“Corruption” claims as .africa fight heats up

The fight for the right to run .africa as a top-level domain has been heating up in recent weeks, culminating today in claims of “corruption” and “large-scale illegality”.
A organization called DotConnectAfrica has been mustering support for .africa for a few years, but since March it has faced a rival bid from AfTLD, an association of African country-code TLDs.
The contest has already degenerated into quite a fierce war of words, with allegations of corruption coming from one side and counter-claims of FUD coming from the other.
DCA claims the AfTLD initiative is using “double-dealing” to “unfairly” win the endorsement of the African Union, while AfTLD says DCA is using “intimidation” to get its way.
Under ICANN’s proposed rules, any entity that wants to apply for a TLD purporting to represent a large geographic region must secure the support of 60% of the nations in that region.
It’s not explicit, but it’s quite possible that African Union support may cover this requirement. Backing from the AU therefore could be the deal-breaker for .africa bidders.
DCA has a letter, signed by AU Commission chair Jean Ping, dated August 2009, which offers to support the DCA application.
But there’s good reason to believe that this support may have been revoked last year, and that the AU Commission has opened up its options once more.
The Commission last November annnounced (pdf) a new Task Force, charged with finding an entity to act as the official applicant for .africa when the ICANN new gTLD program opens.
DCA seems to believe that this Task Force has been captured by supporters of the rival AfTLD bid. In a press release today, it says:

there is a dangerous nexus between a certain cabal within the AU Task Force on Dot Africa and the AfTLD – and this nexus has been established in order to disingenuously facilitate ‘insider’ help for AfTLD’s Expression of Interest to the AU and prospective bid to ICANN.

The release goes on to make a number of allegations, such as:

AU Task Force members on DotAfrica are also advisors and confederates of AfTLD. DCA believes that such affiliations are unwholesome and foster corruption, nepotism, abuse of office, and large-scale illegality.

DCA appears to be concerned (to put it lightly), that some of the members of the AU Commission Task Force appear to have conflicts of interest.
The Task Force’s chair, Pierre Dandjinou, and its vice-chair, Nii Quaynor (a former ICANN director) have both previously put their names to a different and now apparently defunct .africa project that also intended to compete with DCA for .africa.
Another member of the Task Force, Abibu Ntahigiye, manager of Tanzania’s .tz domain, also appears to sit on the executive committee of AfTLD as its treasurer.
I’m not sure if any of this cross-pollination meets the definition of “corruption” or “illegality”, but I can understand why DCA is worried.
The DCA press release follows an AfTLD meeting in Ghana last month at which attendees were urged to “don’t believe what others claim” and “entertain no intimidation” when it comes to the .africa contest.
A presentation (pdf) delivered by AfTLD general manager Vika Mpisane says: “AfTLD, just like the AU, recognizes no any alleged pre-endorsements of any alleged bidder by the AU.”
Mpisane has been quoted recently heavily implying that DCA plans to put its commercial interests before the good of Africans, saying:

On one side is the self-serving commercial interest that some entities are already championing; these are entities that are in it purely for the money; on the other side is a community-serving commercial interest that most of the African internet community prefers.

AfTLD says it recently closed an RFP for a back-end registry provider to join its bid for .africa (and .afrique, which it also plans to apply for) and will announce the winner soon.
The AU Commission is expected to launch an RFP for a registry manager to endorse.

Rules for registry-registrar mergers proposed

ICANN has revealed how it intends to enable incumbent domain name registries to also become registrars, ending a decade of cross-ownership restrictions.
The industry shake-up could allow companies such as VeriSign, Neustar and Afilias to become accredited registrars in their own top-level domains later this year.
Hypothetically, before long you could be able to go directly to VeriSign for your .com domains, to Afilias and Public Interest Registry for .info and .org, or to Neustar for .biz.
The changes could potentially also kick off a wave of consolidation in the industry, with registry operators buying previously independent registrars.
ICANN’s proposed process is straightforward, requiring just a few amendments to the registries’ existing contracts, but it could also call for governmental competition reviews.
Registries will have to agree to abide by a Code of Conduct substantially the same as the one binding on wannabe registries applying later this year under the new gTLD program.
The Code is designed to stop registries giving their affiliated registrars unfair advantages, such as lower prices or preferential access to data, over other ICANN-accredited registrars.
Registries would also have the option to adopt the registry contract from the new gTLD Applicant Guidebook wholesale, although I expect in practice this is unlikely to happen.
ICANN would be able to refer vertical integration requests to national competition authorities if it determined that cross-ownership could cause “significant competition issues”.
VeriSign would be the most likely to be hit by such a review, but it’s also the only registry that does not appear to have been particularly hamstrung over the years by the forced separation rules.
The proposed process for registries to request the contract changes has been posted to the ICANN web site and is now open for public comment.

