BRUSSELS, Belgium–As expected, the ICANN board passed a resolution Friday that calls for the expedited reconsideration of the previously denied ICM Registry application to run dot-XXX as a sponsored top-level domain. The vote was unanimous with the exception of two abstentions. But sometimes a vote is not quite what it appears at first glance.
Despite the use of the term “expedited” in the resolution, for instance, one board member duly noted that the potential remains for this to be “a prolonged process in timing.” That is not a message the registrar community wanted to hear, but it reflected the undeniable fact that very real obstacles remain before ICM will get its TLD, if in fact it ever does, and that it remains as likely as not that the application will not pass muster and will once again be denied, either at the December meeting, in Cartagena, Colombia, or at some point thereafter.
The resolution itself was consistent with the preview presented Thursday by ICANN general counsel John Jeffrey, but contained additional language. Board chair Peter Dengate Thrush read the resolution before a half-full auditorium during the penultimate meeting at the Brussels conference,
“Whereas, on the 19th of February, 2010, an independent review panel—'the panel'—issued an advisory declaration in the independent review proceedings filed by ICM registry challenging ICANN's denial of ICM's application for the XXX domain—sorry, XXX sTLD.
“Whereas, the board understands and appreciates the inaugural utilization of the independent review process and the value of such an accountability mechanism.
“Whereas, although the board has not made a determination as to whether or not it agrees with the findings of the panel majority–a two-one decision–the board has determined to accept and act in accordance with some of the panel's findings.
“Whereas, in accordance with article IV, section 3.15 of ICANN's bylaws, the board considered the panel's declaration throughout the week in Nairobi from the 7 through 12 March 2010 and reviewed various paths towards conclusion.
“Whereas, in the absence of a process for approving an sTLD six years following the receipt of ICM's original application, the board chose to create a transparent set of process options and resolved to pose those options for public comment.
“Whereas the process options were posted for public comment, and over 13,700 comments received have been reviewed and analyzed. And whereas, the board has reviewed public comments received and further discussed and debated the process options for further consideration of the panel declaration.
“Resolved, the board accepts and shall act in accordance with the following findings of the independent process majority. 'One, the board in adopting its resolutions of June 1, 2005, found that the application of ICM registry for the XXX sTLD met the required sponsorship criteria; and, two, the board's reconsideration of that finding was not consistent with the application of neutral, objective, and fair documented policy.'
“Resolved, the board directs staff to conduct expedited due diligence to ensure that, brackets (1) the ICM application is still current, semicolon, and then (2) that there have been no changes in ICM's qualifications.
“Resolved, if the expedited due diligence results are successful, then the board directs ICANN staff to proceed into draft contract negotiations with ICM, taking into account the GAC advice received to date.
“Resolved, upon staff's finalizing of a draft contract with ICM, the board will determine whether the proposed contract is consistent with GAC advice and, if not, will enter into GAC consultation in accordance with the bylaws.
“Resolved, after the GAC consultation is completed, the board will decide whether to approve the contract and will declare whether its action is in accordance with GAC advice or not.”
Though the resolution does not mention another public comment period, former board member Raimundo Beca, of Chile—whose tenure was actually up at this meeting, before the final voting—said in response to a question that there would have to be another public comment period, because the new contract would automatically trigger a last round of stakeholder input.
Following the reading of the resolution into the record, Thrush asked for a second and received it. He then asked if any board members wanted to comment. Several raised their hands, and Thrush called upon Harald Alvestrand, from Norway.
“To say that I am uncomfortable with this situation is an understatement,” Alvestrand began. “I believe that our process has been followed, our reconsideration process has been followed. We have received competent legal advice on what is the reasonable path forward for what the organization should do, and that effectively this forces me to say that it is in the best interest of the organization and the interest of the furtherance of the organization's goals to act as if something is true that I believe is not, in fact, so. This is a very uncomfortable situation, but I can see no better way to move forward. Thank you.”
Thrush then thanked Alvestrand “for a very concise explanation of the position that I think many board members find themselves in.”
Indeed, the sense of discomfort among board members became almost palpable at this point in the meeting, and the large hall became equally quiet as the seriousness of the situation sunk in. It is unusual for board members to publicly express such a sense of conflict, but it was equally telling that usually reserved members felt compelled to do so. Alvestrand was referring to the fact that the ICANN lawyers had strongly recommended passage of the resolution in order to head off a threatened lawsuit by ICM Registry. In being asked to pass a resolution that “accepted” findings some board members believed not to be true, even if it was in the “best interest of the organization,” the deed was taking a visible toll on the conscience of board members.
