Reconsideration Request 01-2 Recommendation of the Committee Date: April 30, 2001

In reconsideration request 01-02, .Kids Domains, Inc., requests that the ICANN Board reconsider its November 16, 2000 decision on new TLDs, which did not include KDI's ".Kids" 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

At the outset, the Reconsideration Committee notes that the KDI request was filed late.  ICANN's Reconsideration Policy clearly states that "a request for review or reconsideration must be filed within 30 days after (a) the affected party or its affiliate receives notice of the action, or (b) ICANN posts notice of the action on its web site, whichever is sooner."  The Board reached its decisions regarding new TLD applications on November 16, 2000.  The KDI Request was received February 1, 2001 — well beyond the 30 day period.  This alone constitutes sufficient reason for the Committee to deny reconsideration of the KDI without further comment. 

However, in the interests of openness, transparency, and constructive dialogue with the new TLD applicants who were not selected for the proof of concept phase, the Committee proceeds with an analysis of the factual and procedural points raised in the KDI request.

1.         "Compressed Time Period for Staff Review"

According to the KDI request, due to a "compressed review period," the ICANN evaluation team "failed to consider, or improperly disregarded, considerable evidence regarding the KDI application for a new gTLD."  KDI's only specific assertion is that the "KDI application was clear in its description of how we would control content in the restricted domain.  However, several board members demonstrated an unawareness of our proposals." 

The Reconsideration Committee is not persuaded by KDI's claims.  First, as discussed above, the evaluation team conducted a thorough review of the applications, including KDI's application for a .kids TLD. 

Second, the evaluation team report specifically addressed KDI's plans for controlling content in the proposed restricted domain:

"The .KIDS Domains application contains perhaps the most complete description of how the applicant proposes to deal with the definitional issues. The applicant proposes establishing a Content Policy Board, independent of the applicant's board of directors. The Content Policy Board will (i) facilitate the establishment of a standardized policy on content suitability, (ii) facilitate the processes and procedures for the enforcement of the policy, (iii) oversee and administer an auditing system, and (iv) oversee the High Risk Group Self Regulatory Commission. The High Risk Group Self-Regulatory Commission would be composed of registrants, mostly large companies, whose websites contain a large amount of content that is not under the direct control of the registrant. The High Risk Group Self-Regulatory Commission will work to determine definitions for content that is harmful and inappropriate to minors. (Of course, it should be noted that some do not believe that the success rate of large companies policing their content has been very good.) While .KIDS Domains recognizes and attempts to deal with the issue of 'what content is appropriate', its proposal does not address the larger conceptual concern whether a self-appointed TLD sponsor should make these decisions. . . .

". . . .KIDS Domains suggests auditing mechanisms to determine if content registered under the .kids TLD meets the established policy. .KIDS Domains also proposes working with content filtering companies, but does not provide details of how filtering would work in this context. Based on its proposed plan, .KIDS Domains appears to be the only one of the remaining applicants to have any prospect of enforcing its policies. . . . "

We find no support for the argument that the evaluation team did not have adequate time to review the KDI proposal, or its proposed means of controlling content in the restricted domain.

Third, all Board members had adequate opportunity to review the evaluation team report, along with the many other sources of information regarding the TLD proposals.  We find no sign that the Board was, as the KDI request suggests, "unaware" of the KDI application.  KDI apparently disagrees with the conclusions Board members reached about its application, but that does not amount to a factual or procedural error in the Board's decision-making process.

2.         "Inadequate Opportunity to Respond to Board Concerns"

According to the KDI request, "applicants were given neither sufficient time nor forum to clarify misconceptions from the staff report or misunderstandings voice by ICANN board members."  Here again, we do not find this argument convincing.

KDI had the opportunity to publish responses to the evaluation team's report via the online public comment forum.  ICANN received more than 1,000 comments on the evaluation team's report, including comments from new TLD applicants who chose to respond to the evaluation team's analysis of their particular proposal.  As a final step in the extensive application review process, applicants had the opportunity to make a presentation at the November 15, 2000 Public Forum so that any last-minute points could be made.  Since there were forty-four applicants, nearly all of whom wished to speak, and since the time available for the applicants (given the many other members of the community who also wished to be heard) was limited to a bit over two hours, a few minutes was simply all the time available to each applicant.  Most used it wisely, pointing out the particular strengths of their applications.  The ultimate question is whether the Board received sufficient timely information on which to base its selection decisions, and whether the proposers had a fair opportunity to respond to the evaluation team report.  In both cases, the Committee believes that they did.

3.         "Important Steps Were Skipped"

The KDI request asserts that "[t]here were important steps, outlined by ICANN, that were skipped due to time constraints."  It is not clear from the KDI request which "important steps" ICANN purportedly skipped.  In the view of the Reconsideration Committee, the procedures for the new TLD process were posted well in advance, and were followed over the ensuing months.

4.         "Board Objections Were Outside the Published Criteria"

KDI also claims that "[t]he objections to the KDI application stated by ICANN board members were not within the scope of the published assessment criteria."  KDI fails, however, to identify specific Board objections that fell outside the scope of the published criteria.  Moreover, KDI's argument misconstrues the nature of the nine evaluation criteria ICANN published on August 15, 2000.  The published criteria were not intended to be a rigid formula for assessing the merits of TLD proposals; rather, the criteria were intended to guide applicants in drafting their proposals.  The fact that KDI believes one or more objections to its application did not fit neatly into one of the nine published criteria does not render that objection invalid, nor should it cause the Board to reconsider its November 16 selections.

5.         "No Minutes of Board Phone Meeting"

KDI claims that ICANN did not fulfill its commitment to a transparent and open process because "there was no public record or minutes of the ICANN board phone meeting that discussed the gTLD applicants."  This objection is simply not accurate.  The Board has in fact published minutes of its teleconference on 31 October <http://www.icann.org/minutes/minutes-31oct00.htm>, which was primarily a discussion of the evaluation team's work.

6.         "Indemnity Questions Not Made Public"

KDI also claims that ICANN did not fulfill its commitment to a transparent and open process because "the indemnity questions asked late in the process were not made public as promised."  There is simply no merit to this argument.  Both the indemnity questions that were asked, as well as each applicant's response, if any, were posted in the new TLD archive on the ICANN website.

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, 2000 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 01-2.]