Consideration of Reconsideration Request 18-4: dotgay LLC

Brief Summary and Recommendation
The full factual background is set forth in the BAMC Recommendation on Request 18-4 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

On 14 June 2018, the BAMC evaluated Request 18-4 and all relevant materials and recommended that the Board deny Request 18-4 because the Board considered all material information when it adopted the Resolutions, which is consistent with ICANN's Mission, Commitments, Core Values, and established ICANN policy(ies). Specifically, as noted in Resolutions 2018.03.15.08 through 2018.03.15.11 (the Resolutions), the Board considered the CPE Process Review Reports.135 The CPE Process Review Reports identify the materials considered by FTI.136 Additionally, as noted in the Rationale of the Resolutions, the Board acknowledged receipt of, and took into consideration, the correspondence received after the publication of the CPE Process Review Reports in adopting the Resolutions. (See BAMC Recommendation.)

On 29 June 2018, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws. (See Rebuttal.) The Requestor claims that: (i) the BAMC "misconstrues Requestor's position regarding the BAMC's invitation to make additional submissions on Reconsideration Request 16-3;" (ii) the Requestor presented significant evidence that the ICANN Board violated its Bylaws by adopting the Resolutions;" (iii) FTI's methodology for the CPE Process Review is materially flawed; and (iv) "the CPE Process Review Reports are substantively flawed."137

The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-4, including the Requestor's Rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the rebuttal provides no additional argument or evidence to support reconsideration.

Issue
The issue for reconsideration whether the Board's adoption of the Resolutions contradicted ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies).

These issues are considered under the relevant standards for reconsideration requests, which are set forth in the BAMC Recommendation.

Analysis and Rationale
The Resolutions Are Consistent With ICANN's Mission, Commitments, Core Values and Established ICANN Policy(ies).

The Requestor's claims focus on the transparency, fairness, efficiency, methodology, and scope of the CPE Process Reviews. The BAMC noted, and the Board agrees, the Requestor provides no evidence demonstrating how the Resolutions violate ICANN's commitment to fairness, or that the Board's action is inconsistent with ICANN's commitments to transparency, multistakeholder policy development, promoting well-informed decisions based on expert advice, applying documented policies consistently, neutrally, objectively, and fairly without discrimination, and operating with efficiency and excellence. Rather, it appears that the Requestor simply does not agree with findings of the CPE Process Review Reports and the Board's acceptance of those findings. As demonstrated below, these are not sufficient bases for reconsideration.

The Requestor's Challenges to FTI's Methodology Do Not Warrant Reconsideration.

The Requestor claims that FTI's methodology was flawed because: (1) the CPE Provider did not produce documents in the course of the investigation; (2) FTI did not interview any former employees of the CPE Provider; and (3) FTI did not accept materials from, or interview, CPE applicants in the course of its investigation.138

The BAMC determined, and the Board agrees, that, FTI, not the Board or ICANN org, defined the methodology for the CPE Process Review.139 The Board selected FTI because it has "the requisite skills and expertise to undertake" the CPE Process Review, and relied on FTI to develop an appropriate methodology.140 The Requestor has not identified a policy or procedure (because there is none) requiring the Board or ICANN org to develop a particular methodology for the CPE Process Review. (BAMC Recommendation, Pg. 11.)

With respect to the first concern, the BAMC determined, and the Board agrees, that it is inaccurate to suggest that FTI reviewed no materials from the CPE Provider. The CPE Provider did produce to FTI, and FTI did review, the CPE Provider's working papers, draft reports, notes, and spreadsheets for all CPE Reports.141 FTI also received and reviewed emails (and attachments) produced by ICANN org between relevant CPE Provider personnel and relevant ICANN org personnel related to the CPE process and evaluations.142 (BAMC Recommendation, Pgs. 11-12.)

As noted in the CPE Process Review Reports, FTI requested additional materials from the CPE Provider such as the internal correspondence between the CPE Provider's personnel and evaluators, but the CPE Provider refused to produce certain categories of documents, claiming that pursuant to its contract with ICANN org, it was only required to produce CPE working papers, and internal and external emails were not "working papers."143 The BAMC concluded, and the Board agrees, that no policy or procedure exists that would require ICANN org to cancel the entire CPE Process Review because the CPE Provider did not produce its internal emails. As such, this argument does not support reconsideration. (BAMC Recommendation, Pg. 12.)

With respect to the second claim, as detailed in the BAMC Recommendation, the Requestor has not identified a policy or procedure requiring FTI to do more because none exists. FTI interviewed the "only two remaining [CPE Provider] personnel," who were both "part of the core team for all 26 evaluations" in the CPE Process Review.144 Other team members were no longer employed by the CPE Provider when FTI conducted its investigation, and were therefore not available for FTI to interview.145 Neither FTI nor the Board were required to search out every former CPE Provider employee who had any role in any CPE evaluation, particularly when FTI already had access to two individuals who were core members of every CPE evaluation team and the working papers of the CPE reports that the entire core team worked on. Accordingly, the BAMC concluded, and the Board agrees, reconsideration is not warranted on this ground. (BAMC Recommendation, Pgs. 12-13.)

