BGC Recommendation on Reconsideration Request 14-27, Amazon EU S.a.r.l.

Brief Summary

Amazon EU S.à.r.l. (the "Requester") applied for .AMAZON and related internationalized domain names ("IDNs") in Japanese and Chinese (the "Amazon Applications"). In its Durban Communiqué, the Governmental Advisory Committee ("GAC") informed the Board that it had reached consensus advice on .AMAZON and the related IDNs ("GAC Durban Advice"). After significant and careful consideration, on 14 May 2014, the NGPC passed Resolution 2014.05.14.NG03 ("Resolution") accepting the GAC Durban Advice and directed that the Amazon Applications should not proceed.

On 30 May 2014, the Requester filed the instant Request, seeking reconsideration of the NGPC's acceptance of the GAC Durban Advice. The Requester argues that the GAC Durban Advice was untimely and was improperly accorded a strong presumption by the NGPC. In addition, the Requester argues that the NGPC considered false or inaccurate material information and failed to consider other material information in accepting the advice.

The BGC concluded that the Requester has not stated proper grounds for reconsideration. Specifically, the BGC concluded that: (i) there is no evidence that the NGPC's actions in adopting the Resolution support reconsideration; (ii) the Requester has not demonstrated that the NGPC failed to consider any material information in passing the Resolution or that the NGPC relied on false or inaccurate material information in passing the Resolution; and (iii) the NGPC properly considered the GAC Durban Advice in accordance with ICANN's Bylaws and the procedures set forth in the gTLD Applicant Guidebook. Therefore, the BGC recommended that Reconsideration Request 14-27 be denied (and the entirety of the BGC Recommendation is incorporated by reference as though fully set forth in this rationale). The NGPC agrees.

Relevant Background Facts

The Requester applied for the Amazon Applications.

On 17 June 2012 the GAC Chair sent a letter to ICANN's Board, which included the following:

Given the delays in the gTLD application process, the timing of the upcoming ICANN meetings, and the amount of work involved, the GAC advises the Board that it will not be in a position to offer any new advice on the gTLD applications in 2012. For this reason, the GAC is considering the implications of providing any GAC advice on gTLD applications. These considerations are not expected to be finalized before the Asia-Pacific meeting in April 2013.1

On 20 November 2012, the GAC representatives for the governments of Brazil and Peru submitted an Early Warning with respect to the Amazon Applications.2

On 14 February 2013, the GAC declared that it would be posting a list of applications that the GAC would consider as a whole during the GAC meeting to be held in Beijing in April 2013.3 On 25 February 2013, the GAC further stated that it was "still compiling and processing inputs received from GAC members" and would post further information as soon as possible.4

In March 2013, the Requester wrote to the Board regarding its Public Interest Commitments with respect to the Amazon Applications,5 and ICANN's Independent Objector ("IO") objected to the Amazon Applications on behalf of the "Amazon Community," i.e., the "South-American region with the same English name around the Amazon River" ("Community Objection").6

On 11 April 2013, in its Beijing Communiqué the GAC identified the Amazon Applications as warranting further GAC consideration and advised the Board not to proceed with those applications beyond Initial Evaluation ("GAC Beijing Advice").7 The Requester responded to the GAC Beijing Advice arguing that the GAC had not reached consensus advice on the Applications, and that the New gTLD Applicant Guidebook ("Guidebook") did not provide for ICANN to delay specific applications for further GAC consideration.8 The Requester also argued that it had relied on the Guidebook's provisions regarding geographic strings, which included a provision for Community Objections to geographic strings, and that the GAC Beijing Advice represented a "new attempt to isolate strings that raise geographic issues" and acted "as an effective veto on Community-driven policies."9

In early July 2013, the U.S. Government stated its intent to "remain neutral" with respect to the Amazon Applications, "thereby allowing [the] GAC to present consensus objections on these strings to the Board, if no other government objects."10 Also in early July 2013, the Requester wrote to the Board about its ongoing efforts to negotiate with Brazil and Peru regarding the Amazon Applications. The Requester also submitted proposed Public Interest Commitments.11

