Consideration of Reconsideration Request 18-9: DotKids Foundation (.KIDS)

Brief Summary and Recommendation
The full factual background is set forth in the BAMC Recommendation on Request 18-9 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated by reference here.

On 16 November 2018, the BAMC evaluated Request 18-9 and all relevant materials and recommended that the Board deny Request 18-9 because ICANN org adhered to established policies and procedures in responding to the Requestor's request for financial assistance for engaging in the string contention resolution process; and ICANN org did not violate its core values established in the Bylaws concerning the global public interest.

On 3 December 2018, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal). The Board notes that the Rebuttal was submitted after the time period allotted under Article 4, Section 4.2(q) of the ICANN Bylaws. Nonetheless, the Board has considered the arguments in the Requestor's rebuttal and finds that they do not support reconsideration for the reasons set forth below.

Issue
The issues are as follows:

Whether ICANN org complied with established policies when responding to the Requestor's request for financial support for engaging in the string contention resolution process for the .KID/.KIDS contention set under the ASP; and
Whether ICANN org complied with its Core Values established in the Bylaws concerning ICANN org's commitment concerning the global public interest.35
These issues are considered under the relevant standards for reconsideration requests, which are set forth in the BAMC Recommendation.

Analysis and Rationale
ICANN Org Adhered to Established Policies and Procedures in Responding to the Requestor's Request for Financial Assistance.

The Requestors suggest that reconsideration is warranted because ICANN org's denial of its request for financial assistance to participate in contention resolution contradicts the JAS Final Report. Specifically, the Requestor claims that ICANN org was under "time pressure" when it considered the JAS Final Report, which caused the ICANN Board to only approve the JAS WG's recommendation for a reduction in the application fee for qualified applicants and, correspondingly, the ICANN Board did "not consider[]" other parts of the recommendations at that time.36 The BAMC determined, and the Board agrees, that the Requestor has not provided any evidence to support its claim that the ICANN Board did not consider the entire JAS Final Report in 2011. As discussed in detail in BAMC Recommendation and incorporated herein by reference, the ICANN Board did thoughtfully and fully consider all of the recommendations set forth in the JAS Final Report. On 28 October 2011, the ICANN Board resolved to "seriously" consider the Final Report and convened a working group of Board members "to oversee the scoping and implementation of the recommendations arising out of [the JAS Final Report], as feasible."37 The Board working group thereafter worked with a subgroup of community members appointed by the JAS WG to develop the Process and Criteria documents that set forth the scope and requirements of the ASP, which the Board then approved in December 2011.38

The fact that the ICANN Board did not adopt all of the JAS Final Report's recommendations when it approved the implementation plan in accordance with the Process and Criteria documents does not support the Requestor's view that ICANN org did not consider (and reject) the recommendations which were not implemented. As an initial matter, no policy or procedure required ICANN to adopt the recommendations set forth in the JAS Final Report in full. To the contrary, as noted in the JAS Final Report, the recommendations were only "submitted for consideration to the GNSO, ALAC, ICANN Board and ICANN community."39 It remained within the ICANN Board's discretion to determine which recommendations to implement, if any, and the ICANN Board resolved to do so only "as feasible."40

The Requestor's position also is contradicted by the plain language of the Rationale for Resolutions 2011.12.08.01 – 2011.12.08.03, which specified that that Board had considered and determined not to adopt all of the recommendations set forth in the JAS Final Report: "Note: This process does not follow all JAS recommendations."41 Instead, the Board, in its discretion, found it feasible and resolved to approve financial assistance in the form of a "fee reduction to $47,000" for qualifying Applicant Support candidates.42

As the BAMC noted, the only JAS recommendations approved by the Board are those set forth in the Process and Criteria documents, which in turn defined the scope and requirements of the ASP. All other JAS WG recommendations were considered and not adopted. Because the ASP, as implemented, does not provide for financial assistance for the contention resolution process, the Board agrees with the BAMC's conclusion that ICANN org did not contravene any established policy or procedure when it denied the Requestor's request for such support.

