ICANN hiring CSRs for new TLD program

ICANN has advertised for four new staff to support its new generic top-level domains program.
The organization is looking for three Lead Application Coordinators, to be based in Marina Del Rey, Hong Kong and Brussels, and one Application Coordinator for Marina Del Rey.
The roles are all fairly similar – essentially senior customer support representatives for new gTLD applicants. The lead positions require more than five years call center experience and a university degree.
With the number of applicants in the first round expected to be around the 400 mark, I think that’s a pretty solid ratio of CSRs to applicants, assuming the application process runs smoothly.
The hiring move is obviously a pretty strong indication that ICANN expects the new gTLD program to kick off fairly soon.
ICANN has also recently started advertising for a vice president of Europe, which I believe is a new position. It currently has 18 open positions in total, according to its hiring page.

Senior ICANN staffer hired by .bank project

Craig Schwartz, ICANN’s chief gTLD registry liaison, has been headhunted by BITS, the tech arm of the Financial Services Roundtable, to head up its .bank top-level domain application.
Schwartz will become BITS’ general manager of registry programs in early July, following the conclusion of the next ICANN meeting in Singapore.
BITS has yet to reveal the TLDs it plans to apply for, but .bank is the no-brainer. I understand it is also considering complementary strings, such as .finance and .insurance
The organization has already said that it plans to use VeriSign as its back-end registry services provider.
Schwartz is a five-year ICANN veteran, and his experience dealing with registries will no doubt be missed, particularly at a time when the number of gTLDs is set to expand dramatically.
His replacement will have plenty of time to settle into the role, however. The first new gTLDs approved under the program are not likely to go live until late 2012 at the earliest.

ICANN tries to limit rogue registrars

As part of its growing efforts to clean up the domain name registrar market, ICANN has introduced background checks for companies applying for accreditation.
ICANN will check criminal and financial records, as well as doing credit checks, on companies that want to be able to sell domains in gTLDs.
As a result, the cost of applying to become a registrar is going up by $1,000, to $3,500, to cover the cost of accessing the relevant third-party databases.
The changes, made largely at the behest of law enforcement participants in ICANN, concerned that some registrars are not what you’d call responsible netizens, come into effect July 1.
The intellectual property lobby had called for the checks to include cybersquatting and UDRP judgements, but those suggestions were not taken on board.

How the GAC could derail new TLDs in Singapore

The pieces are moving into place for what could be the final battle over new top-level domains between ICANN and its Governmental Advisory Committee, in Singapore later this month.
ICANN made few concessions to the GAC’s biggest concerns in the latest Applicant Guidebook, which begs the question of whether the United States will now be asked to play its trump card.
Earlier this week, European Commissioner Neelie Kroes made threatening noises in ICANN’s direction, saying that by approving the controversial .xxx domain over GAC advice, ICANN had showed that it cannot be trusted with new top-level domains.

If the ICANN board chooses to move forward [with .xxx] despite significant governmental concerns, what does this tell us for the next meeting in Singapore, which is widely expected to launch the next batch of TLDs? The concerns of governments in this process are not trivial, ranking from trademark protection to cooperation with law enforcement

The current Guidebook has not accepted (with some good reasons) many of the GAC’s requests on the issues of trademark protection and the governmental right to object to new TLD applications.
In a recorded address at the EuroDIG conference in Serbia this week, before the Guidebook was published, Kroes called for ICANN’s multistakeholder internet governance model to be “amended to better take into account the voice of governments”.
She said she is supported by colleagues in the EU and overseas, presumably referring to Lawrence Strickling, head of the NTIA, with whom she met last month to discuss .xxx and new TLDs.
In her speech, Kroes called for the United States to leverage its unique position of authority over ICANN to influence change at the organization:

The expiry of the IANA contract in September will be a unique opportunity to sharply focus on a set of minimum requirements for whichever organization will be designated to carry out the future IANA functions. Specifically, I feel that the new contract should include specific provisions to improve standards of corporate governance in the organization in charge.
…whichever will be the organization resp for naming and addressing resources, it should be required to demonstrate it has support of global internet community before it makes proposals to add any further top-level domains to the internet.

