Consideration of Reconsideration Request 18-6: Travel Reservations SRL, Minds + Machines Group Limited, Radix FZC, dot Hotel Inc., Fegistry LLC

Brief Summary and Recommendation
The full factual background is set forth in the BAMC Recommendation on Request 18-6 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

On 14 June 2018, the BAMC evaluated Request 18-6 and all relevant materials and recommended that the Board deny Request 18-6 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.214 The CPE Process Review Reports identify the materials considered by FTI.215 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 "the BAMC's Recommendation is based on both factual errors and on a misrepresentation of Requestors' position and of the applicable rules."216

The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-6, 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 is 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.

The Board notes that it agrees with the BAMC's decision to not consider Request 16-11 in conjunction with Request 18-6 (as requested by the Requestors) because the Requests were filed under different Bylaws with different standards for Reconsideration and involve different subject matters.

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, methodology, and scope of the CPE Process Review. 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 and in further detail in the BAMC Recommendation which is incorporated herein, these are not sufficient bases for reconsideration.

The CPE Process Review Satisfied Applicable Transparency Obligations.

The Requestors argue that the CPE Process Review—and therefore the Resolutions—are contrary to ICANN's commitments to transparency and to applying documented policies in a consistent, neutral, objective, and fair manner.217 Specifically, the Requestors believe that the CPE Process Review lacked transparency concerning: (1) "the selection process for the CPE process reviewer ([FTI]), and the names and curricula vitae of the FTI individuals involved in the review"; (2) the "instructions FTI received from ICANN [organization]"; (3) the "criteria and standards that FTI used to perform the CPE process review"; (4) the "documents or the recordings of the interviews on which [FTI's] findings are based"; and (5) the "questions that were asked during [FTI's] interviews."218

With respect to the first three claims, ICANN org provided details concerning the selection process for the CPE process reviewer almost one year ago, in furtherance of its effort to operate to the maximum extent feasible in an open and transparent manner.219 In the same document, ICANN org provided information concerning the scope of FTI's investigation.220 Similarly, the CPE Process Review Reports themselves provide extensive detail concerning FTI's "criteria and standards" for conducting the CPE Process Review.221 Accordingly, the BAMC concluded, and the Board agrees, that none of these arguments support reconsideration. (BAMC Recommendation, Pg. 13.)

Concerning FTI's documents, recordings, and interview questions, as noted in the CPE Process Review Reports, many of the materials that FTI reviewed are publicly available documents, and are equally are available to the Requestors.222 Additionally, FTI requested, received, and reviewed (1) emails from ICANN org (internal to ICANN personnel as well external emails exchanged with the CPE Provider) and (2) the CPE Provider's working papers, including draft reports, notes, and spreadsheets.223 While the Requestors did not file a request for documentary information pursuant to the Documentary Information Disclosure Policy (DIDP), these materials are the subject of two DIDP Requests, which were submitted by parties in January 2018. ICANN organization considered the request and concluded that ICANN organization explained that those documents would not be made publicly available because they were subject to certain Nondisclosure Conditions.224 These same Nondisclosure Conditions apply to the Requestors' claim. Moreover, the reasoning set forth in the BAMC's Recommendations on Reconsideration Requests 18-1 and 18-2, denying reconsideration on those DIDP Responses are applicable here and are therefore incorporated herein by reference.225 The Requestors here provide no evidence that ICANN org's decision not to disclose these materials contravened any applicable policies, or ICANN's Mission, Commitments, or Core Values. Accordingly, the BAMC determined, and the Board agrees, this argument does not support reconsideration. (BAMC Recommendation, Pgs. 13-15.)

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

The Requestors assert that the Board should not have acknowledged or accepted the CPE Process Review Reports because FTI's methodology was flawed.226 Specifically, the Requestors complain that FTI: (1) did not explain why the CPE Provider refused to produce email correspondence; and (2) did not try to contact former employees of the CPE Provider.227

As discussed in the detail in the BAMC Recommendation, FTI, not the Board or ICANN org, defined the methodology for the CPE Process Review Reports.228 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.229 The Requestors have 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.

With respect to the Requestor's first concern, the BAMC concluded, and the Board agrees, that the claim does not support reconsideration. 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.230 FTI also received and reviewed emails (and attachments) produced by ICANN organization between relevant CPE Provider personnel and relevant ICANN organization personnel related to the CPE process and evaluations.231 The Requestors are correct that 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."232 The BAMC determined, and the Board agrees, no policy or procedure exists that would require ICANN organization to reject the CPE Process Review Reports because the CPE Provider did not produce internal emails. This argument does not support reconsideration. (BAMC Recommendation, Pgs. 15-16.)