Registries could become registrars by summer

The big incumbent top-level domain registry operators could apply to also become registrars as early as June this year, according to a just-passed ICANN resolution.
Last November, ICANN decided to dump its longstanding policy of generally not allowing TLD registries to also own and operate registrars.
While the rule was designed primarily for TLDs won under the new gTLD program, it will also retroactively apply to operators of existing gTLDs.
Neustar (.biz) has already publicly stated its intention to vertically integrate, and is keen for ICANN to lift its current 15% registrar ownership restriction before the new gTLD program kicks off.
According to a resolution passed by ICANN’s board of directors on Thursday, Neustar is not the only registry operator to make such a request.
The board last week…

RESOLVED (2011.04.21.13), the Board directs the CEO to develop a process for existing gTLD registry operators to transition to the new form of Registry Agreement or to request amendments to their registry agreements to remove the cross-ownership restrictions. This process would be available to existing operators upon Board approval of the new gTLD Program.

ICANN currently plans to approve the gTLD program June 20 at its meeting in Singapore.
That gives CEO Rod Beckstrom and his team just two months to come up with a process for allowing the likes of VeriSign, Neustar and Afilias to either amend their contracts or move to the standard contract outlined in the new TLD program’s Applicant Guidebook.
I see a potential source of tension here.
The registry agreement template in the Guidebook has been described by some as an “adhesion contract” due to its heavy balance in ICANN’s favor.
Existing registries will very likely prefer to simply delete the cross-ownership restrictions in their current contracts and incorporate the new proposed Code of Conduct rules.
On the other hand, some have suggested that registries should be obliged to adopt the new Guidebook agreement in full, rather than amend their existing deals, in the interests of equitable treatment.
Registrars still signed up to ICANN’s 2001 Registrar Accreditation Agreement only get the option to upgrade wholesale to the 2009 agreement, it has been noted.

Niue: the myth of the “Wifi Nation”

The tiny Pacific island of Niue is commonly referred to as the world’s first and only “Wifi Nation”.
There was a lot of feel-good press coverage back in 2003, when the Massachusetts-based manager of the .nu country-code top-level domain started deploying wireless internet on the island.
NU Domain said at the time that it was “building the world’s first nation-wide wifi Internet access service, all at no cost to the public or the local government” (pdf)
This led to major media outlets, such as the BBC, reporting the line: “The free wi-fi link will be accessible to all of Niue’s 2,000 residents as well as tourists and business travellers.”
This story has remained in the media consciousness to this date, encouraged by the registry.
Just this week, NU Domain’s charitable front operation, the IUSN Foundation, was fluffily claiming that it has provided Niue with “the world’s only nation-wide free Internet”.
Even ICANN’s Kiwi chairman, Peter Dengate Thrush, spread the meme during a recent interview (audio), saying Niue had “installed free wifi across the entire island”.
There is just one problem with the “Wifi Nation” story: it’s bollocks.
This is what Niue’s Premier, Toke Talagi, had to say to Australian radio (audio) this week:

The internet services are unreliable, they’re not available throughout the island, and if you do want internet services connected up to your home you have to pay for it. Some people as I understand it have been paying up to $3,000 [$2,400] just for the installation of the wifi.
…
We’re never quite certain about what that “free” internet services is about, because we’ve had to pay.

According to Talagi, the wifi network provided by IUSN does not cover every village on the island, and users have to pay for it. The free wifi nation is neither free nor nationwide.
Even IUSN, while continuing to make its claims about nationwide wifi, admitted a year ago, seven years after the “wifi nation” claims were first made, that “villagers have been waiting to get online for some time”.
According to Talagi, the lack of reliable internet access is such a big problem that the Niuean government has had to take matters into its own hands and build its own ISP.
It is close to completing its own wired and wireless internet infrastructure, at the cost of $4.8 million, according to reports.
Niue discussed its needs with IUSN in 2009 and 2010, Talagi said, but “they felt they didn’t need to discuss these particular matters, that the services they were providing for us were adequate”.
It appears that IUSN doesn’t even pay to maintain its own equipment. This quote comes from a locally produced newsletter dated April 2009:

While IUSN is committed to provide free internet for its residents it is up to the users of this service to look after and maintain the internet enabling facilities.

