Porn set to steal the show in San Francisco

ICM Registry’s .xxx top-level domain looks set to grab the headlines at ICANN’s meeting in San Francisco, due to government-forced delays.

While ICANN is hoping to approve its new top-level domains program in March, that decision may wind up receiving less media attention than the final approval of the porn-only domain.

ICANN last month said that it wanted to hold a final consultation to resolve its differences with the Governmental Advisory Committee – which broadly objects to .xxx – in February 2011.

This referred to a proposed meeting between the GAC and the board, which has now been officially scheduled for February 28 in Brussels.

But a resolution carried by ICANN this week has pushed the consultation back to “no later than Thursday 17 March, 2011″, the day before its San Francisco meeting.

That would put the sign-off of ICM’s contract on the same billing as the planned final approval of the new top-level domains Applicant Guidebook and the launch of the new TLDs program.

San Francisco is set to be the focus of unprecedented media attention, due to its location and the likely presence of Bill Clinton. We’re probably looking at tighter stage management than usual.

With that in mind, I expect ICANN bosses won’t be too happy that porn-friendly .xxx is likely to steal away many column inches they would prefer devoted to new TLDs.

Porn in headlines gets clicks. Readers understand it, and you generally don’t need to explain to an editor what a TLD is. I know which story would be easier for me to sell.

Had ICANN put .xxx on the agenda for Brussels – which does not appear to have been ruled out yet – it could have wrapped up the ICM saga with a resolution quite quickly afterward.

That would have given ICM a week or so of undiluted media coverage, and the new TLDs program would not have had to share the spotlight with porn come San Francisco.

The question is: why is .xxx apparently not on the agenda for Brussels? Given ICANN’s previous decision to hold the meeting in February, responsibility seems to lie with the GAC.

Rumor has it that there’s a bit of a power struggle going on behind the scenes, with some elements of the GAC resistant to make Brussels the official final .xxx consultation.

Time will tell whether this position is firm or flexible.

.XXX demands approval in Brussels

ICM Registry has called on ICANN to quickly give final approval to its .xxx top-level domain contract after its meeting with governments next month.

Company president Stuart Lawley, in a letter to ICANN (pdf), said ICM has “invested extraordinary resources” in its TLD proposal and has waited almost seven years to get into the DNS root.

Its hopes of getting the nod from ICANN’s board of directors in Cartagena last month were dashed, when it was decided that a final consultation with the Governmental Advisory Committee was required.

That consultation is set to take place in Brussels at the end of February (although ICANN’s announcement of the meeting last Friday conspicuously made no mention of .xxx).

Lawley writes:

ICM Registry urges the ICANN Board to fulfill its explicit commitments to ICM Registry and to the ICANN community, and to uphold the integrity of the ICANN process by conducting and completing its consultations with the GAC

…

Neither ICM Registry nor the ICANN community can be expected to stand by while ICANN allows yet another self-imposed deadline on this matter to come and go without a plausible explanation.

The letter notes that it’s almost a year since ICANN’s Independent Review Panel told the organization that, despite its protestations to the contrary, .xxx had already been approved.

Lawley tells me ICM is spending, on average, $100,000 a month to keep the company ticking over. He believes that the proposed registry contract has dealt with all of the GAC’s concerns.

The one concern it will never be able to avoid, of course, is that .xxx is for porn, and there are plenty of governments (be they Middle Eastern theocracies, communist Asian states or conservative Western democracies) opposed to porn in principle.

The GAC said in an official Communique in 2006 that “several members of the GAC are emphatically opposed from a public policy perspective to the introduction of a .xxx sTLD.”

As far as I can tell, that’s pretty much the only major stumbling block remaining before ICM can sign a registry contract.

UK GAC rep Mark Carvell told me yesterday that the GAC believes the 2006 statement constitutes “advice” that ICANN is duty-bound to take into account, even though it was not a consensus GAC position.

In my opinion, ICANN has no choice but to disregard this advice.

If we suddenly start living in a world where the public policies of a handful of backward nations are sufficient to veto a TLD, then we may as well pack up the whole internet and move it to Saudi Arabia or Utah.

New TLDs may face more GAC delay

ICANN has finally confirmed the date for its groundbreaking meeting with its Governmental Advisory Committee, and it doesn’t look like great news for new top-level domain applicants.

The GAC and ICANN’s board of directors will meet for a two-day consultation in Brussels, starting February 28, according to an announcement late yesterday.

Attendees will be tasked with identifying the problems the GAC still has with the Applicant Guidebook, and trying to resolve as many as possible.

The devil is in the detail, however. ICANN stated:

This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process.

This means that, post-Brussels, a second GAC consultation will be required before the ICANN board will be able to approve the Guidebook.

Under ICANN’s bylaws, when it disagrees with the GAC, it has to first state its reasons, and then they must “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”

ICANN appears to have now confirmed that it has not yet invoked this part of the bylaws, and that Brussels will not be the “mutually acceptable solution” meeting.

The best case scenario, if you’re an impatient new TLD applicant, would see the second consultation take place during the San Francisco meeting, which kicks off March 13.

The board would presumably have to convene a special quickie meeting, in order to officially invoke the bylaws, at some point during the two weeks between Brussels and San Francisco.

That scenario is not impossible, but it’s not as desirable as putting the GAC’s concerns to bed in Brussels, which is what some applicants had hoped and expected.

The GAC is currently writing up a number of “scorecards” that enumerate its outstanding concerns with the Guidebook.

Mark Carvell, the UK representative, has been tasked with writing the scorecard for trademark protection. Other scorecards will likely also discuss, for example, the problem of objecting to TLD applications on “morality and public order” grounds.

ICANN’s board, meanwhile, is due to meet this coming Tuesday to agree upon the “rules of engagement” for handling disagreements with the GAC under its bylaws.

When these rules are published, we should have a better idea of how likely a San Francisco approval of the Applicant Guidebook is.

Surprisingly, the ICANN announcement yesterday makes no mention of ICM Registry’s .xxx TLD application, which is the only area where the board has officially invoked the bylaws with regards the GAC’s objections.

The Brussels meeting, ICANN said, will be open to observers, transcribed live, and webcast.

Network Solutions will sell .xxx domains

Network Solutions has become the first big-name registrar to show that it will support the proposed .xxx top-level domain.

This page has recently appeared on the NSI site, accessible from the company’s home page through the link “.xxx Coming Soon”.

NSI appears confident that ICANN will approve the TLD soon:

.XXX will be launching shortly and Network Solutions is working with ICM Registry to provide informational services for our customers that wish to take advantage of the launch and register domain names.

The TLD is currently being tied up by ICANN’s Governmental Advisory Committee, but many believe it’s likely to be a shoo-in at the San Francisco meeting in March or sooner.

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

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.