Comment from APC on Report on Possible Process Options for Further Consideration of the ICM Application for the .XXX sTLD

[Anriette Esterhuysen <anriette@xxxxxxx>]

The Association for Progressive Communications (APC) welcomes the
decision of the ICANN Board to consult the community and the public on
how to respond to the findings and recommendations of the Independent
Review Panel (IRP) on the matter of ICM Registry,LLC v. ICANN. The
decision trees indicate a certain complexity in the way the Board
intends to make a decision on the matter. We encourage the Board to take
the simplest path to resolving the problem.

In our view, the matter turns on the fourth and fifth conclusions of the
IRP, namely:

      * Fourth, the Board of ICANN in adopting its resolutions of June
        1, 2005, found that the application of ICM Registry for the .XXX
        sTLD met the required sponsorhip criteria.
        
      * Fifth, the Board's reconsideration of that finding was not
        consistent with the application of neutral, objective and fair
        documented policy.
        
These conclusions indicate a breakdown regarding administrative justice
in ICANN's decision-making that must be cured by the Board's intended
decision on the matter. The cure must be in terms of the procedures in
place for the application of the sTLD application process. Subsequent
developments such as the new gTLD application process cannot be made
retrospectively applicable to the sTLD process. Any further interaction
with the GAC on this matter is similarly ultra vires. The Board must
come to a decision on the ICM Registry without any further procedural
measures. The suggestion of undertaking further due diligence on ICM's
financial or technical capacities to operate the sTLD is inapproriate in
view of the action ICM Registry has taken to bring the matter before the
IRP. The only viable solution is to accept the findings of the Majority
of the IRP in full and proceed with the process as if the Board's
reconsideration had not taken place. The notion of accepting the
findings of the Dissent is a non-starter, an absurdity.


One problem facing the ICANN Board is that if it rejects the conclusions
of the IRP, it will effectively be rejecting this form of appeal against
its decisions to irrelevance. It can be argued that California
non-profit law does not permit the Board's discretion to be fettered but
if that is the overriding consideration then the question will be asked
as to what value the IRP mechanism has. The answer to that question will
be none and the IRP mechanism will no longer be credible, i.e. no other
complainant will make use of it. 


Another cost of rejecting the IRP's conclusions will be to contaminate
the new gTLD application process by introducing uncertainty into that
administraive procedure. The uncertainty would consist of concerns that
any similarly contentious gTLD such as .gay would be subject to a lack
of neutral, objective and fair treatment by ICANN. In other words, there
will not be any confidence in ICANN as an administratively fair body to
run the gTLD process.


In its intended decision on the ICM Registry matter, the Board needs
first and foremost to restore confidence in ICANN as an administrative
body committed to administrative fairness and justice in its
decision-making. Any other consideration is secondary. It is hard to say
how important this simple reality is – it is very important. Anything
less than this will bring about the state of affairs that ICANN's
Evaluation Decision Process calls 'continued uncertainty'. And such a
state of 'continued uncertainty' is perilous terrain for any
administrative body to subsist in for very long.


In addition to the comments above, APC also supports the submission of
the Non-Commercial Users Constituency (NCUC) on this matter.


^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
anriette esterhuysen - executive director
association for progressive communications
p o box 29755 melville - south africa 2109
anriette@xxxxxxx - tel/fax + 27 11 726 1692
http://www.apc.org