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The Costs of a Dysfunctional Relationship - Part 2

R. Shawn Gunnarson

Part 1 described the impasse between the ICANN board and the Governmental Advisory Committee (GAC) over the introduction of new gTLDs. This part analyzes the conflicts and offers suggestions for beginning to resolve them.

The impasse centers, at least, on (1) whether ICANN is prepared to introduce new generic Top-Level Domains (gTLDs), meaning (a) whether the board has conducted sufficient economic studies to determine that the benefits outweigh the costs and (b) whether the board has adequately articulated the reasons supporting its decision to them; (2) whether the proposed final version of the Draft Applicant Guidebook (DAG) should have been approved on the same day the public comment period for it closed; (3) whether the board should reject the GAC's advice; (4) whether to adopt the United States' proposed amendment to the DAG.

Some of these conflicts turn out to have clear answers. Approving the DAG before public comments could be considered violated ICANN's bylaws,1 but the board has unmistakable authority to reject the GAC's advice.2

Tougher questions are whether ICANN has met its obligations under its bylaws and the Affirmation of Commitments ("Affirmation") before reaching a final decision to introduce new gTLDs and whether the GAC should adopt the DAG amendments proposed by the U.S.

Compromise might be found in the calls for more economic studies. Although the board has resolved not to commission any further economic studies, it has directed the CEO to take into account the GAC's concerns. Tensions on this issue might be eased if the board were to agree to commission a study narrowly focused on whether the consumer benefits of introducing new gTLDs outweigh the probable costs. Trust might be enhanced if the board were to agree to choose one of three economic experts selected by the GAC. And the concerns of the ICANN community over resulting delays might be mitigated if the expert were engaged by March 15, 2011 and the final report required by May 1, 2011. This schedule would leave 30 days for public comment and two weeks afterward for staff analysis before the June meeting in Amman.

Introducing an indefinite number of new gTLDs would be among the largest changes to the DNS in decades. It deserves an especially detailed and precise articulation of the board's final decision and the reasons for it. Freshly committing3 to provide a thorough written analysis and explanation could satisfy the GAC without diminishing the board's autonomy.

The U.S. proposal likely stems from the board's failure to heed NTIA's repeated calls for a cost/benefit analysis of new gTLDs before they are introduced. But its understandable motivations do not make it less problematic. Investing GAC advice on new gTLDs with the force of a mandate runs contrary to ICANN bylaws, which declare that "Advisory Committees shall have no legal authority to act for ICANN ..."4 It also contradicts the GAC's Operating Principles,5 the Affirmation,6 and U.S. policy.7

But the proposal must be taken as a sign of the deepening governmental dissatisfaction with ICANN. Combined with NTIA's December letter characterizing ICANN's performance under the Affirmation as "failure," it should prompt the ICANN board to address the GAC's persistent concerns.

Recent exchanges between the board and the GAC recall Paul Newman's line from Cool Hand Luke: "What we've got here is a failure to communicate." Communication might be improved by acknowledging that ICANN and the GAC need each other for the multi-stakeholder model of Internet governance to succeed. Both have said so before,8 but acknowledging their mutual need seems the necessary first step for setting the relationship aright.

1 Bylaws for Internet Corporation for Assigned Names and Numbers, art. XI, § 2.1(j)-(k) (as amended Jan. 25, 2011) ("ICANN Bylaws"), art. III, § 6.1(b) (when "any policies ... are being considered by the Board for adoption that ... [involve] the imposition of any fees or charges, ICANN shall ... provide a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments, prior to any action by the Board ....").

2 Id. at art. XI, § 2.1(k) ("If no such [mutually acceptable] solution can be found, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed ....").

3 See Affirmation, ¶ 7 ("ICANN commits to provide a thorough and reasoned explanation of decisions taken, the rationale thereof and the sources of data and information on which ICANN relied.")

4 Id. at art. 11, § 1.

5 ICANN, Governmental Advisory Committee, Operating Principles, Principle 2 (as amended March 2010) ("The GAC is not a decision making body.").

6 Affirmation of Commitments, ¶ 4 ("DOC affirms its commitment to a multi-stakeholder, private sector led, bottom-up policy development model for DNS technical coordination ....").

7 National Telecommunication and Information Agency, U.S. Principles on the Internet's Domain Name and Addressing System, http://www.ntia.doc.gov/ntiahome/domainname/usdnsprinciples_06302005.htm (stating that governments' legitimate concerns are directed at "the management of their ccTLD[s]" and affirming that the U.S. supports "private sector leadership in Internet development broadly.").

8 M. Stuart Lynn, President's Report: ICANN — The Case For Reform (Feb. 24, 2002), available at http://www.icann.org/en/general/lynn-reform-proposal-24feb02.htm (stating that "f ICANN is to succeed" it must obtain "the active backing and participation of national governments"); Governmental Advisory Committee, Statement on ICANN Reform (June 26, 2002), available at http://www.icann.org/en/committees/gac/ statement-on-reform-26jun02.htm ("The GAC shares the view put forward in the President's Report of February 2002 that a private-sector/public-sector partnership will be essential to ICANN's future success.").

By R. Shawn Gunnarson, Attorney at Law, Kirton & McConkie
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