This is perhaps the most explicit outside call yet for the US to use the IANA contract both to get the GAC a louder voice at the ICANN table and to have the demands of the trademark lobby taken fully into account in the new TLDs program.
The US Trump Card
It’s no secret that the US has an ace up its sleeve, in the form of the soon-to-expire IANA contract.
IANA is responsible for the paperwork when updates are to be made to the DNS root, whether they are redelegating a ccTLD, changing name servers, or adding an entirely new TLD.
When a new TLD is approved, ICANN’s IANA department forwards the request to the NTIA, which reviews it before instructing VeriSign to add the TLD to the A-root.
IANA is currently a no-fee contract between the NTIA and ICANN. Theoretically, the NTIA could award the contract to whichever organization it chooses, after it expires.
This is unlikely to happen. But if it did, ICANN’s powers would be severely curtailed – another entity would be above it in the root’s chain of command.
Alternatively, the NTIA could amend the contract to impose conditions on ICANN, such as making it more accountable to the GAC. This is what Kroes appears to be pushing for.
Strickling himself said a month ago that he has not ruled out the option of using the IANA contract as “as a vehicle for ensuring more accountability and transparency” at ICANN.
There is another theory, however, which is currently doing the rounds.
As it currently stands, if ICANN approves the Applicant Guidebook in Singapore on June 20, the expected timetable has it accepting new gTLD applications as early as November.
By that time it would, presumably, have already renewed the IANA deal, and would still have its nominal powers to add new TLDs to the root.
But buried deep within the IANA contract (pdf) is a provision that allows the NTIA to unilaterally extend its term by six months – from September 30, 2011 to March 31, 2012.
If the NTIA were to exercise this option, it could put a serious question mark over ICANN’s ability to start accepting new TLD applications this year.
With no guarantee that its authority to add new TLDs to the root would be renewed, would risk-averse ICANN be happy to go ahead and accept tens of millions of dollars in application fees?
It seems unlikely.
I’ve little doubt that this scenario will have been discussed by the NTIA and its allies. It would look better politically for the US if it had the support of the GAC before making such a play.
Since the GAC seems to want to buy time for further talks on new TLDs before ICANN kicks off the program, the IANA contract extension may appear to be a good way of going about it.
But with ICANN seemingly set to approve a Guidebook that will remain open to significant amendments post-Singapore, does the IANA threat need to be invoked at all?
If negotiations over trademark protection, developing world funding and GAC objections can remain open even after the Guidebook has been “approved”, perhaps there’s scope for a more peaceful resolution.

Clarity for .brands in new Guidebook

Companies planning to apply for a “.brand” top-level domain have had some of their concerns put to rest in the latest version of ICANN’s Applicant Guidebook.
Potential .brands were worried that ICANN might try to redelegate their trademarked TLDs to a third-party operator in the event that they decided to discontinue the domain.
They were also concerned that the Code of Conduct would require them to offer equitable access to all accredited registrars – a ridiculous situation for a single-registrant TLD.
Both of these problems seem to have been addressed in the new Guidebook, which enables registries to ignore the Code of Conduct and redelegation scenario if they can satisfy three criteria.
They have to show to ICANN’s satisfaction that “all domain name registrations in the TLD are registered to, and maintained by, Registry Operator for its own exclusive use”, that it does not sell to third parties, and that to redelegate the TLD or enforce the Code “is not necessary to protect the public interest”.
These changes make the .brand proposition a lot more realistic, less risky, and may put many concerns to rest.
They do stop short of requests from potential .brands such as Microsoft, which wanted a TLD operator’s express written consent to be required before a redelegation took place, however.

ICANN beefs up new TLD fraudster checks

ICANN has broadened the background checks in its new top-level domains program to ban companies with a history of consumer fraud from applying for a new gTLD.
The new check in the Applicant Guidebook reads as follows:

a final and legally binding decision obtained by a national law enforcement or consumer protection authority finding that the applicant was engaged in fraudulent and deceptive commercial practices as defined in the Organization for Economic Co-operation and Development (OECD) Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders may cause an application to be rejected. ICANN may also contact the applicant with additional questions based on information obtained in the background screening process.

The OECD guidelines, which define deceptive practices, were suggested by ICANN’s Governmental Advisory Committee as a way to keep out the fraudsters.
I speculated last week that implementation of such rules could capture Network Solutions and/or VeriSign, due to their dodgy dealings almost a decade ago.
But it appears that the two companies are safe – the wording is such that it likely does not apply to the settlement NetSol made with the Federal Trade Commission which, while legally binding, was explicitly not a “finding” of fact or law.
The Guidebook also now asks applicants to disclose if they have been “disciplined by any government or industry regulatory body for conduct involving dishonesty or misuse of funds of others”. The “industry regulatory body” text is a new insertion.

