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More reasons the draft .aero sponsorship agreement *must* be rejected

by Edward Hasbrouck, "The Practical Nomad"


Request to the ICANN Board of Directors (21 November 2001)

  1. Request for action by members of the ICANN Board of Directors
  2. The delegation of authority in the draft .aero agreement would violate ICANN's bylaws.
  3. The confidentiality restrictions in the .aero agreement would violate ICANN's bylaws.
  4. The process used to draft the .aero agreement violates ICANN's bylaws
  5. The "opt-out" or "without objection" approval process for the .aero agreement would violate ICANN's bylaws.

1. Request for action by members of the ICANN Board of Directors

Last week I asked you, as members of the ICANN Board of Directors, to request that the draft agreement for sponsorship by SITA of a proposed ".aero" global top-level domain (gTLD) not be approved. My request was based on the policy implications of the portions of the draft agreement which were posted for comment 9 November 2001 to the ICANN Web site, specifically Attachments 1 and 5 My earlier request is available at <http://hasbrouck.org/icann/aero-draft.html>.

I am writing to you again to call your attention to additional reasons not to approve the draft .aero sponsorship agreement. These additional -- and much more fundamental -- objections relate to the remaining portions of the draft agreement which were posted between 10 November 2001 and 20 November 2001.

While my earlier message concerned policy reasons why you should not approve the draft .aero agreement, the most recently posted sections of the draft agreement indicate reasons why you must not approve the .aero agreement.

Approval of the .aero sponsorship agreement in its current form, under your current procedures, would be contrary to ICANN's bylaws, for the reasons detailed below. Accordingly, I reiterate my request to each of you individually, as a member of the ICANN Board of Directors, that, within 7 days (i.e. by 27 November 2001), you request that the President of ICANN not sign the draft .aero agreement.

It's not clear whether, or how, such a request for non-approval of the draft from a member of the Board of Directors would be made public. If any of you have already made such a request, I thank you for your action. If you have not, I look forward to your prompt attention to your obligation in this matter, within the 7-day comment and request for non-approval deadline.

2. The delegation of authority in the draft .aero agreement would violate ICANN's bylaws.

Attachment 2 of the draft .aero sponsorship agreement -- the last section to be posted, on 20 November 2001 -- is a delegation of decision-making authority by ICANN to SITA over specified areas. <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att2-20nov01.htm>

However, ICANN can't delegate authority that ICANN doesn't have. And ICANN's own decision-making authority is limited by Article 3 of ICANN's bylaws, which provides as follows: "The Corporation and its subordinate entities shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness." <http://www.icann.org/general/bylaws.htm#III>

In order to be valid, any delegation of authority by ICANN must, therefore, include conditions requiring openness, transparency, and procedures to ensure fairness in the exercise of delegated authority. A purported delegation of authority lacking such conditions would be invalid as delegating more authority than ICANN itself possesses under its own bylaws.

The delegation of authority by ICANN to SITA in the draft .aero agreement lacks any openness, transparency, or procedural fairness conditions. The draft agreement thus exceeds ICANN's authority, and cannot be approved without violating ICANN's bylaws.

It is this issue of openness, transparency, procedural fairness, and at-large participation in delegated decision-making that is central to my earlier recommendations to the ICANN AT-Large Study Committee at <http://hasbrouck.org/icann/alsc.html>.

If ICANN could evade the requirements of Article 3 of its bylaws by delegating authority to a body that operated in secret, that would render Article 3 of the bylaws meaningless. And it is a fundamental principle of legal interpretation that a document should be interpreted in such a manner as to give meaning to each of its terms.

(It could be argued, in the alternative, that the gTLD sponsorship agreement would make SITA a "subordinate entity" of ICANN, and thus implicitly subject to the openness, transparency, and fairness requirements of Article 3 of the ICANN bylaws. If that interpretation were adopted, however, any delegation of authority by ICANN to SITA's application would have to be rejected for noncompliance by SITA with those bylaw requirements in SITA's conduct to date in drafting the .aero agreement and in formulating policies for .aero.)

