ICANN rejects a whole bunch of new gTLD policy stuff

ICANN has delivered some bad news for dot-brands, applicants from poorer countries, and others, at the weekend rejecting several items of new gTLD policy advice that the community spent years cooking up.

The board of directors on Sunday approved a scorecard of determinations, including the rejection (or non-adoption) of seven GNSO recommendations that it deems “would not be in the best interests of the ICANN community or ICANN”.

In reality, it’s the latter that seems to have been foremost in the board’s mind; most of the rejections appear to be geared toward reducing ICANN Org’s legal or financial exposure.

Notably, dot-brands are denied some of the relief from cumbersome or expensive requirements that the GNSO had wanted rid of.

The board rejected a recommendation that would exempt them from the Continued Operations Instrument — a financial bond used to pay an Emergency Back-End Registry Operator should the applicant go out of business.

“[T]he Board is concerned that an exemption from an COI for Spec 9 applications would have financial impact on ICANN since there would be no fund to draw from if such a registry went into EBERO,” the board wrote.

It also rejected a request to exempt dot-brands from rules requiring them to contractually ban and monitor abuse in their TLDs. The GNSO had argued that single-registrant TLDs do not suffer abuse, but the board said this could lead to abuse from compromised domains going unaddressed.

“The Board concludes that Recommendation 9.2, if implemented, could lead to DNS abuse for second-level registrations in a single-registrant TLD going unaddressed, unobserved, and unmitigated,” it said.

Applicants hoping to benefit from the Applicant Support Program — which in 2012 offered heavily discounted application fees to poorer applicants — also got some bad news.

The GNSO wants the support to extend to other costs such as application-writing services and lawyers, which naturally enough put the frighteners on the board, which noted “such expansion of support could raise the possibility of inappropriate use of resources (e.g. inflated expenses, private benefit concerns, and other legal or regulatory concerns)”.

The board also rejected a couple of recommendations that could be seen as weakening its role as ultimate authority over all things gTLD.

It rejected a proposal to remove the controversial covenant not to sue (CNTS) from the application process unless other recommendations related to appeals processes are implemented.

ICANN said that because it has not yet approved these other recommendations, it has rejected this recommendation.

The board also rejected a recommendation that would have limited its ability to reject a gTLD application to only when permitted to do so by the rules set out in the Applicant Guidebook.

The idea was to prevent applications being arbitrarily rejected, but the board said this “may unduly limit ICANN’s discretion to reject an application in yet-to-be-identified future circumstance(s)”.

The rejections invoke part of the ICANN bylaws that now requires the GNSO Council to convene and either affirm or amend its recommendations before discussing them with the board. Presumably this could happen at ICANN 78 next month.

The bylaws process essentially gives the board the ultimately authority to throw out the GNSO recommendations if it can muster up a two-thirds supermajority vote, something it rarely has a problem achieving.

Chutzpah alert! DotKids wants ICANN handout to fight gTLD auction

New gTLD applicant DotKids Foundation has asked ICANN for money to help it fight for .kids in an auction against Amazon and Google.
The not-for-profit was the only new gTLD applicant back in 2012 to meet the criteria for ICANN’s Applicant Support Program, meaning its application fee was reduced by $138,000 to just $47,000.
Now, DotKids reckons ICANN has a duty to carry on financially supporting it through the “later stages of the process” — namely, an auction with two of the world’s top three most-valuable companies.
The organization even suggests that ICANN dip into its original $2 million allocation to support the program to help fund its bids.
Because .kids is slated for a “last resort” auction, an ICANN-funded winning bid would be immediately returned to ICANN, minus auction provider fees.
It’s a ludicrously, hilariously ballsy move by the applicant, which is headed by DotAsia CEO Edmon Chung.
It’s difficult to see it as anything other than a delaying tactic.
DotKids is currently scheduled to go to auction against Google’s .kid and Amazon’s .kids application on October 10.
But after ICANN denied its request for funding last month, DotKids last week filed a Request for Reconsideration (pdf), which may wind up delaying the auction yet again.
According to DotKids, the original intent of the Applicant Support Program was to provide support for worthy applicants not just in terms of application fees, but throughout the application process.
It points to the recommendations of the Joint Applicant Support working group of the GNSO, which came up with the rules for the support program, as evidence of this intent.
It says ICANN needs to address the JAS recommendations it ignored in 2012 — something that could time quite some time — and put the .kids auction on hold until then.

