Summary

  • ICANN's new gTLD program site states that the first round of the program is closed and offers Applicant Guidebook version 2012-06-04, and it publishes no dates for a current or next round.
  • A Reconsideration Request must be filed within fifteen calendar days and ends in a final Board decision with no fee to the requester, while an Independent Review Panel may only issue a Declaration on whether the Board acted consistently with the Bylaws.

Two clocks, two doors

ICANN's rules give an applicant two formal ways to challenge a decision that stops or delays its application. Reconsideration is the shorter path. A request may be made by any person or entity materially affected by an action or inaction of the Board, or by other actions of the ICANN organization, provided the requester has been adversely affected by it. The request must be submitted within fifteen (15) calendar days after the earlier of the publication of the Board's action or the publication of the organization's action.

The Board Governance Committee reviews each request and prepares a recommendation for the Board. The Board may refer the matter back to the originating body to request further information or action, or affirm, reverse or modify the action, or take other appropriate action. There is no fee for submitting a request, and the Board's decision based on the committee's recommendation is final and not subject to further reconsideration by ICANN. That finality is the point: the same institution that took the challenged decision, or an arm of it, disposes of the challenge.

The government advice channel

A parallel obligation runs through the Bylaws rather than through an applicant's filing. Article 11, Section 2.2 provides that the Board shall take GAC advice into account, and that if the Board decides to take an action not consistent with the Governmental Advisory Committee's consensus advice, it shall inform the GAC and state the reasons for its decision; the Board and the GAC will then try to find a mutually acceptable solution. The provision creates a duty to explain and a duty to keep talking. It does not create a veto for the GAC, and it does not create a delegation right for an applicant.

What an Independent Review Panel can and cannot do

The Independent Review Process under Article 4 reaches further on paper. A request may be made by any person or entity materially affected by an action or inaction of the Board, on the basis that the Board violated the Articles of Incorporation, the Bylaws or any of its policies. The burden of proof is on the requester, and the request must be filed within fifteen (15) calendar days following publication of the challenged action or inaction — the same length of clock as Reconsideration, running from a similar starting point.

The panel's remedial reach is narrower than its standing rule. It may only issue a Declaration, and it may not substitute its judgment for that of the Board on the merits of the challenged action or inaction. The Declaration expresses the panel's opinion on whether the Board's action or inaction was consistent with the Articles, the Bylaws or its policies. It is an assessment of legality, not an instruction to delegate a name.

Costs follow a similar pattern. The fees and expenses of the panelists are paid by ICANN, and the panel determines whether and to what extent costs are borne by ICANN or the requester, taking the outcome into account; the requester always bears its own attorneys' fees and expenses. A challenge is therefore not free, even though the panel itself is funded by the institution being challenged.

After a Declaration, the Board shall take it into account in its deliberations and state its reasons if it decides not to follow the advice in it. A Declaration is not subject to any further appeal, and Board action following a Declaration is not subject to further appeal through the Independent Review Process — although it may be eligible for a Reconsideration Request.

The .AFRICA demonstration

The process has been tested on a contested string. In DotConnectAfrica Trust v. ICANN, the IRP Final Declaration dated 9 July 2015 found that the Board's actions and inactions in respect of the two .AFRICA applications — DotConnectAfrica Trust and ZA Central Registry — were inconsistent with the Bylaws and the Applicant Guidebook, in particular by accepting late government advice from the African Union Commission and then relying on it to find a community objection against DCA's application.

Relief arrived in stages and did not transfer the string to the challenger. By resolution of 18 March 2016 the Board acknowledged the Declaration and directed the organization to proceed with the remaining steps of the New gTLD Program for the .AFRICA applications, resolving that if only one qualified application remained after removal of the invalid community objection, that application would proceed to delegation. By resolution of 28 February 2017 the Board resolved to delegate .AFRICA to ZA Central Registry, noting that ZACR was the only applicant that had completed all remaining steps required under the program after the Declaration.

So the applicant that won the argument about consistency did not win the registry. The Declaration corrected the record and reshaped the remaining procedure; it did not itself decide who would operate .AFRICA.

What the record does not settle

Three boundaries matter. The program pages state that the first round of the new gTLD program is closed and display Applicant Guidebook version 2012-06-04 (https://newgtlds.icann.org/en/applicants/agb, https://newgtlds.icann.org/en/), but they do not publish dates for any current or next application round. The same pages document no instance in which a Declaration or a Reconsideration decision by itself caused a string to be delegated to the party that brought the challenge. And whether any committee currently holds delegated Board authority over application decisions is not established by these pages; the delegated-authority structure of the 2012 round should be treated as unverified until a resolution or Bylaws text is read directly. Background on the institution itself is collected in the BTW directory entry.

The bounded conclusion is this: ICANN's program rules and Board decisions control whether an application is refused, deferred or allowed to proceed. Reconsideration produces a final decision by the institution. The Independent Review Process produces a reasoned declaration about conformity with the Bylaws. Both can change what happens next; neither is an order that a given applicant must receive a top-level domain.