Consideration of Reconsideration Request 17-5

Brief Summary

The Requestor submitted a community-based application for .KIDS (.KIDS Application), which was placed in a contention set with one other .KIDS application and an application for .KID (the .KID/.KIDS contention set).4 The Requestor participated in CPE, but did not prevail. The Requestor previously challenged the CPE Provider's evaluation of its community application in Reconsideration Request 16-6 (Request 16-6). The filing of Request 16-6 impacted the status of the .KID/.KIDS contention set, which was placed on hold pending resolution of Request 16-6.5 ICANN's Board Governance Committee (BGC) issued a final determination denying Request 16-6 on 21 July 2016,6 after which the .KID/.KIDS contention set was taken off hold.7

The Board previously directed the President and CEO or his designees to undertake a review of the "process by which ICANN [organization] interacted with the [Community Priority Evaluation] CPE Provider, both generally and specifically with respect to the CPE reports issued by the CPE Provider" as part of the Board's oversight of the New gTLD Program (Scope 1).8 The Board's action was part of the ongoing discussions regarding various aspects of the CPE process.

Thereafter, the BGC determined that the review should also include: (i) an evaluation of whether the CPE criteria were applied consistently throughout each CPE report (Scope 2); and (ii) a compilation of the research relied upon by the CPE Provider to the extent such research exists for the evaluations that are the subject of pending Reconsideration Requests relating to the CPE process (Scope 3).9 Scopes 1, 2, and 3 are collectively referred to as the CPE Process Review. The BGC determined that the following pending Reconsideration Requests would be on hold until the CPE Process Review was completed: 14-30 (.LLC),10 14-32 (.INC),11 14-3312 (.LLP), 16-3 (.GAY), 16-5 (.MUSIC), 16-8 (.CPA), 16-11 (.HOTEL), and 16-12 (.MERCK).13 The Requestor did not have a pending reconsideration request regarding the CPE process when the CPE Process Review began and therefore, its application and the .KID/.KIDS contention set proceeded through the application process and nothing was placed on hold.

On 2 October 2017, ICANN organization invited the Requestor to an ICANN Auction for the .KID/.KIDS contention set.14 Between October and December 2017, ICANN organization sent the Requestor several reminders to submit certain requested information by an 8 December 2017 deadline in order to participate in the ICANN-facilitated Auction.

On 6 December 2017, two days before the deadline to submit information for the ICANN Auction, the Requestor filed Reconsideration Request 17-5 (Request 17-5) challenging ICANN organization's decision to take the Requestor's .KIDS gTLD application off hold before the CPE Process Review was completed.15 The filing of Request 17-5 impacted the status of the .KID/.KIDS contention set, which was placed on hold pending resolution of Request 17-5, and which resulted in the cancellation of the ICANN Auction of the .KID/.KIDS contention set.16

On 13 December 2017, ICANN organization published the three reports on the CPE Process Review.17

On 15 March 2018, the Board acknowledged and accepted the findings set forth in the CPE Process Review Reports, declared that the CPE Process Review was complete, concluded that, as a result of the findings in the CPE Process Review Reports there would be no overhaul or change to the CPE process for this current round of the New gTLD Program, and directed the Board Accountability Mechanisms Committee (BAMC) to move forward with consideration of the remaining Reconsideration Requests relating to the CPE process that were placed on hold pending completion of the CPE Process Review.18

On 5 April 2018, the BAMC evaluated Request 17-5 and all relevant materials and recommended the Board deny Request 17-5 because: (1) the Requestor has received the relief requested and therefore Request 17-5 is moot as the CPE Process Review has been completed; and (2) ICANN organization complied with established policy(ies) when it took the .KID/.KIDS contention set off hold after the resolution of all accountability mechanisms affecting the contention set. (See BAMC Recommendation [PDF, 146 KB], attached as Attachment C to the Reference Materials.)

Facts and Recommendation

The full factual background is set forth in the BAMC Recommendation [PDF, 146 KB], which the Board has reviewed and considered, and which is incorporated here.

On 5 April 2018, the BAMC recommended that Request 17-5 be denied on the basis that: (1) the Requestor has received the relief requested and therefore Request 17-5 is moot as the CPE Process Review has been completed; and (2) ICANN organization complied with established policy(ies) when it took the .KID/.KIDS contention set off hold after the resolution of all accountability mechanisms affecting the contention set and therefore Request 17-5 does not set forth a proper basis for reconsideration for the reasons set forth in the BAMC Recommendation [PDF, 146 KB], which are incorporated here.

Issues

The issues for reconsideration are:

Whether Request 17-5 is moot because the CPE Process Review reports are complete and published; and
Whether ICANN organization complied with applicable Commitments, Core Values, and established policies when it took the .KID/.KIDS contention set off "Hold" status and resumed processing the contention set in accordance with the New gTLD Program by scheduling an ICANN Auction after the Requester's Reconsideration Request 16-6 was denied in July 2016.
The Relevant Standards for Evaluating Reconsideration Requests

Article 4, Section 4.2(a) and (c) of ICANN's Bylaws provide in relevant part that any entity may submit a request "for reconsideration or review of an ICANN action or inaction to the extent that it has been adversely affected by:

One or more Board or Staff actions or inactions that contradict ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies);
One or more actions or inactions of the Board or Staff that have been taken or refused to be taken without consideration of material information, except where the Requestor could have submitted, but did not submit, the information for the Board's or Staff's consideration at the time of action or refusal to act; or
One or more actions or inactions of the Board or Staff that are taken as a result of the Board's or staff's reliance on false or inaccurate relevant information.
(ICANN Bylaws, 22 July 2017, Art. 4, §§ 4.2(a), (c).) Pursuant to Article 4, Section 4.2(k) of the Bylaws, if the BAMC determines that the Request is sufficiently stated, the Request is sent to the Ombudsman for review and consideration. (Bylaws at § 4.2(l).) If the Ombudsman recuses himself from the matter, the BAMC reviews the Request without involvement by the Ombudsman, and provides a recommendation to the Board. (Bylawsat § 4.2(l)(iii).) The Requestor may file a rebuttal to the BAMC's recommendation, provided that the rebuttal is: (i) "limited to rebutting or contradicting the issues raised in the BAMC's recommendation; and (ii) 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." (Bylaws at § 4.2(q).) Denial of a request for reconsideration of ICANN action or inaction is appropriate if the BAMC recommends and the Board determines that the requesting party has not satisfied the reconsideration criteria set forth in the Bylaws. (Bylaws at § 4.2(e)(vi), (q), (r).)

Analysis and Rationale

The Board has reviewed and thoroughly considered Request 17-5 and all relevant materials, including the BAMC Recommendation [PDF, 146 KB]. The Board finds the analysis set forth in the BAMC Recommendation [PDF, 146 KB], which is incorporated here, to be sound.

The Requestor has Received the Relief Requested, and Therefore Request 17-5 is Moot.

The BAMC concluded and the Board agrees that the Requestor has received the relief requested in Request 17-5, which renders Request 17-5 moot and reconsideration unnecessary. (BAMC Recommendation [PDF, 146 KB], Pgs. 13-14.)

The Requestor asked ICANN organization to "place the [.KIDS] application on hold until the CPE review reports are complete and published."19 This is precisely what ICANN organization has done. Immediately following ICANN organization's receipt of Request 17-5, ICANN organization cancelled the .KID/.KIDS contention set Auction, and placed the .KID/.KIDS contention set on hold, because string contention sets are only eligible to enter into an Auction if, among other things, there is no pending ICANN Accountability Mechanism relevant to the string.20

On 13 December 2017, while the .KID/.KIDS contention set was on hold pending resolution of Request 17-5, ICANN organization published three reports in connection with the CPE Process Review.21 On 15 March 2018, the ICANN Board acknowledged and accepted the findings set forth in the three CPE Process Review reports, and declared that the CPE Process Review was complete.22 Accordingly, the relief requested in Request 17-5 has been rendered moot by virtue of the Board's Resolution 2018.03.15.10 declaring that the CPE Process Review has been completed.

ICANN Complied with Its Commitments When it Moved Forward with Processing the .KID/.KIDS Contention Set By Scheduling an Auction.

The Requestor suggested that other community applicants "not explicitly identified in the CPE process review (e.g., the .SPA CEP/IRP by Donuts) have been put on hold we believe due to the ongoing CPE process review," such that the Requestor asserts that taking its application and the .KID/.KIDS contention set off hold before the CPE Process Review is complete "is therefore counter to the established processes."23 As discussed in detail in the the BAMC Recommendation [PDF, 146 KB], which is incorporated herein, the Requestor's position conflates multiple issues and relies on inaccurate facts. Further, the Requestor does not indicate which "established processes" it believes ICANN organization violated by taking the .KID/.KIDS contention off hold following the resolution of Request 16-6 in July 2016,24 nor does the Requestor provide any evidence of such a process violation, because none exists.

Contrary to the Requestor's claims and consistent with its commitment to "[m]ake decisions by applying documented policies consistently, neutrally, objectively, and fairly,"25 ICANN organization treated the Requester's .KIDS Application and the .KID/.KIDS contention set the same way it treated other gTLD applications and contention sets that had no pending Accountability Mechanism when the CPE Process Review started. Finally, the Requestor suggests that it did not receive notice from ICANN organization indicating that the .KID/.KIDS contention set had been taken off hold until 2 October 2017.26 While the Requestor does not specifically assert that reconsideration is warranted on these grounds, the BAMC addressed the Requestor's claims in the BAMC's Recommendation [PDF, 146 KB], as the Requestor is mistaken, and the Board agrees. The Board finds the analysis set forth in the BAMC Recommendation [PDF, 146 KB], which is incorporated here, to be sound. (See BAMC's Recommendation [PDF, 146 KB], Pgs. 17-18.)

Ultimately, the Requestor has not identified any element of ICANN's Mission, Commitments, Core Values, or established ICANN policy(ies) violated by ICANN organization's correspondence with the Requestor, as none were violated. Accordingly, reconsideration is not warranted.

Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the BAMC's Recommendation on Request 17-5 to submit a rebuttal, which expired on 20 April 2018. On 16 April 2017, the Requestor indicated that it intended to file a rebuttal. (See Attachment D to the Reference Materials.) However, no rebuttal was filed by the 20 April 2018 deadline, and none has been filed to date.

While the Bylaws specify that Board's final decision shall be made within 135 days of initial receipt of the Reconsideration Request by the BAMC, in this instance, the 135 days expired on same day at the deadline for the Requestor to submit a rebuttal. The Board previously expected to to consider Request 17-5 at a meeting on on 17 April 2017, before the 135-day deadline. However, as the Requestor indicated that he intended to submit a rebuttal, the Board did not take up this item on 17 April 2018 meeting, as it was important to issue a final determination on a full and complete record and allow the Requestor the opportunity to submit its rebuttal. As such, this is the first practical opportunity that the Board has to consider this matter.

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.