Two more new gTLD bids bite the dust

ICANN appears to have formally killed off two new gTLD applications that had asked for subsidized application fees.
The bids for .idn and .ummah both failed to meet the criteria of ICANN’s Applicant Support Program back in March, but were only officially marked as dead over the weekend.
The .ummah application was voluntarily withdrawn by Ummah Digital, while the applicant for .idn (an Indian company called NameShop) unsuccessfully fought the decision.
Nevertheless, NameShop has now been flagged on ICANN’s site with “Did not meet all criteria” for the Applicant Support Program.
We’re taking this as a signal it’s been officially kicked out of the current application round and have updated the DI PRO database accordingly.
As well as failing applicant support, NameShop would have failed the Geographic Names component of its Initial Evaluation because IDN is the reserved three-letter country code for Indonesia.
NameShop had attempted to change its application from .idn to .internet — something that would no doubt have cause a deal of consternation among potential objectors and other applicants.
By flunking the company on the applicant support criteria, ICANN has luckily avoided having to make that difficult call.

Two more gTLD bids kicked out of the program, but .kids gets ICANN funding

Two more applications have been rejected from the new gTLD program, after they tried and failed to have their application fees subsidized by ICANN’s Applicant Support Program.
Three gTLDs were submitted for financial assistance, but ICANN’s Support Application Review Panel, delivering its results (pdf) today, decided that only one of them qualified for a cheapo bid.
DotKids Foundation Ltd, which is applying for .kids, is the lucky recipient of $138,000 worth of waived application fees. Its application now enters Initial Evaluation.
The applicants for .ummah (Ummah Digital Ltd) and .idn (NameShop), on the other hand, have been given a refund of the $47,000 application fee they paid and politely shown the door.
ICANN said: “applications that did not meet the threshold criteria for financial assistance will be excluded from further participation in this round of the New gTLD Program”.
That rule was introduced to prevent gaming — companies that asked for cheaper applications risked losing their applications if they failed to meet the requirements for support.
It doesn’t mean there was anything wrong with their gTLD applications, however.
The approval of funding for the DotKids Foundation is goodish news for people uncomfortable with Amazon’s closed gTLD land-grab — the retailer is the only other applicant for .kids.
While the .kids contention set remains, is pretty safe to say that Amazon will be able to utterly crucify its competition if the TLD goes to auction.

At-Large mulls new gTLDs U-turn

In what is likely to turn out to be a storm in a teacup, ICANN’s At-Large Advisory Committee is set to vote on a resolution calling for a delay to the new generic top-level domains program.
The ALAC, ICANN’s policy-making body tasked with representing individual end users, has been discussing a possible update to its position on new gTLDs for the last few days.
A first-draft motion, proposed by vice-chair Evan Leibovitch, said the program “would be harmful to the public interest” and requested that its January 12 launch be “suspended”.
It’s since been watered down twice, and may well be watered down further before (and if) the ALAC considers it at its January 24 monthly meeting.
The resolution currently talks about a “a deep concern about the possible harmful effect on Internet end-users of a single massive expansion of gTLDs”.
It adds that ICANN should “phase-in” the introduction of new gTLDs, “releasing no more than 25 every three months” with about a third coming from poor or community-based applicants.
It appears to be a reaction to ICANN’s newly developed applicant support program, which was weaker than many proponents of the cheaper gTLDs for worthy applicants had hoped.
Even in its current form, the resolution is attracting much more opposition than support from members of the At-Large, so it seems unlikely that it will go anywhere.
To advocate for a phased approach to new gTLDs, or to recommend a delay, would represent a huge U-turn from the ALAC’s existing position.
In 2009, the group said supported “the expedient introduction of new gTLDs” and that it did not believe a “trial run” with a limited number of applications was appropriate.
Still, there’s nothing wrong with changing one’s mind as new evidence comes to light, of course.