That came from a report about residents of one of the island’s villages holding a fund-raiser in order to collect the $2,400 required to fix a wifi mast that had been damaged in a lightning storm (a common problem).
The per capita GDP of Niue, incidentally, is $5,800. Its citizens are not starving, but by the measure of its estimated GDP, about $10 million, it’s one of the poorest nations on the planet, reliant heavily on aid from nearby New Zealand.
According to Talagi and other sources, good internet access is not only required for economic reasons such as boosting the tourism industry.
Fast, reliable connectivity would also enable important human services, such as remote video diagnoses to be performed by overseas medical specialists, which the island lacks.
Niue’s ongoing economic problems come about largely because, other than fishing, it has very few natural resources to exploit.
A notable industry in the past has been the export of postage stamps to overseas collectors.
That business made headlines recently when a stamp was issued, celebrating the marriage of Prince William to Kate Middleton, which featured a perforation separating bride and groom.
There’s also talk of setting up a casino on the island, to boost revenues.
One asset it does have, at least on paper, is its top-level domain, .nu, which has proven popular in Sweden, where the word “nu” means “now”.
However, other than the lackluster internet connectivity provided by IUSN, Niue apparently does not see any significant revenue from the sale of .nu domain names.
According to IANA records, the .nu domain is officially delegated to the IUSN Foundation, previously known as the Internet Users Society – Niue.
The technical back-end provider is WorldNames Inc, which also operates as a registry/registrar under the brand NU Domain.
IUSN’s contact address is a PO Box in Niue, probably due to the fact that all ccTLD registry operators have to be based in the country they purport to represent.
The IUSN’s domain name, iusn.org, is registered to the same address as WorldNames and NU Domain, in the leafy Boston suburb of Medford, MA.
Most of the company’s business is done in Sweden, where most of its staff are based.
WorldNames has been in control of .nu since 1997, when its founder, Bill Semich, in partnership with a American ex-pat living on the island, managed to acquire the IANA delegation, pre-ICANN.
By several accounts, Niue has been trying to reclaim .nu from Semich for almost as many years.
In 2003, the government hired an American lawyer, Gerald McClurg, to be its representative on ICANN’s Governmental Advisory Committee and attempt to secure a redelegation.
That same year, McClurg made a submission to the International Telecommunications Union (.doc), in which he alleged that the nation was tricked out of its domain:

In 1997 IANA, without the approval of the Niuean Government, delegated the ccTLD for Niue to a businessman, William Semich, who lives in the United States. The advisor to the Government at that time was an ex-peace corp volunteer named Richard Saint Clair. Mr Saint Clair told the Government that the name meant nothing, that it was of no value or significance, and there was nothing that could be done. Shortly thereafter, Mr. Saint Clair then left his post as advisor and joined with Mr Semich in his organization – IUSN. The Government of Niue has been working every since to regain its ccTLD.

The Niuean government has actually passed a law, the Communications Amendment Act 2000, which states: “.nu is a National resource for which the prime authority is the Government of Niue”.
It also established the Niue Information Technology Committee, which “shall be the only designated Registry Manager of the Niue ccTLD .nu.”
Yet, eleven years on, IUSN is still the registry manager for .nu.
Talagi said in his radio interview this week that Niue was preparing to submit a redelegation request to ICANN/IANA in February last year, which is in line with what I was hearing at the time.
I have in my possession documentation from a European domain name registrar, dated March 2010, offering to take over the management of .nu on a not-for-profit basis.
It’s not clear to me whether Niue’s redelegation request is still active. Under current IANA practices, ICANN does not discuss pending ccTLD redelegation requests.
But I suspect IUSN has little interest in handing .nu back to Niue.
While registration data is not easy to come by, the number that has been reported frequently over the years, and as recently as 2008, is 200,000.
At 30 euros ($44) per year for the standard service from NU Domain, that’s close to a $9 million business just from domain registration fees.
That may not be much on the grand scheme of things, but it would certainly be material to a nation so reliant on hand-outs as Niue.
But IUSN is very protective of its asset.
Take a look at the Accountability Framework – one of the methods by which ICANN establishes formal relationships with ccTLD managers – that IUSN and ICANN signed in 2008 (pdf).
ICANN has signed 26 Accountability Frameworks over the last five years. They’re all very similarly worded, but the one it signed with IUSN has a notable addition not found in any of the others.
All ccTLDs’ Accountability Frameworks call for the TLD to be managed “in a manner that is consistent with the relevant laws of [insert country name]”.
But the .nu agreement is the only one to also make a specific reference to RFC 1591 and ICP-1, two rules dating from the 1990s that govern how ccTLDs are redelegated from one organization to another.
While ICP-1 gives governments a significant voice in redelegation requests, both documents state that IANA should only redelegate a TLD when both the winning and losing parties agree to the transfer.
The only notable exception to the rule is when the incumbent registry manager has been found to have “substantially misbehaved”, which I understand to be quite a high bar.
With that in mind, it’s far from obvious whether Niue stands any chance of getting its ccTLD redelegated to an approved registry any time soon.
According to a recent report (pdf) from ICANN’s ccNSO, IANA has redelegated ccTLDs in cases where the losing registry fought the decision, but its procedures for doing so are utterly opaque.

