Consideration of Reconsideration Request 18-10: The Amazon Cooperation Treaty Organization

Brief Summary and Recommendation
The full factual background is set forth in the BAMC Recommendation on Request 18-10 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

On 18 and 21 December 2018, the BAMC evaluated Request 18-10 and all relevant materials and recommended that the Board deny Request 18-10 because the Board adopted the Resolution based on accurate and complete information and because the Board's adoption of the Resolution was consistent with ICANN's commitments and core values. Nevertheless, the BAMC acknowledged that Request 18-10 reflects a difference in interpretation by the Requestor of the Resolution, and thus, the BAMC recommended that the Board reiterate that the Resolution was taken with the clear intention to grant the President and CEO the authority to progress the facilitation process between the ACTO member states and the Amazon corporation with the goal of helping the involved parties reach a mutually agreed solution, but in the event they are unable to do so, the Board will make a decision at ICANN 64 on the next steps regarding the potential delegation of .AMAZON and related top-level domains. The BAMC further encouraged a high level of communication between the President and CEO and the relevant stakeholders, including the representatives of the Amazonian countries and the Amazon corporation, between now and ICANN 64. The BAMC also recommended that the Board continue receiving updates on the facilitation process from the ICANN President and CEO in anticipation of revisiting the status of the .AMAZON applications at its meeting at ICANN64.

Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the BAMC's Recommendation on Request 18-10 to submit a rebuttal. No rebuttal was filed by the 5 January 2019 deadline and none has been received to date.

The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-10, and the Board agrees with the BAMC's Recommendation.

Issue
The issues are as follows:

Whether the Board adopted the Resolution based on false or inaccurate relevant information, or without consideration of material information; and
Whether the Board adopted the Resolution contrary to ICANN's commitments and core values, which recognize that ICANN must duly take into account the public policy advice of governments and public authorities.
These issues are considered under the relevant standards for reconsideration requests, which are set forth in the BAMC Recommendation.

Analysis and Rationale
The Board Resolution Did Not Direct the Delegation of the .AMAZON and Related TLDs Without Further Consultation with the ACTO Member States or the Board Itself.

As a preliminary matter, the Board notes that Request 18-10 appears to be based on the Requestor's interpretation that the Resolution directed ICANN's President and CEO to delegate .AMAZON and the related TLDs without further consultation with the ACTO member states and without further consideration by the Board. This is perhaps the result of language that could have been clearer, but this interpretation was not the intent of the Resolution.

Contrary to the Requestor's apparent interpretation, however, as reiterated above, the Resolution was passed with the intention that further discussions among the parties take place before the Board takes a final decision on the potential delegation of .AMAZON and related TLDs. The language of the Resolution itself does not approve delegation of .AMAZON or support any particular solution. Rather, the Resolution simply "directs the President and CEO, or his designee(s), to remove the 'Will Not Proceed' status." The removal of the "Will Not Proceed" status1 was a necessary procedural prerequisite to ICANN org renewing formal consideration of the .AMAZON applications and the processing of the proposed Public Interests Commitments (PICs) by the Amazon corporation.

Moreover, the circumstances surrounding the Resolution confirm that further negotiations were expected and welcomed by the Board. Specifically, during the discussion by the Board of the Resolution, the ICANN President and CEO stated on the record that he planned to meet with ACTO representatives to discuss these issues.2 In the time since the Resolution was adopted, both the ICANN President and CEO and the Chair of the ICANN Board have confirmed the intent of the Resolution and have reiterated that they maintained the intent to continue facilitating the discussion between the ACTO member states and the Amazon corporation in correspondence to the Chair of the Governmental Advisory Committee (GAC)3 and to ACTO.4

The Board Adopted the Resolution Based on Accurate and Complete Information and Did Not Fail to Consider Any Material Information.

The Request suggests that the Resolution should be reconsidered because it was adopted: (1) based on a misunderstanding by the Board of the position of the Amazon countries; (2) without consideration of the 19 October 2018 letter from the Requestor; and (3) without consideration of the GAC's follow-up advice adopted on 24 October 2018. However, as explained below and in the BAMC Recommendation, the Board considered all available material information and had an accurate understanding of the facts. The BAMC concluded, and the Board agrees, that all available material information was considered by the Board in adopting the Resolution and that the Board had an accurate understanding of the facts.

With respect to the its first suggestion, the Requestor claims that the Rationale for the Resolution states that "'the ICANN org has informed the Board that the parties have identified a path forward.'"5 The Requestor suggests that "[t]his information is inaccurate," based on its conclusion that the Board "ha[d] considered that the Amazon countries had been informed of a proposal for the delegation of the '.AMAZON', and that they would have agreed to that delegation pending only final discussions on a limited number of elements."6 Here, the BAMC concluded, and the Board agrees, that the Requestor's interpretation of the "path forward" language appears to have been based on a different interpretation than the Board's regarding the effect of the Resolution. As discussed above, the Resolution was taken with the intent that further discussions with the relevant parties, including the ACTO member states would continue and that no decisions regarding delegation of the .AMAZON applications would be taken without further Board consideration of the relevant outcome of the continued facilitation process. As such, the Board's "path forward" language did not refer to a final agreement regarding delegation or a specific solution.