ICANN leaves new gTLD batching and support questions hanging

ICANN came closer to answering two very important questions about the new top-level domains application process at its board meeting last Thursday.
While confirming that cheaper application fees will be made available to worthy applicants, and that some sort of batching system will be introduced, ICANN has provided worryingly few details about both systems, just a month before the new gTLD program starts.
Application batching
ICANN is currently expecting over 1,000 new gTLD applications, but it’s said that it only has the capacity to process 500 at a time. It needs a way to fairly create two or more batches.
Commercial applicants obviously want their gTLDs processed and delegated as quickly as possible, so how the batches are created is obviously a critical detail.
Little progress has been made on this issue since Dakar.
A lottery has been ruled out, according to Thursday’s board resolutions, because it would be likely to attract nuisance lawsuits under California gambling law.
If you’ve been following ICANN closely for the last few months, or reading DI, you already knew this.
The board has also said that there will be no benefit to applying early during the January-April application window. We already knew this too.
Instead, as ICANN staff have said before and the board has now approved, there will be a “secondary time stamp … used for purposes of determining the processing order”.
This system has evidently not been finalized yet. Nevertheless, the resolution contains a few hints about how it might work.
First, the TLD Application System will not be used to acquire the stamps, but it may be used to communicate [something] with applicants.
Acquiring a stamp will require “judgment” by applicants. Getting into the first batch will apparently be a skill game, so as to not invite lottery lawsuits.
There will also be some kind of regional allotment system, so that applicants from outside Europe and North America have just as good a chance of getting into the first batch.
Finally, there will be an opt-out mechanism, so applicants with less urgent applications (.brands, perhaps) can choose to be batched later.
It’s not much to go on, but since the process of acquiring a time stamp will not come into play until after April 12, it’s not something applicants need to worry too much about at the moment.
It’s also not yet clear whether positions in the queue will be transferable. A slot in the first batch could be worth something, to some applicants.
Applicant Support
A mechanism for granting reduced fees to “needy” applicants in the developing world has been on the cards for a while. ICANN set aside $2 million in June to fund an Applicant Support program.
On Thursday, its board of directors approved an application fee reduction from $185,000 to $47,000, for “candidates that qualify according to the established criteria”.
While full details of these criteria have not been revealed, the board resolution suggests that “demonstrating need and operating in the public benefit” are the primary factors.
It’s not clear any more that the support program will be limited to applicants in the developing world, as had been recommended by the Joint Applicant Support working group.
The resolution does not mention geography, and senior VP Kurt Pritz suggested at last week’s US Senate hearing into new gTLDs that the YMCA of the USA may qualify for the reduced fee.
It appears that applicants wanting to take advantage of the reduced fee will have to take a bit of risk, however, paying their $47,000 fee up-front on the understanding that they will lose their money and their application if they are subsequently deemed unworthy of support.
Applicants will not find out if they’ve made the cut until November 2012.
ICANN’s $2 million only covers reduced fees for 14 applicants, and it’s not yet clear what would happen if more than 14 candidates qualify and ICANN cannot find third-party funding to support them.
Essentially, it’s looking a bit messy at the moment, and non-profits are only a little closer to understanding what their funding requirements might be today than they were last week.

Today’s new gTLDs decisions in full

ICANN’s board of directors passed two resolutions relating to new generic top-level domains at is meeting in Dakar, Senegal today.
While neither is particularly Earth-shattering, they are notable and therefore reproduced here in full.
The first relates to financial support for new gTLD applicants from developing nations.
ICANN has not figured out how to implement the recommendations of the JAS working group yet, but it hopes to do so before the end of the year.

