Reconsideration Request 01-7
Recommendation of the Committee
Date: 14 January 2002

Recommendation

In reconsideration request 01-7, Edward Hasbrouck requested review of the ICANN Board's actions with respect to the .aero TLD Sponsorship Agreement. In his request, Mr. Hasbrouck requested that the draft agreement not be entered in the proposed form, but instead be revised in various ways. He also sought a stay of ICANN's entry of the agreement until final Board action on his request.

In a statement posted 16 December 2001, the reconsideration committee responded to a request for guidance from ICANN's President, Dr. Stuart Lynn, advising him that there was no reason to delay in moving forward with the agreement.

For the reasons discussed below, the committee recommends that the Board take no action in response to reconsideration request 01-7.

Background

On 16 November 2000, after a lengthy process, the ICANN Board selected seven proposals for negotiations toward appropriate agreements under which proposed top-level domains (TLDs) would be introduced. (That process is described in detail in the reconsideration committee's recommendations on requests 00-8 through 00-14 and 00-16.) Four of the selected TLDs were unsponsored, to be operated by "registry operators" under policies formulated by the global Internet community within the ICANN process, while the other three selected TLDs were sponsored TLDs (sTLDs) to be operated for the benefit of narrower communities, with some portion of the policy-formulation responsibilities for those sTLDs delegated to sponsoring organizations charged with representing their narrower communities.

One of the sTLD proposals was made by Société Internationale de Télécommunications Aéronautiques (SITA), which the ICANN Board selected to become the sponsor of a .aero TLD. As noted in SITA's proposal, "The intention of the [proposed sTLD] is to provide a service to the air transport industry and registrants are restricted to legitimate members of the industry."

Acting under the 16 November 2000 Board resolutions, the ICANN President and General Counsel negotiated a standard form of TLD Sponsorship Agreement with SITA, as well as with the sponsors of the other two selected sTLDs, .coop and .museum. An initial draft of this standard sTLD agreement was posted on ICANN's web site on 20 August 2001 and a slightly revised version was posted on 29 August 2001. The standard agreement refers to 23 attachments concerning particular topics; variations necessary to accommodate the differing character and circumstances of sTLDs can be accommodated by variations in the appropriate attachments.

The standard sTLD agreement was then the subject of public comment in the period leading up to ICANN's meeting from 7-10 September 2001 in Montevideo. A web-based forum was provided and a portion of the 9 September 2001 Public Forum in Montevideo was devoted to the topic. After considering these comments, the ICANN Board adopted resolutions approving the .museum sTLD agreement (all of the .museum attachments had been posted) and establishing a seven-day "last-call" procedure for approval of the .aero and .coop sTLD agreements (some of the attachments for those agreements had not been completed):

Resolved [01.82] that the President is authorized to enter on behalf of ICANN the agreement for .museum as posted on the ICANN website, along with any minor corrections or adjustments as appropriate;

Resolved [01.83] that the President and General Counsel are authorized and requested to complete negotiation of the .aero and .coop agreements (including attachments) as soon as feasible and to post the attachments on the ICANN web site;

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;

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

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 (in that regard, registrars already accredited and in good standing for .biz, .com, .info, .net, or .org may be accredited for .aero, .coop, and .museum without additional qualifying procedures upon entering an accreditation agreement that the President determines is consistent with the existing accreditation agreement for .biz, .com, .info, .name, .net, and .org).

Progress on finalization of the attachments to the .aero sTLD agreement continued, and on 20 November 2001 all 23 attachments of the .aero agreement were completed and posted. The Board was advised of this posting, thereby starting the seven-day last-call period, after which the ICANN President would be authorized to sign the agreement in the absence of a request by any ICANN Board member for additional Board review based on policy considerations revealed by the postings.

On 16 and 21 November 2001, Edward Hasbrouck sent messages to all members of the ICANN Board requesting, on grounds substantially the same as stated in his reconsideration request, that they object to the agreement. On 24 November, ICANN's General Counsel provided to the Board an analysis of the .aero sTLD agreement in view of Mr. Hasbrouck's objections. This analysis was posted on ICANN's web site. On 26 November, Mr. Hasbrouck submitted a response to the General Counsel's analysis, which the Board also received.

