Consideration of Reconsideration Request 16-5: DotMusic Limited

Brief Summary and Recommendation

The full factual background is set forth in the BAMC Recommendation on Request 16-5 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

On 25 January 2018, the BAMC evaluated Request 16-5 and all relevant materials and recommended that the Board deny Request 16-5 because the CPE Provider did not violate any established policies or procedure in conducting the CPE and ICANN org complied with established policies, Bylaws, and Articles of Incorporation when it accepted the CPE Report. The BAMC also recommended that the Board deny Request 16-5 because the Requestors did not identify any misapplication of policy or procedure by the CPE Provider that materially or adversely affected the Requestors.

The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 16-5, and the Board agrees with the BAMC's Recommendation.

On 12 February 2019, the Requestors submitted a rebuttal to the BAMC's Recommendation (Rebuttal). The Board notes that the Rebuttal is not called for under the Bylaws applicable to Request 16-5.3 Nonetheless, the Board has considered the arguments set out in the Requestors' rebuttal and finds that they do not support reconsideration for the reasons set forth below.

Issue

The issues are as follows:

Whether the Declaration of the Independent Review Process (IRP) Panel in Little Birch LLC et al. v. ICANN and Despegar Online SRL et al. v. ICANN (Despegar IRP) requires the Board to reconsider the CPE Report;
Whether the Board's acceptance of ICANN's Governmental Advisory Committee (GAC) Category 1 and 2 Advice required the CPE Provider to grant the Application community priority;
Whether the CPE Provider had a conflict of interest with respect to the Application;
Whether ICANN org made any revisions to the CPE Report, and if so, whether those revisions adhered to established policies or procedures;
Whether the CPE Provider adhered to applicable policies and procedures in its application of CPE criterion 1: Community Establishment;
Whether the CPE Provider adhered to applicable policies and procedures in its application of CPE sub-criterion 2-A-Nexus; and
Whether the CPE Provider adhered to applicable policies and procedures in its application of CPE sub-criterion 4-A-Support.
These issues are considered under the relevant standards for reconsideration requests in effect at the time that Request 16-5 was submitted. These standards are discussed in detail in the BAMC Recommendation and are incorporated here.

Analysis and Rationale

The CPE Criteria and Procedures

CPE is a contention resolution mechanism available to applicants that self-designated their applications as community applications.4 The CPE standards and CPE process are defined in Module 4, Section 4.2 of the Applicant Guidebook (Guidebook). Community-based applications that undergo CPE are evaluated by the following criteria: Criterion 1: Community Establishment; Criterion 2: Nexus Between the Proposed String and Community; Criterion 3: Registration Policies; and Criterion 3: Community Endorsement.5 Pursuant to the Guidebook, the sequence of the criteria reflects the order in which those criteria will be assessed by the CPE Provider. To prevail in CPE, an application must receive at least 14 out of 16 points on the scoring of the four criteria, each of which is worth a maximum of four points. An application that prevails in CPE "eliminates all directly contending standard applications, regardless of how well qualified the latter may be."6 CPE is performed by an independent panel composed of two evaluators who are appointed by the CPE Provider.7 A CPE Provider's role is to determine whether the community-based application fulfills the four community priority criteria set forth in Module 4.2.3 of the Guidebook.8

The CPE process does not determine the existence, adequacy, or validity of a community. It merely evaluates whether a community-based application satisfies the CPE criteria for community priority. As the Guidebook notes, "a finding by the [CPE Provider] that an application does not meet the scoring threshold to prevail in a community priority evaluation is not necessarily an indication the community itself is in some way inadequate or invalid."9

The Despegar IRP Declaration Does Not Support Reconsideration.

The Requestors claim that reconsideration is appropriate because the CPE process is purportedly fundamentally flawed. In support, the Requestors reference the Despegar IRP Declaration, which the Requestors argue points out issues and concerns that the IRP Panel had with the CPE process.10 The Requestors contend that the concerns expressed by the DespegarIRP Panel demonstrate that the CPE Provider and ICANN org violated established policies and procedures relating to the evaluation of the Application.11 The DespegarIRP Panel recommended, among other things, that a system be put in place for future new gTLD rounds to ensure that CPE evaluations are conducted "on a consistent and predictable basis by different individual evaluators" and that ICANN org's core values "flow through . . . to entities such as the [CPE Provider]."12 The Requestors seem to assert that the Despegar IRP Declaration requires the Board to either conduct a review of the CPE Process as a whole—which the Board did in the CPE Process Review—or to reject the CPE Report here based on the purported flaws.13

