Did .jobs win or lose in Cartagena?

Employ Media, the .jobs registry, had a victory in Cartagena last week, when the ICANN board voted not to overturn its August decision to allow .jobs to relax its registration policies.
The company will now be able to continue with its RFP process, allocate premium generic .jobs domains to its partners, auction them, and generally liberalize the namespace.
But the registry may not have got everything it wanted.
For at least a year, Employ Media, along with the DirectEmployers Association, has been pushing the idea of creating a massive free jobs board called universe.jobs.
The site would be fed traffic from thousands of premium geographic domains such as newyork.jobs, texas.jobs and canada.jobs, as well as vocational names such as nursing.jobs and sales.jobs.
Because Employ Media was previously only allowed to sell domains that corresponded to the names of companies, such as ibm.jobs and walmart.jobs, it asked ICANN to change its contract to allow these new classes of generic names to be registered.
The registry submitted a Registry Services Evaluation Process request, which was approved by the ICANN board in early August. The contract was amended shortly thereafter.
A few weeks later, a group of jobs sites including Monster.com, calling itself the .JOBS Charter Compliance Coalition, filed a Reconsideration Request, asking ICANN to reverse its decision.
The Coalition was concerned that the contract changes would enable universe.jobs, creating a potentially huge competitor with an unfair SEO advantage, while continuing to prohibit independent jobs sites from registering .jobs domains.
While the .jobs contract had been amended, the .Jobs Charter, which restricts those who can register .jobs domains to members of the human resources community, was not.
This potentially presented a problem for universe.jobs, as DirectEmployers may not have qualified to be a registrant under the charter.
But Employ Media’s RSEP proposal talked about creating a “self-managed class” of domains – the domains would belong to the registry but would be shared with third parties such as DirectEmployers.
That would have created an interesting precedent – registries would be able to keep hold of premium generic domain names and allow them to be “used” by only partner companies that agree to enter into revenue-sharing agreements.
But that “implementation method was withdrawn” by Employ Media after the ICANN Board Governance Committee asked about it as part of its Reconsideration Request investigation.
The BGC, while rejecting the Coalition’s request (pdf), also asked ICANN’s compliance department to keep a close eye on Employ Media, to make sure it does not overstep the bounds of its charter:

the BGC recommends that the Board direct the CEO, and General Counsel and Secretary, to ensure that ICANN’s Contractual Compliance Department closely monitor Employ Media’s compliance with its Charter

Even though its Reconsideration Request was denied, the .JOBS Charter Compliance Coalition counted both of these developments as a big win for its campaign, saying in a press release:

Given the Board’s commitment to aggressively monitor Employ Media’s implementation of the Phased Allocation Program, the Coalition is highly confident that ICANN will not permit Employ Media to register domain names to “independent job site operators” for purposes of operating job sites.

So does this mean that universe.jobs is dead?
Apparently not. Talk in the halls at the ICANN Cartagena meeting last week leads me to believe that the registry has figured out a way to launch the service anyway.
And DirectEmployers this Monday published a white paper (pdf), dated January 2011, which says universe.jobs will launch early next year.
DirectEmployers declined to immediately comment on its plans when I inquired this week, and the white paper sheds little light on the technicalities of the plan.
Judging from a promotion currently being run by EnCirca, a .jobs registrar, it seems that companies will only be able to list their jobs on universe.jobs if they own their own companyname.jobs domain.
EnCirca’s offer, which alludes to the .jobs sponsor, the Society for Human Resources Management, a “SHRM special“, says:

NEWS ALERT: December 13, 2010: ICANN has RE-CONFIRMED the .Jobs registry’s plan to allocate generic occupational and geographic-related .jobs domain names. Register your companyname.jobs to be part of this new initiative.

It will be interesting to see how domain allocations are ultimately handled.
While Employ Media’s request for proposals is ostensibly open, it looks a little bit like a smokescreen for its plan to hand big chunks of the .jobs namespace to the universe.jobs project.
But who will be the registrant of these domains? And will the allocations violate the .jobs charter? Will the registry carry on with its plan to create new “self-managed” class of domain names?
I think we’re going to have to wait for the new year to find out.

