Reconsideration Request 00-12 Recommendation of the Committee Date: March 16, 2001

In reconsideration request 00-12, the .TV Corporation International requests that the ICANN Board reconsider its November 16, 2000, decision on new TLDs, which did not include the dotNOM consortium's <.nom> application or the dotPRO consortium's <.pro> 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 dotTV reconsideration request seeks reconsideration of the ICANN Board's November 16, 2000, decision on new TLDs, which did not include the dotNOM consortium's <.nom> proposal or the dotPRO consortium's <.pro> proposal among the seven registry proposals selected for the proof of concept phase. The factual and procedural concerns expressed in the dotTV request fall into three broad categories, each of which is discussed in more detail below. In the opinion of the Reconsideration Committee, none of the concerns raised justifies reconsideration.

A. "Failure to Comply with Bylaw Requirements"

The dotTV request states that, in violation of its bylaws, "ICANN failed to conduct the TLD selection process in an open, transparent and fair manner." We disagree and conclude that reconsideration is not warranted on this basis.

1."No Guidance"

The dotTV request complains that "from the outset" the selection criteria were vague, applicants were not told the relative weight of the criterion in advance, and applicants were not informed that they would have to meet subjective criteria.

The Committee disagrees with dotTV's assessment that the criteria posted in the "Criteria for Assessing TLD Proposals" were vague. All applications were subject to these same criteria, according to the same process. Likewise, no applicant was provided in advance with a formula for the relative weight to be given each criterion - after all, there was no such formula. Given the enormous diversity among the 47 widely varying applications, and given ICANN's stated objective of selecting a diverse set of proposals for the proof of concept phase, it would have made no sense to articulate and apply such a formula with some effort toward mathematical precision. As evidenced by its signed application statements, dotTV (along with all the other applicants) made its proposals voluntarily, knowing that the odds of being selected were not high and that the criteria for being included in this experiment were in some measure subjective.

2."Short Review Period"

The dotTV request argues that "the time period for review of the applications was unreasonably compressed" and resulted in a "cursory review process." The Reconsideration Committee does not agree with dotTV's claim. The ICANN evaluation team spent, in the aggregate, thousands of hours reviewing applications in detail. The members of the Board of Directors likewise spent many long hours individually reviewing the applications and supporting materials. Indeed, dotTV's reconsideration request identifies no factual or procedural errors that support its assertion that the time available for application review had some adverse impact on the Board's new TLD selections.

3."No Opportunity for Comment on Evaluation Report"

The dotTV request states that ICANN management decided to post the evaluation report one day prior to the ICANN meetings, and that this decision "effectively deprived applicants of an opportunity to discuss or contest the report." Contrary to dotTV's assertion, the evaluation report was posted on ICANN's website November 10, 2000, while the ICANN Public Forum and Board meeting did not occur until November 15 and 16.

Nonetheless, the Committee is sensitive to the concern that the evaluation report was not available to the public -- and thus to the dotNOM and dotPRO Consortia -- until November 10, only days before the annual Board meeting. The timing of the release of the evaluation report was, however, largely the product of the bottom-up process that ICANN follows to facilitate input and to generate consensus. An important ingredient in the evaluation report was the substance of the voluminous public comments submitted over the month after the applications were posted (October 5, 2000 to November 5, 2000). ICANN's job is to build consensus; therefore, input from the community was a critical element of the Board's decision-making process. Getting the community input, considering it, and completing the technical and financial evaluations was a massive job. DotTV had an equal opportunity to comment on the evaluation report through the public comment forum or through its public presentation. Indeed, ICANN received more than 1,000 comments on the evaluation report, many from applicants responding to the evaluation of their particular application. The ultimate question is whether the Board received sufficient timely information on which to base its selection decisions. The Committee believes that it did.

4."Inadequate Time for Public Presentation"

DotTV argues that "the three-minute time period allotted to applicants to justify or defend their applications in front of the board was inadequate . . . ." The opportunity to make a presentation at the public forum was simply the final step in an extensive process, available so that any last-minute questions could be asked or points made. Since there were forty-four applicants, nearly all of whom wished to speak, and since the time available for the applicants (given the other parts of the community who also wished to be heard) was limited to about two hours, three minutes was simply all the time available.

