Consideration of BAMC's Recommendation on Reconsideration Request 20-1

Brief Summary and Recommendation

The full factual background is set forth in the BAMC Recommendation on Request 20-1 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

On 21 April 2020, the BAMC evaluated the portion of Request 20-1 that the BAMC previously found to be sufficiently stated7 and all relevant materials, and recommended that the Board deny Request 20-1 because the ICANN Board and Staff have not violated ICANN's Commitment to transparency, ICANN's Commitment to apply documented policies consistently, or ICANN's established policies in relation to its evaluation of the Change of Control Request (collectively, the Transparency and Consistency Claims).

On 7 May 2020, the Requestor submitted a Rebuttal to the BAMC Recommendation (Rebuttal) pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws. The Requestor claims that: (1) Request 20-1 is not mooted by the Board's direction to ICANN org to withhold consent for the Change of Control Request;8 (2) "ICANN's undue reliance on the formal requirements" of the Reconsideration Request process is unfair; (3) the BAMC Recommendation does not address the Requestor's "concerns regarding the lack of transparency" concerning ICANN organization's consideration of the Change of Control Request; and (4) the 2019 renewals of the registry agreements for .ORG, .BIZ, and .INFO violated ICANN's Bylaws and Articles of Incorporation.9

The Board has carefully considered the BAMC's Recommendation and the Requestor's Rebuttal, as well as all relevant materials for Request 20-1, and concludes that Request 20-1 is denied.

Issue

The issue as presented by the Requestor is as follows:

Whether the ICANN Board's and Staff's alleged failure to disclose the criteria they will use to evaluate the Change of Control Request and alleged failure to apply the 2002 DNSO Recommendations to the Change of Control Request contradict:

ICANN org's Commitment to "operate . . . through open and transparent processes."
ICANN org's Commitment to "[m]ake decisions by applying documented policies consistently, neutrally, objectively, and fairly, without singling out any particular party for discriminatory treatment."
The 2002 DNSO Recommendations.
Analysis and Rationale

Request 20-1 Is Moot.

The Requestor asserts on Rebuttal that Request 20-1 "is not rendered moot" by the 30 April 2020 Board Action on Change of Control Request.10 The Board disagrees. The Board Action on Change of Control Request eliminated the alleged harm that the Requestor asserted in Request 20-1, thereby rendering the Request moot. The Requestor asserted that "[a]llowing . . . radical changes [to registry operator ownership] in undocumented and/or non-transparent processes . . . have immediate repercussions upon the Requestor's business, as it significantly affects the level of trust of customers in the domain name industry."11 The alleged "radical change"—approving the Change of Control Request—did not happen. Instead, the Board "direct[ed] ICANN's President and CEO to withhold ICANN's consent to PIR's Change of Control Request pursuant to Section 7.5 of PIR's Registry Agreement[], thereby rejecting PIR's request."12 Without the predicate "radical change" that formed the basis for the Requestor's alleged harm, Request 20-1 is moot.

Neither Request 20-1 Nor The Rebuttal Support Reconsideration of the Transparency and Consistency Claims.

Notwithstanding that Request 20-1 is moot, the Board has considered the Transparency and Consistency Claims, and the Rebuttal, and concludes that they do not support reconsideration.

ICANN Organization's Evaluation of the Change of Control Request Has Been Open and Transparent.

The Requestor claims that ICANN organization violated its Commitment to transparency by not disclosing "the criteria ICANN intends to use for evaluation" of the Change of Control Request.13 The BAMC concluded, and the Board agrees, that ICANN organization not only took extensive steps to seek additional information from PIR, ISOC, and the public in support of its consideration of the Change of Control Request, but thoughtfully considered the materials and issues over time and published multiple updates reflecting those considerations.

The Board also agrees with the BAMC and the Ombudsman that ICANN organization's extensive public postings concerning its considerations of the Change of Control Request demonstrate that ICANN organization and the Board did not contradict ICANN's Commitment to transparency.

The Board Action on Change of Control Request provides even more transparency concerning ICANN organization's evaluation of PIR's Change of Control Request. The Board Action on Change of Control Request highlights the following considerations relevant to the Board's decision to direct ICANN organization to withhold its approval for the Change of Control Request:

The Change of Control would be "fundamental" and would affect "one of the longest-standing and largest registries."
It would "include a change in corporate form from a viable not-for-profit entity to a for-profit entity with a US$360 million debt obligation, and with new and untested community engagement mechanisms relying largely upon ICANN contractual compliance enforcement to hold the new entity accountable to the .ORG community."
"[T]he new proposed for-profit entity . . . no longer has the embedded protections that come from not-for-profit status, which has fiduciary obligations to its new investors and is obligated to service and repay US$360 million in debt."
"[W]hile technically ICANN will still hold a contract with PIR, the changes in the form of that entity are of meaningful significance to the Board's consideration of the Change of Control Request."
"[T]he public interest is better served in withholding consent as a result of various factors that create unacceptable uncertainty over the future of the third largest gTLD registry."14
In addition to the above statements, the Board Action on Change of Control Request contains an entire section titled "ICANN's Evaluation Process," which explains that the Board considered the following information in its evaluation of the Change of Control Request:15