The BAMC also determined, and the Board agrees, that the Requestor has not identified a policy or procedure requiring FTI to interview the CPE applicants or accept materials from the applicants in the course of the review. The BAMC further noted that FTI reviewed all relevant materials regarding the CPE process submitted by the applicants through correspondence, reconsideration requests, and Independent Review Process (IRP) proceedings.146 As discussed in further detailed in the BAMC Recommendation, the claim does not warrant reconsideration.

The BAMC also concluded and the Board agrees that the comments of one Board member about FTI's methodology also do not support reconsideration. That Board member, Avri Doria, abstained from voting on the Resolutions due to concerns "about the rigor of the study and some of its conclusions,"147 does not render the vote invalid. Further, and notwithstanding her concerns, Ms. Doria nonetheless "accept[ed] the path forward" that the Board was setting.148

FTI was Not Required to Agree with the Findings of Prior Third-Party Reports.

The Requestor argues that the Board should not have accepted the findings of the CPE Process Review Reports because those findings are inconsistent with conclusions that third parties have reached concerning the CPE process.149 As detailed in the BAMC Recommendation, the Requestor asserts that certain third parties identified concerns with the CPE process before FTI completed the CPE Process Review that the Requestor believes are inconsistent with and not addressed in the CPE Process Review Reports. (BAMC Recommendation, Pgs. 13-16.) According to the Requestor, these reports should be taken to mean that any conclusion other than that the CPE Provider's process was inconsistent with the Applicant Guidebook and that ICANN org exerted undue influence over the CPE Provider must be incorrect.150

The BAMC determined, and the Board agrees, that the Requestor's argument is both contrary to the facts and completely inconsistent with proper investigative methodology. As discussed in the BAMC Recommendation, the Association of Certified Fraud Examiners (ACFE), the anti-fraud organization that has codified the international investigative methodology that FTI followed, required that FTI form an investigative plan, collect all potentially relevant evidence and information, then analyze the relevant evidence and arrive at their conclusion based on that evidence151—not based on the opinions or investigations of prior investigators or commentators. Consistent with this methodology, FTI "carefully considered the claims raised in Reconsideration Requests and [IRP] proceedings related to CPE," specifically allegations that the CPE criteria "were applied inconsistently across the various CPEs as reflected in the CPE reports."152 Second, as noted in the CPE Process Review Reports, FTI considered all available evidence, including but not limited to, relevant IRP documents, relevant Reconsideration Requests, and the report from the Ombudsman's Own Motion Investigation on the CPE process.153

Based upon the evidence available, FTI concluded that the CPE Provider applied the CPE criteria in a consistent manner, and differences in scoring outcomes "were not the result of inconsistent application of the criteria," but rather of different underlying circumstances.154

FTI was not directed to conduct an investigation that supported (or contradicted) the third parties opinions that identified concerns with the CPE process.155 Nor was the Board obligated to direct ICANN org to undertake the CPE Process Review. Rather, the Review was "intended to have a positive impact on the community" and "provide greater transparency into the CPE evaluation process."156 Contrary to the Requestor's claim, the Board's decision to initiate the CPE Process Review was not an acknowledgement that the CPE process was flawed, but a directive to consider whether the process had flaws or could otherwise be improved. If FTI conducted its investigation under the assumption that it should or would reach one particular conclusion, there would be no purpose to conducting the review in the first place. The Requestor's arguments do not support reconsideration.

Professor Eskridge's Criticisms of the CPE Process Review Do Not Support Reconsideration.

The BAMC determined, and the Board agrees, that the "Second Expert Opinion of Professor William N. Eskridge, Jr." (Second Eskridge Opinion), which the Requestor submitted in support of Request 16-3 and referenced in Request 18-4,157 does not warrant reconsideration. (BAMC Recommendation, Pgs. 16-17.) The claims set forth in the Second Eskridge Opinion will be addressed as part of the BAMC and Board's consideration of Request 16-3.

Moreover, as the BAMC noted, Professor Eskridge's primary complaint is that FTI did not re-evaluate the merits of the CPE applications or consider the substance and reasonableness of the CPE Provider's research.158 However, that was not what FTI was tasked to do and the Requestor provides no evidence of any policy or procedure requiring that the Board instruct FTI to re-evaluate the applications.

With respect to the Requestor's "assertion that 'a strong case could be made that the purported investigation was undertaken with a pre-determined outcome in mind,'" neither the Requestor nor Professor Eskridge "offers any support for this baseless claim, and there is none."159 Accordingly, these claims do not support reconsideration.

The Third-Party Letters of Support Do Not Support Reconsideration.

The BAMC considered three letters submitted to the Board by third parties in support of the dotgay Application, criticizing the CPE Process Review.160 Although all three letters express "frustration" or dissatisfaction with the findings of the CPE Process Review, the BAMC determined, the Board agrees, that none states grounds for reconsideration, nor do they identify any policy or procedures that ICANN organization or FTI violated in the course of the CPE Process Review. Accordingly, they do not support reconsideration.

