[RC 99-4] The Reconsideration Committee
recommends that the Board deny Reconsideration Request 99-4.
This request for reconsideration was submitted by Mr. Karl Auerbach,
seeking reconsideration of "the November 4, 1999 adoption
of the DOC/ICANN/NSI Agreement and the November 10, 1999 signing
of the agreement." The challenged Board action is
Resolution 99.132 (adopted on November 4, 1999), which authorized
the president to sign various agreements with Network Solutions
(NSI) and the United States Department of Commerce (DOC).
RR 99-4 was submitted on November 17, 1999,
well within the 30 day period required by the Reconsideration
Policy.
Article III, Section 4(a) of the ICANN
bylaws permit "person[s] affected by an action of the Corporation"
to seek Board reconsideration of that action. Under the
Reconsideration Policy, requests must explain "the manner
by which the requesting party will be affected by the action."
In response, Mr. Auerbach states:
"I have several domain names registered
with Network Solutions. As the result of provisions in
the registration agreements between NSI and myself, the terms
of the DOC/ICANN/NSI Agreement will substantially affect the
policies that NSI imposes on me.
"The DOC/ICANN/NSI Agreement will
affect those rights, contractual or property, that I have in
those domain names and my rights vis-a-vis third parties, such
as holders of trade and service marks, who may make claims on
those domain names.
"These impacts are shared with over
5.5 million others who have domain name registrations with Network
Solutions.
"In addition, I am a stockholder in
several corporations that derive a significant part of their
revenue from operations using their domain name. The DOC/ICANN/NSI
Agreement changes the likelihood that those corporations' domain
names may be rescinded or lost. Thus the Agreement has
a financial impact on the valuation of those corporations and
of my portfolio."
As a preliminary observation, the Reconsideration
Committee notes that Mr. Auerbach appears to be describing effects
which did did not result from the Board’s November 4, 1999
action to authorize of the signing of the DOC/ICANN/NSI agreements
(Resolution 99.132). Rather, Mr. Auerbach describes effects
that, as he describes them, flow from a prior action of the Board,
namely the adoption of the uniform dispute resolution policy
on August 26, 1999 (Resolutions 99.81 through 99.85).
Setting aside the issue of timeliness,
the point is important because the essence of Mr. Auerbach’s
request is the contention that the ICANN/NSI/DoC agreements should
first have been submitted to the DNSO before being considered
by the Board, as was the case with the uniform dispute resolution
policy. In other words, the request complains that the
agreements should have gone through the DNSO, but the harm he
cites is clearly attributable to a policy which did, in fact,
come through the DNSO.
In Resolution 99.81, the Board accepted
a DNSO recommendation that a uniform dispute resolution policy
be adopted for all ICANN-accredited registrars. Since October
7, 1998 – the date on which NSI and the DOC entered Amendment
11 to their Cooperative Agreement – NSI was legally obligated
to become an ICANN-accredited registrar. NSI’s adoption
of the uniform dispute resolution policy was thus the result
of its legal obligation formed in October 1998, combined with
NSI’s decision to comply with this obligation by approving
the proposed ICANN/NSI/DoC agreements in late September 1999.
Thus, the effects cited by Mr. Auerbach in his request are the
result not of the Board’s November 4, 1999, resolution,
but of earlier actions establishing the relationship between
ICANN and accredited registrars and implementing the uniform
dispute resolution policy.
Thus, in a strict sense, Mr. Auerbach is
not a “person affected” by the November 4, 1999 Board
action, in that his “rights, contractual or property, that
[he has] in those domain names and [his] rights vis-a-vis third
parties” were not altered by Resolution 99.132.
Nevertheless, the Committee notes that
Mr. Auerbach has in good faith raised a substantial issue with
respect to the Board’s authority to take action in the absence
of a recommendation from a Supporting Organization council.
Though the issue is not technically required to resolve RR 99-4,
the Committee believes that Mr. Auerbach deserves a detailed
response to his claims.
Mr. Auerbach asks the Board to rescind
its November 4, 1999 authorization to sign the ICANN/NSI/DoC
agreements. As grounds for rescission, the request asserts
that “the Board’s action contravenes Article VI[,]
Section 2(c)” of the Bylaws. The request states:
"Under Article VI Section 2(c) of
the ICANN bylaws, the ICANN board is obligated to refer to the
Domain Name Supporting Organization those proposals 'not received
from a Supporting Organization' and which pertain to the domain
name system."
While this accurately states the general
tenor of Section 2(c), it fails to note the effect of Article
VI, Section 2(g):
"Nothing in this Section 2 is intended
to limit the powers of the Board or the Corporation to act on
matters not within the scope of primary responsibility of a Supporting
Organization or to take actions that the Board finds are necessary
or appropriate to further the purposes of the Corporation."
This provision confers on the Board the
ability to act when necessary or appropriate to promote ICANN’s
purposes, even without a referral to one or more of the supporting
organizations. Although the Board uses this ability sparingly,
it is particularly appropriate – indeed, essential –
in matters relating to the formalization and implementation of
ICANN’s basic relationships with the other entities (name
and address registries and registrars, for example) and that
are necessary to accomplish the smooth transition to private-sector
technical management of the Internet. The timely establishment
of this initial set of relationships – subject, of course,
to public review and comment – is vital to ICANN’s
fulfillment of the mission envisioned for it in the White Paper.
The Committee believes, therefore, that these were appropriate
matters for Board action under Articcle VI, Section 2(g).
The Committee also notes that the ICANN/NSI/DoC agreements were
posted for public review and comment for over a month prior to
their approval. The agreements were the subject of considerable
public discussion and debate, both online and at the Los Angeles
meetings, and were the subject of extensive Board deliberations.
In approving these agreements, the Board was aware that it had
the power to act pursuant to Article VI, Section 2(g), deeming
this situation to be one of those rare instances in which action
without a supporting organization recommendation was necessary.
Finally, RR 99-4 also seeks reconsideration
of the President’s November 10, 1999 signing of the agreements.
The President was specifically authorized by resolution 99.132
to sign the agreements. For the reasons stated above, the
request for reconsideration of the signing is not justified.
Accordingly, the Reconsideration Committee
recommends that Reconsideration Request 99-4 be denied.
NOTE: Director Abril i Abril did
not participate in the discussion of Reconsideration Request
99-4, and abstains from the Committee's vote on it.
