Proposed Fundamental Bylaws Amendments Related to Grant Program

What We Need Your Input On

The Internet Corporation for Assigned Names and Numbers is seeking input on a proposed amendment to Article 4, Sections 4.2 and 4.3 of the ICANN Bylaws. The proposed Bylaws amendment is designed to specifically exclude the use of the ICANN’s Reconsideration and Independent Review Processes (collectively, “Accountability Mechanisms”) to challenge decisions on individual applications in the ICANN Grant Program. This proposal replaces the earlier proposed amendments to Article 4, Section 4.1 to set out a general process for how the ICANN community can limit access to ICANN’s Accountability Mechanisms.

The updated proposal incorporates specific language into both the Reconsideration (Article 4, Section 4.2) and Independent Review Process (Article 4, Section 4.3) sections of the ICANN Bylaws, but does not otherwise add to or modify the Bylaws governing either Accountability Mechanism. The language added within each section sets out an exclusion that the relevant Accountability Mechanism shall not be used for claims or disputes “relating to decisions to approve or not approve an application to the ICANN Grant Program.”

This Bylaws amendment is offered as a way to fully implement part of the Cross-Community Working Grou`p on New gTLD Auction Proceeds (CCWG-AP) Final Report, which recommended that ICANN’s Accountability Mechanisms should not be used to challenge decisions on grant applications. That recommendation, often referred to as “Recommendation 7,” can only be fully implemented if the Bylaws that define each Accountability Mechanism are amended.

Background

The ICANN Board initiated the Fundamental Bylaws Amendment Process in Resolution 2024.07.29.09.

The Board’s proposed Fundamental Bylaws Amendment will insert language into the Reconsideration (Article 4, Section 4.2) and Independent Review Process (Article 4, Section 4.3) sections of the ICANN Bylaws to exclude claims or disputes “relating to decisions to approve or not approve an application to the ICANN Grant Program” from being allowed under the relevant Accountability Mechanism.

This Bylaws proposal is offered to support the full implementation of the Cross-Community Working Group on New gTLD Auction Proceeds ‘(CCWG-AP) Recommendation 7, which states in relevant part:

Existing ICANN accountability mechanisms such as IRP or other appeal mechanisms cannot be used to challenge a decision from the Independent Project Applications Evaluation Panel to approve or not approve an application. Applicants not selected should receive further details about where information can be found about the next round of applications as well as any educational materials that may be available to assist applicants. The CCWG recognizes that there will need to be an amendment to the Fundamental Bylaws to eliminate the opportunity to use the Request for Reconsideration and Independent Review Panel to challenge grant decisions.

Although the Board previously accepted Recommendation 7 on 12 June 2022, on 23 October 2023, the Board revisited that action because of implementation challenges that arose during the design of the ICANN Grant Program. The Board explained:

In order to account for the design work that has progressed since the Board's June 2022 action which defines different stages of assessment of individual applications, from admissibility to eligibility to substantive evaluation by an Independent Application Assessment Panel, the Board expects the limitation to restrict access to ICANN's accountability mechanisms for all decisions on those individual applications, not limited only to those made by the Independent Application Assessment Panel (as stated within the CCWG-AP recommendation). Anything short of this comprehensive view makes it possible that some applicants could have access to ICANN's accountability mechanisms for decisions on their individual applications as long as that action wasn't taken by the Independent Application Assessment Panel. If allowed, this uneven access to the accountability mechanisms still risks the use of auction proceeds to defend against accountability challenges on individual application decisions in a manner the CCWG-AP wished to protect against.

The Board, considering alternative means to achieve the CCWG-AP’s stated goal, asked ICANN org to produce a more general Bylaws amendment that would provide a process through which the ICANN community could signal its intent to limit the use of ICANN’s Accountability Mechanisms. A draft Bylaws amendment to Article 4, Section 4.1 to support this more general approach was posted for Public Comment in April 2024. The comments received in that forum confirmed the ICANN community was not satisfied with and did not support the general process approach.

In March 2024, the ICANN Board also sent a letter to the CCWG-AP’s Chartering Organizations explaining that an update to the CCWG-AP’s Recommendation 7 to remove the words “from the Independent Project Applications Evaluation Panel” would cure much of the Board’s concerns in supporting full implementation of the CCWG-AP’s Recommendation 7. That letter confirmed the two dependencies to the Board approving the distribution of any grants within the ICANN Grant Program:

1. updating Recommendation 7; and
2. amending the Bylaws to confirm the restriction of access to ICANN’s Accountability Mechanisms.

To date, ICANN has received responses  from all Chartering Organizations, with all but one stating either support or non-objection to proceed with the updated text. The seventh Chartering Organization noted a need for further clarification of how the Board would resolve the issue of the disfavored Bylaws proposal as posted for comment in April.

As part of the Board’s 29 July 2024 decision to reinitiate a Fundamental Bylaws Amendment process, the Board confirmed two things: 1) The Board is no longer pursuing the Fundamental Bylaws Amendment posted for Public Comment in April and 2) the Board is prepared, if the Chartering Organizations to the CCWG-AP agree to the update of Recommendation 7, to implement that updated Recommendation 7 through a direct and specific Bylaws amendment. The language now offered for Public Comment is drafted to borrow the language of the anticipated update to Recommendation 7 - “Existing ICANN accountability mechanisms such as IRP or other appeal mechanisms cannot be used to challenge a decision to approve or not approve an application”. The proposal does not otherwise modify either Accountability Mechanism.

Next Steps

While the ICANN community considers the Fundamental Bylaws proposal offered for comment, the ICANN organization and Board will work to obtain the final Chartering Organization’s confirmation that it either supports or does not object to the updating of Recommendation 7. The ICANN Board will then consider the updated Recommendation 7 for adoption.

Following the Public Comment Period:

1. ICANN org will analyze the received Public Comments and prepare a report of the Public Comments for publication.
2. The ICANN Board will consider the Public Comments received to identify whether any further modifications are needed to the proposal and whether the Board is in a position to approve the Fundamental Bylaws Amendment.
3. If the Board approves the Fundamental Bylaws Amendment, the Empowered Community’s approval action process will be initiated as required under Article 25, Section 25.2 of the ICANN Bylaws.

If the updates to Recommendation 7 are authorized and the Empowered Community approves the Bylaws Amendment, the dependencies identified in the Board’s March 2024 letter will be resolved. At that time, the Board will be in a position to consider action on a slate of proposed applications to the ICANN Grant Program as contemplated within the Grant Program’s defined processes.