Governments dig in over new TLD objections

World governments have offered to compromise with ICANN on several disagreements relating to the new top-level domains program, but have dug their heels in on others.
ICANN’s Governmental Advisory Committee has finally published its updated “scorecard”, which states its position on the current state of negotiations, some 18 days after it was expected.
The document (pdf) provides the GAC’s response to the ICANN board of directors’ response to the GAC’s original list of objections to the program’s Applicant Guidebook.
Yeah, it’s getting a bit complex.
In the interests of wordcount, I’m going to focus here mainly on the issues where there still appears to be notable conflict.
This is a preliminary analysis.
Controversial TLDs
The GAC doesn’t want any “controversial” strings to be approved as new TLDs. As such, it wants governments to be able to object to any TLD application, for any reason, and without paying to have their objections evaluated by third parties.
ICANN attempted to compromise by saying that it would enable the GAC to provide advice to the board about specific applications within the 45-day comment window after the applications are published.
The GAC doesn’t appear to be satisfied by this, however. While it said it will try to provide advice during that window, it points out that the ICANN bylaws do not put any time limits on GAC advice.
The GAC also wants a separate “early warning system”, whereby the GAC would get at least 60 days, “finishing prior to the Initial Evaluation period”, to submit objections.
The idea is that applicants could withdraw from the process with a substantial refund if they received notice that governments were likely to object to their choice of TLD.
Assuming the GAC expects the warning system to finish before Initial Evaluation begins (rather than ends), this could add two months to the time needed to process applications, currently estimated at eight months for the simplest applications.
Under the current plan in the Applicant Guidebook, after the application window closes, ICANN spends a month privately checking the submissions for completeness. The five-month Initial Evaluation, which encompasses the 45-day open public comment period, immediately follows.
Perhaps aware of the delays its idea could cause, the GAC suggests that “ICANN should pass details of applications to the GAC as soon as they are lodged.”
This seems unworkable.
Most potential applicants have been playing their cards very close to their chests when it comes to the strings they plan to apply for.
The application window is expected to run for 60 to 90 days. If a company’s application were revealed to the GAC towards the beginning of that period, there would be a real risk of that information being leaked to potential competitors in other countries.
If you’re applying for “.baseball” in a selection of foreign languages, do you want competitors in those countries potentially being tipped off about your application while they still have time to prepare a rival bid?
If applicants knew the GAC was to be told about applications and applicants before the window closed, the vast majority of applications would very likely be filed on the very last possible day, defeating the object of early GAC notice.
Another probably unworkable GAC proposition it continues to stand by is the idea that applicants should be allowed to amend their application if they receive notice of a government objection.
This obviously creates a big loophole for gaming, allowing crafty applicants to scope out the competitive landscape before committing to a TLD – you could get dozens of placeholder applications for .porn, to be amended to .puppies or whatever when the inevitable GAC objection arrived.
Trademark Protection
Surprisingly, there’s nothing in the new GAC scorecard that addresses trademark protection concerns. Zip.
Does this mean the GAC and board have settled their differences and reached a consensus? Or does it mean that the most recent discussions have been so lacking in substance that the GAC has nothing to add beyond what it said before San Francisco?
From the new GAC paper, it’s impossible to tell for sure either way, but I will note that it’s refrerred to as a “draft” account of “proposed” responses, which suggests it’s not yet complete.
Registrar-Registry Cross Ownership
ICANN wants to start allowing registries and registrars to “vertically integrate” by executing both functions under the same corporate umbrella.
Concerns about market power and possible anti-competitive behavior would be referred to national competition regulators under some circumstances.
But some GAC members have heard back from their competition ministries, and they’re not buying it:

The Board response is considered insufficient by the colleagues of some GAC members who are responsible for Competition and anti-Trust issues. They have requested that ICANN provide a more reasoned argument as to why they have rejected the GAC’s proposal and why the Board feels that ex-ante measures are less preferable to ex-post measures for minimising problems associated with anti-competitive behavior.

Community TLDs
Currently, the Guidebook allows applicants to voluntarily self-designate as a “community” TLD, which requires community support to be documented.
But it would currently still be possible for a company to, for example, apply for a “.bank” as a regular TLD, showing no support from banks. The onus would be then on banks to object.
The GAC wants to change this, and continues to request that any string purporting to represent a certain set of users should be required to show support for that community:

The GAC’s domestic constituents have a reasonable expectation that applicants for new gTLD strings that clearly suggest they represent specific communities should be required to so indicate in their application and should demonstrate that they have the support of that community or the relevant authorities/entities responsible for that community.