The short period of time for presentations reflected ICANN's clear requirement that applicants should provide all relevant information about their proposals in writing, on the public record, so that the entire Internet community would have the opportunity to read it, consider it, and respond to it. By not emphasizing these verbal presentations at the very end of the selection process, the Board re-emphasized its commitment to maximum transparency. Again, the ultimate question is whether the Board received sufficient timely information on which to base its selection decisions and the Committee believes that it did.

B. "Mistreatment of the dotNOM Consortium Application"

The dotTV request claims a number of ways in which ICANN failed to treat the <.nom> application fairly. In the opinion of the Committee, none of these claims justifies reconsideration of the <.nom> application.

1."Failure to Properly Address Business/Financial Capabilities"

The dotTV request asserts that "ICANN wrongly excluded dotNOM Consortium from the second level of review" because the evaluation team failed to explain the ways in which the application's business and financial capabilities were "unsound or infeasible." Here, dotTV is criticizing the evaluation team's report, which was one input among several considered by the Board. Moreover, a review of the evaluation report makes clear that dotTV is simply mistaken. The evaluation report discussed in specific detail the ICANN business review team's assessment of the dotTV <.nom> application. Indeed, the evaluation report notes that the "personal" category applications were particularly competitive on this point. While it appears dotTV disagrees with the conclusions of the ICANN evaluation team regarding the facts before it, there is no evidence that the evaluation team or the Board acted with imperfect information.

2."Failure to Properly Address Technical Capabilities"

The dotTV request also argues that ICANN "failed to properly address dotNOM Consortium's technical capabilities and therefore wrongly refused to allow the dotNOM Consortium to proceed to the second level of review." Here again, dotTV seems to misunderstand the role of the evaluation team's report - the ICANN Board had no "second level of review" from which dotTV was barred. From the perspective of the Board, all applications were given full review. Moreover, a review of the evaluation report makes clear that dotTV is mistaken on the facts of this point as well. The ICANN technical review team specifically discussed their assessment of the dotTV <.nom> application. DotTV's reconsideration request attempts to reargue the technical merits of the <.nom> application, but it is not the Reconsideration Committee's role to entertain arguments about the merits of TLD applications.

In its reconsideration request, dotTV makes mention of a November 9, 2000 "preliminary TLD Application Analysis Chart," and criticizes ICANN for "directly contradicting" the conclusions of that document. The reference appears to be to a summary document produced by several Harvard Law School students as part of a pre-ICANN meeting conference, available at <http://cyber.law.harvard.edu/icann/pressingissues2000/briefingbook/tld-application-chart.html>. As that document itself makes clear, it was not produced by, and had absolutely no affiliation with, ICANN or its evaluation team. Rather, it was one of many documents produced by members of the community to summarize, analyze, and/or critique the proposals.

C. "Mistreatment of the dotPRO Consortium Application"

Many of the points the dotTV request makes in this section mirror arguments made previously in the section devoted to alleged mistreatment of the dotNOM Consortium application. Because of the similarities between many of the points made, it is not necessary for the Reconsideration Committee to re-address them. Of the new points made, it is the committee's opinion that none warrant reconsideration of the <.pro> applications.

1. "Failure to Evaluate Application 'On Its Own Merit'"

The dotTV reconsideration request asserts that "as an applicant who paid the $50,000 application fee, dotPRO Consortium's proposal should have been evaluated on its own merit." In support of its contention that the <.pro> application was not evaluated on its own merit, dotTV quotes the evaluation report out of context. There is in fact no indication in the evaluation report that the <.pro> application was evaluated on anything other than its own merits.

2. "Misclassification in 'Restricted Commercial' Category"

Finally, the dotTV request argues "ICANN's decision to categorize dotPRO Consortium's application as 'Restricted Commercial' . . . demonstrates a fundamental misunderstanding of dotPRO Consortium's proposal and an inappropriate reason to exclude the application from the second stage of analysis." Even if the <.pro> application might better have been placed in a different category in the evaluation team's report, it does not follow that classification in the "restricted commercial" category harmed its chances of being approved by the Board. There is simply no evidence that the <.pro> application was treated unfairly or not given proper consideration by the Board. Indeed, the dotTV <.pro> application was subjected to direct comparison with another <.pro> proposal in the same category. The fact that the other <.pro> proposal was selected by the Board demonstrates that the evaluation team's classifications did not harm proposals in that category.

CONCLUSION

The Reconsideration Committee finds in this request no basis for reconsidering 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 00-12.]