On 18 July 2013, in its Durban Communiqué, the GAC informed the Board that it had reached consensus on GAC Objection Advice on the Amazon Applications.12

On 23 August 2013, the Requester responded to the GAC Durban Advice, arguing that it: "(1) is inconsistent with international law; (2) would have discriminatory impacts that conflict directly with ICANN's Governing Documents; and (3) contravenes policy recommendations implemented within the [Guidebook] achieved by international consensus over many years."13

On 3 December 2013, the Requester sent another letter to the Board, providing further detail and clarification regarding the Requester's ongoing attempts to negotiate with the governments of Brazil and Peru regarding the Amazon Applications.14 Just about a month later the Requester wrote to the Board contending that the Amazon Applications do not fall within any of the five Guidebook categories of "geographic names" requiring government or public authority support.15

On 30 May 2014, the Requester filed the instant Request, seeking reconsideration of the NGPC's acceptance of the GAC Durban Advice. The Requester argues that the GAC Durban Advice was untimely and was improperly accorded a strong presumption by the NGPC. In addition, the Requester argues that the NGPC considered false or inaccurate material information and failed to consider material information in accepting the advice.16

On 26 July 2014, the BGC asked the Requester for clarification regarding its allegation that the NGPC considered false or inaccurate material information in passing the Resolution. Amazon responded to the BGC's request clarifying the allegedly false or inaccurate material information that Amazon claims the NGPC relied upon in passing the Resolution. ("2 August Letter").17
Issues

The issues for reconsideration are whether the NGPC failed to consider material information or relied on false or inaccurate material information in:
Accepting the GAC Durban Advice although it was filed after the close of the objection filing period18;
Individually considering the Amazon Applications, although the NGPC should only do so "under exceptional circumstances,"19;
Failing to adhere to appropriate GAC Governing Principles by applying a "strong presumption" to the GAC Durban Advice20;
Improperly relying on the Early Warning as rationale for the GAC Durban Advice21;
Improperly: (i) considering false or inaccurate material information in correspondence submitted from representatives of the governments of Brazil and Peru; and (ii) failing to consider material correspondence and comments from the Requester and other parties22;
Failing to consider material information provided by the United States Government in its July 2013 statement23;
Failing to consider the Expert Determination rejecting the IO's Community Objection to the Amazon Applications24;
Failing to consider the Expert Analysis and the Requester's request for additional studies25;
Failing to consider its obligations under ICANN's Bylaws and Articles of Incorporation in accepting the GAC Durban Advice26; and
Failing to consider the fiscal implications of its acceptance of the GAC Durban Advice.27
The Relevant Standards for Evaluating Reconsideration Requests

ICANN's Bylaws call for the BGC to evaluate and, for challenged Board (or NGPC) action, make recommendations to the Board (or NGPC) with respect to Reconsideration Requests. See Article IV, Section 2 of the Bylaws. The NGPC, bestowed with the powers of the Board in this instance, has reviewed and thoroughly considered the BGC Recommendation on Request 14-27 and finds the analysis sound.28
Analysis and Rationale
The Requester Has Not Stated a Proper Basis for Reconsideration with Respect to the Timeliness of the GAC Durban Advice.

The BGC concluded, and the NGPC agrees, that the Requester has not stated a proper basis for reconsideration with respect to the timeliness of the GAC Durban Advice. The Requester argues that the NGPC should not have accepted the GAC Durban Advice because that advice was submitted on 18 July 2013, after the 13 March 2013 close of the objection filing period. The Requester, however, neither argues nor provides any evidence demonstrating that the NGPC considered false or inaccurate material information, or failed to consider material information, in accepting the allegedly untimely GAC Durban Advice. Accordingly, there is no basis for reconsideration.

