Reconsideration Request 00-11 Recommendation of the Committee Date: March 16, 2001

In reconsideration request 00-11, the Sarnoff Corporation requests that the ICANN Board reconsider its November 16, 2000, decision on new TLDs, which did not include the Sarnoff application among the seven registry proposals selected for the proof of concept phase.

CONTEXT OF RECONSIDERATION DECISIONS

[Because of their direct relevance to this reconsideration request, we repeat these observations about the new TLD process from RC 00-8.]

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 judgements 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 staff 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.

ANALYSIS OF REQUEST

The Sarnoff request cites "one factual and one procedural" issue as grounds for reconsideration of the ICANN Board's November 16, 2000, decision not to include the Sarnoff application among the seven registry proposals selected for the proof of concept phase.

1. "Sarnoff and NeuLevel Applications Did Not 'Change Dramatically'"

The Sarnoff application argues that the Board failure to select the Sarnoff proposal as a new TLD in the proof-of-concept round was based in part on "a critical misstatement of the fact that the Sarnoff and NeuLevel applications had changed dramatically." In the opinion of the Reconsideration Committee, the statement (made during the November 16 ICANN Board meeting) that the applications changed dramatically does not constitute a factual error warranting reconsideration.

On November 15, 2000, Sarnoff announced during the ICANN Public Forum that it had entered a joint venture with NeuLevel in relation to the Sarnoff application. Naturally, the last-minute announcement of an agreement between the two companies affected consideration of Sarnoff's proposal. As a transcription of the Public Forum and the next day's board meeting makes clear, the last-minute announcement sparked some real confusion among the board members. In response to queries from board members, ICANN's counsel noted that the application had changed in a significant way, and explained the importance of that fact as follows: "My point was that when we are trying to find a relatively limited number of very attractive applications, to the extent there are significant questions or uncertainties about a particular application, that is a factor that the Board could, and in my view should, take into account in deciding whether to proceed." After the reminder by counsel, the Board focused on the potential unfairness to other applicants, if the Board were to select a proposal that had significantly changed at the last possible minute. If one proposal was selected on the basis of a significantly changed situation, the others would reasonably have demanded a similar opportunity to make significant changes.

Ultimately, based at least in part on the continuing uncertainty surrounding the purpose and potential impact of Sarnoff's last-minute announcement and on the possible unfairness to other applicants, the Board reached a conclusion that it would not include the Sarnoff application as part of the "proof of concept" phase. Given that Sarnoff decided to make its joint venture announcement at the last minute, Sarnoff cannot reasonably claim surprise at the confusion that announcement caused. Unlike the other proposals under consideration at the conclusion of the new TLD process, the newly modified Sarnoff proposal was not supported by a full range of revised application documentation. ICANN's objective was to select a small number of diverse kinds of new TLDS, to allow for prudent introduction and evaluation. In the opinion of the Reconsideration Committee, the Board's decision not to select an application that raised last-minute questions and confusion was a reasonable one.

Sarnoff complains that the Board incorrectly limited the time for the Sarnoff and NeuLevel presentation at the Public Forum to three minutes, instead of six, and that this "departure from established procedure certainly contributed to the Board, its staff, and its counsel having an incorrect understanding of the two applications." The Committee does not agree. First, the single three-minute period was justified by the statement in Sarnoff's application that the point of the announcement was to "make clear that the parties were not seeking delegation of two separate TLDs." Second, even if Sarnoff was not able to make its point clear during the three-minute presentation at the Public Forum, Sarnoff acknowledges that it also had the opportunity to attempt to convey its message through the overview document describing the nature of the joint venture that was distributed just prior to the Board meeting.

2. "Previously Undisclosed TLD String Criterion"

Sarnoff next argues that the Board's failure to select its proposal was based on "a departure from established evaluation procedure during which the Board measured Sarnoff's TLD string against a previously undisclosed criterion that the TLD string be 'pronounceable' and/or a 'mnemonic' for some longer word or phrase." There is no indication that the Board's decision not to include the Sarnoff application in the proof of concept phase rested solely, or even primarily, on concerns about the new TLD string. On the contrary, while one or more Directors may have felt uncomfortable with the <.iii> string, a review of the Board meeting archives demonstrates that concerns about "pronounceability" were put aside as the Board turned its discussion to questions of confusion and unfairness to other applicants, as a result of the last-minute joint venture announcement.

Even assuming the TLD string had been the sole reason for concern about the application, there would have been no procedural error requiring reconsideration. "Appropriateness" of the TLD string was announced as a factor the Board would consider in ICANN's "Criteria for Assessing TLD Proposals" posted on August 15, 2000. Specifically, as Sarnoff's request concedes, the Board was to consider whether addition of the new TLD string "would not create or add to confusion of Internet users in locating the Internet resources they seek." The Board member who expressed his view that the .iii string is unpronounceable and has no mnemonic value is the same Board member who thought the .iii TLD string was inappropriate because "[i]t is confusing" and "says nothing about what that might actually mean." There is no indication that this Board member's comments about the appropriateness of the TLD string were improper or that they led to an error in the Board's decision-making process.

3. "Protecting ccTLD Interests Was An Inappropriate Concern"

Sarnoff's final claim is that "the introduction" by one of the Board members of a concern about protecting ccTLD namespaces "was not relevant and was, quite possibly," prejudicial to the Board's consideration. There is no evidence either in the Sarnoff request or in the transcript of the Board meeting that the cited Board member comment influenced the Board's decision on the Sarnoff application in any way. In the opinion of the Reconsideration Committee, this objection does not warrant reconsideration.

CONCLUSION

The Reconsideration Committee finds in this request no errors of fact or failures of process that warrant the 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 00-11.]