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What next for new TLDs? Part 3 – The .xxx Factor

Kevin Murphy, December 14, 2010, Domain Registries

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.

But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?

In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.

In this third post, I will look at the state of play with the .xxx TLD application, and what that means for the new TLD process.

The .xxx Factor

At some time in February, the ICANN board and its Governmental Advisory Committee plan to meet (possibly in Geneva) to discuss both the AGB and the .xxx TLD proposal.

While these are two separate issues, how .xxx is being handled may have an impact on the timetable for the AGB’s approval.

Let’s first look at what’s happening with .xxx.

As you will have almost certainly already read, the ICANN board resolved on Friday that it “intends to approve” .xxx, despite GAC advice that may be to the contrary.

The ICANN-GAC power structure is governed by an 11-point charter in ICANN’s bylaws. The last two points, J and K, deal with what happens when the two parties disagree.

Under what, for the sake of brevity, I’m going to call “GAC-J” (instead of “ICANN Bylaws section Article XI, Section 2, Paragraph 1(j)”), ICANN has to call a meeting with the GAC when it plans to disregard GAC advice.

Specifically, if the ICANN board “determines to take an action” that is not consistent with GAC advice, it has to “inform” the GAC, stating why it decided to not follow the advice, then “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution”.

GAC-J has, to the best of my knowledge, never been invoked before. There isn’t even a procedure in place for handling this kind of official consultation.

But on Friday, the board stated that it intends to not follow the GAC’s advice on the .xxx application and “hereby invokes the consultation as provided for in ICANN Bylaws section Article XI, Section 2, Paragraph 1(j).”

Now that GAC-J has been invoked, the GAC and board will meet to find their “mutually acceptable solution”.

Should such a solution prove elusive, the ICANN board has to make a final decision, stating why it has disregarded the GAC’s advice. That’s handled by what I’ll call GAC-K.

What does all this have to do with new TLDs and the timetable for the publication and approval of the final Applicant Guidebook?

As ICM Registry president Stuart Lawley pointed out in a comment on CircleID, the procedures being created to resolve the .xxx dispute could very well soon be applied to the AGB.

As Lawley points out, ICANN has not yet put the GAC on notice that it plans to disagree with any of the 11 concerns outlined in the Cartagena GAC Communique.

While the Communique “assumes” ICANN has invoked GAC-J with regards new TLDs, the board has not explicitly done so.

This is uncharted territory, but I think it’s possible that this oversight (if it is an oversight) has the potential to add latency to the new AGB approval timetable.

ICANN might be well-advised to pass a resolution officially invoking GAC-J before the February bilateral meeting, in order to turn it into a bylaws-compatible consultation.

As long as it invokes the bylaws before March, the San Francisco meeting will be able to host a GAC-Board consultation under the terms of GAC-J, enabling the AGB to be approved that week.

If ICANN does not take either of these options, the GAC will be able (if it wants to be a pain) to further delay the process by demanding another inter-sessional consultation, like it just did in Cartagena.

I’ll discuss the GAC’s actual concerns in the fourth part of this post.

What next for new TLDs? Part 2 – The GAC Bottleneck

Kevin Murphy, December 14, 2010, Domain Registries

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.

But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?

In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.

In this second post I will look at the process problems presented by ICANN’s Governmental Advisory Committee.

The GAC Bottleneck

The main meta-story of Cartagena was ICANN’s turbulent relationship with its Governmental Advisory Committee, which is either maturing or (less likely) heading to towards a shattering collision.

The two big proposals that were widely expected to get the ICANN board’s nod last Friday – the new TLD final Applicant Guidebook and the .xxx TLD – were both delayed in whole or part by the GAC.

It’s become abundantly clear that the overall ICANN decision-making process has become subject to what I’m going to call the GAC Bottleneck.

If ICANN is serious about getting things done to its desired timetable in future, it will need to start paying attention to the GAC much earlier and much more seriously.

There’s been a failure to communicate over the last several years, the inherently problematic results of which were clearly embodied in sessions last Monday in which the GAC and the ICANN board discussed the definition of “advice”.

If there’s an “advisory” committee, and neither the committee nor the body its “advises” knows what “advice” means, that’s a pretty big stumbling block to constructive dialogue, which helps nobody.

The GAC believes that this historic uncertainty is the main reason why the new TLD program has hit an impasse at this late stage in the process.

The official Cartagena GAC Communique said:

the GAC considers that these [unresolved GAC concerns with the AGB] result primarily from the fact that the Board adopted the GNSO recommendations on new gTLDs without taking due account of GAC advice at that time, thereby creating a flawed process.

