CcNSO Policy Development Process - Review Mechanism

CcNSO Policy Development Process - Review Mechanism
Status:	In Progress
Issue Areas:	Appeal & Review
Date Established:	March 15, 2017
Charter:	[ WG Charter]
Workspace:	[ Community Wiki]

The ccNSO Policy Development Process - Review Mechanism Working Group (WG-RM) is focused on the creation of a review mechanism for IANA decisions related to the delegation, transfer, revocation, and retirement of ccTLDs.

History

RFC 1591, as interpreted by the Framework of Interpretation Working Group, states that there should be some right to appeal decisions involving the revocation of ccTLDs:

During the IANA Stewardship Transition, a proposal was introduced for the creation of an appeal mechanism that would have applied to decisions regarding ccTLD delegation and redelegations. The Stewardship Cross Community Working Group (CWG-Stewardship) attempted to survey ccTLD managers regarding the proposal, but did not receive enough responses to draw conclusions regarding the desirability of the proposed appeals mechanism. Although the overwhelming majority of respondents agreed that there needed to be some mechanism to appeal, there was not a similar level of support for the specific proposal. In addition, only 28 survey responses were received. The CWG-Stewardship's final report noted: "Questions designed to probe the level of consensus on the parameters of such an appeal mechanism (see Q.5 – Q.9) elicited no consensus..." As a result, the the Independent Review Panel was proposed, explicitly excluding matters related to ccTLDs:

An appeal mechanism, for example in the form of an Independent Review Panel, for issues relating to the IANA functions. For example, direct customers with non-remediated issues or matters referred by ccNSO or GNSO after escalation by the CSC will have access to an Independent Review Panel. The appeal mechanism will not cover issues relating to ccTLD delegation and re-delegation, which mechanism is to be developed by the ccTLD community post-transition.

In subsequent ICANN meetings, the ccNSO membership identified the importance of establishing a review mechanism, particularly in light of the IANA Stewardship Transition. In June 2016, the ccNSO Council resolved to request an issue report on the subject, and in December 2016, the council resolved to draft charters for working groups on a review mechanism and a policy of retirement of ccTLDs. The working groups were established in spring of 2017. At that time, it was determined that the retirement policy development should be prioritized. As a result, the working group for the review mechanism PDP began work in March 2020.

Issues and Deliberations

The Working Group's Charter identifies several issues that should be resolved in the creation of the review mechanism:

• Scope of review and remedies - what may be appealed? What happens when a decision is made under the review mechanism?
• Standing - who may request a review?
• Grounds for appeal - should appeals be on procedural grounds, substantive grounds, or both?
• Rules & Process - how will the review mechanism work?

During the process of fact gathering, it became clear that another issue would need to be resolved - the legality of delegation of the review process to an independent party. In the February 2021 teleconference meeting of the working group, Samantha Eisner of ICANN's legal team provided the group with a presentation regarding the ICANN Board's fiduciary obligations and whether or not ICANN's IANA functions, or the oversight of those functions, are delegable. In the view of ICANN's legal staff, an independent review outside of the remit of ICANN or PTI's control does not comply with the mandates of the ICANN Bylaws and obligations of governance. In response, the working group's focus turned to crafting a narrow, expedient, and inexpensive appeal mechanism that occurred prior to ICANN Board action.