In the absence of such changes, the GAC wants governments to be able to object on behalf of those communities without having to pay for a third-party panel to handle the objection.
The GAC does appear to have given some ground here, responding to ICANN’s concern that introducing a subjective categorization process for TLDs is “inherently problematic”.
The GAC now says that in the absence of special treatment for regulated industries, there should be more stringent vetting for applicants across the board, to prevent crooks getting their hands on a TLD.
Law Enforcement
The GAC wants new TLD registries to be obligated to cooperate with law enforcement agencies, criminal and civil, no matter what the jurisdiction. It wants this text inserted into the Guidebook:

A registry operator must respond in a timely manner to a request concerning any name registered in the TLD from any government agency that is conducting a lawful investigation or official proceeding inquiring into a violation of or failure to comply with any criminal or civil statute or any regulation, rule, or order legally issued pursuant thereto.

The proposal would only require the operator to “respond” to the law enforcement inquiry.
This could imply that, a registry based in the US would have to cooperate with, for example, a German investigation into a domain hosting Nazi memorabilia or a Saudi probe into pornography, and that a Canadian registry would have to cooperate with US authorities investigating sites selling prescription medicine across their mutual border.
Geographic Names
If you’re applying for a TLD representing a geographic region, the GAC would like you to be beholden forever to the governmental entity which backed your bid.
The GAC “insists” that this text be included in new TLD registry contracts:

In the event that the TLD was delegated to Registry Operator pursuant to the consent of a governmental entity to use a geographic name related to the jurisdiction of such governmental entity, the parties agree that, notwithstanding any provision contained in this Agreement, in the event of a dispute between such governmental entity and Registry Operator, ICANN will comply with a legally binding decision in such jurisdiction in favor of such governmental entity related to the TLD.

So if you successfully apply for .alabama, having obtained the support of the Alabama governor, but a subsequent administration wants to hand the TLD to another company for whatever reason, ICANN would have to comply.
If ICANN does not make this a condition of the Guidebook, the GAC expects many governments will not give their consent to any geo-TLD applications under their jurisdiction.
More Delays?
The new GAC advice carries the dateline April 12, which is 18 days later than the ICANN board was expecting it, according to the resolution it passed in San Francisco last month.
If ICANN wishes to strictly stick to the timetable it approved in SF, its staff now have just three days to incorporate the latest advice into the next Guidebook, which is scheduled to be published this Friday.
It’s also pretty clear that the GAC still requires clarification from ICANN on some of the outstanding issues. As well as some areas of agreement, there are several other points of conflict I’ve not explored in this piece.
But this all may not spell doom for the timeline just yet, however. By my reckoning, there’s at least a couple of weeks’ worth of flexibility baked into the schedule.
The Guidebook could, feasibly, still be approved June 20 in Singapore, as ICANN’s leadership hopes.

VeriSign to offer different prices to different registrars?

VeriSign may be able to offer differential pricing for .net domain names under the just-published draft .net registry contract.
The current .net agreement expires at the end of June, but VeriSign has a presumptive right of renewal.
The newly negotiated contract has a new “Special Programs” clause would enable VeriSign to offer pricing incentives to registrars in “underserved geographies” not available to other registrars.
Here’s the meat of the paragraph:

Registry Operator may for the purpose of supporting the development of the Internet in underserved geographies provide training, technical support, marketing or incentive programs based on the unique needs of registrars located in such geographies to such registrars, so long as Registry Operator does not treat similarly situated registrars differently or apply such programs arbitrarily. Registry Operator may implement such programs with respect to registrars within a specific geographic region, provided, that (i) such region is defined broadly enough to allow multiple registrars to participate and (ii) such programs do not favor any registrar in which Registry Operator may have an ownership interest over other similarly situated registrars within the same region.

