[council] ICANN Board resolutions - 9 Aug 2016

[Bruce Tonkin <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

From:  https://www.icann.org/resources/board-material/resolutions-2016-08-09-en

Approved Board Resolutions | Special Meeting of the ICANN Board

09 Aug 2016


1.  Consent Agenda:
 
        a. Approval of Minutes

Resolved (2016.08.09.01), the Board approves the minutes of the 25 June and 27 
June 2016 Meetings of the ICANN Board.


 
2.  Main Agenda:
 
        a. Root Zone Evolution Review Committee (RZERC) Charter

Whereas, ICANN developed the proposed Root Zone Evolution Review Committee 
(RZERC) charter in cooperation with the Implementation Oversight Task Force 
(IOTF) and the Cross Community Working Group on Naming Related Functions 
(CWG-Stewardship).

Whereas, the proposed charter is consistent with the IANA Stewardship 
Transition Coordination Group (ICG) proposal that the Board approved and 
transmitted to the National Telecommunications and Information Administration 
(NTIA) on 10 March 2016.

Whereas, ICANN commenced a public comment period from 30 June 2016 to 10 July 
2016 <https://www.icann.org/public-comments/draft-rzerc-charter-2016-06-10-en> 
on the proposed charter 
<https://www.icann.org/en/system/files/files/draft-rzerc-charter-10jun16-en.pdf>
 [PDF, 43 KB].

Whereas, the public comment forum on the proposed charter closed on 10 July 
2016, with ICANN receiving seven comment submissions by both individuals and 
organizations/groups. Upon review of these comments, ICANN coordinated with the 
impacted parts of the ICANN community to address the concerns and revise the 
charter appropriately.

Whereas, the RZERC charter calls for a representative from the ICANN Board to 
serve in the Committee.

Resolved (2016.08.09.02), the Board approves the RZERC charter as revised in 
response to public comment, and the President and CEO, or his designee(s), is 
authorized to take such actions as appropriate to form the RZERC.

Resolved (2016.08.09.03), the Board appoints Suzanne Woolf to serve on the 
RZERC.
 

        b. PTI Articles of Incorporation

Whereas, on 14 March 2014, the National Telecommunications and Information 
Administration (NTIA) of the United States Department of Commerce announced its 
intention to transition the stewardship of the IANA Functions to the global 
multistakeholder community.

Whereas, on 10 March 2016, Internet Corporation for Assigned Names and Numbers 
(ICANN) accepted and transmitted to the NTIA the following transition 
documents: (i) the IANA Stewardship Transition Coordination Group's IANA 
Stewardship Transition Proposal, (the "ICG Proposal") and (ii) the Cross 
Community Working Group on Enhancing ICANN Accountability's Work Stream 1 
Report (collectively, the "Transition Proposals").

Whereas, the ICG Proposal included a requirement that ICANN develop an 
affiliate to perform the naming-related IANA functions under a contract with 
ICANN, PTI. The ICG Proposal required PTI to be a California Nonprofit Public 
Benefit Organization, and ICANN is to be the sole member of PTI.

Whereas, ICANN lawyers worked diligently with the independent counsel to the 
Cross Community Working Group to Develop an IANA Stewardship Transition 
Proposal on Naming Related Functions ("CWG-Stewardship") to develop Articles of 
Incorporation for the new PTI. Those draft Articles were posted for public 
comment for a period of 30 days.

Whereas, upon the close of the comment period, a detailed analysis of the 
comments was performed and modifications were made to the Articles in response 
to the public comments. ICANN coordinated with the independent law firm on the 
revisions.

Whereas, ICANN's General Counsel has asserted that the proposed PTI Articles of 
Incorporation remain consistent with the Transition Proposals and recommends 
that ICANN proceed to forming the affiliate to allow for implementation 
planning to continue.

Resolved (2016.08.09.04), the ICANN Board authorizes ICANN's CEO, or his 
designee, to proceed with the formation of PTI, including the filing of the 
proposed PTI Articles of Incorporation as revised after public comment.
 

 
        c. Root Zone Maintainer Agreement

Whereas, the National Telecommunications and Information Agency (NTIA) 
officially requested that Verisign and ICANN work together to develop a 
proposal on how best to transition NTIA's administrative role associated with 
root zone management in a manner that maintains the security, stability, and 
resiliency of the Internet's domain name system in a 4 March 2015 letter to 
ICANN.