Nor does the Requestor identify any policy or procedure (because there is none) obligating ICANN to go back and reconsider, as part of the current New gTLD Program round, the JAS WG's recommendations that were previously not adopted. To the contrary, the requirements of the ASP as set forth in the Process and Criteria documents were intended to be "very clear requirements that are the final requirements of the program for applicant support."43

The Board further agrees with the BAMC's conclusion that even if the Board were to "address the remainder of the JAS Final Report," as the Requestor asks,44 reconsideration still would be not warranted. The BAMC has reviewed the JAS Final Report and associated relevant materials, including comments made in response to the Request for Public Comment, and has confirmed that financial assistance in the form requested by the Requestor was never recommended by the JAS WG or otherwise. Thus, even if ICANN org were to "address the remainder of the JAS Final Report," as the Requestor asks,45 ICANN org would not find any recommendation in the JAS Final Report that financial support be made available for engaging in the contention resolution process.

ICANN Org Adhered to Its Core Values in Responding to the Requestor's Request for Financial Assistance.

The Board agrees with the BAMC's finding that ICANN org has not violated its core value to act in the global public interest by denying the Requestor's financial assistance request. The Core Value cited by the Requestor provides:

Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent.46

ICANN org's implementation of the ASP is the embodiment of this Core Value, not, as the Requestor claims, a contravention of it. The Core Value to "seek[] and support broad, informed participation" via the multistakeholder model is illustrated in the ICANN Board's request, in March 2010, that stakeholders "work through their [Supporting Organizations] SOs and [Advisory Committees] ACs, and form a Working Group to develop a sustainable approach to providing support to applicants requiring assistance in applying for and operating new gTLDs."47 The JAS Final Report, which the ICANN Board fully considered, was developed in response to ICANN's commitment to the multistakeholder model, and exemplifies ICANN's commitment to "ascertain the global public interest" as it concerns the New gTLD Program. In resolving to consider the JAS Final Report, the Board noted that it "takes seriously the assertions of the ICANN community that applicant support will encourage diverse participation in the New gTLD Program and promote ICANN's goal of broadening the scope of the multi-stakeholder model."48

The BAMC determined, and the Board agrees, that the Requestor appears to urge ICANN org to circumvent the established policy set forth in the requirements governing the ASP in a manner favorable to the Requestor, which undermines, rather than bolsters, the global public interest. ICANN org is committed to diversity, operational stability, and non-discrimination, but it is not responsible for guaranteeing a gTLD for any specific applicant. The Requestor has failed to demonstrate any violation of ICANN's core values.

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

As an initial matter, the Board notes that the Rebuttal is untimely. The Requestor received the Recommendation on 17 November 2018.49 The Rebuttal was due 15 days later, on 2 December 2018.50 The Requestor submitted the Rebuttal on 3 December 2018, one day after the deadline.51 Nonetheless, the Board has considered the arguments in the Requestor's rebuttal and finds that they do not support reconsideration for the following reasons.

Request 18-9 Seeks Reconsideration of ICANN Org's Denial of the Requestor's Request for Financial Support.

The Requestor argues in the Rebuttal that is not "directly" seeking "funding support." (Rebuttal at Pg. 1. See also id. at Pg. 3 (Request 18-9 "did not request any particular form of financial assistance.").) However, as the BAMC noted in the Recommendation, on 27 August 2018, the Requestor sent an email to ICANN org stating that it was "looking to request financial support for engaging in the string contention resolution process." (BAMC Recommendation at Pg. 9, citing Exhibit A to Recommendation.) The Requestor identified ICANN org's response to this email "reject[ing] the request" as the action it seeks to have reconsidered.52 Accordingly, the BAMC reasonably understood Request 18-9 to seek reconsideration of ICANN org's denial of the Requestor's request for financial support.

The Requestor now asserts that Request 18-9 "simply" asks "the ICANN Board to initiate the process to consider the remaining parts of the JAS Final Report." (Rebuttal at Pg. 1.) However, the BAMC already considered this claim. The BAMC concluded that "ICANN org did thoughtfully and fully consider all of the recommendations set forth in the JAS Final Report." (BAMC Recommendation, at Pg. 13.) The Board agrees, and adopts the reasoning set forth in the BAMC Recommendation.

