2011-03-18 - Approval of ICM Registry Application for .XXX

Whereas, on 25 June 2010, the ICANN Board, after substantial public comment was received on the process options available to ICANN to consider the Independent Review Panel's Declaration of 19 February 2010, the Board accepted (in part) the findings of the Panel. The Board then directed staff "to conduct expedited due diligence to ensure that: (1) the ICM Application is still current; and (2) there have been no changes in ICM's qualifications."

Whereas, ICANN staff performed the required due diligence, that showed that the ICM Application remains current and that there have been no negative changes in ICM's qualifications.

Whereas, ICM provided ICANN with a new proposed registry agreement that included additional provisions, requirements and safeguards to address the issues that the GAC and other community members had raised with respect to the previously proposed agreement.

Whereas, the proposed registry agreement and due diligence materials were posted for public comment. Over 700 comments were received, though few of the comments addressed the terms of the registry agreement. No changes to the registry agreement are recommended in response to the comments.

Whereas, on 10 December 2010, the Board agreed with an assessment that entering into the proposed registry agreement would conflict with only three items of GAC advice and directed the staff to communicate this information to the GAC.

Whereas, on 10 December 2010, the Board further determined that it intends to enter into a registry agreement with ICM Registry for the .XXX sTLD, subject to GAC consultation and advice, and thereby invoked the consultation as provided for in ICANN Bylaws section Article XI, Section 2, Paragraph 1(j). See <http://www.icann.org/en/minutes/resolutions-10dec10-en.htm#4>.

Whereas, to facilitate the Bylaws consultation with the GAC, on 25 January 2011, the Board directed staff to forward a letter from the Board to the GAC clearly setting forth the Board's position on how the ICM proposed registry agreement meets items of GAC advice, and setting forth the items of GAC advice remaining for consultation. The letter was forwarded on 11 February 2011 and is available at <http://www.icann.org/en/correspondence/jeffrey-to-to-dryden-10feb11-en.pdf> [PDF, 236 KB].

Whereas, on 16 March 2011, the GAC forwarded a letter of the Board clarifying GAC advice on the ICM matter.

Whereas, the Board has carefully considered comments from the community and the GAC in making this decision, in furtherance of ICANN's mission.

Whereas, on 17 March 2011, the Board and the GAC completed a formal Bylaws consultation on those items for which entering the registry agreement might not be consistent with GAC advice.

Resolved (2011.03.18.23), the Board authorizes either the CEO or the General Counsel to execute the proposed registry agreement for the .XXX sTLD, in substantially the same form posted for public comment in August 2010.

Resolved (2011.03.18.24), the Board adopts and fully incorporates herein its Rationale for Approving Registry Agreement with ICM for .XXX sTLD <http://www.icann.org/en/minutes/draft-icm-rationale-18mar11-en.pdf> [PDF, 221 KB] to support the entering into the proposed registry agreement.

Resolved (2011.03.18.25), the Board and the GAC have completed a good faith consultation under the ICANN Bylaws, Article XI, Section 2.j. As the Board and the GAC were not able to reach a mutually acceptable solution, pursuant to ICANN Bylaws, Article XI, Section 2.k, the Board incorporates and adopts as set forth in the Rationale the reasons why the GAC advice was not followed. The Board's statement is without prejudice to the rights or obligations of GAC members with regard to public policy issues falling within their responsibilities.