denied the opportunity to observe the negotiation and policy-making process for .aero between the selection of the .aero application by the ICANN board and the posting of the completed .aero agreement on the ICANN Web site. This failure to operate openly has impaired my ability to report on this process for my readers.

(2) As a member of the Air Transport Community and the aviation media, I have been, and continue to be, denied the opportunity to participate in the "Air Name Policy Group" (as committed to by SITA in the .aero proposal), or to participate in any way in the drafting, negotiation, or policy-making process for .aero (especially with respect to the changes to the eligibility criteria in the original proposal).

(3) As a member of the General Assembly of the DNSO (the relevant supporting organization within ICANN), I have been denied the opportunity to participate in bottom up decision-making or any process of consensus-building with respect to the changes made to the terms and promises in the .aero proposal.

(4) I have been denied a public forum before the ICANN board on my objections to the .aero agreement.

(5) If the draft .aero agreement is signed, I might be able to register a .aero domain as a member of the aviation media and/or as a consultant on air transport. But the changes made to the eligibility criteria would deny me the opportunity to register a .aero domain as a consumer advocate, which would have been permitted under the original proposal.

(6) Since the delegation of authority in the current draft of the .aero agreement does not include the transparency, openness, and procedural fairness requirements of ICANN's Bylaws, I could be denied the opportunity to observe the making of delegated decisions, even if that would be feasible. This would impair my ability as a member of the air transport media and as a consumer advocate to report on the decision-making process for my readers.

(7) If I register a .aero domain, I could be evicted on the basis of a claim that, because I am a critic of the air transport industry, I do not "support" air transport, and thus am ineligible under the criteria as revised in the draft .aero agreement. This could exert a chilling effect on my criticism, or reporting on criticism, of the industry.

(5) A TEMPORARY STAY OF THE ACTION IS REQUESTED:

I request a temporary stay.

I request that ICANN's President and staff be stayed from signing any agreement or making any recommendation to the U.S. Department of Commerce or NTIA with respect to SITA or .aero, until this request for reconsideration has been acted on by the Reconsideration Committee and the Board.

(6) IF A TEMPORARY STAY OF THE ACTION IS REQUESTED, WHAT HARMS WILL RESULT IF THE ACTION IS NOT STAYED:

(1) If a stay is not granted, and if the .aero agreement is signed while this request for reconsideration is pending, ICANN might be bound by that agreement even if the Reconsideration Committee finds that it is unauthorized, contrary to ICANN's Bylaws, or for any other reason should not be signed. Thus, if a stay is not granted, it might be impossible for the Reconsideration Committee to order any meaningful corrective action. A stay is essential to preserve a meaningful right of reconsideration.

(2) Any "agreement" signed on the basis of an action contrary to the Bylaws might be challenged and voided. ICANN could be held liable for damages to the other party to such a contract, or to other parties who have acted in reliance on such a contract. A stay will eliminate the risk of unnecessary liability and expense for ICANN.

(3) Most importantly, if a stay is not granted, a recommendation is made to DOC (NTIA), and .aero is added to the root server before this Request for Reconsideration is acted on, .aero might later have to be removed from the root server if this Request for Reconsideration is granted. Removing a TLD from the root server, after it has gone into widespread use, could destabilize the DNS system. No new TLD should be placed in the root zone file if there is substantial risk that it might have to be removed. A stay is therefore essential to protect the stability of the DNS system -- ICANN's highest priority -- against the risk of disruption by removal of a TLD that is already in use.

(7) WHAT SPECIFIC STEPS THE REQUESTING PARTY ASKS ICANN TO TAKE - I.E., WHETHER AND HOW THE ACTION SHOULD BE REVERSED, CANCELLED, OR MODIFIED:

I request that the draft .aero sponsorship agreement with SITA be modified to make it consistent with ICANN's Bylaws and SITA's original proposal, and that it be reconsidered by ICANN in accordance with ICANN's Bylaws and the procedural commitments made in SITA's original proposal.