Joint Applicant Support
Whereas, the Board has received the Final Report of the Joint Applicant Support Working Group (JAS WG), appreciates the work of the JAS WG created in April 2010 by the ALAC and GNSO, and thanks the entire ICANN community for the constructive dialogue leading up to and during this week in Dakar.
Whereas, the Board expresses its appreciation to the GAC and ALAC for their joint statement on the JAS WG report.
Whereas, the Board is committed to ensuring that the implementation of a support program for deserving applicants will be done in a manner to enable those applicants to effectively participate in and benefit from the first round of the New gTLD Program.
Resolved (2011.10.28.21), the Board takes the JAS WG Final Report seriously, and a working group of Board members has been convened to oversee the scoping and implementation of the recommendations arising out of that Report, as feasible.
Resolved (2011.10.28.22), the President and CEO is expected to commence work immediately and provide a detailed plan for consideration. If the plan is complete sufficiently in advance of its next scheduled Board Meeting set for 8 December 2011, the Board will seek to add a special meeting to its schedule prior to that date.
Rationale for Resolutions 2011.10.28.21 – 2011.10.28.22
In Singapore, the Board resolved that it would consider the report and recommendations of the Joint Applicant Support Working Group. The Board takes seriously the assertions of the ICANN community that applicant support will encourage diverse participation in the New gTLD Program and promote ICANN’s goal of broadening the scope of the multi-stakeholder model. In its deliberations, the Board is balancing its fiscal responsibility in launching the New gTLD Program, the desire to provide a support program in the first round, and the time required to obtain additional funding. While the Board solution is not complete, there is a vision for accomplishing each of those three goals.  As required for assessment within the Affirmation of Commitments, there is no security and stability impact on the DNS. Part of the further work required through this resolution will assess the affect of this work; however there is no affect on ICANN’s fiscal resources as a result of this immediate action.

The second resolution, which caused considerable debate among board members, relates to funding of the much-criticized new gTLDs communications campaign.
The board approved an additional $900,000 for outreach, much of which will apparently go into the pockets of newly hired PR firm Burson-Marsteller.

Budget Request – New gTLD Communications Plan
Whereas, at the Paris ICANN meeting in 2008, the Board adopted the GNSO policy recommendations to introduce new Generic Top-Level Domains (new gTLDs), including at least a four-month communications period to raise global awareness.
Whereas, the Draft New gTLD Communications Plan (link) describes the global outreach and education activities that will be conducted in each of the ICANN geographic regions.
Whereas, the FY 12 budget allocates US $805,000 to fund this effort.
Whereas, planning and subsequent execution of the Communications Plan has indicated the need for a full service global public relations firm to ensure ICANN effectiveness in this effort.
Whereas, funds can be re-allocated in the adopted ICANN Budget to support the augmented communications effort without materially affecting performance in other areas.
Whereas, at its 22 October 2011 meeting the Board Finance Committee approved a recommendation that the Board approve an additional expenditure of US$900,000 for the execution of the Communications Plan.
Resolved (2011.10.28.23), the Board approves an additional expenditure of up to US $900,000 for the remaining three months of the Communications Plan, to be used for the retention of Burson-Marsteller, a global public relations firm, to work towards the goal of raising global awareness of new Generic Top Levels Domains consistent with the terms of the Communications Plan.
Resolved (2011.10.28.24), the Board authorizes the President and CEO to enter into any contracts necessary to fulfill the objectives of the New gTLD Communications Plan to the extent those contracts do not exceed the budget for the Communications Plan.
Rationale for Resolution 2011.10.28.23 – 2011.10.28.24
The budget for the Board-mandated new gTLD communications program is currently US $805,000. That figure was based on an earlier draft communications plan.
The current plan is more expansive and ambitious. It is based on the premise that every potential applicant should be aware of the program’s opportunities and risks, and thus it is aimed at building maximum awareness through multiple communications channels. It also focuses more strongly on developing countries.
The Plan is built on four principal efforts:
1. Regional “road shows” and public events;
2. Earned media – broadcast, online and print;
3. Social media; and
4. Global information through paid advertising, and multiplying these efforts through the community.
The New gTLD Communications Plan is neutral in its presentation. ICANN is not promoting applications for new gTLDs or advocating that any organization apply for one. Rather, ICANN is providing essential information and raising awareness of the New gTLD Program.
The current efforts limited in scope. ICANN has determined that retaining a full-service worldwide public relations firm to further coordinate ICANN’s efforts will assure that ICANN is able to attain the goal of the New gTLD Communications Plan.
ICANN has identified a well-respected global public relations firm, Burson-Marsteller, that can provide a broad range of awareness-raising services. ICANN will have access to the firm’s extensive network with an established presence in 91 countries, over 40 of them developing nations. These local and regional assets are invaluable. ICANN also will benefit from the firm’s expertise in digital and social media. ICANN will retain editorial control over all implementation aspects of the New gTLD Communications Plan.
Securing a global public relations firm of this caliber will contribute greatly toward ensuring success of the New gTLD Communications Plan. And as the first deliverable of the New gTLD Program, success of the New gTLD Communications Plan is critical.
Approval of this resolution will positively affect ICANN’s accountability and transparency by globally maximizing the spread of information about ICANN itself. This action will have no effect on the security, stability and resiliency of the domain name system.
The New gTLD Communications Plan will be conducted within the existing ICANN budget. This effort will be funded out of contingency funds, so the expenditure will not affect ICANN’s ability to perform and accomplish its other goals and objectives.