Later, the part of the contract that limits VeriSign’s registry fee and requires uniform pricing among all registrars has been amended to specifically exclude these special programs.
The contract does seem to envisage differential registrar pricing, within certain geographic parameters, perhaps enabling VeriSign to stimulate growth in low-penetration markets.
It’s probably too early to speculate, given that we don’t know what incentives VeriSign has in mind, but it’s not difficult to imagine a scenario where particularly attractive pricing could cause a bunch of shell companies to emerge in, say, Africa or Asia.
For now, the provision would only apply to .net domains, but VeriSign has been known to use .com as a venue for dry runs of services it wants to offer in .com. The .com contract is up for renewal next year.
The proposed .net contract (pdf) contains a number of other changes (pdf), some of which mirror language found in other registry contracts, some of which are new.
There’s a provision for VeriSign to be able to “prevent” the registration of certain names, such as those that would have led to the Conficker worm spreading, in order to protect the security of the internet.
Some of the things that have not changed are also quite interesting.
With ICANN’s recent “vertical integration” decision, which will allow registries and registrars to own each other, you’d think the .net contract renegotiation would be the perfect opportunity for VeriSign to signal its intentions to get into the registrar business, as Neustar already has.
But it has not. The contract contains the same prohibitions on cross ownership as the earlier version.
And as Domain Name Wire noted, the new contract would allow VeriSign to continue to increase its prices by 10% every year until 2017.
That could lead to a maximum of about $9 per domain per year, including ICANN fees, by the time the deal is next up for renewal, if VeriSign exercised the option every year.
There’s an ICANN public comment period, open until May 10.

UDRP filings hit new record

The World Intellectual Property Organization handled more cybersquatting cases in 2010 than in any other year to date, according to just-released statistics.
WIPO said today it received 2,696 UDRP complaints last year, up 28% over 2009’s 2,107 cases.
But the number of domains covered by these cases actually slipped a little, from 4,688 to 4,370, according to WIPO.
Since the policy was created in 1999, WIPO says it has decided over 20,000 UDRP complaints, covering over 35,000 domain names in 65 TLDs.
It may sound like a lot, but it’s actually a vanishingly small percentage of the 205.3 million domain names that are registered across all TLDs today.

Neustar wants to be a registrar ASAP

Neustar, registry manager for the .biz and .us top-level domains, has put the wheels in motion to acquire an ICANN registrar accreditation as soon as possible.
It’s the first major gTLD operator to formally request permission to “vertically integrate” since ICANN announced last November that it was prepared to lift the ownership caps that have previously kept registries and registrars quite strictly separated.
Neustar’s .biz contract currently forbids it from owning more than 15% of an ICANN registrar.
In a letter to ICANN sent this afternoon, Neustar vice president of law and policy Jeff Neuman said the company wants this provision deleted:

We are asking for this language now to allow Neustar to compete fairly for new gTLDs on the same terms and conditions as registrars entering the new gTLD registry market.
…
It is critical to resolve this issue immediately to ensure that Neustar is able to compete on a level playing field with the new entrants into the marketplace and to promote the efficiencies and innovation for consumers as advocated by the ICANN Board.

ICANN shocked the industry last year when its board of directors decided to allow registries and registrars to own each other.
The decision meant that niche community and brand TLDs will be able to sell direct to registrants, without having to secure the support of reluctant big-name registrars.
It also meant that existing gTLD operators will be able to own registrars for the first time.
As a caveat, designed to protect consumers from gaming registries, ICANN proposed a Code of Conduct designed to limit the cross-pollination of data that could be abused.
Similarly, the Code calls for registries to treat all approved registrars equally, regardless of ownership stakes, to avoid competition concerns.
Neuman wrote that Neustar is prepared to have language along the lines of the current draft Code of Conduct, but “no more restrictive”, incorporated into the .biz registry contract.
Other incumbent gTLD registry operators, notably VeriSign and Afilias, are bound by similar contractual restrictions and will presumably also pursue their options along the same lines in future.

Surprise! More new TLDs delay likely

The launch of ICANN’s new top-level domain program looks set to encounter more delays, after international governments said they needed more time for consultation and debate.
Three days of talks between the ICANN board of directors and its Governmental Advisory Committee, which concluded yesterday, resolved many of the GAC’s concerns with new TLDs, but not enough.
Obtaining final closure of these outstanding issues during the San Francisco meeting, March 17, now seems quite unlikely, especially if the GAC gets its way.
The meeting started on an optimistic tone on Monday, degenerated into stalemate on Tuesday, and ran over into an unscheduled third day yesterday, by which point the frustration was audible.
Prior to the meeting, the GAC had provided a “scorecard” that covered 12 areas of new TLD policy where it was still unhappy with ICANN’s positions.
ICANN, in return, had provided matching summary documents that outlined the GAC advice and summarized ICANN’s current thinking on each of the issues.
It became apparent over the first two days of the meeting that the ICANN board was willing to compromise on a number of matters, but that the GAC was unable to do the same, due to its need to consult with ministers and unnamed “advisers”.
One side often seemed to have done more homework than the other, particularly on the issue of trademark protection, where the GAC entered the room as a proxy for the trademark lobby, but without the granular background knowledge needed to answer ICANN’s questions.
Talks disintegrated on Tuesday afternoon, when it became clear that GAC members could not proceed before further consultations with their respective capitals, and that ICANN could not fully address their concerns without further clarifications.
Both sides of the aisle retreated into private discussions for the rest of the day, with the ICANN board later emerging with a list of areas it was prepared to accept GAC advice.
These positions had been more fully fleshed out when the meeting reconvened yesterday morning, but hopes of resolving the discussions by San Francisco appeared to be dashed by the GAC.
The ICANN board decided in January that March 17 will host a so-called “bylaws consultation”, during which ICANN tells the GAC where it has decided to disagree and overrule its advice.
But the GAC unexpectedly revealed yesterday that it does not want the March 17 meeting to have that “bylaws” designation.
A clearly frustrated Peter Dengate Thrush, ICANN’s chairman, asked repeatedly why, in light of the substantial strides forward in Brussels, the GAC had suddenly decided it needed more time:

what we’ve done is clarify and limit the work, so the work we now need to do in San Francisco is reduced and comes in with greater clarity. I don’t understand how more work and more clarity leads to the conclusion that you come to. So you have to help me with this.

The US representative, Suzanne Sene, said the GAC was “surprised” by the bylaws designation.

Actually, if we can go back to the January resolution, a sort of reaction we had at that time was some slight surprise actually that without having seen the GAC scorecard, you were already forecasting that you anticipated not being able to accept the advice contained in the scorecard.

Despite the generally civil tone of the talks, and Dengate Thrush’s opening and closing remarks – in which he said that the meeting was neither “adversarial” nor a “power struggle” – this part of the discussion came across more than most like a pissing contest.
ICANN officially rejecting GAC advice through a bylaws consultation would be unprecedented, and I get the distinct impression that it is something the GAC does not want to happen.
If you’re a government, being overruled by a bunch of DNS policy wonks in California is bad PR.
But if a mutually acceptable compromise is to be made without any advice being rejected, GAC reps need time to take ICANN’s concessions back to their superiors for input, and then to form their own consensus views. Thence the delay arises.
At the end of the meeting, it appeared that talks will be continuing in private in the run-up to the San Francisco meeting, which starts March 13. It also appears that the board and GAC will hold not one but two days of talks during the meeting.
What’s less clear to me is whether ICANN has already agreed that the “bylaws” designation will be removed from the March 17 meeting.
If it does, we’re looking at a few weeks more delays post-SF, while the GAC and board resolve their remaining differences, which could easily impact the planned April 14 publication of the next version of the Applicant Guidebook.

Winners and losers in the next Applicant Guidebook

Who’s going to be happy, and who won’t be, after ICANN publishes the next version of its Applicant Guidebook for new top-level domains in April?
We now have a rough idea of the answers to those questions, following the publication this week of ICANN’s analysis of comments received between November and January.
The 163-page document (pdf) outlines where ICANN is still open to changing its rules for applying for a TLD, and where it believes the book is firmly shut.
As you might expect, at this late stage in the game, most of the analysis is essentially “thanks, but no thanks”, reiterating the reasons why the Guidebook currently says what it says.
But there are strong indications of which changes will be made to the “next” version of the Guidebook, which is currently expected to hit the ICANN web site April 14.
Here’s a high-level analysis of the winners and losers.
Impatient Applicants
Companies and entrepreneurs that have been tapping their feet for the last couple of years, hit by delay after delay, can probably take comfort from the fact that ICANN is still making encouraging noises about its commitment to the new TLDs program.
Noting that some issues are still in need of further work, ICANN staff writes:

it is ICANN’s intention to reach resolution on these issues. It would be irresponsible to use community resources to run a process without the intention to see it through to conclusion.
…
ICANN continues to approach the implementation of the program with due diligence and plans to conduct a launch as soon as practicable along with the resolution of these issues

Beyond what I noted in a post earlier this afternoon, there are no clues about the timetable for actually launching the program, however.
Trademark Holders
It’s a mixed bag for the intellectual property lobby, but on balance, given the length of its wish-list, I expect the trademark crowd will be more disappointed than not.
In general, ICANN is firm that the rights protection mechanisms (RPMs) in the Guidebook are the result of community compromise, and not for changing.
This is sometimes the case even when it comes to issues ICANN plans to discuss with its Governmental Advisory Committee next week.
One of these is the Trademark Clearinghouse, the database of trademark rights to be used to reduce cybersquatting, of which ICANN says:

subject to further refinement through the GAC consultation and other comments received to date, the positions in the Clearinghouse proposals will be finalized substantially similar to as it was in the Proposed Final Applicant Guidebook.