Further, contrary to what the Requester argues, the NGPC must consider GAC advice on new gTLDs submitted at any time. Notwithstanding the Guidebook, ICANN's Bylaws affirmatively require the Board to consider any issues that the GAC may put to the Board by way of comment or advice. (Bylaws, Art. XI, §§ 2.1.i and 2.1.j.) The provisions of the Guidebook regarding the treatment of GAC Advice do not supplant the requirements of the Bylaws on this subject matter.
The Requester Has Not Stated A Proper Basis for Reconsideration With Respect To The NGPC's Consideration Of The Amazon Applications.

The BGC concluded, and the NGPC agrees, that the Requester has not stated a proper basis for reconsideration with respect to the NGPC's consideration of the Amazon Applications. The Requester argues that the NGPC improperly "individually" considered the Amazon Applications failing to explain why the circumstances surrounding its Applications are sufficiently "exceptional" to warrant individual consideration.29 Again, the Requester does not argue that the NGPC considered false or inaccurate material information, or failed to consider material information, in passing the Resolution and therefore has not stated proper grounds for reconsideration. (Bylaws, Art. IV, § 2.2.)

In any event, Requester's argument contradicts Section 5.1 of the Guidebook, which explicitly provides for the Board to individually consider any new gTLD application, including as the result of GAC Advice:

The Board reserves the right to individually consider an application for a new gTLD to determine whether approval would be in the best interest of the Internet Community. Under exceptional circumstances, the Board may individually consider a gTLD application. For example, the Board might individually consider an application as a result of GAC Advice on New gTLDs or of the use of an ICANN accountability mechanism.

(Guidebook, § 5.1) (emphasis added). As the Guidebook makes clear, GAC Advice is precisely the sort of "exceptional circumstance" that would justify the Board's individual consideration of a gTLD application. Further, as discussed above, ICANN's Bylaws affirmatively require the Board to consider any issues that the GAC may put to the Board by way of comment or advice. (Bylaws, Art. XI, §§ 2.1.i and 2.1.j.)
The Requester's Claim that the NGPC Afforded a Strong Presumption to the GAC Durban Advice Does Not Support Reconsideration.

The BGC concluded, and the NGPC agrees, that the Requester has not stated proper grounds for reconsideration with respect to the alleged presumption applied to the GAC Durban Advice on the Amazon Applications.

Requester claims that the GAC Durban Advice should not have created a strong presumption for the ICANN Board that the Amazon Applications should not proceed.30 In support, the Requester contends that because the GAC Durban Advice was provided after the close of the objection period, it was not provided pursuant to the Guidebook, and thus was not subject to the presumption standards set forth therein regarding GAC Advice.31 Once again, because the Requester does not argue that the NGPC considered false or inaccurate material information, or failed to consider material information, in accepting the GAC Durban Advice, it has not stated proper grounds for reconsideration. (Bylaws, Art. IV, § 2.2.)
The NGPC Properly Considered The Rationale Given In Early Warnings

The BGC concluded, and the NGPC agrees, that the NGPC properly considered the rationale provided in the GAC Early Warning submitted on behalf of the governments of Brazil and Peru. The Requester argues that the NGPC improperly considered the rationale given in the Early Warning because, the Requester claims, that rationale "reflects only the concerns of two governments and cannot be used as the consensus rationale of the entire GAC."32 The Requester's claims do not support reconsideration.

In its rationale for the Resolution, the NGPC stated that although it "d[id] not have the benefit of the rationale relied upon by the GAC in issuing [the GAC Durban Advice], the NGPC considered the reason/rationale provided in the GAC Early Warning submitted on behalf of the governments of Brazil and Peru . . . ."33 The NGPC did not state that it considered or relied on the rationale of the Early Warning to represent the rationale for the GAC Durban Advice—to the contrary, it explicitly stated that it "d[id] not have the benefit" of that rationale. There simply is no evidence that the NGPC relied on false or inaccurate material information in accepting the GAC Durban Advice. Further, insofar as the Requester argues that the NGPC failed to consider material information in failing to "conduct further inquiry of the GAC as to the basis and reason for the consensus advice,"34 nothing in ICANN's Bylaws, the Guidebook, or the GAC's Operating Principles requires the GAC to provide a rationale for its advice.