3. The confidentiality restrictions in the draft .aero agreement would violate ICANN's bylaws.

Attachment 21 of the draft .aero sponsorship agreement, concerning "proof of concept" reports, contains the following provision: "The reports provided by Sponsor as described in this Attachment shall be subject to confidentiality restrictions according to categories described in Section 11." The categories on Section 11 of Attachment 21 provide restrictions on release of information by ICANN for as much as 18 months after it is reported to ICANN. <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att21-10nov01.htm>

As noted above, ICANN's bylaws require that ICANN and its subordinate entities "operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness." Restrictions on public disclosure information by ICANN can only be justified by a showing that disclosure is not feasible, even judged according to standards of maximum feasibility.

No rationale whatsoever is given in the draft .aero agreement as to why it would not be "feasible" for this information to be publicly disclosed immediately, or in less than the specified time periods, by ICANN and/or SITA. Nor, to the best of my knowledge, has SITA or ICANN made public such a rationale in any other forum. Absent a showing of lack of feasibility, the confidentiality restrictions are, on their face, contrary to ICANN's bylaws, and cannot be approved.

It should also be noted that possible impairment of SITA's commercial interests by early public disclosure of the "proof of concept" information should have no bearing on a determination of whether disclosure is "feasible". In any event, SITA stressed as one of the reasons its application for sponsorship should be granted that SITA is a not-for-profit entity with no commercial interest in the proposed .aero gTLD.

SITA was aware of the openness, transparency, and procedural fairness requirements of ICANN's bylaws when SITA submitted its sponsorship application. If SITA was unwilling to accept those conditions, and wanted to operate under confidentiality restrictions, it shouldn't have applied, and its application shouldn't have been accepted. As ICANN has repeatedly reminded other would-be gTLD sponsors, those who weren't willing to accept ICANN's conditions for gTLD sponsorship didn't have to apply. That should apply equally to the transparency and fairness conditions that ICANN is required by its bylaws to include in all delegations of authority.

4. The process used to draft the .aero agreement violates ICANN's bylaws.

To reiterate, ICANN's bylaws require that ICANN and its subordinate entities "operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness."

Contrary to this requirement, the negotiations between ICANN and SITA, and the drafting of the .aero sponsorship agreement, have been conducted in a closed manner lacking procedures to ensure fairness.

There has been no public notice of negotiating or drafting sessions, and there has been no opportunity for stakeholders or community members to observe the process, much less participate.

I formally requested information on opportunities to observe and/or participate in the policy formulation process -- as a stakeholder and member of the Air Transport Community and the .aero constituency -- from SITA through the form provided on SITA's Web site for this purpose at <http://www.sita.int/aero/info/reqinfo.asp>. In response, I was told by SITA, "We shall communicate the... details of registration policies... in due time and we shall inform you directly once the launch date for the Registry Operation and Registration Services has been confirmed." <http://hasbrouck.org/icann/sita.html>

No indication was given as to why it would not be "feasible" to provide more information, or opportunities for openness to all stakeholders and community members, prior to the setting of the launch date for the .aero gTLD. Absent a showing that this was not feasible, the failure to provide this openness and transparency is a violation of ICANN's bylaws.

SITA also told me that "The exact definition of the individuals or entities qualifying for registration and related policies are currently being developed in close co-operation with representatives from various industry bodies including IATA, ACI and ICAO." As I have detailed here and in my earlier comments, the airline industry is only a small subset of the air transport community which was defined as the .aero constituency in SITA's original proposal. SITA's procedures provide for participation only by the industry -- one specific interest group amongst many stakeholders in the .aero constituency -- while excluding stakeholders from other interest groups in the constituency. This fails to satisfy the requirement of ICANN's bylaws for "procedures designed to ensure fairness," especially fairness in balancing the interests of the airline industry and other, non-industry, members of the community.