With respect to the Requestor's second claim that the Board failed to consider material information because the 19 October 2018 letter is not included in the list of "Items considered by the Board" in the Resolution, the BAMC determined, and the Board agrees, that the facts demonstrate the Board did consider 19 October 2018 prior to passing the Resolution. The 19 October 2018 letter invited the ICANN President and CEO to meet with the ACTO state member representatives to discuss a possible solution. As noted above, the ICANN President and CEO specifically mentioned the meeting invitation from the ACTO member states and his acceptance of the invitation in introducing the 25 October 2018 Resolution.7

Finally, the Requestor suggests that the Board "overlooked GAC's follow-up on previous advice about the .AMAZON applications, which the GAC adopted on 24 October 2018."8 As an initial matter, it is not clear whether the Board could have considered the GAC's follow-up advice, as it was contained in the Barcelona Communiqué, which was not published until 25 October 2018. The Board adopted the Resolution on the morning of 25 October 2018. In any event, the "follow-up" did not contain any new advice, but instead expressed approval of the 16 September Board resolution and restated advice from the Abu Dhabi Communiqué.9 Thus, even if the Barcelona Communiqué was available prior to the adoption of the Resolution, it did not contain any material information that the Board failed to consider because the Board had expressly considered the same information.

The Board's Adoption of the Resolution Was Consistent with ICANN's Commitments and Core Values.

The Requestor suggests that the Resolution was "contrary to ICANN's commitments and core values, which recognize that 'governments and public authorities are responsible for public policy' and that ICANN must duly take into account the public policy advice of governments and public authorities."10 The Requestor grounds this idea in the conclusion that the Resolution was inconsistent with the relevant GAC advice. The BAMC determined, and the Board agrees, that the Requestor's position is premised on an apparent different interpretation of the Resolution by the Requestor (as discussed above).

First, with respect to the Requestor's suggestion that the Board was wrong to interpret the Abu Dhabi Communiqué's advice to "supersede" the advice in the Durban Communiqué,11 the BAMC concluded, and the Board agrees, that this argument does not support reconsideration. The Durban Communiqué advised the Board of the GAC's position that the .AMAZON applications should "not proceed beyond Initial Evaluation."12 As explained in the BAMC Recommendation13 and incorporated herein by reference, the Board accepted the advice from the Durban Communiqué in 2014, but the Amazon corporation prevailed in an Independent Review Process (IRP) challenging that 2014 decision. In light of the .AMAZON IRP Final Declaration, the Board asked the GAC for additional information on that advice. Subsequently, the Abu Dhabi Communiqué advised the Board to facilitate negotiations between the ACTO member states and the Amazon corporation.14 The Abu Dhabi Communiqué was more recent advice that took into account a change in circumstances and that was materially different from the advice contained in the Durban Communiqué. The BAMC concluded, and the Board agrees, that the Abu Dhabi Communiqué could fairly be described as superseding the earlier advice from the Durban Communiqué.

Next, the Requestor suggests that the Resolution is inconsistent with the GAC's advice, even as embodied in the Abu Dhabi and Barcelona Communiqués. The Requestor notes that GAC's most recent consensus statement "reiterated" the "possibility of delegation of the .AMAZON applications" if the parties reach a "mutually acceptable solution."15 As explained above, the Resolution is designed to allow the parties to try to reach such a solution through ICANN org facilitation. There is therefore no inconsistency between the GAC advice and the Resolution.

As noted in the BAMC Recommendation, the Requestor's perspective on this issue is informed, in part, by its suggestion that the Amazon countries' "consent must be previously obtained if the .AMAZON strings are to" be delegated.16 The Board agrees with the BAMC that while the Requestor has consistently maintained this position throughout correspondence with ICANN representatives, nothing in ICANN's Bylaws or procedures provides a third party or the GAC with authority to stop the Board from making its decision. Instead, the Bylaws require that the Board "recogniz[e] that governments and public authorities are responsible for public policy and duly tak[e] into account the public policy advice of governments and public authorities."17 When the ICANN Board previously accepted the GAC's advice on this issue, the Amazon corporation prevailed in an IRP challenging that decision.18 The Final Declaration recommended that "the Board should make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon's application."19 Further, the Board has previously received independent, third-party expert analysis that concluded there was "no rule of international, or even regional or national, law" which obligated ICANN to either reject or accept the .AMAZON applications.20 Thus, while the Resolution does not indicate that .AMAZON and its related TLDs will be delegated without further discussion and negotiation, as noted above, nothing in ICANN's Bylaws or procedures provides a third party or the GAC with authority to stop the Board from making its decision.

As the Requestor noted, ICANN's commitments and core values "recognize that 'governments and public authorities are responsible for public policy' and that ICANN must duly take into account the public policy advice of governments and public authorities."21 The history of the .AMAZON applications demonstrates that the Board has consistently done just that. In adopting the Resolution, the Board followed the advice of the GAC to "continue facilitating negotiations between the…ACTO[] member states and the Amazon corporation with a view to reaching a mutually acceptable solution to allow for the use of .amazon as a top level domain name."22 This approach acknowledges the public policy interests of the ACTO member states and ensures that the ICANN org will continue to take those interests into account, and is therefore fully consistent with ICANN's commitments and core values.

For these 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.