Finally, the BGC notes that the NGPC did not "rely" on the Early Warning in determining whether to accept the GAC Durban Advice. Rather, as is reflected in the resolution, the NGPC considered, among other materials, numerous documents, legal advice and letters submitted by the Requester and by other community stakeholders.
The NGPC Did Not Rely on False or Inaccurate Material Information or Fail to Consider Material Information in its Consideration of Public Comments and Correspondence to the Board.

The BGC concluded, and the NGPC agrees, that the Requester has not demonstrated that the NGPC relied on false or inaccurate material information or failed to consider material relevant information with respect to public comments and correspondence to the Board.

The Requester argues that the NGPC: (i) relied on false or inaccurate material information in considering correspondence sent to the Board by the governments of Brazil and Peru; and (ii) failed to consider material information in failing to consider other correspondence, including correspondence sent by the Requester.35

As to consideration of correspondence sent by the governments of Brazil and Peru, the Requester appears to argue that the "NGPC accepts the views of two governments and infers that these opinions represent consensus advice of all GAC members."36> The claim is unsupported. In its rationale for the Resolution, the NGPC stated only that it "considered as part of the NGPC's action" an 11 April 2014 letter from the Vice Minister of Foreign Affairs for Peru, and a 14 April 2014 letter from a Director in the Ministry of External Relations of Brazil. Nowhere does the NGPC state, or even imply, that it took the correspondence from Brazil and Peru as GAC consensus advice. Furthermore, the Requester cites to no Guidebook or Bylaws provision that prohibits the NGPC from taking into consideration correspondence duly submitted to ICANN.

The Requester also argues that, although the 11 April 2014 letter from the Peruvian Government contained false information regarding whether Amazon has an ISO 3166-2 code,37 the NGPC "failed to identify any false and inaccurate information contained in the letter."38 However, alleged reliance on false or inaccurate information is a basis for reconsideration only if that information was material to a decision. The NGPC's rationale does not state that it relied on the Peruvian Government's representation regarding the ISO 3166-2 code in deciding to accept the GAC Durban Advice, and the Requester does not explain how the NGPC did so rely, or how the information is at all relevant.39 Furthermore, the NGPC is not required to identify any and all false or inaccurate information contained in the correspondence it considers and explain that the NGPC did not rely on that specific information in reaching its determination, particularly when that information is not relevant or material to the decision being made.

Finally, in its 2 August Letter responding to the BGC's request for clarification, the Requester argues that the 14 April 2014 letter from the Brazilian government inaccurately states that "all steps prescribed in the gTLD Applicant Guidebook in order to object to [the Amazon Applications] . . . have been timely taken by Brazil and Peru . . . ."40 The Requester claims that this statement is inaccurate because the GAC Durban Advice was not timely. Again, the NGPC's alleged reliance on false or inaccurate information is a basis for reconsideration only if that information was material to the NGPC's determination. And, once again, the Requester does not explain how the NGPC relied upon the Brazilian Government's allegedly inaccurate representation in deciding to accept the GAC Durban Advice. Further, as is discussed above, the Requester's argument regarding the alleged untimeliness of the GAC Durban Advice is not a proper basis for reconsideration.41

The Requester also argues that the NGPC failed to consider material public comments and correspondence. For instance, the Requester argues that, while the NGPC considered the responses of the governments of Brazil and Peru to the Expert Analysis, it did not consider the Requester's response.42 However, in its rationale the NGPC explicitly noted that it considered communications it received in response to the Expert Analysis, including the 14 April 2014 response from Scott Hayden, the Requester's Vice President, Intellectual Property, as well as letters from the Peruvian government and the Brazilian government. The Requester identifies no other specific public comment or piece of correspondence that it claims the NGPC failed to consider, and the NGPC's rationale for the Resolution clearly states that its "review of significant materials included, but [was] not limited to," the listed materials.43 In any event, the Requester does not identify any provision in the Bylaws or Guidebook that would require the NGPC to consider (much less identify and discuss) every comment or piece of correspondence received.44
The NGPC Did Not Fail to Consider Material Information from the United States Government.