However, as BAMC concluded, and the Board agrees, nothing in the Despegar IRP Declaration or ICANN org's acceptance of it mandates that result. In accepting the Despegar IRP Declaration (2016 Resolution),14 the Board "note[d] the [IRP] Panel's suggestions" and directed ICANN org to "ensure that the New gTLD Program Reviews take into consideration the issues raised by the Panel as they relate to the consistency and predictability of the CPE process and third-party provider evaluations."15 Separately, the CPE Process Review provided additional careful review of the CPE process, with special consideration of ICANN org's relationship with the CPE Provider.16

Nothing about the Despegar IRP Declaration or the Board's acceptance of it mandates that the CPE process be modified for the Application,17 or that the BAMC change its standard of review for reconsideration requests challenging CPE reports. Accordingly, nothing about the Despegar IRP Declaration or the 2016 Resolution requires the Board to take any action with respect to the CPE Report beyond determining whether ICANN org and the CPE Provider followed established policy and procedure with respect to that report. As discussed further below, the Requestors identify no violations of established policy or procedure with respect to the CPE Report.

Moreover, to the extent the Requestors are arguing that the Despegar IRP Declaration mandates that the Board undertake a review of the CPE Process as a whole, as described above, the Board did undertake such a review: the CPE Process Review. DotMusic challenged the outcome of the CPE Process Review in Request 18-5,18 which the Board denied.19 The Requestors have not identified any material information that the Board failed to consider, or any false or misleading information on which the Board relied, in declining to overturn the CPE Report in light of the Despegar IRP Declaration or otherwise responding to it.

The Board's Acceptance of the GAC's Category 1 and Category 2 Advice Has No Bearing on DotMusic's Claim for Community Priority.

The Requestors assert that ICANN org should have given "preferential treatment" to the Application in response to the GAC's Category 1 and 2 Advice.20 The GAC's Category 1 Advice suggested that certain types of strings should be subject to additional safeguards. These types of strings included: (a) strings that involve regulated sectors; (b) strings that raise consumer protection concerns; and (c) other sensitive strings. .MUSIC was one of the new gTLDs subject to the GAC's Category 1 Advice as a string that raises consumer protection concerns – namely, intellectual property concerns.21 The GAC's Category 2 Advice suggested, among other things, that strings representing generic terms (Generic Term Strings) should not be operated as exclusive access registries unless doing so would "serve a public interest goal."22 .MUSIC also was one of the Generic Term Strings subject to the GAC's Category 2 Advice.

The BAMC determined, and the Board agrees, that nothing in the Board's acceptance of and response to the GAC's Category 1 and 2 Advice required ICANN org to give "preferential treatment" to community applications for .MUSIC.23 The GAC's Category 1 and 2 Advice did not even discuss community versus standard applications. Moreover, contrary to what the Requestors assert, the .MUSIC string was subject to Category 1 Advice because it raised intellectual property concerns, not because it involved a regulated sector.24 As such, nothing about the GAC's Category 1 Advice implied that .MUSIC involved a community with "cohesion" as the Requestors suggest.25 Regarding the Category 2 Advice, the GAC stated that the Generic Term Strings, such as .MUSIC, represented generic terms for which exclusive registry access was not appropriate. The GAC's advice and ICANN org's acceptance of the Category 2 Advice has no bearing or relationship to community priority. Thus, the Board agrees with the BAMC's conclusion that the Requestors' argument does not support reconsideration.

Nothing in the Generic Names Supporting Organization's (GNSO) Recommendations Required that Claims of Community Priority be "Taken on Trust."

The Requestors claim that CPE should not have been required at all because ICANN org's GNSO recommended that an application's assertions of community representation should be "taken on trust."26 The Requestors misread the language of the GNSO's implementation guidelines, which are not the GNSO's policy recommendations, and which call for some type of CPE. Specifically, the GNSO noted that:

Where an applicant lays any claim that the TLD is intended to support a particular community such as a sponsored TLD, or any other TLD intended for a specified community, that claim will be taken on trust with the following exceptions:

(i) the claim relates to a string that is also subject to another application and the claim to support a community is being used to gain priority for the application; and

(ii) a formal objection process is initiated.27

Accordingly, the Guidebook provides that "[e]valuation of an applicant's designation as community-based will occur only in the event of a contention situation that results in a community priority evaluation."28 An applicant for a community-based application must choose to undergo CPE, although it is not required. Such applicants choose to do so because only via CPE can they gain priority over other competing applications for the same string.29 Therefore, no established policy or procedure exists that requires ICANN org to take DotMusic's claim of community priority "on trust." As such, ICANN did not violate any policies or procedures in declining to take DotMusic's claim of community priority "on trust."

