Reconsideration Request 19-1: Colombian Government re: .AMAZON

Brief Summary and Recommendation
The full factual background is set forth in the BAMC Recommendation on Request 19-1 (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

On 14 August 2019, the BAMC evaluated Request 19-1 and all relevant materials and recommended that the Board deny Request 19-1 because the 15 May 2019 Resolutions were adopted based on accurate and complete information. The BAMC further recommended that the Board deny Request 19-1 because neither the Board nor ICANN organization took any action in contradiction of ICANN's Bylaws.

Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the BAMC's Recommendation on Request 19-1 to submit a rebuttal. No rebuttal was filed by the 29 August 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 19-1, and the Board agrees with the BAMC's Recommendation.

Issue
The issues are as follows:

Whether the Board adopted the 15 May 2019 Resolutions based on false or inaccurate relevant information, or without consideration of material information.

Whether the Board adopted the 15 May 2019 Resolutions contrary to ICANN's Bylaws, which require that "[a]t least seven days in advance of each Board meeting (or if not practicable, as far in advance as is practicable), a notice of such meeting and, to the extent known, an agenda for the meeting shall be posted."1

Whether ICANN org or the ICANN Board violated ICANN's Bylaws, which require that ICANN "operate to the maximum extent feasible in an open and transparent manner,"2 by holding a closed meeting with the Registries Stakeholder Group (RySG) to discuss a potential process to modify Public Interest Commitments (PICs).

Analysis and Rationale

The Board Did Not Fail to Consider Material Information Before Adopting the Resolutions.
The Board did consider all relevant materials in adopting the 15 May 2019 Resolutions. The Requestor suggests that "ICANN Staff and Board . . . failed to consider the detailed legal concerns raised in a [7 April 2019] communication to Amazon the Company in which the ICANN CEO, ICANN Board Chair, and ICANN GAC Chair were all copied."3 Relatedly, the Requestor notes that "the Colombian government offered other governance structures" in its 7 April 2019 communication to the Amazon corporation, but that it "does not appear that the ICANN Board even consider[ed] this potential option in seeking to achieve a mutually agreeable resolution between the parties."4 Contrary to the Requestor's assertion, the Board considered the issues set forth in the Requestor's 7 April 2019 Letter as part of its discussion on the Amazon corporation's April 2019 Proposal at the Board workshop from 1-3 May 2019. Hence, the BAMC concluded, and the Board agrees, that there is no evidence that the Board failed to consider material information in adopting the 15 May 2019 Resolutions.5

The Board considered the "legal concerns" raised in the Requestor's 7 April 2019 Letter.
The Requestor's conclusion that the Board did not consider the Requestor's "legal concerns" is based solely on the Requestor's assertion that it "has been unable to find [the 7 April 2019] communication listed on the ICANN public correspondence website or in any of the cited references in the Resolution[s]."6 However, the Requestor's 7 April 2019 Letter was addressed to the Amazon corporation, not to the ICANN Board, ICANN org, or any individual associated with ICANN.7 ICANN org's President and CEO, as well as the Board Chair, were simply copied on the communication.8 It is not ICANN's policy or practice to publicly post communications between third parties on which it is only copied.

While the Board acknowledges that the Requestor's 7 April 2019 Letter was not specifically identified in the 15 May 2019 Resolutions under the "What materials did the Board review" section of the Rationale, the legal concerns and the proposed joint governance structure for the .AMAZON TLDs set forth in the Requestor's 7 April 2019 Letter were also discussed in other correspondence from the ACTO member states that the Board considered and listed in adopting the 15 May 2019 Resolutions.9 Specifically, the legal concerns and proposed joint governance structure were included in the 11 April 2019 letter from the Secretary General of ACTO to the ICANN Board Chair,10 and the letters from Ambassador Zaluar of Brazil to the ICANN Board of 23 April 201911 and 7 May 2019.12 Further, ACTO noted in its 11 April 2019 letter to the Board that the ACTO member states "have presented many times in the past years . . . their joint and clear position about the baseline for an agreement, i.e., a shared governance of the TLD."13 These letters were identified in the "What materials did the Board review" section to the 15 May 2019 Resolutions.14

The Board considered the alternative governance models suggested by the Requestor and ACTO member states.
Contrary to the Requestor's claims, the Board did consider the alternative governance models proposed by the Requestor and ACTO member states when the Board adopted the 15 May 2019 Resolutions. The fact that the Board did not accept the proposed joint governance models is not evidence that the Board failed to consider the proposals. 15 It should further be noted that the alternative governance models were not material to the question before the Board when it adopted the Resolutions. That is, pursuant to the 10 March 2019 Resolutions, the Board was to consider whether the Amazon corporation's proposal was acceptable, not to compare the Amazon corporation's proposal with alternatives proposed by other stakeholders. Nevertheless, the Board did consider the proposed alternative governance models.

The Board Did Not Adopt the 15 May 2019 Resolutions Based on False or Inaccurate Information.