The BGC concluded, and the NGPC agrees, that the Requester has not demonstrated that the NGPC failed to consider material information with respect to the United States Government's statement.

The Requester argues that the NGPC failed to consider material information by failing to consider the July 2013 statement from the United States Government on geographic indicators.45 In its statement, the United States Government expressed its intent to "remain neutral" on the Applications, so as to "allow[] the GAC to present consensus objections on those strings to the Board, if no other government objects." Nonetheless, the Requester argues that "[t]he statement from the U.S. Government calls into direct question the belief that the GAC Durban Advice is clearly representative of the consensus adoption of the entire GAC of the opinion set forth by Brazil and Peru in its Early Warning or follow-up correspondence."46

Further, the United States Government's statement does not negate the fact that the GAC Durban Advice represents consensus GAC Advice. Pursuant to GAC Operating Principle 47, "consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection."47 As the statement makes clear, the United States did not object to the GAC Durban Advice. The mere fact that the United States remained neutral with respect to the GAC Durban Advice was not material to the NGPC's consideration of that advice.
The NGPC Did Not Fail to Consider Material Information with Respect to the Expert Determination.

The BGC concluded, and the NGPC agrees, that the Requester has not demonstrated that the NGPC failed to consider material information with respect to the Expert Determination.

The Requester argues that the NGPC improperly failed to consider the Expert Determination rejecting the IO's Community Objection to the Amazon Applications.48 The Requester appears to contend that the Expert Determination was material because: (1) the objections of the Brazilian and Peruvian governments would have been properly raised in the context of a Community Objection—which those governments did not bring; and (2) a Community Objection by those governments would have failed, as is evidenced by the Expert Determination.49

GAC members are not limited to raising objections that could have been raised in, or that meet the standards required to prevail upon, one of the four enumerated grounds for formal objections. (Guidebook Module 3, § 3.2.) Rather, GAC Advice on new gTLD applications is generally "intended to address applications that are identified by national governments to be problematic, e.g., that potentially violate national law or raise sensitivities." (Guidebook Module 3, § 3.1.) GAC members' discretion with respect to their reasons for objecting to gTLD applications is reflected in the fact that the GAC is not required to issue a rationale for its advice. In any event, the briefing materials of the NGPC's 29 April 2014 and 14 May 2014 meetings reflect that the Expert Determination was considered by the NGPC during its deliberations on the Amazon Applications.50
The NGPC Did Not Fail to Consider Material Information with Respect to the Expert Analysis.

The BGC concluded, and the NGPC agrees, that the Requester has not demonstrated that the NGPC failed to consider material information with respect to the Expert Analysis.

The Requester argues that ICANN instructed Professor Passa "to address only whether under intellectual property laws, governments could claim legally recognized sovereign or geographic rights in the term 'Amazon' or whether ICANN was 'obliged' to grant .AMAZON based on pre-existing trademark registrations," when "[t]he real question is whether, by accepting GAC advice, which is not rooted in any existing law, ICANN would be violating either national [or] international law." 51

The Guidebook sets forth the parameters in which GAC Advice will be given under the New gTLD Program:

ICANN will consider the GAC Advice on New gTLDs as soon as practicable. The Board may consult with independent experts, such as those designated to hear objections in the New gTLD Dispute Resolution Procedure, in cases where the issues raised in the GAC advice are pertinent to one of the subject matter areas of the objection procedures.

(Guidebook, § 3.1) (emphasis added). Under this provision, the Board has the discretion to seek an independent expert opinion on issues raised by GAC Advice. The Board may also define the scope of its consultation with independent experts. As such, the Requester's objection to the scope of Professor Passa's assignment is not a basis for reconsideration.