That’s pretty strong stuff – the GAC is basically saying that all the thousands of discussions the community has endured since 2007 have been carried out under faulty assumptions, because ICANN failed to pay heed to GAC advice when it was writing the rules of engagement for developing new TLD policy.

It’s also the reason we’re looking at the need for a GAC-Board retreat next February, at which ICANN will attempt to address the GAC’s outstanding concerns, before the AGB can be approved.

More on that in part three of this post.

What next for new TLDs? Part 1 – Unresolved Issues

Kevin Murphy, December 14, 2010, Domain Services

Like or loathe the decision, ICANN’s new top-level domains program appears to have been delayed again.

But for how long? And what has to happen now before ICANN starts accepting applications?

In short, what the heck happened in Cartagena last week?

In this four-part post, I will attempt an analysis of the various things I think need to happen before the Applicant Guidebook (AGB) is approved.

In this first post I will look at the issues that ICANN has explicitly tagged as unresolved, with special reference to trademarks.

Unresolved Issues

ICANN chairman Peter Dengate Thrush, explaining the board’s resolution on new TLDs on Friday, said:

The intention has been, as much as possible, to indicate those areas where the board feels that the work that has been done is sufficient to move to closure… What we’ve also tried to do is indicate which areas are still clearly open for consideration.

The resolution names only two issues that are explicitly still open for further policy development: geographic strings and “morality and public order” objections. I’ll discuss these in a future post.

Issues considered already reflecting “the negotiated position of the ICANN community” include “trademark protection, mitigating malicious conduct, and root-zone scaling”.

But does this mean that the trademark issue, easily the most contentious of these three “overarching issues” is really sufficiently “closed” that we’ll see no more changes to those parts of the AGB?

I don’t think so. While the Cartagena resolutions say trademark protection has been addressed, it also says “ICANN will take into account public comment including the advice of the GAC.”

It may be too late for the IP community to affect changes directly, beyond the comments they’ve already filed, but the GAC, which has already aligned itself with the trademark lobby, may be able to.

Beyond the text of the resolution, ICANN chair Peter Dengate Thrush said in an interview with ICANN head of media relations Brad White:

We’ve spent a lot of time with the trademark community and come up with three new independent mechanisms for protecting trademark rights on the internet. So the sense of board and the sense of the community is that that’s probably a sufficient effort in developing mechanisms. What we now might look at is how we might enhance, tweak and improve those processes, but we’re not going to convene another process to look at yet another kind of solution for intellectual property rights.

In other words, according to Dengate Thrush, ICANN isn’t planning to create any new IP rights protection mechanisms in the AGB, but these mechanisms, such as Uniform Rapid Suspension and the Trademark Clearinghouse, could be still be modified based on comments received from the trademark lobby over the last week or so.

Most of the outcry from the IP lobby recently has called for the specifics of these two mechanisms to be tilted more in favor of trademark interests; there’s been little call for any new mechanisms.

Trademark rights protections also account for two of the 11 issues that the Governmental Advisory Committee has tagged “outstanding” which “require additional discussion”, by my reading.

More on the GAC bottleneck in part two of this post.

ICANN chief gets bonus

Kevin Murphy, December 14, 2010, Domain Policy

ICANN chief executive Rod Beckstrom is to be paid a bonus potentially as high as $195,000 this year.

Did you know that there were two ICANN board meetings held in Cartagena last week?

I didn’t, but I just spotted that resolutions from a December 8 meeting have been posted on the ICANN web site.

There are only two resolutions. They grant bonuses to Beckstrom and to outgoing ombudsman Frank Fowlie.

The board approved “a proportion” of both men’s “at-risk component”, which basically means their performance-related bonuses.

The resolutions do not specify how big a proportion was approved for either, but it is known that the maximum Beckstrom could have been awarded is $195,000.

His base salary is $750,000.

Want a premium .xxx domain? Now’s your chance

Kevin Murphy, December 14, 2010, Domain Registries

ICM Registry, despite suffering another setback at the Cartagena ICANN meeting last week, has set the wheels in motion for the launch of .xxx with the announcement of a Founders Program.

If you want to get your hands on a “premium” .xxx domain without having to pay a tonne at auction, this is your chance.

ICM said it will license premium domains to organizations willing to develop and market their sites for at least two years, raising awareness of the TLD.

.CO Internet did a similar thing with .co, issuing one-character names to the likes of Go Daddy and Twitter. Other registries have had founder programs for super-short domains.

The program will be open to newcomers, as well as those who own “matching” domains in other TLDs.

The .xxx application is currently on hold, pending ICANN’s consultation with its Governmental Advisory Committee in February, but ICANN has said that it “intends” to approve it.

It will be interesting to see how many members of the adult community currently opposed to .xxx, if any, will attempt to participate as a Founder.

(Hat tip: Michele Neylon)