The Requestors Have Not Demonstrated Any Conflict of Interest on the Part of the CPE Provider.

The Requestors contend that the CPE Provider had a conflict of interest with respect to the Application because Eric Schmidt, the executive Chairman of Google from 2001 to 2017, was a member of the Board of Directors of the Economist Group, the CPE Provider's parent company, from November 2013 through December 2015,30 and Vint Cerf, Vice President of Google since 2003, "chaired an ICANN strategy Panel in 2013 (when applications were being evaluated)," and Google also submitted an application for .MUSIC.31 The Board agrees with the BAMC that this argument does not support reconsideration for the following reasons.

First, the Requestors present no evidence that the CPE Provider failed to confirm that none of the evaluation panelists or core team members had any conflicts with respect to the community-based applications as required by the Guidebook, the CPE Panel Process Document and the CPE Guidelines.32 The Requestors do not allege that Eric Schmidt—a high level executive—was an evaluation panelist or a core team member (he was not), or that he had any influence over, or knowledge of, the CPE Report (or even had any involvement whatsoever with the CPE Provider, which is a single division within the Economist Group). In fact, the CPE Report was issued two months after Mr. Schmidt ceased to be a board member of the Economist Group.33 Likewise, DotMusic has not explained how Vint Cerf's position on an ICANN Strategy Panel concerning the Internet Governance Ecosystem 34 in 2013, three years before the CPE Report was issued, had any effect on the Application.

Second, the sole basis for the Requestors' bias argument is their contention (based on a sample set of 22 CPE reports) that community applications that were in contention with Google were more likely to fail CPE.35 The fact that many applications did not prevail in CPE fails to show any procedural violation whatsoever. Any application that prevails in CPE is awarded priority over all other applications therefore, the CPE process intentionally sets a high bar for an application to prevail.36 As such, that numerous applications did not prevail in CPE does not in any way demonstrate that the CPE Provider failed to follow established procedure and policy in ensuring that the members of the CPE Provider had no conflicts with respect to the Application.37 Moreover, the CoE Report on which DotMusic relies for these arguments concluded that "there is no evidence that Google in any way influenced the decisions taken on CPEs."38

ICANN Org Is Not Involved in Scoring CPE Criteria.

The Requestors argue that certain communications between ICANN org and the CPE Provider that were identified in the Dot Registry v. ICANN IRP (CPE Communications) demonstrate that ICANN org "materially" revised the CPE Report in violation of established policy and procedure.39 The BAMC concluded, and the Board agrees, that nothing in the CPE Communications supports the Requestors' view that ICANN org revised the CPE Provider's scoring on DotMusic's Application. The CPE Process Review's Scope 1 Report confirms that "there is no evidence that ICANN org had any undue influence on the CPE Provider with respect to the CPE reports issued by the CPE Provider or engaged in any impropriety in the CPE process," including with respect to the Application.40 When ICANN org provided input to the CPE Provider, that input did not involve challenging the CPE Provider's conclusions (including scoring determinations), but rather ensuring that the CPE Reports were clear and "that the CPE Provider had engaged in a robust discussion on each CPE criterion in the CPE report.41 FTI observed that "ICANN organization did not suggest that the CPE Provider make changes in the final scoring or adjust the rational set forth in the CPE report[s]."42

The Requestors identify no established policy or procedure (because there is none) preventing ICANN org from communicating with the CPE Provider regarding the language in CPE reports. Nor does anything in the CPE Communications demonstrate, as the Requestors argue, that the CPE Provider lacked the necessary expertise to conduct CPEs. As such, the Requestors have not stated a basis for reconsideration in this regard.

The CPE Report did not Implicate Due Process Rights.

The Board agrees with the BAMC's determination that the Requestors' assertion that the CPE Provider and ICANN org failed to "follow due process" does not warrant reconsideration.43 The Requestors have not demonstrated any failure by the CPE Provider to follow the established policy and procedures for CPE as set forth in the Guidebook.

The BAMC noted that the relevant Bylaws do not reference due process.44 At bottom, the Requestors are suggesting that there should have been a formal appeal process for decisions by ICANN org's third-party service providers, including the CPE Provider, Legal Rights Objection Panel, and String Confusion Panels. The methods for challenging determinations in the course of the gTLD contention resolution process are set forth in the Guidebook, which was developed after years of extensive discussions with a wide variety of stakeholder groups, including governments, individuals, civil society, business and intellectual property constituencies, and the technology community.45 Numerous drafts of the Guidebook itself were released for public comment, and revised in light of meaningful community input.46 The time for challenging the Guidebook has long passed.47

Moreover, the Guidebook provides a path for challenging the results of the CPE process: Module 6 of the Guidebook states that applicants, including DotMusic, "may utilize any accountability mechanism set forth in ICANN's Bylaws for purposes of challenging any final decision made by ICANN with respect to the application."48 The Requestors have exercised this right by invoking the Reconsideration process repeatedly,49 including with Request 16-5.