Whereas, in August 2015, ICANN and Verisign submitted a proposal to NTIA in 
response to its request 
<https://www.ntia.doc.gov/files/ntia/publications/root_zone_administrator_proposal-relatedtoiana_functionsste-final.pdf>
 [PDF, 247 KB]. The proposal outlines two parts, a parallel testing period of 
the of Root Zone Management Systems (RZMS) and a Root Zone Maintainer Agreement 
(RZMA) with Verisign for Verisign to continue performing the root zone 
maintainer function it performs today under the Cooperative Agreement with the 
Department of Commerce.

Whereas, NTIA specified in a 9 June 2016 letter to ICANN that a finalized RZMA 
and successful completion of the parallel testing period are pre-conditions to 
the IANA Stewardship transition.

Whereas, the completion of the RZMA is a requirement from the package of 
proposals that the Board approved on 10 March 2016 to transition NTIA's 
stewardship of the IANA function to the global multistakeholder community and, 
because the RZMA exceeds US$500,000 in total, requires that the Board approves 
to delegate signature authority to the CEO.

Whereas, the parallel testing period of the RZMS successfully concluded on 6 
July 2016 <https://www.icann.org/news/announcement-2016-07-14-en>.

Whereas, ICANN and Verisign finalized negotiations on the terms of the proposed 
RZMA for Verisign to perform the root zone maintainer function, and published 
the proposed RZMA for a 30-day notice period as required by the IANA 
Stewardship Transition Coordination Group (ICG) proposal 
<https://www.icann.org/news/blog/root-zone-management-transition-update-preservation-of-security-stability-and-resiliency>.

Whereas, the proposed RZMA contains provisions that incorporate relevant 
requirements from the Cross Community Working Group on Naming Related Functions 
(CWG-Stewardship).

Whereas, the Board Finance Committee reviewed the financial aspects and 
implications of the RZMA and found (i) that the proposed costs of the contract 
were reasonable, (ii) that the procurement process had been respected, (iii) 
that the costs were affordable, and recommended approval by the Board as a 
result.

Resolved (2016.08.09.05), the proposed RZMA is approved, and the President and 
CEO, or his designee(s), is authorized to take such actions as appropriate to 
finalize and execute the Agreement.
 

 
        d. ICANN Restated Articles of Incorporation

Whereas, on 14 March 2014, the National Telecommunications and Information 
Administration (NTIA) of the United States Department of Commerce announced its 
intention to transition the stewardship of the IANA Functions to the global 
multistakeholder community.

Whereas, on 10 March 2016, Internet Corporation for Assigned Names and Numbers 
(ICANN) accepted and transmitted to the US National Telecommunications and 
Information Agency the following transition documents: (i) the IANA Stewardship 
Transition Coordination Group's IANA Stewardship Transition Proposal, (the "ICG 
Proposal") and (ii) the Cross Community Working Group on Enhancing ICANN 
Accountability's Work Stream 1 Report (collectively, the "Transition 
Proposals").

Whereas, the ICANN Articles of Incorporation need to be restated in order to 
align with the new ICANN Bylaws and for consistency with the Transition 
Proposals.

Whereas, ICANN lawyers worked diligently with the independent counsel to the 
CCWG-Accountability to develop Restated Articles of Incorporation for ICANN. 
Those Restated Articles were posted for public comment for over 40 days.

Whereas, upon the close of the comments, a detailed analysis of the comments 
was performed and modifications were made to the Articles in response to the 
public comments. ICANN coordinated with the independent law firms on the 
revisions.

Whereas, ICANN's General Counsel has asserted that the proposed Restated ICANN 
Articles of Incorporation remain consistent with the Transition Proposals and 
recommends that the Board approve the amendment to ICANN's Articles and 
authorize ICANN to proceed to filing at the appropriate time.

Resolved (2016.08.09.06), the ICANN Board approves the proposed amendments to 
ICANN's Articles of Incorporation, which shall be deemed effective upon the 
expiration the IANA Functions Contract between ICANN and NTIA.