More later.

Cheap gTLD drive adds to ICANN’s to-do list

ICANN may be given a huge to-do list before it starts accepting new top-level domain applications, in order to help level the playing field between rich and poor countries.
If sweeping new recommendations are approved, ICANN would have just a couple of months to create a new gTLD application review process, to find a panel to police it, and to find the money to cover it.
Since March 2010, a volunteer working group known as JAS has been debating the hows, whos and how muches of a program to provide financial support to gTLD applicants from developing nations.
It’s now come up with its Final Report (pdf), which contains a laundry list of things that JAS says ICANN needs to do before it starts accepting applications from anyone.
JAS has called for a reduction in the application fee from $185,000 to $47,000, as well as a provision allowing qualified applicants to pay the fee on a staggered schedule.
It also asks ICANN to create and partially fund a foundation to provide financial support, in addition to fee reductions, that eligible applicants would be able to draw from and pay back over time.
To qualify for the cheaper fees and other support, applicants would have to come from a developing economy found on certain UN lists. By my count, more than 80 countries would be eligible.
Recognized indigenous peoples – apparently including developed-world groups such as Native American tribes or Aboriginal Australians– would also qualify for assistance.
(I don’t know about you, but I immediately thought about the “Indian casino” model used to evade gambling prohibitions in parts of the US.)
Supported applicants would have to demonstrate that their gTLD would serve an under-served community or language group, and provide “genuine social benefit”.
So-called “.brand” applicants would be specifically excluded, but commercial entities operating in the public interest would be able to apply for the fee reductions and financial support.
The application procedure would be governed by a yet-to-be written Support Evaluation Process, overseen by a not-yet-created Support Application Review Panel, comprised of expert volunteers from inside and outside ICANN’s existing community structures.
The unpaid SARP panelists would have to be knowledgeable about the domain name industry and likely gaming patterns, in order to help prevent applicants exploiting the system.
The JAS says that all of this needs to be in place before the first round of applications:

there is a serious concern that, if support is not available to eligible applicants in the first round, the most obvious and valuable names (ASCII and IDNs) would be taken solely by wealthy investors.
…
Given the uncertainty regarding further rounds of new gTLD applications following the round planned for January 2012, it is necessary to make support available in the initial January 2012 round.