On the Globally Protected Marks List, a mechanism trademark holders want included in the Guidebook, ICANN is suitably mysterious:

It is clear that the trademark interests have continued to raise the GPML as possible RPM. While this discussion may continue, no further progress or decisions have been made.

The most substantial concession ICANN appears ready to make to trademark holders concerns the Uniform Rapid Suspension mechanism, a cousin of the UDRP that will be used to address clear-cut cases of cybersquatting in new TLDs.
A major concern from the IP lobby has been that the URS is too slow and complex to meet its original goals. ICANN disagrees that it does not do the job, but plans to streamline it anyway:

Discussions are continuing and some additional implementation detail revisions will likely be made, for example, creating a form complaint that reduces the 5000-word limit to 500 words. The 500-word limit might not, however, be placed on the respondent, as the respondent will be required to describe the legitimate basis upon with the domain name is registered. The respondents word limit be decreased from 5,000 to something less, possibly 2,500 words, in order to decrease the examinations panel‘s time requirements and thereby enhance circumstances for a relatively loss cost process. (Remember that in the vast majority of cases, it is expected that the respondents will not answer.)

This will certainly be a topic of discussion at the ICANN-GAC meeting in Brussels on Monday, so I expect IP attorneys are even now briefing their governments on how these proposed changes won’t go far enough for whatever reason.
Domainers
There’s bad news if you’re a high-rolling domain investor, looking at bagging a new TLD or three, and you also have a few UDRP losses against your name.
The background check ICANN will carry out on applicants for their history of cybersquatting stays, and it will still use the three-losses-as-UDRP-respondent benchmark.
However, ICANN has recognized that UDRP decisions are not always final. If you lost a UDRP but subsequently won in court, that decision won’t count against you.
In addition, reverse domain name hijacking findings will now also count against applicants to the same degree as UDRP losses.
I believe both of those concessions capture so few entities as to be more or less irrelevant for most potential applicants.
“.brand” Applicants
ICANN is in favor of companies applying to run “innovative” TLDs, such as “.brands”, but it is reluctant to carve out exceptions to the rules for these applicants.
The organization does not plan to give .brands a pass when it comes to protecting geographic names, nor when it comes to the requirement to register domains through an accredited registrar.
This seems to mean, for example, that if Microsoft successfully obtains .microsoft and wants to register usa.microsoft to itself, it will have to ask the US government for permission.
It also means .brands will still have to seek ICANN accreditation, or work with an existing registrar, in order to sell domains to themselves. It’s an added cost, but not an unworkable one.
Would-be .brand applicants did, however, win one huge concession: If they decide to turn off their TLD, it will not be redelegated to a third-party. ICANN wrote, with my emphasis:

In the limited case of .brand and other TLDs that operate as single-registrant/single-user TLDs it would probably make sense to not force an outgoing operator to transition second-level registration data (since presumably the operator could just delete all the names as the registrant anyway and then there would be nothing to transition), and therefore ICANN will put forward proposed language for community review and feedback that would provide for alternative transition arrangements for single-registrant/single-user gTLDs.

If .microsoft was unsuccessful and Microsoft decided to stop running it, Google would not be able to take over the ICANN registry contract, for example.
Poor People/Cheapskates
Some commenters wanted ICANN to reduce application fees in cases where the applicant is from a poorer nation, a non-governmental organization, or when they intend to apply for multiple versions of the same TLD.
They’re all out of luck.
The $185,000 baseline application fee is to stay, at least for the first round. ICANN thinks it could be reduced in future rounds, once more uncertainty has been removed from the process.
Currently, $60,000 of each fee is set aside for a “risk” (read: litigation) war-chest, which will be presumably less of an issue after the first round is completed.
Special Interests
The International Olympic Committee and the Red Cross, as well as financial services organizations, may receive the special concessions they asked for in the next Guidebook.
The IOC and Red Cross may be given the same protections as afforded to ICANN, regional internet registries, and generic terms such as “example” and “test”.

ICANN is considering the nature of these protections, and if appropriate, might augment the reserved names lists in special cases such as requested by the International Olympic Committee (IOC) and the International Red Cross, both of which are globally invested in representing the public interest.

It also emerged that ICANN is working with the financial services industry to clarify some of the security-related language in the Guidebook.
Community Applicants
Sorry guys, ICANN intends to keep the threshold score for the Community Priority Evaluation at 14 out of 16. Nor will you get a bonus point for already showing your cards by starting community outreach two years ago. Winning a CPE is going to be as tough as ever.
*
This is just a brief, non-exhaustive overview of the changes that are likely to come in the next Applicant Guidebook, setting the stage for the GAC talks next week and the San Francisco ICANN meeting next month.
One thing seems pretty clear though: this is end-game talk.