The BAMC concluded, and the Board agrees, that the Requestors' concern that FTI interviewed the "only two remaining [CPE Provider] personnel" does not warrant reconsideration. 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. 233 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. The Requestor has not identified a policy or procedure requiring FTI to do more (including to explain why it did not seek out former employees) because none exists. Reconsideration is not warranted on this ground. (BAMC Recommendation, Pg. 16.)

The Requestors also claim that FTI's methodology was flawed because FTI did not identify that the CPE Provider determined that the HTLD Application "provided for an appeal system," when in fact the application "d[id] not provide for an appeal system" as required under Criterion 3, Registration Policies.234 The Requestors claim that "[t]he Despegar et al. IRP Panel considered [this] inconsistenc[y] to have merit," and the "existence of said inconsistencies has never been contested."235 As discussed in detail in the BAMC Recommendation and incorporated herein by reference, this assertion is an overstatement of the Despegar IRP Panel's findings. (BAMC Recommendation, Pgs. 16-17.) The Despegar IRP Panel stated that: (1) ICANN org had confirmed that the CPE Provider did not have a "process for comparing the outcome of one CPE evaluation with another in order to ensure consistency," nor did ICANN org have a process for doing so; and that (2) "[m]uch was made in this IRP of the inconsistencies, or at least apparent inconsistencies, between the outcomes of different CPE evaluations, . . . some of which, on the basis solely of the arguments provided by [the Requestors], have some merit."236 The Despegar IRP Panel did not make a determination concerning these arguments, nor was it asked to. Accordingly, the IRP Panel's side note concerning the Requestors' allegations of inconsistencies does not support reconsideration.

The Requestors' Challenge to the Scope of the CPE Process Review Does Not Warrant Reconsideration.

The BAMC determined, and the Board agrees, that the Requestors' complaints about the scope of FTI's investigation do not support reconsideration.237 The Requestors believe that FTI "sum[med] up" but did not "analyse" "the different reasons that the CPE Provider provided to demonstrate adherence to the community priority criteria," that it did not analyze "the inconsistencies invoked by applicants in [reconsideration requests], IRPs or other processes," and that FTI "did not examine the gTLD applications underlying the CPE [evaluations]."238 Essentially, the Requestors wanted FTI to substantively re-evaluate the CPE applications, which was beyond the scope of the CPE Process Review. The requestor's substantive disagreement with FTI's methodology is not a basis for reconsideration. (BAMC Recommendation, Pgs. 17-18.)

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

The BAMC concluded, and the Board agrees, that there is no merit to the Requestors' assertions that the Resolutions are contrary to ICANN's commitments to transparency and to applying documented policies in a consistent, neutral, objective, and fair manner,239 and they will prevent Requestors from obtaining "a meaningful review of their complaints regarding HTLD's application for .hotel, the CPE process and the CPE Review Process."240 In the Resolutions, the Board directed the BAMC to consider the CPE Reports along with all of the materials submitted in support of the relevant reconsideration requests.241 The BAMC will consider the CPE Process Review Reports in the course of its evaluation of Request 16-11 (just as the BAMC will consider all of the materials submitted by the Requestors in connection with Request 16-11), but this does not mean that the BAMC will find the CPE Process Review Reports to be determinative to its Recommendation on Request 16-11. (BAMC Recommendation, Pg. 18.)

The BAMC notes that it provided the Requestors an opportunity to make a telephone presentation concerning the effect of the CPE Process Review on Request 16-11, which the Requestors accepted. The BAMC will carefully review and consider all of the materials that the Requestors submitted in support of Request 16-11, as well as the CPE Process Review Reports as one of many reference points in its consideration of Request 16-11. Accordingly, reconsideration is not warranted.

With respect to the Requestors' due process claims, as discussed in the BAMC Recommendation and incorporated herein by reference, while ICANN org is committed to conform with relevant principles of international law and conventions, any commitment to provide due process is voluntary and not coextensive with government actors' obligations. Constitutional protections do not apply with respect to a corporate accountability mechanism. California non-profit public benefit corporations, such as ICANN organization, are expressly authorized to establish internal accountability mechanisms and to define the scope and form of those mechanisms.242 ICANN organization was not required to establish any internal corporate accountability mechanism, but instead did so voluntarily. Accordingly, the Requestor does not have the "right" to due process or other "constitutional" rights with respect to ICANN's accountability mechanisms. (BAMC Recommendation, Pgs. 19-20).

