ICANN denies reconsideration requests by Namecheap and EFF

ICANN

Namecheap Inc. filed a reconsideration request (Request 19-2) challenging ICANN organization’s 2019 renewal of the Registry Agreements (RAs) with Public Interest Registry (PIR) and Afilias Limited (Afilias) for the .ORG and .INFO generic top-level domains (gTLDs).

Electronic Frontier Foundation filed a reconsideration request (Request 19-3) challenging ICANN organization’s renewal of the Registry Agreement (RA) with Public Interest Registry (PIR) for the .ORG generic top-level domain (gTLD), insofar as the renewal permits PIR to, “‘at its election, implement additional protections of the legal rights of third parties,’ unilaterally and without further consultation with existing .ORG registrants or the ICANN community” and applies the Uniform Rapid Suspension (URS) rules to .ORG registrants (collectively, the URS Rights Protection Mechanisms or URS RPMs).

Both reconsideration requests were denied by ICANN in ICANN 66 in Montreal, as ICANN decided that ICANN did nothing wrong. What a surprise!

ICANN ignored Namecheap and the Electronic Frontier Foundation pretty easily as it had previously ignored 3,200 comments on the comment period about the .org Registry Agreement renewal.

Wake up people! ICANN and the registries want to steal your domain names!

Here are the details of the 2 reconsideration requests:

  • Consideration of Reconsideration Request 19-2

    Whereas, Namecheap Inc. (Requestor) filed a reconsideration request (Request 19-2) challenging ICANN organization’s 2019 renewal of the Registry Agreements (RAs) with Public Interest Registry (PIR) and Afilias Limited (Afilias) for the .ORG and .INFO generic top-level domains (gTLDs), respectively (collectively, .ORG/.INFO Renewed RAs), insofar as the renewals eliminated “the historic price caps” on domain name registration fees for .ORG and .INFO.1

    Whereas, the Requestor claims that ICANN org’s “decision to ignore public comments to keep price caps in legacy gTLDs is contrary to ICANN’s Commitments and Core Values, and ICANN should reverse this decision for the public good.”2 The Requestor also asserts that ICANN Staff failed to consider material information concerning the nature of .ORG and security issues with new gTLDs when it executed the .ORG/.INFO Renewed RAs.3

    Whereas, pursuant to Article 4, Section 4.2(l), the Ombudsman accepted Request 19-2 for consideration, and, after investigating, concluded that “the CEO and Staff acted within the scope of the powers given them by the Board,” and that “no rules or duties of corporate governance were violated (including the ICANN Bylaws).”4

    Whereas, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests and make recommendations to the Board on the merits of those Requests. (See Bylaws, Art. 4, § 4.2(e).) However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.5

    Whereas, the majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-2 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-2. Therefore, the Board is considering Request 19-2 in lieu of a Recommendation by the BAMC.

    Whereas, the Board has carefully considered the merits of Request 19-2 and all relevant materials and concludes that ICANN org’s execution of the .ORG/.INFO Renewed RAs did not contradict ICANN’s Bylaws, policies, or procedures, and that ICANN Staff did not fail to consider material information in executing the Agreements. Accordingly, the Board proposes denying Request 19-2.

    Resolved (2019.11.03.01), the Board adopts the Proposed Determination on Reconsideration Request 19-2.

    Rationale for Resolution 2019.11.03.01

    The Board is taking this action today pursuant to Article 4, Section 4.2 of the ICANN Bylaws. Under Section 4.2 of the Bylaws, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests before making recommendations to the Board on the merits of those Requests. See Bylaws, Art. 4, § 4.2(e). However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.6 The majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-2 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-2. Therefore, the Board has considered and issues the Proposed Determination in lieu of a Recommendation by the BAMC.

    The Board has carefully considered the merits of Request 19-2 and all relevant materials. For the reasons set forth in the Proposed Determination, which are incorporated here, the Board concludes that ICANN org’s execution of the .ORG/.INFO Renewed RAs did not contradict ICANN’s Bylaws, policies, or procedures, and that ICANN Staff did not fail to consider material information in executing the Agreements. Accordingly, the Board proposes denying Request 19-2.

    Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the Board’s Proposed Determination on Request 19-2 to submit a rebuttal. Following the rebuttal period, the Board will issue a final determination on Request 19-2 in accordance with Article 4, Section 4.2(r) of the Bylaws.

    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. This accountability includes 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. This action should have 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.

  • Consideration of Reconsideration Request 19-3

    Whereas, Electronic Frontier Foundation (Requestor) filed a reconsideration request (Request 19-3) challenging ICANN organization’s renewal of the Registry Agreement (RA) with Public Interest Registry (PIR) for the .ORG generic top-level domain (gTLD) (the .ORG Renewed RA), insofar as the renewal permits PIR to, “‘at its election, implement additional protections of the legal rights of third parties,’ unilaterally and without further consultation with existing .ORG registrants or the ICANN community” and applies the Uniform Rapid Suspension (URS) rules to .ORG registrants (collectively, the URS Rights Protection Mechanisms or URS RPMs).7 The Requestor also seeks reconsideration of an alleged Board inaction, insofar as the ICANN Board of Directors did not vote on the .ORG Renewed RA.