Resolved (2016.08.09.07), the ICANN Board authorizes ICANN's CEO, or his 
designee, to proceed with the filing of the Restated Articles of Incorporation 
once they are effective.
 

 
        e.  GNSO Policy Recommendations on Privacy & Proxy Services 
Accreditation

Whereas, on 31 October 2013, the GNSO Council approved the charter for a 
Working Group to conduct a Policy Development Process that had been requested 
by the ICANN Board concerning the accreditation by ICANN of privacy and proxy 
domain name registration service providers, as further described at 
http://gnso.icann.org/en/drafts/raa-pp-charter-22oct13-en.pdf [PDF, 463 KB].

Whereas, the PDP followed the prescribed PDP steps as stated in the ICANN 
Bylaws, resulting in a Final Report being delivered to the GNSO Council on 8 
December 2015.

Whereas, the Privacy & Proxy Services Accreditation Issues PDP Working Group 
(WG) reached Full Consensus on all its final recommendations (see 
http://gnso.icann.org/en/issues/raa/ppsai-final-07dec15-en.pdf [PDF, 1.24 MB]).

Whereas, the GNSO Council reviewed and discussed the final recommendations of 
the Privacy & Proxy Services Accreditation Issues PDP WG, and adopted the 
recommendations on 21 January 2016 by a unanimous vote (see 
http://gnso.icann.org/en/council/resolutions - 201601.)

Whereas, the GNSO Council vote exceeded the required voting threshold (i.e. 
supermajority) to impose new obligations on ICANN contracted parties.

Whereas, in accordance with the ICANN Bylaws, a public comment period was 
opened on the approved recommendations to provide the community with a 
reasonable opportunity to comment on their adoption prior to action by the 
ICANN Board, and the comments received have been summarized and reported (see 
https://www.icann.org/en/system/files/files/report-comments-ppsai-recommendations-31mar16-en.pdf
 [PDF, 299 KB]).

Whereas, the ICANN Bylaws provide that the Board is to request the GAC's 
opinion regarding "any policies that are being considered by the Board for 
adoption that substantially affect the operation of the Internet or third 
parties, including the imposition of any fees or charges" and "take duly into 
account any advice timely presented" as a result.

Whereas, the Board notified the GAC of the publication of the GNSO's final 
recommendations for public comment on 19 February 2016 (see 
https://gacweb.icann.org/download/attachments/27492514/2016-02-19-Steve-Crocker-to-Thomas-Schneider-GNSO-PDP.pdf?version=1&modificationDate=1456046942000&api=v2
 [PDF, 819 KB]).

Whereas, in its Marrakech Communiqué issued on 9 March 2016 the GAC advised the 
ICANN Board that it needed more time to consider potential public policy 
concerns relating to the adoption of the final PDP recommendations (see 
https://gacweb.icann.org/download/attachments/28278854/GAC Morocco 55 
Communique FINAL.pdf?version=1&modificationDate=1458046221000&api=v2 [PDF, 567 
KB]).

Whereas, on 15 May 2016 the Board acknowledged receipt of the GNSO's PDP 
recommendations and resolved to consider them at its first meeting following 
ICANN56 to enable the GAC to provide timely advice, if any (see 
https://www.icann.org/resources/board-material/resolutions-2016-05-15-en - 2.a).

Whereas, in its Helsinki Communiqué issued on 30 June 2016 the GAC advised the 
ICANN Board to direct that the GAC's concerns be effectively addressed to the 
greatest extent feasible by the Implementation Review Team that is to be 
convened to implement the adopted recommendations (see 
https://gacweb.icann.org/display/gacweb/Governmental+Advisory+Committee?preview=/27132037/43712639/20160630_GAC%20ICANN%2056%20Communique_FINAL%20.pdf
 [PDF, 328 KB]).

Resolved (2016.08.09.08), the Board hereby adopts all the final recommendations 
of the Privacy & Proxy Services Accreditation Issues PDP Working Group, as 
passed by a unanimous vote of the GNSO Council on 21 January 2016 
("Privacy/Proxy Policy Recommendations").

Resolved (2016.08.09.09), the Board directs the President and CEO, or his 
authorized designee, to develop and execute an implementation plan, including 
costs and timelines, for the Privacy/Proxy Policy Recommendations consistent 
with ICANN Bylaws Annex A and the Implementation Review Team Guidelines & 
Principles endorsed by the Board on 28 September 2015 (see 
https://www.icann.org/resources/board-material/resolutions-2015-09-28-en - 
2.f), and to continue communication with the community on such work. In the 
event that policy issues arise in the course of implementation discussions, 
they should be referred back to the GNSO in accordance with the framework for 
implementation associated with GNSO policy recommendations, including the 
Implementation Review Team Guidelines & Principles.