Possible new TLDs timeline revealed

ICANN’s decision to delay the approval of its new top-level domains Applicant Guidebook last week in Cartagena left one big question hanging:
When will the program open for applications?
ICANN had pencilled in May 30 for the launch, but the new delay appeared to make that impossible. In the absence of an announcement from ICANN, nobody really knows what the current timetable is.
A few possible answers have now emerged with the publication this week of ICANN staff briefing documents (pdf) used by the board to make their original decision to target May 2011.
An October 28 document entitled “New gTLD Launch Scenarios”, penned by ICANN’s Kurt Pritz and Carole Cornell, explores the board’s options for approving a launch timeline.
It notes that applications cannot be solicited until ICANN has finished its mandatory four-month outreach/marketing campaign, which in turn can’t kick off until the AGB has been approved.
I’ll let the rest speak for itself:

If the Board were to approve the Guidebook after the January/February meeting, the announcement and communications campaign launch would be made shortly thereafter. The first applications could be received as early as (but not earlier than) 1 July 2011.
If the Board elects that a full comment analysis and sixth version of the Guidebook be written, with approval at the Silicon Valley meeting, the approval would be followed by an April announcement and communications campaign launch. First applications could be received as early as (but no earlier than) August 2011.

And here’s a lovely graphic illustrating the options (click to enlarge):

Given that we now know that the ICANN board intends to meet with the Governmental Advisory Committee to address its outstanding issues in February, the final scenario – with a San Francisco approval and August launch – now seems more likely.
Most of the rest of the briefing document is heavily redacted.

Some countries not paying ICANN for their IDNs

ICANN may have to fund some of its IDN ccTLD Fast Track program out of its own pocket, due to at least one country not paying its full fees, judging from information released this week.
ICANN had invoiced applicants for a total of $572,000, but only $106,000 had been received, according to briefing documents (pdf, page 114) presented at the ICANN board’s October 28 meeting.
The organization invoices registries $26,000 for each TLD string it evaluates, but the fees are not mandatory, for political reasons. As of October, it had presumably billed for 22 strings.
At least one country appears to have had its applications processed at a knock-down rate.
Sri Lanka, which was billed $52,000 for two strings, only paid $2,000, and the remaining $50,000 appears to have been written off as “uncollectable”.
Russia, Egypt, South Korea and Tunisia had paid their fees in full.
While the remaining 17 evaluated ccTLDs may not have paid up by October, that’s not to say they have not paid since or will not pay in future.
ICANN also plans to bill IDN ccTLDs 1-3% of annual revenue as a “contribution”, which also won’t be mandatory, but no registry has been live long enough to receive that bill yet.

ICANN director slammed vertical integration

ICANN really shook up the domain name industry last month when it said it was dropping rules that prevent registrars and registries from owning each other.
But two of its directors voted against the decision and one, George Sadowsky, entered a lengthy dissenting opinion in which he said the benefits of so-called “vertical integration” are “largely illusory”.
Vertical integration would allow existing registrars to apply to run new top-level domains. It would enable companies to more easily apply for “.brand” or small niche TLDs.
This has been banned in previous registry contracts, due in part to the potential for abuse of registry data and anti-competitive behaviour by registrars.
Sadowsky delivered a four-point objection to the VI resolution, which was passed in early November, according to minutes published this week.
He said that introducing VI at the same time as the new TLD program would create unpredictable and irreversible consequences for the industry, and questioned ICANN’s ability to enforce compliance with data-sharing rules.

in spite of the measures to be taken to ensure “good conduct,” the resolution has the potential to commingle all of the data, public and private, regarding a registry in one place, providing the possibility of easy and invisible sharing of data within a merged or co-owned entity regardless of the scope of any agreement with ICANN.
Such sharing is likely to be undetectable given the close affiliations among the entities. Data now forbidden to be shared between registries and registrars will be shared. Both auditing and enforcement by ICANN are unlikely to be effective, all the more so as we move from 20+ to hundreds of new gTLDs.