Thrush then called upon Rita Rodin Johnston, from the United States.
“I guess I agree with Harald,” she said. “I was in the unfortunate position to be on the board in 2007 and being told to reevaluate what happened in 2005. And after hearing many comments about the propriety of this application, I still question whether, in fact, there is a real sponsored community here, but it really doesn't matter what I think. I think what's important is that ICANN has a process that it set up and the process came back and said that sponsorship criteria was met and that this board has the courage to follow that criteria. And I think that is really important for everyone in the community to understand and appreciate. Thanks.”
The next board member to speak was Bruce Tonkin, from Australia.
“I just wanted to draw attention to some of the timing implications of the resolution just so it's clear to the community as well as to the applicant here,” he said. “The first couple of steps of the timing probably more in the control of the ICANN staff and the applicant in that there will be, first, a due diligence stage; secondly, if that due diligence is successful, then there is a stage where the draft contract is reviewed. But, ultimately, the key step then is for the board to decide whether the board feels that contract is in compliance with GAC advice.
“If the board doesn't feel it is in compliance with GAC advice,” he continued, “then it needs to consult with the GAC. And our best advice so far is that that would probably be in Colombia because the GAC as a whole doesn't meet inter-sessionally. So I just wanted to make clear that there is a potential that this is a prolonged process in timing.”
Thrush then called upon Katim Kouray, from Gambia, the last board member requesting to speak.
“Good morning, everyone,” he began. “I, too, I think have to say that I'm like a lot of people here on this dais. You know, I'm in a very uncomfortable position in the face of this resolution. I think at the end of the day, we all have to face the facts that sometimes we have to make the tough decisions. And I think this is a very difficult decision that has to be made in the interest of ICANN, in the interest of due process, and in the interest of the involvement of the community in the stipulation of the policies of the organization. And as Bruce said, this game has still not played out yet. We still have quite a number of steps to proceed. I think at this point, you know, we have to, you know, do our best to follow due process. Thank you.”
With that, the board chair put the resolution to a vote. All but two voting members raised their hands in the affirmative, with none in dissent. Two members noted their intent to abstain, ICANN CEO Rod Beckstrom and French board member Jean-Jacques Subrenat. Thrush then asked if either wanted to explain their abstentions, and each indicated they did. Subrenat went first.
Thank you, chair,” he said. “I would like to provide two sentences regarding my abstention. First, my position is established on an informed basis with all due care, in good faith, in the honest belief that it is in the interests of the corporation of which I am a member of the board.
“Second statement: I believe that my abstention in this vote is consistent with the dispositions of Article 6, Section 23 of the ICANN bylaws. I request that my statement be deposited by the secretary of the board. Thank you.”
Rod Beckstrom then spoke, noting his reason for not voting with a prepared statement.
“While I accept the contribution to ICANN's accountability and transparency provided by the existence and the use of the independent panel review process, I am nonetheless concerned about the determination by two of the three panelists that the ICANN board should not use business judgment in the conduct of its affairs,” he said. “In my view as CEO, the board must be able to use business judgment in order to protect the global public interest in the coordination of the root of the internet and the domain name system.”
With no further business with respect to the dot-XXX resolution, the matter was closed and the board moved on to other business.
Online, however, the live chat session provided a very different perspective on the events unfolding in Brussels. FSC board member Reed Lee, who got up early in Chicago to watch the meeting live, provided the following remarks on the online commentary.
"Those who participated in ICANN's proceedings remotely saw a running commentary by several people familiar with ICANN's activity,” he said. “None of those people were directly interested in the .xxx matter, but they were all familiar with ICANN's processes and with the TLD debates. To a person, they stated that they believe that ICM has major obstacles ahead of it, and several went so far as to predict that ICM will find them insurmountable."
FSC Executive Director Diane Duke said she was optimistic about the ultimate outcome of the current process.
“Today was a good day for opponents of a .XXX sTLD,” she said. “While there is no question that the ICANN Board went out of its way to protect the integrity of the institution, it also threw out some hefty barriers for ICM to overcome. In the long run I believe that the application will be denied.
For his part, ICM chief executive Stuart Lawley was reported to be thrilled with the vote, telling an outlet that he expected dot-XXX to be in business in the very near future. With full regard for the already interminable nature of the application, time will tell.
A transcript of the board meeting can be found at http://brussels38.icann.org/node/125.