Resolved (2016.08.09.10), the Board acknowledges the GAC's advice from the 
Helsinki Communiqué regarding the Privacy/Proxy Policy Recommendations. The 
Board will consider the GAC's advice and provide input to the Implementation 
Review Team for consideration in implementation planning.
 

 
        f.  Consideration of BGC Recommendation on Reconsideration Request 16-3 
(.GAY)

Item removed from agenda.

 
        g.  Consideration of Dot Registry v. ICANN IRP Final Declaration

Whereas, on 29 July 2016, an Independent Review Process (IRP) Panel (Panel) 
issued its Final Declaration in the IRP filed by Dot Registry, LLC (Dot 
Registry) against ICANN (Final Declaration).

Whereas, the Panel majority declared that "the actions and inactions of the 
Board were inconsistent with ICANN's Articles of Incorporation and Bylaws" in 
that "the Board (acting through the BGC) failed to exercise due diligence and 
care in having a reasonable amount of facts in front of them and failed to 
fulfill its transparency obligations," and that the evidence before the Panel 
did not support a determination that the Board (acting through the BGC) 
exercised independent judgment in reaching the reconsideration decisions. (See 
Final Declaration, ¶¶ 151-152.)

Whereas, the Panel majority further declared that "Dot Registry is the 
prevailing party" and that ICANN shall pay to Dot Registry US$235,294.37 "upon 
demonstration that these incurred costs have been paid in full." (Id. ¶ 154.)

Whereas, "[t]he Panel majority decline[d] to substitute its judgment for the 
judgment of the CPE as to whether Dot Registry is entitled to Community 
priority." (Id. at ¶ 153.)

Whereas, the Panel majority did not make any recommendations to the Board as to 
what, if any, subsequent action the Board should take in furtherance of the 
Final Declaration.

Whereas, Dot Registry has stated in a letter to the Board, among other things, 
that its "90 page expert report" is "sufficient and compelling to assist the 
Board with determining that Dot Registry's applications should have passed CPE" 
and requesting that ICANN "proceed to contracting with Dot Registry for .INC, 
.LLC, and .LLP. (See 
https://www.icann.org/en/system/files/correspondence/jolles-to-icann-board-06aug16-en.pdf
 [PDF, 1.5 MB]).

Whereas, the Panel considered and challenged the current standard of review 
employed by the BGC in reviewing Reconsideration Requests.

Whereas, in accordance with Article IV, section 3.21 of ICANN's Bylaws, the 
Board has considered the Final Declaration.

Resolved (2016.08.09.11), the Board accepts the findings of the Final 
Declaration that: (i) Dot Registry is the prevailing party in the Dot Registry, 
LLC v. ICANN IRP; and (ii) ICANN shall pay to Dot Registry US$235,294.37 upon 
demonstration that these incurred costs have been paid in full.

Resolved (2016.08.09.12), the Board has noted the other findings in the 
Declaration and the findings regarding the Panel majority's statements with 
respect to the standard of review for Reconsideration Requests referenced 
above, and will consider next steps in relation to Dot Registry's 
Reconsideration Requests or the relevant new gTLDs before the Board takes any 
further action.

Resolved (2016.08.09.13), in light of the recent letter received from Dot 
Registry and the factual inaccuracies that have been reported in online blogged 
reports, the Board directs the Secretary, or his designee(s), to post the Board 
briefing materials on this matter simultaneously with the resolutions.
 

 
        h.  Consideration of Request for Cancellation of HOTEL Top-Level Domain 
S.a.r.l's (HTLD's) Application for .HOTEL

Whereas, Travel Reservations SRL (formerly Despegar Online SRL), Famous Four 
Media Limited, Fegistry LLC, Minds + Machines Group Limited, Donuts Inc., and 
Radix FZC (collectively, .HOTEL Claimants) have requested that ICANN cancel 
HOTEL Top-Level Domain S.a.r.l's (HTLD's) application for .HOTEL.

