Reconsideration Request 00-13 Recommendation of the Committee Date: March 16, 2001

In reconsideration request 00-13, Image Online Design, Inc. requests that the ICANN Board reconsider its November 16, 2000, decision on new TLDs, which did not include IOD's <.web> TLD proposal 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

IOD's reconsideration request lays out three reasons why, in IOD's estimation, ICANN should reconsider IOD's proposal. These reasons are discussed below.

1. "IOD's application was held to a higher standard than other similarly situated applicants and should be granted reconsideration."

IOD claims it "was held to a much higher standard than other applicants." Specifically, the IOD request contends that the IOD application and the Afilias application were "substantially" similar from a technical standpoint and there was no compelling reason for the Board to accept the Afilias application while "rejecting" the IOD application.

IOD's complaint that, in IOD's judgment, IOD's application was "substantially similar" to another application that was selected and therefore it, too, should have been selected does not merit reconsideration. The only procedural failure suggested is that "substantially similar" applications were treated differently. It is obvious from a review of the staff report, the minutes of the Board meeting, and IOD's request itself, however, that neither the ICANN technical or financial teams nor the Board concluded that the IOD application was equivalent to the Affilias application. There were many areas in which the two proposals differed substantially, including the fault tolerance and staffing issues cited by IOD in its reconsideration request. Given the Board's assessment that the two applications were not "substantially similar," IOD's argument does not reflect a failure of process justifying reconsideration.

Even if the two proposals were "substantially similar", this alone would not provide a basis for reconsideration. Given the objective of this exercise (to select a limited number of diverse proposals for a proof of concept), the large number of applications, and the inherent subjectivity of some of the criteria utilized, it would certainly have been possible that "substantially similar" proposals would not all be selected or not selected. This possibility was clearly articulated from the beginning of the process, and provides no basis for reconsideration.

2. "ICANN staff's failure to comprehend material issues in the IOD application is grounds for granting this request for reconsideration."

The IOD request contends that the ICANN staff failed to fully comprehend and analyze IOD's application, resulting in the presentation of inaccurate information to the Board. Before turning to the asserted "inaccurate information," the Reconsideration Committee notes that the staff report to the Board was only one of multiple sources of information available to Board members for their use in making independent judgments about the applications. Indeed, all applicants, including IOD, had the opportunity to submit comments on the staff report after it was posted and before the Board Meeting on November 16, 2000. Over 1,000 public comments were received after the staff report was posted, many from applicants responding to the evaluation of their particular application. IOD itself submitted written comments to the Board in various forms, including a set of hard-copy materials that was passed out to all ICANN Directors present at the November meetings.

The IOD application cites the following technical, financial, and "business location" "inaccuracies" in the staff report:

•          "IOD's operational registry should have been treated as an advantage by the staff and not as a detriment.
•          "Despite superior peak transaction capabilities eliminating the need for initial 'demand throttling' schemes, IOD's application was assessed as inadequate."
•          "IOD's TPS was incorrectly reported as deficient, when in fact it far exceeds the maximum anticipated load."
•          "IOD's registry system was incorrectly characterized as having poor fault tolerant properties."
•          "The financial team inaccurately reported IOD's credit and capital funding were deficient when in fact both are more than adequate at all times of operation."
•          "The staff incorrectly reported that allowing registrars access to a new registry would create serious stability problems."
•          "The staff incorrectly evaluated IOD's projected market share."
•          "San Luis Obispo was incorrectly characterized as an area with limited resources from which to draw."

Without exception, IOD's discussion of each of the above statements in its reconsideration request reflects a disagreement with a conclusion reached in the staff report rather than a concern about a factual inaccuracy in the report. The reconsideration process is not a process for rearguing the merits of an application in this manner. Differences of opinion between IOD and staff regarding the conclusions to be drawn from the same set of facts -- facts made available to ICANN principally by IOD -- do not warrant a reconsideration of the IOD proposal.

3. "The ICANN Board was not presented with information it requested that was known to the staff and was presented with inaccurate information about IOD's application."

The IOD request's final claim is that the staff did not provide responsive answers to questions the Board asked at the November 16, 2000 Board meeting, and when the staff did respond to questions, it sometimes responded inaccurately. The IOD Request states that "because the board was unable to receive complete and accurate information about IOD's application, the board's action to exclude IOD application [sic] was unfair." To demonstrate its contention that the staff failed to provide needed information or provided misleading information regarding the IOD application, the IOD request relies on excerpts from a transcription of the Board meeting.

The Committee has reviewed the various asserted information deficiencies claimed by IOD, and concludes that none of them justifies reconsideration. Here again, most of IOD's complaints go to differences of opinion about the interpretation of facts presented by IOD. The Board's decision was made on the basis of numerous sources of information and opinion, including all of the documents provided by IOD itself, as well as responses and assessments provided by the staff and other commentators.

CONCLUSION

The Reconsideration Committee finds in this request no basis for reconsideration of the Board's November 16 new TLD selections. 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 00-13.]