While I’ve no doubt that the ICANN board of directors will be picking over these proposals during its two-day retreat, which kicked off today, the JAS report now needs to filter through the GNSO and the ALAC – the two ICANN community bodies that commissioned its work.
Realistically, the earliest ICANN can rubber-stamp these recommendations is at its meeting October 28 in Dakar, Senegal, which would give ICANN staff just two months to create and deploy the entire applicant support program and to educate likely users.
ICANN’s new chief financial officer could also have to oversee the recalculation of the new gTLD program budget to reflect the JAS group’s ideas about how the program should be funded.
For example, the JAS report states that the $60,000 component of a single full application fee currently designated to “risks” could be instead be used to cover the shortfall between the $47,000 supported-applicant fee and the $100,000 in anticipated processing costs for such an application.
If ICANN were to adopt the recommendation, it would beg the question of how well the $185,000 “cost recovery” fee was calculated in the first place.
While not unexpected, the JAS proposals are a complex, audacious 11th-hour bump in the wire for ICANN, which already appears to be struggling to get its ducks in a row in time for January 12.
Regardless of whether the program can be rolled out in time, its likely users are already at a disadvantage compared to their wealthier counterparts, which at least have numbers to put in their own budget.

GAC calls for $44,000 new TLDs

ICANN’s Governmental Advisory Committee has asked for the price of top-level domains to be reduced from $185,000 to $44,000 for applicants from developing nations.
The call came in GAC advice released yesterday, just a few days before ICANN plans to publish the seventh and potentially final version of new gTLD program’s Applicant Guidebook.
The document (pdf) shows that ICANN’s board and the GAC have made substantial progress towards resolving their differences, but that several outstanding issues remain.
Support for developing nations has arguably become the biggest hurdle to be leaped before the program can launch, as I reported earlier in the week.
The GAC has now asked ICANN’s board of directors to implement a support program for developing nation applicants “as a matter of urgency”.
There’s an unstated concern that a Guidebook that appears to unfairly favor applicants from rich countries may be rolled up and used as a cosh, by certain countries, to bash ICANN’s international legitimacy.
Specifically, the GAC wants cheaper fees for poorer applicants:

For support to developing countries, the GAC is asking for a fee waiver, which corresponds to 76 percent of the US$ 185,000 application fee requirement. Further, there will be instances where additional costs will be required: for example, for auction, objections, and extended evaluation. In such events, the GAC proposes fee reduction and waivers in these processes/instances where additional costs are required. The GAC would further like to propose an additional waiver of the annual US$ 25,000 fee during the first 3 years of operation.

The 76% reduction, which is in line with suggestions made by ICANN’s applicant support working group (JAS), would see fees of $44,400 for qualified applications, a $140,600 discount.
The call for auction fees to be lowered appears, on the face of it, bizarre. Presumably it refers to fees paid to the auction house, rather than the bids themselves.
Either way, it appears that developing nation applicants could get a distinct advantage in cases of contested strings, if the GAC advice is followed.
The GAC acknowledged ICANN’s worry that gaming – bogus proxy applicants springing up in qualifying nations, for example – could prove problematic, and writes:

On gaming, the GAC welcomes the JAS WG’s recommendation to set up a parallel process to determine eligibility based on the guidelines they have provided. The GAC proposes that a review team be established consisting of ICANN stakeholders experienced and knowledgeable in gTLD processes, developing country needs and gaming patterns. Furthermore, consideration should be given to the imposition of penalties on entities found to be attempting to game processes put in place to support developing country applicants.

The idea of an applicant support initiative being developed in parallel with the Applicant Guidebook – so as to not delay its approval – was first proposed by the JAS back in November.
But even the JAS envisaged that the details of the program would have to be squared away before the first round of new TLD applications are accepted.
Even if the Guidebook can be approved in the absence of a finalized support program, I think ICANN could have a hard time launching its four-month international outreach campaign until it is able to answer the basic question: “How much is this going to cost me?”
While the applicant support issue may not be a deal-breaker when it comes to approving the Guidebook – currently penciled in for June 20 – it could still delay the opening of the application window.
We’ll have a clearer picture if and when ICANN publishes the next version of the Guidebook, expected Monday, May 30 (late Pacific time, I expect).