The Applicant Guidebook is not finished, but will it be approved?

ICANN has published the seventh version of its Applicant Guidebook – no longer “draft” and no longer “proposed final” – for the new generic top-level domains program.
It’s arguably unfinished in its current state, but it looks like it’s being positioned for approval in just a few weeks, at ICANN’s planned June 20 board of directors meeting in Singapore.
One of ICANN’s stated aims was to provide a gTLD evaluation process that was not only uniform but also predictable. Applicants needed to know what they’re getting into before applying.
On the latter grounds, today’s Guidebook arguably fails.
The most notable change since the April draft is, for my money, the addition of text warning that ICANN may make binding changes to the Guidebook after the application process has started.
The very last paragraph of the document (pdf), the new fourteenth entry in the Terms & Conditions, is worth quoting is in its entirety:

ICANN reserves the right to make reasonable updates and changes to this applicant guidebook and to the application process at any time by posting notice of such updates and changes to the ICANN website, including as the possible result of new policies that might be adopted or advice to ICANN from ICANN advisory committees during the course of the application process. Applicant acknowledges that ICANN may make such updates and changes and agrees that its application will be subject to any such updates and changes. In the event that Applicant has completed and submitted its application prior to such updates or changes and Applicant can demonstrate to ICANN that compliance with such updates or changes would present a material hardship to Applicant, then ICANN will work with Applicant in good faith to attempt to make reasonable accommodations in order to mitigate any negative consequences for Applicant to the extent possible consistent with ICANN’s mission to ensure the stable and secure operation of the Internet’s unique identifier systems.

My translation: 1) this baby is probably going to get approved before it’s finished, 2) we may spring a new policy on you after you’ve already laid down your $185,000 and 3) if the new policy screws with your application, we may give you special privileges.
Not much predictability there, but ample scope for controversy.
The new version of the Guidebook makes a reasonable attempt at highlighting some areas where it’s not ready, and where new policies may emerge, with placeholder text.
For example, the Guidebook notes that “ICANN may establish a means for providing financial assistance to eligible applicants” but does not say how much, or who will be eligible.
This developing nation support mechanism is currently one of the Governmental Advisory Committee’s biggest concerns, but it looks like it’s destined to be dealt with in a parallel process, possibly after the Guidebook has been approved.
In addition, prices for evaluation procedures such as the Registry Services Review and the Community Priority Evaluation have not yet been set, because contractors have not been selected.
Those two unresolved issues mean that the Guidebook as it stands today does not even inform several categories of applicant how much they can expect to pay to apply.
There’s continued uncertainty over objections procedures, also. The process whereby the GAC can object to applications has not yet been finalized. The Guidebook notes:

The GAC has expressed the intention to create, in discussion with the ICANN Board, “a mutually agreed and understandable formulation for the communication of actionable GAC consensus advice regarding proposed new gTLD strings.”

So if you’re thinking about a potentially sensitive string (.gay, .god), or a gTLD for a regulated industry (.bank, .pharma), the Guidebook currently offers limited visibility into the extent that your fate would be in the hands of national governments.
If you’re a .brand applicant, and you want to use domains such as europe.brand or usa.brand, the Guidebook currently offers no guidance on how those restricted geographic terms can be released for use. It says further policy work is needed.
Given the updated Ts&Cs quoted above, and the new section “1.2.11 Updates to the Applicant Guidebook”, which says pretty much the same thing, it looks like ICANN staff have prepared a document they expect the board to approve just three weeks from now.
The schedule for the Singapore meeting, published overnight, sets aside a 90-minute slot for the board to convene to discuss the Guidebook on June 20. It says:

In this session ICANN Board of directors will evaluate the current status of the New gTLD Program and consider the approval of the Final Applicant Guidebook.

My hunch is that we’re looking at some kind of face-saving “approval with caveats” resolution, leaving the Guidebook in a technically “approved” state but still open to significant amendments.
That’s if the GAC will let it, of course.
The new Guidebook makes a few cosmetic changes to its trademark protection mechanisms, but not much that seems to address the GAC’s specific outstanding concerns. Nor does it accept the GAC’s latest recommendations related to its objections powers.
Whether this is an indication that ICANN has given the GAC as much as it is prepared to, or an indication that changes could still be made, remains to be seen.