No ICANN Board member requested the ICANN President to refrain from signing the agreement in the seven-day period, so that under resolution 01.85 the President became authorized to sign it after 27 November 2001.

On 4 December 2001, Mr. Hasbrouck submitted his reconsideration request, in which he also requested a delay in signature of the agreement until final Board action. As noted above, on 16 December 2001 the reconsideration committee advised ICANN's President that the circumstances of the request did not warrant a delay in moving forward with the agreement.

Analysis of Request

This request seeks reconsideration of the Board's authorization, through the absence of any contrary request by a Board member during the last-call period, of the President's signature of the .aero sTLD agreement. As correctly noted in the request, this should be treated as having occurred on 27 November 2001.

When evaluating requests for reconsideration of Board actions, the reconsideration committee focuses on whether the process followed was fair and appropriate and whether the Board acted in an informed manner. The reconsideration process is neither intended nor suited for re-arguments on the merits.

In asserting that the posted agreement is contrary to the proposal selected by the Board in November 2000 and that the process underlying this claimed change did not meet the bylaws' openness, transparency, and public-participation requirements, the request limits its challenge to the events of November 2001. This limitation is appropriate, both because extensive public procedures were followed in making the November 2000 selection and because a challenge of that selection is much too late under the Reconsideration Policy.

(1) After comparing the .aero sTLD proposal selected by the Board with the final sTLD agreement, the reconsideration committee concludes that they are consistent with one another. Although the reconsideration request asserts that the SITA proposal envisioned an "eligibility polic[y]" allowing registrations within .aero by consumers and critics of air transport services as well as providers of those services, the SITA proposal stated that registration would be limited to those in the air transport industry. It stated, "The intention of the [proposed sTLD] is to provide a service to the air transport industry and registrants are restricted to legitimate members of the industry." It also described the TLD as "a restricted TLD for the air transportation industry sector." As shown by these and many other of its statements, a fair reading of the proposal as a whole firmly expresses the provider focus of the TLD. It is therefore appropriate that the .aero charter restricts registrations to providers and facilitators of air transport services.

(2) The reconsideration request notes that Article III, Section 1 of ICANN's bylaws requires that ICANN operate in an open and transparent manner. Each of the .aero sTLD agreement and its attachments were posted, in full detail, on the ICANN web site at least seven days before entry of the agreement became authorized. (Indeed most parts, including the standard form of sTLD agreement used for .museum and .coop as well as .aero, were posted well before that.) Interested members of the public had the opportunity to express their concerns, as Mr. Hasbrouck in fact did. The General Counsel's analysis of the agreements was also posted on ICANN's web site, as were Mr. Hasbrouck's objections. This process met the openness and transparency requirements of Article III, Section 1.

In the request, Mr. Hasbrouck complains that SITA advised him that the exact policies under which .aero will be operated had not yet been established, but that he will be advised once they are. He therefore complains that SITA's process is not sufficiently open and transparent. The openness and transparency requirements of Article III, Section 1, however, apply to the activities of ICANN, not to those of other entities. Entities that operate TLDs under delegations from ICANN are not required to follow the same procedures as ICANN. The committee notes that Subsection 4.2 of the .aero sTLD agreement sets forth the procedural requirements that SITA must follow in formulating its policies.

(3) The reconsideration request also challenges the November 2001 approval of the .aero sTLD agreement because the notice-and-comment procedures described in Article III, Section 3(b) of ICANN's bylaws were not followed. Those procedures, however, only apply to actions adopting policies substantially affecting the Internet or third parties. The notice-and-comment procedures do not apply to entry of agreements, provided that the agreements are consistent with previously adopted policies. In selecting the seven TLD proposals, ICANN followed procedures that gave the public detailed notice and extensive opportunities to comment and otherwise participate in the process; by that procedure the guiding policy was established. The implementation of that policy by entering implementing agreements does not require that the same procedures be repeated for each of the agreements.

Recommendation

For these reasons, the reconsideration committee recommends that the Board take no action on reconsideration request 01-7.

[NOTE: Director Abril i Abril did not participate in the committee's consideration of Reconsideration Request 01-7.]