Public comments "rais[ing] concerns and questions about the future commitments for how PIR will continue to serve the .ORG community."16
The fact that "the 'new' PIR would look to ICANN to enforce [the relationship between end users and PIR] through an untested 'Stewardship Council' . . . including on matters of PIR's internal policies."17
"[T]he lack of transparency concerning Ethos Capital's exit strategy for the PIR investment or its plans relating to capital disbursements from PIR's operations to Ethos Capital and the other investors."18
"[T]he fact that Ethos Capital is a recently formed private equity firm, without a history of success in owning and operating a registry operator."19
"[T]he information provided by PIR concerning the investors involved in the transaction, [including] that PIR declined to provide the specific ownership interests of the investors in the transaction (it only provided general categories of ownership levels)."20
"[T]he ability of PIR to engage in the business operations and practices that Ethos Capital and PIR argue will benefit the .ORG community solely as a result of the transaction."21
Each letter sent to the Board concerning its evaluation of the Change of Control Request.22
A 15 April 2020 letter from the California Attorney General's Office (CA-AGO), "urg[ing] ICANN to reject the [Change of Control Request]," and stating "that approval of PIR's change of control request would be in contravention of the CA-AGO's declared public interest."23
"[T]he lack of approval from the Pennsylvania [Attorney General]."24
In its Rebuttal, the Requestor asserts that it "still . . . challenges the opaque way in which ICANN handled the . . . PIR Change of Control process[]."25 This assertion ignores the extensive information that ICANN organization and the Board have published concerning their evaluation of the Change of Control Request, including the information addressed in the BAMC Recommendation and the additional information provided in the Board Action on Change of Control Request.

The Board concludes that ICANN organization has acted consistent with its Commitment to transparency in posting voluminous materials concerning ICANN organization's evaluation of the Change of Control Request, culminating in the Board Action on Change of Control Request, which sets forth ICANN's evaluation process.

ICANN Organization's Evaluation of the Change of Control Request Has Adhered to its Commitment to Apply Documented Policies Consistently, Neutrally, Objectively, and Fairly.

The Requestor asserts that "[u]nless the Internet community develops a specific policy for evaluating the [Change of Control Request], the criteria [set forth in the 2002 DNSO Recommendations] should comprise the policy and the evaluation criteria."26 The Requestor then claims that because ICANN org is not applying the 2002 DNSO Recommendations, ICANN org's actions are inconsistent with its Commitment to "[m]ake decisions by applying documented policies consistently, neutrally, objectively, and fairly, without singling out any particular party for discriminatory treatment."27

The BAMC concluded, and the Board agrees, that the 2002 DNSO Recommendations were not adopted as an established ICANN policy as the Requestor is defining them and, therefore, cannot support a reconsideration request alleging violation of ICANN organization's Commitment to apply documented policies consistently. As noted in the BAMC Recommendation, the Board considered the 2002 DNSO Recommendations, adopting only some and rejecting others28; and then defined its own principles and criteria for evaluating and selecting from among the proposals received in 2002 for operating .ORG (ICANN's 2002 Assessment Criteria).29 In addition, it should be noted that none of the eleven proposals received for the operation of .ORG perfectly satisfied all of ICANN's 2002 Assessment Criteria.30

Moreover, ICANN organization is not required to apply the 2002 DNSO Recommendations or ICANN's 2002 Assessment Criteria to a request for indirect change of control in 2020 in the way the Requestor suggests.31 Nonetheless, ICANN organization has made clear that it recognizes the principles found in the ICANN 2002 Assessment Criteria and considered them, along with all relevant information, in its evaluation of the Change of Control Request, as did the Board in coming to its decision on the Change of Control Request.

The BAMC's Summary Dismissal of The Requestor's Other Claims is Final.

The Requestor asserts that the BAMC "unduly dismissed part of [Request 20-1]" in the BAMC's Partial Summary Dismissal.32 The Requestor asks the Board to grant reconsideration on the claims that the BAMC summarily dismissed, by "correct[ing] the illicit removal of price caps" in the .ORG, .INFO, and .BIZ registry agreements.33

The Board finds that the Requestor's new claims are not properly asserted. The rebuttal shall "be limited to rebutting or contradicting the issues raised in the [BAMC's] final recommendation."34 The BAMC's Partial Summary Dismissal is not an "issue[] raised in the [BAMC's] final recommendation" and is therefore not properly raised on rebuttal.