The Board finds that the Requestor's Rebuttal has not provided any new arguments, or identified any policy or procedure (because there is none) obligating ICANN to reconsider the JAS WG's recommendations that it previously did not adopt.

The Board notes that the Rebuttal expresses disagreement with the BAMC's conclusion that the Board made it clear that it had determined not to adopt all of the recommendations set forth in the JAS Final Report. The Requestor claims that this "at best leaves the question open" as to whether the Board would give further consideration to the recommendations that it did not follow. (Rebuttal, at Pg. 2) However, nothing in the materials cited the Requestor supports the Requestor's assertion that the Board intended to "leave[] . . . open" the possibility of further consideration of the JAS recommendations that it did not adopt in 2011. (Rebuttal, at Pg. 2.) As the BAMC explained, Resolutions 2011.12.08.01 – 2011.12.08.03 and supporting materials make clear that the Board considered and decided not to adopt any JAS WG recommendations except those set forth in the Process and Criteria documents. Specifically, Resolution 2011.12.08.01 directed ICANN org to "finalize the implementation plan in accordance with the proposed criteria and process for the launch of the Applicant Support Program."53 The Process and Criteria documents neither provide for the additional funding the Requestor seeks nor provide for potential reevaluation of the JAS recommendations that the Board did not adopt in 2011.54 The Board is not persuaded by the Requestor's arguments to the contrary, which are based on opinion. The Requestor has not provided any new facts or evidence to demonstrate that reconsideration is warranted.

The JAS WG Never Recommended Financial Support in the Form Sought by the Requestor.

For the first time in the Rebuttal, the Requestor argues that, without "some further support (e.g., in terms of fee reduction, adjustment, staggering or otherwise), the Applicant Support program simply does not make sense." (Rebuttal, at Pg. 1.) As a preliminary matter, the Bylaws state that Rebuttals "shall . . . be limited to rebutting or contradicting the issues raised in the" Recommendation, and shall "not offer new evidence" if the Requestor "could have provided" that evidence when it originally submitted the Request.55 As such, this argument does not rebut a specific issue raised in the Recommendation; it should have been raised in the Request, and is therefore not properly raised in the Rebuttal. Moreover, any challenge to the Board Resolutions 2011.12.08.01 – 2011.12.08.03 or the ASP is long since time barred. Nevertheless, the Board has considered the argument and concludes that it does not support reconsideration for the following reasons.

The Requestor argues that the BAMC incorrectly concluded that none of the JAS WG's recommendations that the Requestor relied on in Request 18-9 "suggest a specific intent to make financial support available to assist in the contention resolution process." (Rebuttal, at Pg. 3.) The Requestor asserts that "[e]ven if direct support for the contention resolution process is not available, the adjustment of other fees could have significant impact on" Support-Approved Candidates, and that the BAMC should not have concluded that "just because direct contribution might not be included[,] . . . other fee adjustments" might have been contemplated. (Id.) The BAMC's conclusion was not as limited as the Requestor suggests; the BAMC concluded that the JAS Final Report did not support financial support of any type for any portion of the contention resolution process. (BAMC Recommendation, at Pgs. 15-16.) Additionally, as the BAMC noted, the JAS Final Report specifically stated that, in the case of string contention, the Applicant would have to "'fund[] this additional step'" of the process. (BAMC Recommendation, at Pg. 16, quoting JAS Final Report at 28.) The Requestor does not identify any policy or procedure (nor is there one) requiring ICANN org to modify or add on to the JAS WG's recommendations to provide additional support to the Requestor or similarly situated applicants when the Board has not made such provisions and the report to the Board did not even recommend such support.

The Board also finds that the Requestor's assertion that the BAMC concluded that "any other further financial support will not help" is inaccurate. (Rebuttal, at Pg. 3.) The BAMC concluded that ICANN org adhered to established policies and procedures when it concluded that additional financial assistance for the Requestor was not available under the ASP. (BAMC Recommendation, at Pgs. 12-16.)

For the above reasons, none of the Requestor's Rebuttal arguments support 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 is an Organizational Administrative Function that does not require public comment.