The BAMC Will Consider All of the Evidence Submitted by the Requestor as Part of its Consideration of Request 16-3.

The BAMC determined, and the Board agrees, that the Requestor claims that the BAMC's "reliance on" the CPE Process Review Reports would "directly affect its consideration of [Request] 16-3"161 does not support reconsideration. When the Board acknowledged and accepted the CPE Process Review Reports, it directed the BAMC to consider the Reports along with all of the materials submitted in support of the relevant reconsideration requests.162 The BAMC will consider the CPE Process Review Reports in the course of its evaluation of Request 16-3 (just as the Board will consider all of the materials submitted by the Requestor in connection with Request 16-3), but this does not mean that the BAMC will find the CPE Process Review Reports to be determinative to its Recommendation on Request 16-3. (BAMC Recommendation, Pg. 18.)

ICANN Org Adhered to its Transparency Obligations.

Finally, the Requestor asserts that ICANN org "has been remarkably nontransparent throughout" the CPE Process Review, and "has, and continues to, rebuff all efforts to obtain detailed information about FTI's independent review," because the "only substantive information available to the public about the independent review is the CPE Process Review Reports themselves."163

As discussed in the BAMC Recommendation, the Requestor has not explained how making the CPE Process Review Reports public somehow falls short of ICANN organization's transparency obligations. The Board addressed and resolved this claim in its determination on the Requestor's Request 18-2,164 which is incorporated herein, and will not repeat itself here, except to say that the Requestor has raised no additional argument here that warrants reconsideration based on this assertion. (BAMC Recommendation, Pgs. 18-19.)

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

The Board has carefully considered the Requestor's Rebuttal and finds that the Requestor has not provided any additional arguments or facts supporting reconsideration. The Rebuttal claims that: (i) the BAMC "misconstrues Requestor's position regarding the BAMC's invitation to make additional submissions on Reconsideration Request 16-3;" (ii) the Requestor presented significant evidence that the ICANN Board violated its Bylaws by adopting the Resolutions;" (iii) FTI's methodology for the CPE Process Review is materially flawed; and (iv) "the CPE Process Review Reports are substantively flawed."165 These are the same arguments set forth in Request 18-4 and were addressed by the BAMC in its Recommendation.

First, the Requestor asserts that ICANN org "oversimplifies Requestor's response to the BAMC's limited invitation" to make a telephonic oral presentation to the BAMC in support of Request 16-3.166 The Requestor concedes that it rejected ICANN org's invitation, but asserts that ICANN org did not respond to its demand that ICANN org permit the Requestor a more "meaningful opportunity to make additional submissions to ICANN regarding the CPE Process Review Reports."167 This claim does not support reconsideration. The Requestor does not have a right to dictate the manner in which it is permitted to present to the BAMC. Under the Bylaws in effect when Request 16-3 was filed, the BAMC's decision on the opportunity to be heard is final.168 Indeed, the same invitation was extended to all requestors with pending reconsideration requests; were ICANN org to treat the Requestor differently, that would be unfair to other applicants in contravention of ICANN's commitments in its Bylaws.

Second, the Requestor claims that it "provided ICANN with significant evidence supporting its claims," and thus takes issue with the BAMC's conclusion that "no evidence [exists] demonstrating how the Resolutions violate ICANN's commitment to fairness, or that the Board's action is inconsistent with ICANN's [other] commitments."169 This represents a substantive disagreement with the BAMC's conclusions, and is not a basis for reconsideration. The Requestor otherwise attempts to import arguments it made in connection with Reconsideration Request 18-2, which challenges ICANN org's response to the Requestor's request for documents (DIDP Request) pursuant to ICANN's Documentary Information Disclosure Policy (DIDP), relating to the CPE Process Review. The Board addressed and resolved the Requestor's claims concerning ICANN org's response to the DIDP Request in its determination on Request 18-2, which is incorporated herein, and will not be repeated here, except to say that the Requestor has raised no additional argument that warrants reconsideration based on this assertion.

Third, with respect to the Requestor's claim that FTI's methodology for the CPE Process Review is materially flawed, the Board finds that this argument has been sufficiently addressed by the BAMC. The Requestor has not set forth any new evidence in its Rebuttal supporting reconsideration. Moreover, there is no support for the Requestor's assertion that FTI "simply accepted statements and information [from the CPE Provider and ICANN org] without further investigation or critical analysis."170 While the Requestor disagrees with the conclusions reached by FTI, that is not evidence that FTI failed to critically and impartially analyze the issues relevant to the CPE Process Review. As the BAMC concluded, and the Board agrees, FTI considered all available evidence, and did so in a fair and impartial manner. (See BAMC Recommendation, Pgs. 13-16.)

Fourth, the Requestor repeats its assertion that the CPE Process Review Reports are substantively flawed because they "did not address any of the relevant independent evaluations," and "failed to consider divergent views on the CPE Process."171 The Board finds that this argument has been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 16-17.) The Requestor has not set forth any new evidence in its Rebuttal supporting reconsideration.

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.