The Board also notes that the BAMC is empowered to summarily dismiss claims that fail to meet the requirements for bringing a Reconsideration Request without Board action;35 summary dismissal is not part of the Board's review process in Request 20-1, and therefore is not properly challenged through the Rebuttal.

Notwithstanding the above, and as the BAMC explained in the Partial Summary Dismissal, challenges to the 2019 registry agreement renewals for .ORG, .BIZ, and .INFO are now untimely. Requests for Reconsideration must be submitted "within 30 days after the date on which the Requestor became aware of, or reasonably should have become aware of, the challenged Staff action."36 The registry agreement renewals were announced on 30 June 2019 and Request 20-1 was submitted on 8 January 2020, 192 days after the Requestor became aware of the renewals.37

The Requestor attempts in the Rebuttal to argue there is no time bar by arguing that "[e]ach day that ICANN fails to reintroduce the price caps and to provide the necessary transparency, ICANN commits a new inaction, i.e., a wrongful act by omitting to correct an ongoing violation, that can be challenged."38 This is an incorrect reading of the time limits for submitting Reconsideration Requests. The Requestor is attempting to challenge ICANN Staff action: ICANN Staff's renewal of the .ORG, .BIZ, and .INFO registry agreements without provisions that the Requestor believes should have been included in the agreements. That action occurred on a date certain, i.e., 30 June 2019, and the time to challenge it commenced on 30 June 2019. The Requestor's suggestion that an alleged improper action also creates a "new inaction" or "wrongful act by omi[ssion]" every day thereafter is unsupported and, moreover, is not tenable as it would render meaningless the time requirement for filing a reconsideration request.

Finally, challenges to the 2019 .ORG and .INFO registry agreement renewals do not support reconsideration for the reasons set forth in the Board's Final Determination on Request 19-2, which are incorporated here.39

The Requestor's New Claims are Not Properly Raised on Rebuttal.

The Requestor makes several new claims in its Rebuttal. These claims are not properly raised on rebuttal, which shall "be limited to rebutting or contradicting the issues raised in the [BAMC's] final recommendation," and shall "not offer new evidence to support an argument made in the Requestor's original Reconsideration Request that the Requestor could have provided when the Requestor initially submitted the Reconsideration Request."40

First, the Requestor complains about the Reconsideration Request process, as set forth in the Bylaws, asserting that: (1) "ICANN's undue reliance on the formal requirements" of the Bylaws provisions concerning the scope of rebuttals is unfair; and (2) the Reconsideration Request process does not provide the Requestor "access to essential documents," so the Requestor believes that it lacks "a fair opportunity to contest all arguments and evidence adduced by the BAMC."41

The Requestor did not seek reconsideration of these Bylaws provisions in Request 20-1, so they are not properly raised on rebuttal.42 Moreover, these Bylaws provisions have been in effect since October 2016.43 The Requestor submitted Request 20-1 on 8 January 2020 and submitted the Rebuttal on 7 May 2020—well beyond the 30-day time limit for bringing a Reconsideration Request.44 As to the Requestor's complaints about access to ICANN's documents, the Board notes that the Reconsideration Request process is not designed to provide litigation-style discovery to requestors.45

Second, the Requestor "calls for an investigation regarding the involvement of former ICANN officials in the proposed PIR/Ethos Capital transaction," and third, the Requestor "calls for clear criteria and processes that should govern major changes to legacy TLDs going forward."46 These requests were likewise not raised in Request 20-1 and are therefore not properly raised on rebuttal.47 Additionally, for the reasons explained above, all of the Requestor's claims arising out of the 2019 .ORG, .INFO, and .BIZ registry agreement renewals are time-barred.

Conclusion.

The Board has considered the merits of the Transparency and Consistency Claims and all relevant materials. The Board adopts the BAMC Recommendation on Request 20-1 because the ICANN Board and Staff have not violated ICANN's Commitment to transparency, ICANN's Commitment to apply documented policies consistently, or ICANN's established policies in relation to the Change of Control Request.

We note that in Request 20-1, the Requestor stated: "In the event that ICANN does not immediately grant [its] request[s in Request 20-1], the Requestor asks that ICANN engage in conversations with the Requestor and that a hearing be organized"; and that, "prior to the hearing," ICANN provide the Requestor various documents and information.48 The Board does not read the Requestor's request to be heard after "ICANN does not immediately grant" Request 20-1 to be a request pursuant to the Bylaws to be heard before the BAMC issues its Recommendation to the Board. Rather, the Requestor asks to be heard only in the event the Board fails to grant (in other word denies) Request 20-1, which the Bylaws do not provide for.

In any event, the Board concludes that hearing from the Requester is not necessary because Request 20-1 is both moot and does not support reconsideration for the reasons described above.

This action is within ICANN's Mission and is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures. This accountability includes having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board.

This action should have no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.

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