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Bring a Responsible Closure to the New gTLD Process - The Home Stretch

Over the course of the last year, the ICANN Board and Governmental Advisory Committee (GAC) have constructively worked through a long list of their differences contained in the GAC scorecard. As we near the finish line with Monday's scheduled ICANN Board meeting to approve the Applicant Guidebook, there remains a small handful of issues that will hopefully be resolved in a similar responsible manner during Sunday's ICANN Board/GAC consultation. This would allow all ICANN stakeholders, both private and public, to declare mission accomplished and further validate the private sector led bottom-up consensus driven model upon which ICANN is founded.

In crossing the Finish Line, there are number of potential scenarios in how victory can be declared, outlined below are a potential Worse Case and Best Case scenarios. Hopefully, the ICANN Board will choose the proper path forward.

Worst Case Scenario — Humpty Dumpty Had a Great Fall

The ICANN Board and GAC meet on Sunday and engage in an initial dialog that makes no constructive progress in resolving the remaining differences. The dialog then quickly devolves into a repeat of the final ICM Registry consultation with the ICANN Chairman repeating provisions from the ICANN bylaws explaining how the ICANN Board can ignore GAC advice if it so chooses. The ICANN Board holds its Monday morning, ignores GAC advice, finalizes the Applicant Guidebook, hard codes a new gTLD program launch in four months, and then has a real big party Monday night.

The consequences of ICANN's actions will begin almost immediately. Despite repeated shots across ICANN's bow by long time strategic government allies committed to the private sector led model upon which ICANN is founded, these governments will begin to fire directly at its rudder and engine room quickly leaving it dead in the water. These governments will then begin to work in conjunction with the United States Government's Further Notice of Inquiry (FNOI) to begin to hard coding into the IANA Statement of Work (SOW) those important public policy concerns which ICANN's Board choose to ignore.

The real hangover effects of ICANN's new gTLD party will begin to manifest at the ICANN annual meeting held in Senegal this October. ICANN's failure to properly address the Joint Applicant Support (JAS) issue will likely result in a number of public interventions from applicants that wanted to participate in ICANN's new gTLD, but where unable to equitably participate in this expanse of a global public resource.

When ICANN announces the list of new gTLD applications, the public will quickly learn that ICANN's underlying claims of increased choice and innovation has actually produced a process in which a couple of largely funded ICANN insiders from developed countries have made a strategic land grab of this global public resource. The GAC will then have to rely upon the Early Warning System mechanism and other safeguards incorporated into the new IANA agreement in an attempt to make lemonade from ICANN's new gTLD lemon.

The sad part of this being that ICANN's repeated claim of increased business predictability for applicants will probably result in tens if not hundreds of ICM Registry mini-dramas for ICANN to resolve. However, the greatest long term threat to the legitimacy of ICANN will be those governments and intergovernmental organizations that have been critical of the private sector model, which will sit quietly on the sidelines with a big smile on their face and ask ICANN if it needs any more rope to which to hang itself.

Best Case Scenario — Humpty Dumpty Stays on the Wall

The ICANN Board can meet with the GAC on Sunday and continue to make process and resolve those outstanding differences that will allow ICANN to launch the new gTLD program on Monday with a Q1 2012 window for applications to be received. Ideally, ICANN could begin accepting applications January 1 thru February 28, with a tentative posting of the properly received applications during the March 2012 regional meeting currently scheduled in the Latin America region.

This approach will allow ICANN to achieve several objectives:

  • Avoid a formal rejection of GAC advice, a mere three months after the ICM Registry Board resolution.
  • Additional time to resolve any outstanding GAC issues which can be properly resolved during the pendency of the global awareness campaign;
  • Additional time for prospective applicants to learn of the implementation details from ICANN's global awareness campaign, and to make an informed decision noting that original four month GNSO notification window was a minimum, NOT a maximum.
  • The ability to use the annual meeting in Senegal to finalize and publicize any support mechanism for prospective applicants from developing countries, provided that the proposed mechanisms are available in September for prospective applicants from developing countries to make an informed decision.
  • Time for ICANN to tender the Clearinghouse RFP and allow trademark owners to propagate the database, as well as monitor for any potential gaming that might require corrective action in conjunction with GAC advice and input.

Hopefully the ICANN Board chooses the proper path forward so that the new gTLD party scheduled for Singapore is a celebration and not a funeral.

By Michael D. Palage, Intellectual Property Attorney and IT Consultant

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