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ICANN Successfully Tiptoes Through Political Minefield With New TLD Applicant Guidebook

Krista Papac

ICANN released its sixth version of the draft Applicant Guidebook for the new Top-Level Domain (TLD) program in April following three years of debate surrounding the rules and procedures that will outline how potential applicants will apply to own their own piece of Internet real estate.

Overall, the response has been positive.

ICANN has achieved what many in the Internet community doubted was possible — achieving a delicate balance amongst a diverse set of stakeholders while still progressing towards the rollout of the new Top-Level Domain program according to its proposed timeline released in March. This is no mean feat — ICANN has literally tiptoed through a political minefield in developing a set of rules and policies which address everyone's concerns in a secure, pragmatic, and mostly workable fashion.

By now you would have had a chance to skim over the surface of the new Applicant Guidebook and supplementary documentation. However, buried deep within the 422 pages of text and amongst the myriad of redlines, there are some important decisions that affect those tied to the new TLD program.

Below I outline my opinion and commentary on the major changes made and what they mean for those involved in the new TLD program.

What do these important changes actually mean?

ICANN have clearly listened to the various stakeholders, are diligently checking off open items and have thoughtfully addressed remaining issues. As such, the recent concerns of the Governmental Advisory Committee (GAC) feature heavily.

ICANN has addressed the majority of the GAC concerns being discussed over the past few months. The top GAC issues addressed include:

  • String Evaluation – GAC Early Warning
  • Government Objections Process and GAC Fees
  • Root Zone Scaling
  • Rights Protection – Trademark Clearinghouse
  • Rights Protection – Uniform Rapid Suspension
  • Consumer Protections
  • Community based string issues
  • Market and economic impact requests
  • Post Delegation Disputes
  • Further Requirements for Geographic Names
  • Law Enforcement Recommendations

This is the result of a lot of hard work by ICANN, the GAC and the Community and goes a long way to helping ICANN achieve its June deadline for approving the Applicant Guidebook.

While the GAC got a lot of love, there is a little something for just about everyone in version six. For example:

  • At Large Advisory Committee – The latest draft says ICANN will allocate funds to the ALAC to pay for some Objection Fees
  • Intellectual Property Rights Holders – Rights Holders now get both a Sunrise & Trademark Claims Service and a "loser pays" mechanism has been included in the Uniform Rapid Suspension process
  • Registries – Existing gTLD Registries suggested edits to the Registry Agreement, most of which are included in version 6
  • Non-Commercial Stakeholder Group – The Independent Objector must now have at least one public comment in order to lodge an Objection

What are the outstanding issues?

While the end, or the beginning, appears to be in sight — there are still a few remaining items. In my eyes, these items can be addressed in time for ICANN to meet its 30 May, 2011 Final Guidebook and 20 June, 2011 Board Consideration deadlines.

  • Rights Protection Mechanisms
    • ICANN and the GAC still disagree on:
      • the 'standard of proof,'
      • the 'bad faith' requirement,
      • including trademarks beyond 'exact match',
      • and the 'use requirement' during Sunrise and for the URS and PDDRP
  • Registry/Registrar Separation
    • The GAC are still not satisfied with ICANN's decision on vertical integration nor with their documented rationale
  • Support for Needy Applicants
    • ICANN is awaiting guidance from the Joint Applicant Support (JAS) Working Group who submitted their report directly to the Board over this past weekend. It's not clear why the GNSO was circumvented from the process, or how that will be addressed by the Board. While the ICANN Community all seem to agree there needs to be a mechanism for providing support to needy applicants, a workable solution needs to be found. I've not read the full report yet, but am hopeful.
  • And finally – the all important Communications Timeline
    • ICANN have committed to a four-month global communications plan, however we are all anxiously waiting to hear when that will begin.

What it all boils down to

The mere fact that (from my own observations) this version of the Applicant Guidebook has had virtually no public outcry in the blogs like previous versions have is surely an indicator of progress. This, combined with the fact that ICANN has largely addressed the outstanding issues and has committed to a timeline for approving the Applicant Guidebook in June, provides more evidence that new TLDs are coming and they are coming fast!

Based on the positive outcomes seen in version six, I have confidence that ICANN can resolve the remaining outstanding issues and finalize the Applicant Guidebook for public comment on 30 May.

The overall message to take away is: The extraordinary level of consultation and negotiation that has gone into producing the current version of the Applicant Guidebook is evidence that the model works, that ICANN is successfully making its way towards approving the Applicant Guidebook in June, and that we will be kicking off the new TLD program later this year.

At some point in time the ICANN community needs to understand that we have to take a leap of faith. That is how innovation happens. In doing so we can be comforted that with the years of consultation, discussion and compromise that has gone into this process, the leap is more a small step — a carefully calculated step.