Specifically, I request that ICANN's Board:

(1) Direct ICANN's President and staff not to sign the draft .aero agreement or make any recommendation to the DOC with respect to SITA or .aero until the .aero agreement has been modified and reconsidered, including all of the steps in (2) through (5) below;

(2) Direct ICANN's staff to revise and renegotiate the draft .aero agreement to make it consistent with ICANN's Bylaws and SITA's original proposal, and in particular to:

(1) Include all members of the Air Transport Community, as defined in the original proposal, in the criteria for eligibility to register in the .aero TLD and to participate in policy-making for the TLD, and in the start-up plan;

(2) Include a condition in the Delegation of Authority requiring SITA to operate, in the exercise of the delegated authority, to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness; and

(3) Require that the agreement include a policy-making group representative of all members of the Air Transport Community, as promised by SITA in its original proposal;

(3) Direct ICANN's staff to conduct the revision, renegotiation, and consideration of any proposed deviations from the original proposal in accordance with the maximum extent feasible of openness and transparency, and in consultation with:

(1) SITA,

(2) the DNSO and at-large stakeholders of ICANN, and

(3) a .aero policy-making group including representatives of all segments of the Air Transport Community, as promised by SITA in its original proposal;

(4) Hold a public forum on the revised draft; and

(5) If the revised .aero agreement is substantially different from the original proposal, re-open consideration of whether or not SITA's proposal for .aero should be selected, or whether another TLD string(s) and/or proposal(s) should be selected in addition to, or instead of, .aero.

(8) GROUNDS ON WHICH THE ACTION SHOULD BE REVERSED, CANCELLED, OR MODIFIED:

(1) The current draft of the .aero agreement is materially different from the original proposal which was selected by ICANN's Board. Approval of those terms of the draft agreement which differ from the original proposal -- and which have not previously been discussed by the Board or at any public forum -- would set policy and precedent, and substantially affect the interests of third parties.

The most significant policy differences between SITA's original proposal for .aero and other TLD's, and the current draft of the .aero agreement, concern the eligibility criteria for registration of .aero domains, and the decision-making process to be used in the exercise of delegated authority over .aero.

In his analysis of the .aero agreement, ICANN's General Counsel claimed that these were not "policies". But the eligibility criteria for registration and participation in TLD decision-making were listed and labeled, correctly, as "policies", both in the TLD Application Forms prepared by ICANN staff, and in the proposal itself as selected by
ICANN's board.

According to the "Description of TLD Policies" in the proposal, "1. GENERAL TLD POLICIES: This proposes the adoption of a Top Level Domain for the entire Air Transport Community (ATC), '.air'. In this Description of TLD Policies proposal, the definition of ATC is: 'All companies and organizations for which the main activity is related to Air Transport.'" <http://www.icann.org/tlds/air1/18Oct-Description%20of%20TLD%20Policies.htm>

In Attachment 1 of the draft agreement, this has been changed to, "The .aero TLD is restricted to people, entities and government agencies which: (1) provide for and support the efficient, safe, and secure transport of people and cargo by air; and (2) facilitate or perform the necessary transactions to transport people and cargo by air."
<http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att1-09nov01.htm>

The difference between these 2 eligibility policies is a substantial, and precedent-setting, policy change.

The vast majority of entities which would have qualified as members of the "Air Transport Community", as defined in the original proposal, would not qualify for .aero under the restrictions in the current draft of the .aero agreement.

These third parties whose interests would be affected include users and purchasers of air transport services, elements of civil society concerned with air transport, critics of the air transport industry from within and without, and other at-large stakeholders in air transport.

Obviously, people and entities which would be disqualified from eligibility for registration and/or participation in decision-making in the TLD would be "substantially affected" by the policy decision resulting in their disqualification.