The Requester has not cited to any provision of the Bylaws or Guidebook that would require ICANN to commission additional legal studies at the request of a New gTLD Applicant. Reconsideration for failure to consider material information is not proper where "the party submitting the request could have submitted, but did not submit, the information for the Board's consideration at the time of the action or refusal to act." (Bylaws, Art. IV, § 2.b.) The Requester was given multiple opportunities to present materials for the NGPC's consideration, including the opportunity—which it accepted—to respond to the Expert Analysis. In fact, the Requester attached to its response to the GAC Durban Advice a lengthy except from a legal treatise on the protection of geographic names.52 If the Requester believed that additional legal analysis was required, it was free to commission that analysis and submit it to the NGPC.
The NGPC Did Not Fail to Consider Material Information with Respect to Its Bylaws, Articles of Incorporation, and Affirmations of Commitment.

The BGC concluded, and the NGPC agrees, that the Requester has not stated a proper basis for reconsideration with respect to the NGPC's consideration of its obligations under ICANN's Bylaws, Articles of Incorporation, and Affirmations of Commitment.

The Requester alleges that the NGPC failed to take into account material information regarding its obligations under Articles I.2, II.3, and III.1 of ICANN's Bylaws; Article 4 of its Articles of Incorporation; and Sections 4, 5, 7, and 9.3 of its Affirmations of Commitment.53 The Requester's disagreement with the Resolution does not, however, demonstrate that the NGPC failed to consider those obligations. And, as the rationale for the Resolution makes clear, the NGPC acted pursuant to its obligation under Article XI, Section 2.1 of the Bylaws, to duly address advice put to it by the GAC.54
The NGPC Did Not Fail to Consider Material Information with Respect to the Fiscal Implications of the Resolution.

The BGC concluded, and the NGPC agrees, that the Requester has not demonstrated that the NGPC failed to consider material information with respect to the fiscal implications of the Resolution. The Requester contends that "[s]hould it be determined that the [Resolution] in fact violates various national and international laws, the costs of defending an action (whether through the Independent Review Process or through U.S. courts) will have significant fiscal impacts on ICANN. . . . "55 The Requester has not demonstrated that the NGPC did not consider the potential for litigation arising out of the Resolution, including the potential fiscal impact of such litigation. In any event, the Requester has not demonstrated how the speculative possibility of litigation is material to the NGPC's determination here. As such, the Requester has not identified a proper ground for reconsideration.
Decision

The NGPC had the opportunity to consider all of the materials submitted by or on behalf of the Requester or that otherwise relate to Request 14-27, including correspondence dated 4 September 2014 from Flip Petillion on behalf of the Requester regarding the BGC Recommendation on Reconsideration Request 14-27.56 Following consideration of all relevant information provided, the NGPC reviewed and has adopted the BGC's Recommendation on Request 14-27 (https://www.icann.org/en/system/files/files/recommendation-amazon-22aug1... [PDF, 177 KB]), which shall be deemed a part of this Rationale and is attached to the Reference Materials to the NGPC Submission on this matter.

In terms of timing of the BGC's Recommendation, Sections 2.16 and 2.17 of Article IV of the Bylaws provides that the BGC shall make a final determination or recommendation to the Board [or NGPC as appropriate] with respect to a Reconsideration Request within thirty days following receipt of the request, unless impractical and the Board [or NGPC as appropriate] shall issue its decision on the BGC's recommendation within 60 days of receipt of the Reconsideration Request, or as soon thereafter as feasible. (See Bylaws, Article IV, Sections 2.16 and 2.17.) The BGC required additional time to make its recommendation due to its request for clarification from the Requester, and due to the volume of Reconsideration Requests received within recent months. As such, the first practical opportunity for the BGC to make a decision on this Request was on 22 August 2014; it was impractical for the BGC to do so sooner. Then, the first feasible chance for the NGPG to consider Request 14-27 was on 8 September 2014.

Adopting the BGC's recommendation has no direct financial impact on ICANN and will not negatively impact the systemic security, stability and resiliency of the domain name system.

This decision is an Organizational Administrative Function that does not require public comment.