5. The "opt-out" or "without objection" approval process for the .aero agreement would violate ICANN's bylaws.

ICANN Resolutions 01.83-01.85 established the following "opt-out" or "without objection" process for approval of the .aero sponsorship agreement by the ICANN Board of Directors:

"The President and General Counsel are authorized and requested to complete negotiation of the .aero and .coop agreements (including attachments) as soon as feasible and to post the attachments on the ICANN web site; ... the Board shall be notified of the complete posting of the agreement and appendices for each of .aero and .coop and after that notification seven days shall be allowed for Board members to make any additional comments to the President and General Counsel; ... in the absence of the request of any Board member to the contrary based on policy considerations, the President is authorized to sign the posted agreements for .aero and .coop after the conclusion of those seven days." <http://www.icann.org/minutes/prelim-report-10sep01.htm#01.83>

However, Article 3, section 3 (b) of ICANN's bylaws requires as follows:

"With respect to any policies that are being considered by the Board for adoption that substantially affect ... third parties ... the Board will: ... iii) hold a public forum at which the proposed policy would be discussed." <http://www.icann.org/general/bylaws.htm#III-3b>

Since the "without objection" approval process does not include a public forum for discussion of the draft agreement, that procedure is permissible only for policies that do not substantially affect the interests of any third parties.

The draft .aero agreement would substantially affect the interests of, among others, those members of the air transport community (as defined as the .aero constituency in the SITA proposal accepted by ICANN as the basis for negotiation of the .aero agreement) but excluded from eligibility for .aero registration and/or participation under the draft agreement. These affected parties include, among others:

  1. Users and purchasers of air transport services, including:
    1. Airline passengers and their organizations
    2. Air cargo shippers and their organizations
  2. Elements of civil society concerned with air transport, including:
    1. Air transport consumer advocates and organizations
    2. Air transport safety and security advocates and organizations
    3. Organizations concerned with the environmental impact of air transport
    4. Organizations of airport neighbors concerned with aircraft noise
    5. Organizations concerned with land use planning for airports
    6. Organizations concerned with the impact of air transport industry practices on civil liberties
  3. Critics of the air transport industry, including:
    1. Muckrakers, investigators, and gadflies outside the industry
    2. Whistleblowers, critics, and advocates for change from within the industry
  4. Other at-large stakeholders

Travel agents and sellers of air travel are implicitly included in the ".aero Charter" (Attachment 1) and the "Description of the Sponsored TLD Community" (Attachment 5) as people or entities which "perform the necessary transactions to transport people and cargo by air." But they are excluded from the "Start-Up Plan" (Attachment 8, posted 17 November 2001). <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att8-17nov01.htm>

No explanation has been provided for this differential treatment of travel agents vis-à-vis other segments of the air transport industry. Whatever the reason, the decision to exclude travel agents from the Start-Up Plan, and thus from registration and participation in .aero during the start-up period, affects the interests of:

  1. Air travel agencies
  2. Independent air travel agents
  3. Sellers of air travel other than agents of airlines
  4. Sellers of bundled travel services that include air transport, such as air-inclusive tours

The "Registry Operator's Proposal" that was part of SITA's original application for .aero estimated that there would be from 94,288 (pessimistic) to 259,360 (optimistic) .aero name registrations. <http://www.icann.org/tlds/air1/Registry%20Operator's%20Proposal.htm>

Given the much smaller numbers of other types of (large) companies identified in the proposal, it's likely that these numbers of domain name registrations could only be achieved if a large percentage of them came from travel agencies and agents.

Whatever the total number of potential .aero registrants might be, it's clear that the vast majority of .aero stakeholders and members of the .aero constituency, as defined in the original .aero proposal, would be excluded from .aero registration and participation under the draft agreement.

All the people and organizations outlined above had every reason to expect, based on the plain language of SITA's original proposal, that they would be eligible to register .aero names as part of "the Air Transport Community... defined as all companies and organizations for which the main activity is related to Air Transport". Their first notice that they were to be excluded from registration and/or participation in .aero came with the posting of the draft .aero agreement, on which there has been no public hearing.

Since the draft .aero agreement would substantially affect third parties, ICANN bylaw's require a public forum before it can be approved. In the absence of such a forum, any purported approval by the Board of Directors through the "without objection" process, or by the President through signing of a purported contract, would be in violation of ICANN's bylaws, and invalid.

For all these reasons, and those in my prior recommendations to the ICANN Board of Directors and the At-Large Study Committee, I urge you promptly to request that the draft .aero sponsorship agreement with SITA not be approved, and schedule a proper public forum on this issue at your next (Accra) or a subsequent meeting.

Edward Hasbrouck
edward@hasbrouck.org
http://hasbrouck.org


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