(2) The policies embodied in the current draft of the .aero agreement, and especially those terms of the draft agreement which differ from the original proposal, have not been adopted in accordance with the procedural commitments in the original proposal, or the procedural requirements of ICANN's Bylaws.

ICANN's Bylaws provide as follows" "ARTICLE 3: TRANSPARENCY AND PROCEDURES. Section 1: GENERAL. The Corporation and its subordinate entities shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness." <http://www.icann.org/general/bylaws.htm#III>

According to the "Sponsoring Organization's Proposal", policy decisions concerning .aero would be made by the following new entity, the Air Name Policy Group (ANPG):

"1. SPONSORING ORGANIZATION STRUCTURE:... SITA proposes... the addition of a high level industry policy group, the Air Name Policy Group (ANPG), to define the policies on matters relevant to the development and operation of the `.air' TLD name. It is proposed that this group be made up of senior members of the Air Transport Community, and of major industry organizations."

"C4. Organization Purpose. Functions and mission of the organization, definition of community to be served (if any), method of ensuring operation in the interest of the stakeholders of the community to be served and the Internet at large: ... SITA is committed to establishing and maintaining a high level policy group (the ANPG) to define the best manner to ensure that the '.air' TLD is optimized for the benefit of the Air Transport Community and the traveling public. At the same time, this policy group will ensure that this domain is ... accessible to all users within the Air Transport Community. This group will be comprised of senior representatives of the Air Transport Community and will meet regularly." <http://www.icann.org/tlds/air1/Sponsoring%20Organization's%20Proposal.htm>

There is no mention of, or commitment to the creation of, this policy group in the draft .aero agreement. Approval of the draft agreement would, it appears, release SITA from this commitment as to the structure and procedure for exercise of the authority delegated by ICANN. It is difficult to imagine a more fundamental change in policy than the waiving of a structural and procedural commitment.

It is clear from the proposal that the ANPG "be made up of senior members of the Air Transport Community, *and* of ... industry", that the proposal did *not* equate the industry with the community. It was explicitly acknowledged in the proposal that the community of stakeholders was larger than the industry. And it was explicitly proposed that the TLD be for the community of stakeholders, not just the industry.

I contacted SITA, through the form provided on SITA's Web site for this purpose at <http://www.sita.int/aero/info/reqinfo.asp>, to request information on APNG membership and meetings and other opportunities to observe and/or participate in .aero policy-making. In response, I was told by SITA, "The exact definition of the individuals or entities qualifying for registration and related policies are currently being developed in close co-operation with representatives from various industry bodies including IATA, ACI and ICAO. We shall communicate the... details of registration policies... in due time and we shall inform you directly once the launch date for the Registry Operation and Registration Services has been confirmed." <http://hasbrouck.org/icann/sita.html>

SITA itself thus acknowledged explicitly that (1) in negotiating the registration eligibility criteria and other terms of the sponsorship agreement, it was setting "policies", and (2) information would be made public only after those policies had been decided. The policy-making process was closed to observation, even to me as a member of the aviation media and eligible .aero registrant. This is contrary to the claim of ICANN's General Counsel that the process was closed only to those outside the TLD criteria, but was open to those eligible to register in .aero.

(3) Since the new terms of the draft .aero agreement embody policies being considered by the Board that substantially affect third parties, the Bylaws forbid them to be approved without a public forum.

ICANN's Bylaws include the following requirement: "ARTICLE 3: TRANSPARENCY AND PROCEDURES... Section 3. NOTICE AND COMMENT PROVISIONS... (b) 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, ... the Board will: ... (iii) hold a public forum at which the proposed policy would be discussed." <http://www.icann.org/general/bylaws.htm#III-3biii>

In addition to policies specific to .aero, the underlying policy question, both in the eligibility criteria and the decision-making process, is whether there will be TLD's for specific sectors of activity -- open to and governed by all participants and stakeholders in those sectors -- or whether sector-specific TLD's will be limited to industry entities, to the exclusion of consumers, industry critics, civil society, and at-large stakeholders in those sectors.