Even if ICANN organization did have due process obligations, and even though the "rights" the Requestors invoke do not apply to corporate accountability mechanisms, the Requestors have not explained how the alleged misapplication of ICANN org's policies resulted in a denial of due process. ICANN org did take due process into account when it designed the accountability mechanisms, including the Reconsideration Request process that the Requestors exercised by submitting Request 16-11 and the IRP Process that the Requestors exercised in the Despegar IRP. ICANN org's accountability mechanisms—that is, Reconsideration Requests and the Independent Review Process—consider the CPE Provider's compliance with the Guidebook and with ICANN organization's Articles of Incorporation and Bylaws. They consider whether the CPE Provider complied with its processes, which requires the adjudicator (the BAMC, Board, or an Independent Panel) to consider the outcome in addition to the process. Accordingly, the accountability mechanisms, including this reconsideration request, provide affected parties like the Requestor with avenues for redress of purported wrongs, and substantively review the decisions of third-party service providers, including the CPE Provider. This is not grounds for reconsideration. (See id.)

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

The Board has carefully considered the Requestors' Rebuttal and finds that the Requestors have not provided any additional arguments or facts supporting reconsideration. The Rebuttal claims that "the BAMC's Recommendation is based on both factual errors and on a misrepresentation of Requestors' position and of the applicable rules." (Rebuttal, Pg. 1)

First, the Requestors assert that the ICANN Board did not consider the claims raised in the Requestors' 16 January 2018 and 22 February 2018 correspondence when the Board adopted the 2018 Resolutions. This claim is factually incorrect and does not support reconsideration. The Requestors' 16 January 2018 letter did not identify any specific challenges to the CPE Process Review Reports, but instead only made passing references to the Requestors' broad "concerns" about transparency, the methodology employed by FTI, due process, and alleged disparate treatment and inconsistencies.243 These "concerns" were then detailed in the Requestors' 1 February 2018 letter, which the Board acknowledged and considered in the 2018 Resolutions.244 Further, contrary to the Requestors' claim, the Board did acknowledge and consider the Requestors' 22 February 2018 letter.245

Second, the Requestors assert that ICANN org has "largely ignored" many of the Requestors' challenges to the CPE Provider's determination that the HTLD Application satisfied the requirements for community priority, and the Board's decision not to cancel the HTLD Application.246 This claim is unsupported and does not warrant reconsideration because, as the BAMC explained (see BAMC Recommendation, Pgs. 4, 14-15), and the Board agrees, ICANN org responded to Requestors' DIDP Requests,247 Reconsideration Requests, and the Despegar IRP in accordance with established policies and procedures. With respect to Reconsideration Request 16-11, ICANN org has not "ignored" it, as the Requestors claim. Rather, it remains pending and will be considered on the merits as soon as practicable following the completion of the Requestors' oral presentation to the Board. Regarding the Requestors' claim that ICANN org has not provided details concerning the selection process for FTI, the Board finds that this argument has been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 13-14.) The Requestors have not set forth any new evidence in the Rebuttal supporting reconsideration.

Third, the Requestors repeat their argument that Board's adoption of the 2018 Resolutions will prevent Requestors from obtaining a "meaningful review of their complaints made in the framework of [Request] 16-11."248 The Board finds that this argument has been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 18-19.) The Requestors have not set forth any new evidence in the Rebuttal supporting reconsideration.

Fourth, with respect to the Requestors' due process claim, the Requestors now assert that "the fact that the BAMC refuses to hear [Requests] 16-11 and 18-6 together limits Requestors' due process rights even further."249 The Requestors state that they "cannot accept the BAMC's reasoning that both [Requests] cannot be handled together because [Request] 16-11 was filed under different (previous) Bylaws," and summarily conclude that this will result in Request 16-11 being determined under "less robust accountability standards" than Request 18-6.250 However, the Requestors do not provide any basis for this assertion, because there is none. As the BAMC explained, "the Requests were filed under different Bylaws with different standards for Reconsideration and involve different subject matters." (BAMC Recommendation, Pg. 11.) Accordingly, reconsideration is not warranted.

Finally, the Requestors again disagree with the scope of the CPE Process Review and the methodology employed by FTI. The Board finds that these arguments have been sufficiently addressed by the BAMC. (See BAMC Recommendation, Pgs. 15-20.) The Requestors have not set forth any new evidence in the 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.