Data sharing would give registrars greater insight into valuable domains, potentially facilitating registrant-unfriendly activities such as warehousing.
Those companies which opposed VI, including Afilias and Go Daddy, have previously said that the potential for registrar abuse, harming registrars, was too great.
Sadowsky said:

Assuming that each gTLD registry must continue to treat all registrars equally, the real benefits of vertical integration are largely illusory, but those that can be easily obtained by the officially forbidden sharing of data are real

The minutes also show that Mike Silber voted against the resolution, saying he “believes there will be very unpleasant, unintended consequences”.
Harald Alvestrand, Ram Mohan, Thomas Narten, Jonne Soininen and Bruce Tonkin had conflicts of interest and were not in the room for the debate. The two voting directors, Tonkin and Alvestrand, officially abstained from the vote.
The minutes also contain this mysterious entry:

Confidential Issue
Pursuant to Article V, Section 5.4 of the ICANN Bylaws, the Board of Directors, by unanimous vote, determimed that, to protect the interests of ICANN, the matter under discussion should not be included in the minutes until such time as the Board designated the item should be published.

Anybody with any ideas what this might be, please feel free to theorize in the comments.

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.

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

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.

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

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)

ICANN new TLD launch delayed (again)

ICANN’s new top-level domains program has been delayed, likely for a few months at least, after governments submitted a laundry list of issues they believe are still unresolved.
The Governmental Advisory Committee is mainly bothered that the Applicant Guidebook fails to adequately protect trademark rights and that the cost of the program could outweigh the benefits.
The ICANN board resolved at its meeting here in Cartagena earlier today to meet with the GAC for an unprecedented consultation next February.
(The meeting will also discuss the .xxx application, which I’ve reported on for The Register).
The actual board resolution is hopelessly lengthy and confusing at first reading. Take this doublethink:

ICANN considers that the solutions developed to address the overarching issues of trademark protection, mitigating malicious conduct, and root-zone scaling substantially reflect the negotiated position of the ICANN community, but ICANN will take into account public comment including the advice of the GAC.

Some delegates here tell me they think this means the book has been closed on the portions of the guidebook dealing with IP protection mechanisms, for example.
(J Scott Evans, head of the IP constituency, stormed out of the room in a huff when this part of the resolution was read aloud.)
But the text of the resolution pretty clearly states that IP protections and the other overarching issues are still open for negotiation with the GAC and could be amended based on comments filed this week.
The resolution is open to interpretation with regards these three “overarching issues”.
It does, however, refer to other issues that are explicitly unresolved in ICANN’s view, namely the treatment of geographic names and the handling of “morality and public order” objections.
Both are singled out as needing more work before they can be finalized.
What does all this mean for the launch timetable? I think it means there isn’t one. Again.

[The ICANN board] Directs staff to synthesize the results of these consultations and comments, and to prepare revisions to the guidebook to enable the Board to make a decision on the launch of the new gTLD program as soon as possible.

“As soon as possible” is either meaningless or, taken literally, means the board’s next meeting. That’s likely to be late January, if previous years are any guide.

Calls for “fast-track” for new TLDs

Some would-be top-level domain registries have started to call for ICANN to gradually phase in the launch of its new TLD program, so they can get their feet in the door early.
ECLID, a group of six “cultural and linguistic” TLD applicants, is among a number of organizations saying that ICANN could introduce a small number of non-controversial TLDs before opening the floodgates to hundreds of new extensions.
Judging that IP concerns may continue to hold up the first round of applications and that cybersquatting risks may not be as significant in domains such as .scot or .eus, ECLID’s Davie Hutchison wrote:

We ask that ICANN move forward at speed and with determination and prevent further delay causing damage to the clTLDs and other community TLDs that will enhance the richness and diversity of the Internet. Failing the courage or resolve to do that, we ask ICANN to create a fast-track process for the “safe” community TLDs which would be an excellent testing ground for the process before opening it up to the non-community based TLDs.

Calls for a “fast track” for non-controversial TLDs have also been made by members of ICANN’s Governmental Advisory Committee this week.
It’s been the GAC’s position for a few months now that “uncontroversial” community TLDs, including those with cultural and linguistic ties, should be dealt with first.
The idea doesn’t make a heck of a lot of sense to me. A phased launch would require the development of a new objective process to categorize applicants into “controversial” and “non-controversial” buckets.
For the amount of time and effort that would take, ICANN may as well just sort out the problems with the Applicant Guidebook as a whole.
Kurt Pritz, ICANN’s veep in charge of the new TLD program, addressed the feasibility of a phased launch during a press conference here in Cartagena today, noting that “it’s very difficult to have a round in which just a certain type of TLD allowed to apply”.
ICANN tried to restrict TLDs to limited communities with the 2003 round of “sponsored” TLDs, causing problems and controversies that continue to be felt seven years on.
I think it’s fairly safe to say that any rulebook that limited what TLDs could be applied for or who could apply for them would be soundly gamed by the domain name industry (cf .jobs, .xxx, .travel, etc).