    Whereas, the Requestor claims that ICANN org’s inclusion of the RPMs in the .ORG Renewed RA “run[s] contrary to ICANN’s bylaws.”8 The Requestor also claims that the Board’s inaction (i.e., that the Board did not vote on the .ORG Renewed RA) was based on the Board’s consideration of inaccurate relevant information and the Board’s failure to consider material information.9

    Whereas, pursuant to Article 4, Section 4.2(l), the Ombudsman accepted Request 19-3 for consideration, and, after investigating, concluded that the selection of terms to include in RAs is “ICANN org’s choice to make as directed by the Board—and as such, the actions of the Staff, acting with the authority vested in the CEO by the Bylaws and the Board, do not merit any kind of recommendation from me to the BAMC or the Board under [Request] 19-3.”10 The Ombudsman further concluded that “[i]n action or inaction, the Board did nothing improper in deciding to stay the course, so far as I can see. It heard the Community, it read the public comments (at the very least the comprehensive Staff Report summary), and in the end, it decided that the renewal terms for the Legacy gTLDs (including .org) were acceptable.”11

    Whereas, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests and make recommendations to the Board on the merits of those Requests. (See Bylaws, Art. 4, § 4.2(e).) However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.12

    Whereas, the majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-3 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-3. Therefore, the Board is considering Request 19-3 in lieu of a Recommendation by the BAMC.

    Whereas, the Board has carefully considered the merits of Request 19-3 and all relevant materials and concludes that reconsideration is not warranted because ICANN org’s execution of the .ORG Renewed RA was consistent with ICANN’s Bylaws, policies, and procedures. Further, the Board did not fail to consider material information or rely on false or inaccurate material information by allowing ICANN Staff to execute the .ORG Renewed RA without voting on it prior to execution. Accordingly, the Board proposes denying Request 19-3.

    Resolved (2019.11.03.02), the Board adopts the Proposed Determination on Reconsideration Request 19-3.

    Rationale for Resolution 2019.11.03.02

    The Board is taking this action today pursuant to Article 4, Section 4.2 of the ICANN Bylaws. Under Section 4.2 of the Bylaws, the Board designated the Board Accountability Mechanisms Committee (BAMC) to review and consider Reconsideration Requests before making recommendations to the Board on the merits of those Requests. See Bylaws, Art. 4, § 4.2(e). However, the BAMC is empowered to act only upon consideration by a quorum of the Committee.13 The majority of the BAMC members have recused themselves from voting on Reconsideration Request 19-3 due to potential or perceived conflicts, or out an abundance of caution. Accordingly, the BAMC does not have a quorum to consider Request 19-3. Therefore, the Board has considered and issues the Proposed Determination in lieu of a Recommendation by the BAMC.

    The Board has carefully considered the merits of Request 19-3 and all relevant materials. For the reasons set forth in the Proposed Determination, which are incorporated here, the Board concludes that reconsideration is not warranted because ICANN org’s execution of the .ORG Renewed RA was consistent with ICANN’s Bylaws, policies, and procedures. Further, the Board did not fail to consider material information or rely on false or inaccurate material information by allowing ICANN Staff to execute the .ORG Renewed RA without voting on it prior to execution. Accordingly, the Board proposes denying Request 19-3.

    Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the Board’s Proposed Determination on Request 19-3 to submit a rebuttal. Following the rebuttal period, the Board will issue a final determination on Request 19-3 in accordance with Article 4, Section 4.2(r) of the Bylaws.

    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. This accountability includes 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. This action should have 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.

 

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About Konstantinos Zournas

Konstantinos studied Computer Engineering and Computer Science in London and lives in Athens, Greece. He loves domains and building websites. He is online since 1995, learned about html in 1996 and got into domains in 2002. He started the OnlineDomain.com blog in 2012.

One comment

  1. Do you have a plain English blog post because this is all legalese and I have no idea what it means, luckily I read the link at

    https://onlinedomain.com/2019/04/29/domain-name-news/wake-up-people-icann-and-the-registries-want-to-steal-your-domain-names/

    but the jist of the above is that they ignored the comments and we are all at risk of having a “rent” put on our domains.

    What we need now is a campaign to break up ICANN

    The whole idea of ICANN was to provide an independent nn commercial 3rd party to manage what cannot cost more than a dollar a year per domain, to maintain a registry of our domains and stop any theft of our property.

    What ICANN has become is a BLOATED organisation who’s executive love the “gig” and want to keep themselves paid.

    In the UK we have the same thing with OFCOM, OFGEM and other regulators, the disease is known as OPM, they spend Other People’s Money, the BBC has the same disease with their TV Licence, £3.7BN is not enough for them so now they want to start going after the elderly who get it free.

    ICANN has invented a bunch of rules without the consent or approval of US the people that pay their salaries, they then act as Police, Judge and Jury on the legality of their actions.

    It is time to create a crowdsourcing fund to start a campaign to kick these clowns out, it seems to me that we pay their salaries, so we should have a vote, 1 per domain. We should be employing a very small board to execute our wishes. Starting with a caps, and a $1 reduction per annum until all registrations are $5.

    Anyone who has been in business knows if you lower the price you will sell more items.

    We may also need to fund some lawyers to get their head around these self serving rules and kick these clowns OUT.

    Go create the Crowdfunding page, I am sure we will get individual and commercial support.

    ENOUGH IS ENOUGH!

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