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New gTLDs and Children

At first blush most are unlikely to see the relationship between new generic Top-Level Domains (gTLDs) and children. However, as a father and someone that has worked with approximately 50% of all new gTLDs approved by ICANN over the last decade, I have a unique perspective that may shed some light on this analogy. Hopefully, as the ICANN community begins to seek closure in connection with the new gTLD implement process, this article may offer one perspective as to what lies ahead.

Conceiving a child is generally not complicated; in fact some might say it's a mutually enjoyable endeavor. There are times, however, when couples seeking to conceive a child run into difficulties and require the intervention of a fertility specialist. Fertility treatments are most often long term, expensive, and focused on the benefits to a single family. Notwithstanding ICANN's previous experience with the 2000 and 2004 new gTLD rounds, the ICANN community has struggled over the last four years to "conceive" a process that will result in a "baby boom" of unlimited new gTLDs.

In the four months following the Board approval of the final Applicant Guidebook, would-be gTLD applicants will be engaged in a race to conceive, not unlike those outdated high school sex-educational awareness videos showing a million sperm racing toward the egg seeking to be the "one." But, while Mother Nature regulates the number of ova/eggs that can be fertilized, ICANN's current Applicant Guidebook proposes an unlimited free-for-all, come-one-come-all.

While this new land-rush is attractive to prospective applicants that have been waiting years to conceive, those with parenting experience realize that the joys/challenges of raising a child only really begin after birth and tend to get more challenging and complicated as the child begins to walk, talk and gain its own independence. Children require socialization, learning the rules of their society, and how to be positive and productive members of society.

But before getting to the "birth" (the entry of a gTLD string into the root), a gTLD's "parents" must provide the equivalent of prenatal care for the future health of the child. While prenatal care generally minimizes potential complications during a pregnancy, high-risk pregnancies still occur. ICANN has had its fair share of high-risk pregnancies since 2004, whether it is the .POST gTLD agreement that took ICANN's general counsel four years to negotiate, or the never ending .XXX saga. Thus, the current gTLD application fee proposed by ICANN is intended to fund the best "prenatal care" that money can buy: ICANN's army of consultants will poke and prod new gTLD applicants and subject them to a battery of test to identify any "genetic abnormalities."

Most parents usually find a robust support structure when they first return home from the hospital. This can include maternity and paternity leave from their employers, as well as an extended family that will fly in to see the new family member and lend a helping hand. This is not unlike the high-priced attorneys and consultants that offer their support during the initial launch of a registry. However, just as those extended family members must eventually return home and parents need to return to work, those high price consultants and lawyers tend to move on after the initial investment capital has been spent and the launch of the new gTLD has produced less revenue than originally expected. This is when the true joys of parenting begin and some of the true stresses and complexity of parenting — or operating a registry gTLD really begin.

In the course of raising a child there are certain memorable events that parents cherish: a baby's first tooth, first steps, first words, etc. Similarly there are a number of firsts that new registry operators recall during the launch of a new TLD: the first registrar to sign the RRA; the first sunrise registration; the first land rush registration, etc. However, in between these periodic memorable events, there exist a wealth of smaller mundane tasks that must be executed properly to ensure the health and welfare of that child/TLD.

When every proud parent brings home their bundle of joy the sky is the limit as to what their child can achieve. While there is a potential for that child to be a future world leader, Noble Prize winner, or Olympic gold medalist, the reality is most child will fall short of these lofty expectation. Similarly there is no shortage of potential gTLD applicants that believe they can be the next .COM or .EDU. However, the economic and market realities in the 2000 and 2004 new gTLD rounds evidence the challenges those registries had in reaching their original projections.

Regardless of whether individual new gTLDs are wildly successful or colossal failures, ICANN is like a nanny to each of these registries. While ICANN will get some credit for the successful gTLDs, it will likely bear a disproportionate burden in connection with the failures. Unlike the ability to "outsource" the processing and review of several hundred applications, ICANN cannot "outsource" the administration and compliance responsibilities associated with its fiduciary obligations as a trustee of a global resource. Being a parent or a nanny is hard work, and there is no economy of scale in connection with raising a large family. Hopefully ICANN learns this important parenting lesson sooner as oppose to later.

Epilogue

The original intent of this article was to focus on the substantial investment in time and resources that are required of both ICANN and new Registry Operators, and how an unlimited round of new gTLDs might not be the most prudent path forward. In appealing to one's paternal instincts I was hoping to highlight that this new gTLD process is not merely a mechanical process where one turns a crank and 500 new gTLDs instantaneously appear in the root. Instead there is a shared responsibility among ICANN, prospective gTLD operators, and the broader Internet community to ensure that ICANN's role as a trustee of this global public resource is not compromised.

However, in advance of the upcoming ICANN Board GAC meeting in Brussels and the recent IANA Notice of Inquiry it is important to take pause and realize that the "ICANN experiment" has not ended. The ICANN private sector led model is still dependent upon the broad support of governments. If governments should walk away from the ICANN model, there is a real and distinct possibility of ICANN becoming a ward of the state. Therefore, the ICANN Board and community should be doing everything within their power to prevent this situation from arising.

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

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