Reconsideration
Reconsideration is one of ICANN's Accountability Mechanisms. This option is provided in the ICANN Bylaws Article IV, Section 2. Any person or entity materially affected by an action (or inaction) of ICANN may request reconsideration of that action by the ICANN Board.
Matters Subject to Reconsideration
Requestors may submit reconsideration requests if they have been adversely affected by:
(i) One or more Board or Staff actions or inactions that contradict ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies);
(ii) One or more actions or inactions of the Board or Staff that have been taken or refused to be taken without consideration of material information, except where the Requestor could have submitted, but did not submit, the information for the Board's or Staff's consideration at the time of action or refusal to act; or
(iii) One or more actions or inactions of the Board or Staff that are taken as a result of the Board's or staff's reliance on false or inaccurate relevant information.[1]
The ICANN Empowered Community (EC) may submit a "Community Reconsideration Request" if approved under the rules listed in the "EC Mechanism" Annex of the Bylaws[2]; and if the matter relates to the exercise of the powers and rights of the EC as defined by the Bylaws.[3] Annex D outlines the process through which "Decisional Participants" may petition the EC to submit a Community Reconsideration Request.[2]
Applicability to Objections to Applications, New gTLD Program
The reconsideration process was available for challenges to expert determinations rendered by third party dispute resolution service provider (DRSP) panels in the New gTLD Program, if the panels or staff failed to follow established policies or processes in reaching the expert determination.[4] In other words, the substance of an expert determination could not be challenged, but a failure in procedural requirements could be.
Excluded from Reconsideration
The Bylaws expressly exclude the following subjects from the reconsideration mechanism:
- Disputes relating to country code top-level domain ("ccTLD") delegations and re-delegations;
- Disputes relating to Internet numbering resources; and
- Disputes relating to protocol parameters.[5]
Process
Under the current Bylaws, the Board Accountability Mechanisms Committee (BAMC) reviews and considers the requests.[6] In previous versions of the reconsideration process, the Board Governance Committee was responsible for the full review process (with no referral to the ICANN Ombudsman as described below).[7] If the committee determines that the reconsideration request fails to meet the requirements specified in Article 4.2 of the Bylaws, or is "frivolous," it can summarily dismiss the request on that basis.[8] Dismissal on the sole basis that the request is frivolous is rare.[9]
If the reconsideration request passes through the initial review, the BAMC refers the matter to the ICANN Ombudsman for investigation. In the event that the Ombudsman must recuse themselves, the BAMC will investigate on its own. The Ombudsman may employ the services of experts to assist with their investigation.[10] In addition, the BAMC may request additional information from the requestor, third parties, ICANN staff, and anyone else it deems relevant to the inquiry.[11]
The Ombudsman (or the BAMC on its own behalf) completes a substantive evaluation of the reconsideration request. Following the completion of the substantive evaluation, the BAMC shall review and consider all information gathered in the written record, including supplemental information from any of the sources described in Sections 4.2(m)-(o).[12]
The BAMC then submits a non-binding recommendation to the full Board for its consideration. The Board makes the final determination on the reconsideration request.[13]
Urgent Requests
The requestor may request urgent review of an action or inaction by the Board if they believe that "timing requirements of the process set forth in...Section 4.2 are too long." An approved request for urgent review causes the entire process to operate under expedited time frames.[14] Only actions by the Board are subject to urgent review.[15]
References
- ↑ Article 4.2(c), ICANN Bylaws, as amended November 28, 2019
- ↑ 2.0 2.1 Annex D to the ICANN Bylaws, as amended November 28, 2019
- ↑ Article 4.2(b), ICANN Bylaws, as amended November 28, 2019
- ↑ New gTLD Program - Applicant Guidebook
- ↑ Article 4.2(d), ICANN Bylaws, as amended November 28, 2019
- ↑ Articles 4.2(e) and (k), ICANN Bylaws, as amended November 28, 2019
- ↑ see, e.g., the Accountability Mechanisms of the Bylaws in effect as amended in July 2014
- ↑ Article 4.2(k), ICANN Bylaws, as amended November 28, 2019
- ↑ See, e.g., Request 16.2 - Commercial Connect LLC, February 25, 2016, where despite noting Commercial Connect's abuse of "all of ICANN's Accountability Mechanisms," the BAMC nonetheless provides an analysis on the sufficiency of the request.
- ↑ Article 4.2(l), ICANN Bylaws, as amended November 28, 2019
- ↑ Articles 4.2(m)-(o), ICANN Bylaws, as amended November 28, 2019
- ↑ Article 4.2(p), ICANN Bylaws, as amended November 28, 2019
- ↑ Article 4.2(r), ICANN Bylaws, as amended November 28, 2019
- ↑ Article 4.2(s), ICANN Bylaws, as amended November 28, 2019
- ↑ See Reconsideration Request 21-3, where the BAMC denied Dot Hip Hop LLC's request for urgent reconsideration of inaction by ICANN staff