The ICANN Board did not approve Amazon corporation's Specification 13 Applications when it adopted the 15 May 2019 Resolutions.
The Requestor claims that in adopting the 15 May 2019 Resolutions, "[t]he ICANN Board appears to blindly accept Amazon the Company's representation that operating the contested string under a Specification 13 designation would be consistent with existing ICANN established best practice and would safeguard all parties' best interests."16 According to the Request, "that is not the case," and is therefore inaccurate information, because "only the trademark owner, its affiliates and licensees are permitted to use domain names in a Specification 13 (aka Brand) TLD," and the Requestor "cannot see how Amazon Inc's proposal to permit ACTO members to be beneficial registrants of the domain names is acceptable under the existing ICANN registry contractual framework."17

The Board's determination in the 15 May 2019 Resolutions that ICANN org should "continue processing" the .AMAZON applications "according to the policies and procedures of the New gTLD Program" was not a determination that the Amazon corporation is automatically entitled to move forward to delegation of the .AMAZON TLDs, nor did the Board's action constitute approval of the Amazon corporation's Specification 13 applications to operate as .BRAND TLDs. In adopting the 15 May 2019 Resolutions, the Board acknowledged that the .AMAZON applications still needed to go through the remaining application processes in accordance with the Applicant Guidebook.18

While the Board was aware of the Amazon corporation's intention of operating the .AMAZON TLDs as .BRAND TLDs,19 the 15 May 2019 Resolutions did not take a position on the propriety of any Specification 13 application because individual Specification 13 applications are evaluated and approved or denied by ICANN org.20 The Board notes that the Amazon corporation had not yet submitted a formal Specification 13 application for the proposed .AMAZON TLDs when the Board approved the 15 May 2019 Resolutions. Because the Board did not take a position on the propriety of any Specification 13 application, it did not rely on any "representations" about Specification 13, and therefore those representations do not support the Requestor's claim that the Board relied on inaccurate information when it enacted the 15 May 2019 Resolutions.

Specification 13 status is not necessarily incongruent with the proposed PICs.
The Requestor claims that Amazon corporation's proposed PICs would automatically be incongruent with any Specification 13 application submitted by the Amazon corporation. The Board does not agree with the Requestor's conclusion. Specification 13 requires, among other things, that only the Registry Operator (here, this would be the Amazon corporation), "its Affiliates or Trademark Licensees are registrants of domain names in the TLD and control the DNS records associated with domain names at any level in the TLD." 21 There is no prohibition on allowing third parties to use domain names in a .BRAND TLD, which was what the Amazon corporation proposed to do.22

The Requestor states that it advised the Board of the conflict between Amazon corporation's Specification 11 and 13 designations in the Requestor's 7 April 2019 Letter. The Board notes that the Requestor actually concedes in the letter that the proposed PICs do not inherently conflict with Specification 13. That is, the Requestor does not assert that the proposed PICs actually violate Specification 13, but rather, the Requestor posits that the proposed PICs "violate the spirit of the Specification 13 guidance and the best practice of ICANN Org in approving Specification 13 requests."23 Because Specification 13 does not prohibit the type of use (without third-party registration) that the Amazon corporation proposed, the Requestor's assertions about the "spirit" of Specification 13 are misplaced and not grounds for reconsideration.24

Finally, the Requestor's concerns about Specification 13 appear to arise from a belief that, if the Amazon corporation applies for and receives Specification 13 status for the proposed .AMAZON TLDs, such status will nullify or diminish the effect of the PICs.25 While the Board understands the Requestor's concerns, they are unfounded and premature at this stage. Amazon corporation's Specification 13 status has no bearing on its Specification 11 PICs. The approval of a Specification 13 to an eventual registry agreement and the designation of a TLD as a .BRAND TLD does not nullify the Registry Operator's Specification 11 PICs. A Registry Operator will be contractually bound by its Specification 11 commitments and its Specification 13 obligations, if applicable. Each Specification has its own enforcement mechanisms. A Registry Operator's failure to operate in compliance with its Specification 11 PICs shall be subject to the Public Interest Commitment Dispute Resolution Procedure.26 Similarly, upon a Registry Operator's failure to satisfy the requirements of Specification 13, "(i) the TLD shall immediately cease to be a .BRAND TLD, (ii) Registry Operator shall immediately comply with the provisions of the [Registry] Agreement as no longer modified by [ ] Specification 13 [ ] and (iii) the provisions of [the] Specification 13 [ ] shall thereafter no longer have any effect."27 Thus, if an actual conflict should arise between the Amazon corporation's Specifications 11 and 13, there are safeguards in place to address such conflicts.

The Board's Adoption of the Resolutions Was Consistent with ICANN's Bylaws.
The Requestor claims that the Board adopted the Resolutions in contravention of the ICANN Bylaws because "the agenda for the 15-May-2019 ICANN Board meeting was published one (1) day in advance of the actual meeting."28 In the Requestor's view, this violated Article 3.4 of the ICANN Bylaws, which required that "[a]t least seven days in advance of each Board meeting (or if not practicable, as far in advance as is practicable), a notice of such meeting and, to the extent known, an agenda for the meeting shall be posted."29 As the Requestor acknowledges, "the bylaws provide some latitude" with respect to this provision by including "qualifiers like 'as is practicable.'"30 In this case, the 15 May 2019 meeting was set to address the urgent matter of the GNSO EPDP Recommendations on the Temporary Specification for gTLD Registration Data, because the Temporary Specification was set to expire.31 Given the circumstances, the agenda for the meeting was not finalized until 14 May 2019, when it was promptly posted as soon as practicable. Therefore, the timing of when the agenda was posted was consistent with the Bylaws.

No Meeting Was Scheduled with the RySG to Discuss a Potential Process to Modify PICs.
The Board agrees with the BAMC that Request 19-1 does not identify a violation of ICANN Bylaws, policies, or procedures because there was no private meeting between ICANN org and the RySG during ICANN 65 about a process for modifying previously agreed to PICs. Rather, the meeting cited by the Requestor concerned the process for enforcing PICs (the PIC Dispute Resolution Process, or PICDRP).

For the foregoing 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.