ICANN sees “crescendo” of new TLD comment

With less than 24 hours to go before ICANN’s board of directors decides the fate of the new top-level domains program, the comments and criticisms are rapidly accumulating, split along predictable lines.
In short: pretty much everybody in the domain name industry wants the TLD process to kick off ASAP, and pretty much everybody else who has an interest thinks it should not.
Kurt Pritz, ICANN’s senior vice president of stakeholder relations, said at a press conference this morning that “rather than comment diminishing towards the end to a whimper and the Guidebook being launched, we’re seeing it raising to a crescendo”.
Publicly filed comments can be found here.
“Crescendo” may be an over-statement, but verbal comments here at the ICANN meeting have been flying thick and fast and the rhetoric dial will certainly get turned up to 11 during the public forum this afternoon.
Many opponents of the proposed final Applicant Guidebook are objecting to the fact that the deadline for filing comments is tomorrow, just a couple of hours before the board convenes.
Microsoft associate general counsel Russell Pangborn, for instance, wrote:

Approval of the PAG on December 10 conveys the message that the Board deems public comment irrelevant. The possibility that ICANN staff will have read all public comment and provided a public comment summary to the Board with sufficient time for full consideration and discussion by the Board is slim at best.

Microsoft is one of many companies worried that new TLD registries’ business models will essentially be subsidized by defensive registrations paid for by big trademark holders.
The US Chamber of Commerce put it fairly succinctly:

the current plan still requires businesses to pay for defensive registrations in hundreds of new gTLDs, at prices that are unconstrained by ICANN or other bodies… Moreover, the legal expenses and domain acquisition costs of defensive registrations will not be offset by potential economic or informational value to either registrants or Internet users.

But the most comprehensively detailed objection filed by IP stakeholders over the last day or so seems to have come from INTA, the International Trademark Association.
Weighing in at 15 pages, the INTA filing says the AGB “raises significant new issues”, such as the lifting of the vertical integration ban and the new registry code of conduct.
One of its biggest issues, which I’ve heard from several other people here in Cartagena this week, is that the AGB’s rights protection mechanisms, such as Uniform Rapid Suspension and the Trademark Clearinghouse, seem to specifically exclude non-US trademarks.
That’s a pretty big issue for Europeans – the German representative on the Governmental Advisory Committee indicated on Tuesday that he thinks it’s a deal-breaker.
As I blogged yesterday, the GAC has aligned itself with the trademark lobby in its objections to ICANN, which may well delay the launch of the new TLD program somewhat.
The key issue for the GAC is the balance between cost (to trademark owners) and benefit (to everyone else).
Elliot Noss of Tucows expressed in his comment how difficult it is to predict what economic value could be created by new TLDs.

When the new round proceeds we will see a marked change in the way people will use domain names. The ability to find resources of all kinds more easily on the Internet will provide a small, but clear incremental benefit to users. But that benefit will be felt trillions of times! Every time someone finds something on the Internet more easily there will be a benefit.
…
There has been a lot of discussion of competition for .com. What we need to think about is NOT will any single domain become a competitor for .com, but instead will a large number of domains in aggregate provide competition for .com. This issue cannot possibly be understood by studying the extremely limited TLD introductions of the past.

Some other likely TLD applicants kept their statements short and sweet, perhaps for fear of inadvertently causing delay through verbosity.
Statton Hammock of Network Solutions wrote:

A document of this complexity and importance can never be “perfect,” or “complete” in the eyes of everyone. Though further refinements to the language could be made, we believe that the DAG, in its current form, is robust enough to support the launch of the new gTLD application process.

Pritz said that the ICANN board is “actively monitoring” the comments and will continue to do so up until its meeting tomorrow.