Whereas, the .HOTEL Claimants' request is premised on Dirk Krischenowski's 
apparent business connections to HTLD, coupled with his exploitation of the 
portal issue that allowed parties to access confidential information of various 
applicants for new gTLDs, including information of several of the .HOTEL 
Claimants.

Whereas, ICANN's forensic investigation of the portal issue determined that Mr. 
Krischenowski's unauthorized access to confidential information did not occur 
until after HTLD submitted its application in 2012 and after HTLD elected to 
participate in CPE on 19 February 2014.

Whereas, ICANN has not uncovered any evidence that: (i) the information Mr. 
Krischenowski may have obtained as a result of the portal issue was used to 
support HTLD's application for .HOTEL; or (ii) any information obtained by Mr. 
Krischenowski enabled HTLD's application to prevail in CPE.

Resolved (2016.08.09.14), the Board concludes that cancellation of HTLD's 
application for .HOTEL is not warranted.

Resolved (2016.08.09.15), the Board directs the President and CEO, or his 
designee(s), to move forward with processing HTLD's application for .HOTEL.
 


 
3. Executive Session - Confidential:
 
 a. Ombudsman FY16 At-Risk Compensation

Whereas, the Compensation Committee recommended that the Board approve payment 
to the Ombudsman of his FY16 at-risk compensation.

Resolved (2016.08.09.16), the Board hereby approves a payment to the Ombudsman 
of his FY16 at-risk compensation component.
 

 
b. Officer Compensation

Whereas, the attraction and retention of high caliber staff is essential to 
ICANN's operations and ICANN desires to ensure competitive compensation for 
staff.

Whereas, independent market data provided by outside expert compensation 
consultants indicates that current and proposed increases to compensation 
amounts for the President, GDD, General Counsel & Secretary, CFO, COO, CIO, and 
SVP, Policy Development Support and General Manager, ICANN Regional 
Headquarters - Istanbul are within ICANN's target of the 50th to 75th 
percentile for total cash compensation based on comparable market data for the 
respective positions.

Whereas, independent market data provided by outside expert compensation 
consultants indicates that current compensation for the CFO is below ICANN's 
target of the 50th to 75th percentile for total cash compensation based on 
comparable market data for the respective positions.

Whereas, the compensation for the President, GDD, the General Counsel & 
Secretary, the CFO, and the SVP, Policy Development Support and General 
Manager, ICANN Regional Headquarters - Istanbul, has not been adjusted since an 
effective date of 1 July 2014.

Whereas, the compensation adjustments for the COO and the CIO will establish 
better alignment with compensation review timeline of the other four Officers.

Whereas, each Board member has confirmed that they are not conflicted with 
respect to compensation packages for any of ICANN's Officers.

Resolved (2016.08.09.17), the Board grants the President and CEO the discretion 
to adjust the compensation for FY17, effective 1 July 2016, of: (i) Akram 
Atallah, President, GDD; (ii) John Jeffrey, General Counsel & Secretary; and 
(iii) David Olive, SVP, Policy Development Support and General Manager, ICANN 
Regional Headquarters - Istanbul, in accordance with the independent study on 
comparable compensation, subject to a limitation that their annual base 
salaries for FY17 shall not increase by more than 6% for from their current 
base salaries.

Resolved (2016.08.09.18), the Board grants the President and CEO the discretion 
to adjust the compensation for FY17, effective 1 July 2016, of Xavier Calvez, 
the CFO, in accordance with the independent study on comparable compensation, 
subject to a limitation that his annual base salary for FY17 shall not increase 
by more than 10% from his current annual base salary.

Resolved (2016.08.09.19), the Board grants the President and CEO the discretion 
to adjust the compensation for FY17, effective 1 July 2016, of Susanna Bennett, 
the COO, in accordance with the independent study on comparable compensation, 
subject to a limitation that her annual base salary for FY17 shall not increase 
by more than 3% from her current annual base salary.

Resolved (2016.08.09.20), the Board grants the President and CEO the discretion 
to adjust the compensation for FY17, effective 1 July 2016, of Ashwin Rangan, 
the CIO, in accordance with the independent study on comparable compensation, 
subject to a limitation that his annual base salary for FY17 shall not increase 
by more than 5% from his current annual base salary.
 



Published on 11 August 2016