Controversial TLD blocking still controversial

ICANN and its Governmental Advisory Committee have yet to reach agreement on when and how governments should be able to block top-level domains deemed too controversial to go live.
In its latest advice to ICANN’s board (pdf), the GAC gets a bit sniffy in response to calls for it to be more transparent about how such objections are raised.
The Applicant Guidebook currently requires ICANN to take GAC objections to TLD applications seriously, but only if the GAC reveals which nation(s) objected and why.
The GAC, predictably, seems to think ICANN is trying to undermine its authority. At the very least, it doesn’t like being told what to do:

The GAC advises the Board that the current text in Module 3 that seemingly dictates to the GAC how to develop consensus advice is problematic and should be deleted, as it is inconsistent with the ICANN Bylaws and the GAC’s Operating Principles.

The GAC has offered to refine its procedures to make “consensus advice” a more meaningful term, such as by adopting the UN’s definition of consensus, however.
Some believe that giving the GAC a carte blanche to file objections from its opaque decision-making black box will lead to back-room horse-trading.
You might find a bloc of theocratic nations, for example, refusing to agree to an objection to .nazi (an improbable application, admittedly) unless other governments agree to object to .gay.
And some observers in the west don’t trust their own governments to stand up for their principles and resist this kind of deal-making, particularly when there’s no transparency into the process.
The GAC, meanwhile, does not think the objections process has been sufficiently squared away for it to agree to it. It wrote:

The GAC strongly believes that further discussions are needed between the GAC and the ICANN Board to find a mutually agreed and understandable formulation for the communication of actionable GAC consensus advice regarding proposed new gTLD strings.

ICANN is due to publish the seventh (and “final”) draft of its Guidebook tonight. Its board is due to meet with the GAC next June 19, one day before it plans to vote on the program.

Facebok.com given to Facebook despite “theft” claim

ICANN says registrar contract trumps national court. Registrar warns of legal consequences.
The typo domain name facebok.com has finally been returned to Facebook, over eight months after it was subject to a successful cyberquatting complaint.
The domain does not currently resolve, but Whois records show it was transferred to Facebook from its previous registrant, one “Franz Bauer”, last Thursday.
The case was marked by controversy, after ICANN threatened to shut down its sponsoring registrar, EuroDNS, for failing to transfer the domain last within 10 days, as required by UDRP rules.
EuroDNS had resisted the transfer after being named in a lawsuit, in its native Luxembourg, filed by a suspicious Panama shell company going by the name Facebok.com. The plaintiff claimed the domain had been “stolen” by Bauer.
But ICANN told the registrar last week that the Registrar Accreditation Agreement only allows the registrar to defer a transfer if the original registrant – not a third party – sues.
In a letter noting that EuroDNS is “a long-standing and respected member of the ICANN community”, the ICANN compliance department said:

the only kind of documentation that will stop the registrar from implementing a panel decision ordering a transfer is evidence that the registrant/respondent has commenced a lawsuit against the complainant in a jurisdiction to which the complainant has submitted under UDRP Rules. The mere filing of a complaint by a third party does not excuse the registrar from fulfilling its obligations under the policy.
…
in recognition that there has been a court filing, ICANN must reiterate that failing to comply with the relevant contractual provisions of the RAA subjects EuroDNS to escalated compliance action up to and including termination of the EuroDNS accreditation.

That seems to have been sufficient clarity for EuroDNS to push through the transfer, but the registrar is not happy about the situation, which may leave it in a tricky legal position in Luxembourg.
In a reply to ICANN, EuroDNS CEO Xavier Buck suggested that the story may not be over yet:

the action you demand from EuroDNS will have tremendous consequences for our company in the pending judiciary case.
Consequently, EuroDNS reserves all rights to seek indemnification from ICANN for any damages or loss caused by the action we have been forced to take not to lose our Registrar accreditation.

The lawsuit was filed last September, just days after the UDRP case was decided, but has not yet gone to court.
Under its previous ownership, facebok.com redirected to a series of scam sites that may have proved rather lucrative.

GAC calls for $44,000 new TLDs

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

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

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

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

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