By Krista Papac, Chief Strategy Officer, AusRegistry International – Krista Papac is based in California at AusRegistry International's US office. She provides advice on all domain name industry policy matters as AusRegistry International's Chief Strategy Officer. Visit Page
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Share your comments

Really? Eric Brunner-Williams  –  May 13, 2011 10:37 AM PDT

Krista,

You make several claims in your (process only) comment on the Joint Applicant Support Working Group work product.

Upon what facts do you base your first claim, that the work product was submitted directly (your emphasis) by the JAS to the Board?

Upon what facts do you base your second claim, that a Chartering Organization was circumvented (your term) in the process you describe supporting your first claim?

I look forward to your informative responses.

Incorrect! Alan Greenberg  –  May 13, 2011 11:32 AM PDT

Krista,

As per its Charters, the Joint Applicant Support Working Group submitted its report (simultaneously) to the Chairs of the ALAC and the GNSO.

The ALAC chose to forward the report to the Board in time to meet the document submission deadline for the upcoming Board retreat. The GNSO has not yet acted on the report.

There are those in the GNSO who would have preferred that the ALAC had not forwarded the report until the GNSO Council had acted on it, but what was done was strictly according to the charters approved by the GNSO and the ALAC. The GNSO Council was not circumvented.

No Worries Avri Doria  –  May 13, 2011 1:23 PM PDT

This claim about the JAS WG was just part of the GNSO Bully Squad's continued attack to delegitimize the efforts of the Joint AC/SO Working Group (JAS WG) to support applicants from developing regions.  The attacks from the GNSO against this group have been near constant since last year, and this is just one more.  I should note that I used to be a member of the JAS group, but since I became the lightening rod for the attacks on the JAS WG by those in the Contracted Parties of the GNSO who, I believe, want to destroy this effort, I eventually quit the group just so they would be left in peace to do their work.  And to their credit, they met a difficult schedule and delivered on time.

But the critical point is that the program for new gTLDs must be just and must include populations beyond just those who are developed, rich and powerful.  The essential unfairness of the current program to populations who are not in the privileged classes is obvious.  Now many in ICANN say, let them eat cake, I mean, let them wait for a future round.  The GAC, on the other had, has rightly advised cuts in the application and other fees.  Even the recommendations of the JAS WG are paltry compared to the advice sent by the GAC.  The Board and the GAC have put their faith in the JAS WG to produce an adequate compromise. 

Instead of working with the ALAC and the JAS WG to produce a reasonable compromise, the GNSO continues to look for ways to thwart the effort and the latest ploy is the conflict on whether the WG dared to speak directly to the Board without the GNSO Council's (g-council) permission.  Now I personally believe a WG can report to the Board anytime the Board is interested in hearing - our Board is clever enough to understand the difference between a report from a WG and report from a WG that has the imprimatur of the g-council.  But since in this case proper channels where taken, i.e. JAS WG -> ALAC -> the Board, that is not an issue.

At this point, perhaps it is would be better if people worried about how to solve the critical global fairness problem of new gTLD applications, instead of just trying to stop it from being solved.

Wow!!! Adrian Kinderis  –  May 13, 2011 9:36 PM PDT

Avri,

You are better than that.

The emotive language and mischaracterizations are simply not you.

GNSO Bully Squad? If disagreeing with how the work of the JAS WG has been performed and disagreeing with the outcomes makes me a member then where do I get my Leather Jacket?

It is simply unfair to make these statements.

I have spent the better part of 5 years in and about the Middle East - not just Dubai. I have seen where I believe applicant support would be beneficial and I am supportive of the principle.

I am not supportive of setting up a process that can be easily gamed and abused.

From the start, because of the charter you have and who you are representing you have been hypersensitive to ANY criticism and it has to stop. The childish way in which the leaders (leaders = those with the most self interest) have reacted is dissapointing. The defenses come up and the pithy retorts begin. It isn't helpful.

Let's not confuse the issues here. From where I sit there are two. The report itself and the way it was presented to the Board.

1. The report itself. It is flawed and it has problems. It needs to be discussed at length and a solution found. Quickly. I want TLD's. Apparently the Board has said that they want a JAS solution in order to move forward. Why wouldn't;t I want to solve this amicably. I wont be railroaded in my opinions and I wont be made feel bad because I am not paying my one dollar when I check out to the "save the children fund".

2. They way this got to the Board was broken. Can you really say it "went" to the ALAC if indeed they hadn't reviewed it nor approved it? You are arguing semantics. I think KP is correct in her characterization of the events. It was rushed through. It shouldn't;t have been. From what I remember the JAS WG were late in their report anyway. The GNSO did not read it. The GNSO have every right to be concerned about the way this Cross Constituency WG has operated. It sets a bad example. It doesn't make them bullies to want to make sure the appropriate process is followed. That is a rubbish statement.

We need to work this out. I am willing. But I won't be shamed nor bullied into how I participate. Thanks.

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