Because the CPE Provider's application of the CPE criteria to the Application was consistent with the Guidebook, ICANN org's acceptance of the CPE Report was also consistent with applicable policies and procedures, and did not implicate any "due process" violation. Nor does the fact that there was no option to appeal the substance of evaluation results implicate any due process violation.

The Requestors' Claim Concerning Revenues from Auctions Does Not Support Reconsideration.

The Board agrees with the BAMC's conclusion that the Requestors have not provided any evidence (because none exists) to support the Requestors' claim that ICANN org's acceptance of the CPE Report was motivated by some sort of financial incentive to earn revenues through the auction process. Further, the Requestors have not shown that any applicable ICANN policy or procedure was violated. Thus, this argument does not support reconsideration.

The CPE Provider Adhered to Applicable Policies and Procedures in its Application of the CPE Criteria.

The Requestors object to the CPE Provider's decision to award only 10 of the possible 16 points to the Application. For the reasons set forth in Section VI.I of Attachment 1 to the BAMC Recommendation, which are incorporated herein by reference, the Board agrees with the BAMC's findings that reconsideration is not warranted because the Requestors failed to demonstrate that the CPE Provider violated any established policy or procedure in scoring the Application. Moreover, the Board agrees with the BAMC that the Requestors' argument represents a substantive disagreement with the CPE Provider's conclusions, and that this is not a sufficient basis for reconsideration.

The Requestors' Claims Regarding the CPE Process Review Do Not Support Reconsideration.

The BAMC determined, and the Board agrees, that the Requestors' claims regarding the CPE Process Review do not support reconsideration for all the reasons detailed in Section VI.K of Attachment 1 to the BAMC Recommendation, which is incorporated herein by reference. Specifically, the Board finds that the Requestors' criticisms concerning the conclusion of the CPE Process Review do not support reconsideration. The Board further notes that it addressed many of the Requestors' concerns in its Action on Reconsideration Request 18-5, which are incorporated herein by reference.

The Board also agrees with the BAMC's conclusion that Requestor DotMusic's 50 demand that ICANN org disclose all documents related to the CPE Process Review is not required by any established policy or procedure. Further, the Board previously addressed DotMusic's demand for the same documents it its Action on Reconsideration Request 18-1, which is incorporated herein by reference. The Board also agrees with the BAMC's conclusion that there is no established policy or procedure requiring ICANN org to bear DotMusic's costs and expenses for reviewing any documents produced by ICANN org and for preparing supplemental submissions to the BAMC concerning those documents. The Board further agrees with BAMC that there is no established policy or procedure requiring ICANN org to provide DotMusic with a list of specific concerns about Request 16-5 following DotMusic's supplemental submission and to schedule an in person presentation to address them (once the above-described conditions are met).51

The Rebuttal Does Not Raise Arguments or Facts That Support Reconsideration.

As an initial matter, Request 16-5 was submitted pursuant to the 11 February 2016 Bylaws, see Discussion supra, which do not call for a rebuttal to the BAMC's recommendation.52 Nonetheless, the Board has considered the Requestors' Rebuttal and finds that the Requestors have not provided any additional arguments or facts supporting reconsideration.

The Requestors' Arguments Concerning the Community Definition Do Not Support Reconsideration.

The Requestors assert that the CPE Provider misapplied the evaluation criteria on community establishment (Criterion 1) because it relied upon the community defined in response to Question 20D of DotMusic's Application. The Requestors contend that the Guidebook required the CPE Provider to rely solely on the community definition set forth in DotMusic's response to Question 20A.53 As support, the Requestors cite to a chart in the Attachment 2 to Module 2 of the Guidebook, which explains the evaluation questions, criteria, scoring and evaluation methodology of new gTLD applications.54 The explanation for the "Question" column of the chart for Question 20A states:

Provide the name and full description of the community that the applicant is committing to serve. In the event that this application is included in a community priority evaluation, it will be scored based on the community identified in response to this question. The name of the community does not have to be formally adopted for the application to be designated as community-based.55

The Requestors argue that this explanation required the CPE Provider to apply the definition of the community set forth in DotMusic's response to Question 20A. The Board finds that this argument ignores the explanation set forth in the "Criteria" column for Question 20A which provides:

Responses to Question 20 will be regarded as firm commitments to the specified community and reflected in the Registry Agreement, provided the application is successful. Responses are not scored in the Initial Evaluation. Responses may be scored in a community priority evaluation, if applicable. Criteria and scoring methodology for the community priority evaluation are described in Module 4 of the Applicant Guidebook.56

Nothing in Module 4 of the Guidebook requires the CPE Provider to consider only DotMusic's response to Question 20A, without looking at the rest of the Application in evaluating Criterion 1.57 As such, the Board finds that this argument does not support reconsideration because the Requestors have not shown that the CPE Provider's evaluation of Criterion 1 was inconsistent with the Guidebook or any other established policies and procedures.

Second, DotMusic argues that the CPE Provider used the wrong community definition because the CPE Provider did "not explicitly mention Requestor's community definition in its CPE" and instead "create[d] its own 'general definition' of the community that was derived from Question 20D."58 In response to Question 20A (the "name and full description of the community that the applicant is committing to serve"), DotMusic wrote that the name of the community was the "Music Community," then described the community. In the course of describing the community, DotMusic stated that, "[t]he Music Community is strictly delineated using established NAICS codes . . . organized with the following delineation," then listed the NAICS codes that the CPE Provider included in the CPE Report.59 Accordingly, even if the CPE Provider had been required to consider only DotMusic's response to Question 20A—which it was not—the CPE Provider's consideration of the NAICS codes would have been appropriate.

Third, the Requestors assert that the language included in DotMusic's response to Question 20D, concerned "the Eligibility criterion[]," not the community definition, and therefore the CPE Provider should not have considered it when it evaluated Criterion 1.60 As explained above, the Guidebook does not require this level of separation. Additionally, the Board notes that Question 20D does not reference eligibility; Question 20D asked DotMusic to "[e]xplain the relationship between the applied-for gTLD string and the community identified in [Question 20A]".61

In response to Question 20D, DotMusic wrote, among other things, ".MUSIC relates to the Community by representing all constituents involved in music creation, production and distribution, including government culture agencies and arts councils and other complementor [sic] organizations involved in support activities that are aligned with the .MUSIC mission."62 DotMusic does not identify any Guidebook criterion or applicable policy or procedure that prohibited the CPE Provider from considering the "constituents" "represent[ed]" by the community defined in the Application when it assessed Community Establishment. For this additional reason, this argument does not support reconsideration.

Fourth, DotMusic argues that because it defined the Music Community as an "organized community of individuals, organizations and business[es], a 'logical alliance of communities of a similar nature ("COMMUNITY")', that relate to music," the CPE Provider was required to "acknowledge[] that [DotMusic] met the precise definition of a 'logical alliance' that possesses 'awareness and recognition' among its members."63 The BAMC addressed this argument in its Recommendation 64 and the Board incorporates the BAMC's reasoning as if fully stated herein. The BAMC determined the Guidebook notes that "a logical alliance of communities" is "viable" as a community, "provided the requisite awareness and recognition of the community is at hand among the members."65 Because the CPE Provider did not find the requisite awareness and recognition among the members of the overarching community, the CPE Provider followed the directive of the Guidebook and awarded the Application zero points on Criterion 1.66

The Requestors' Remaining Arguments Have Been Previously Addressed and Do Not Support Reconsideration.

The Requestors repeat criticisms of the CPE Process Review Reports that it has already raised several times, including in Request 18-5.67 The Board addressed these arguments on 18 July 2018, which are incorporated herein by reference.68 The Requestors' remaining arguments in their Rebuttal reiterate arguments made in Request 16-5 and the materials submitted in support, all of which the BAMC considered in issuing its Recommendation.

The Requestors' Response to the Invitation For Additional Briefing.

Finally, the Board must address the Requestors' claim that they never "rejected" the BAMC's invitation to make additional submissions in support of Request 16-5. In the Rebuttal, the Requestors state that it is "inaccurate" to characterize its response to the BAMC's invitation as a rejection.69 That, however, was precisely the Requestors' characterization of its response to the invitation. On 5 April 2018, in response to the BAMC's invitation to make additional submissions, the Requestors wrote that "DotMusic rejects ICANN's attempt to impose artificial constraints on any additional submissions regarding Reconsideration Request 16-5" and thereafter submitted no additional briefing.70 It is incorrect to now suggest that DotMusic's response to the BAMC was instead a request "to make unconstrained written submissions and an in-person presentation."71

For the foregoing reasons, the Board concludes that reconsideration is not warranted.

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, by 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. Adopting the BAMC's Recommendation has 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.