This policy question is newly presented by the changes made between the original proposal and the draft .aero agreement.

So far as I know, despite its profound implications for the balance of power between business, consumer, and public interests; and for the potential "capture" of decision-making by a specific interest group (industry) within a sector; this policy question has never been discussed by the Board, nor has it been the subject of a public forum.

Similarly, there has never been debate or a public forum on the meaning of the section of the bylaws requiring that ICANN "and its subordinate entities shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness", and specifically the meaning of "subordinate entities" (as applied to delegations of authority) and "the maximum extent feasible".

I reiterate that, as I have said all along, I supported SITA's original proposal for .aero and its selection by the ICANN Board. I look forward to working with ICANN's staff and DNSO, SITA, the "Air Name Policy Group", and other stakeholders, to draft a revised .aero agreement embodying policies consistent with the original proposal and ICANN's Bylaws. And I look forward to seeing such a revised .aero agreement approved by the Board following a public forum.

I appeal to you to act on this request soon as you are able to give it full consideration, so that this process can be completed, and the revised draft agreement can be posted adequately in advance of a public forum and vote, before the soonest possible meeting of the Board.

(9) ANY DOCUMENTS THE REQUESTING PARTY WISHES TO SUBMIT IN SUPPORT OF ITS REQUEST:

This request and all supporting documents are available at: <http://hasbrouck.org/icann/reconsider.html>

My request to ICANN's President not to sign any .aero agreement until the Reconsideration Committee has acted on my request for a temporary stay (4 December 2001) <http://hasbrouck.org/icann/lynn.html>

My response to ICANN General Counsel's analysis of the draft .aero agreement (26 November 2001) <http://hasbrouck.org/icann/aero-draft3.html>

My objections to Attachments 2, 8, and 21 of the draft .aero agreement (21 November 2001) <http://hasbrouck.org/icann/aero-draft2.html>

My objections to Attachments 1 and 5 of the draft .aero agreement (15 November 2001) <http://hasbrouck.org/icann/aero-draft.html>

My comments to the ALSC on the policy significance of the changes from the .aero proposal (13 August 2001) <http://hasbrouck.org/icann/alsc.html>

SITA's response to my request for information on .aero eligibility and policies (8 August 2001) <http://hasbrouck.org/icann/sita.html>

SITA's application to ICANN for .air and other TLD's (original proposal 11 October 2000, accepted for .aero) <http://www.icann.org/tlds/air1/>

Sponsoring Organizations's Proposal <http://www.icann.org/tlds/air1/Sponsoring%20Organization's%20Proposal.htm>

Description of TLD Policies <http://www.icann.org/tlds/air1/18Oct-Description%20of%20TLD%20Policies.htm

ICANN status page on new TLD agreements (includes links by section to the draft .aero sponsorship agreement) <http://www.icann.org/tlds/>

Attachment 1: .aero Charter (first posted 9 November 2001; revised draft posted 20 November 2001) <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att1-20nov01.htm>

Attachment 2: Delegated Authority (first posted 20 November 2001) <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att2-20nov01.htm>

Attachment 5: Description of TLD Community (first posted 9 November 2001) <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att5-09nov01.htm>

Attachment 8: Start-Up Plan (first posted 17 November 2001) <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att8-17nov01.htm>

Attachment 21: Proof-of-Concept Reports (first posted 10 November 2001) <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att21-10nov01.htm>

ICANN Reconsideration Policy (adopted 4 March 1999) <http://www.icann.org/committees/reconsideration/recon-policy-04mar99.htm>

ICANN Bylaws (as amended through 16 July 2000) <http://www.icann.org/general/bylaws.htm>

Respectfully submitted,

Edward Hasbrouck
Passenger air travel and travel e-commerce consumer advocate, author, and FAQ-maintainer
Member-at-large of the Air Transport Community and the ".aero" gTLD constituency