New TLD applications to open May 2011

ICANN has named the date for its planned launch of the new top-level domain application process.
According to a resolution passed at its board of directors meeting Thursday, ICANN is targeting May 30, 2011 for the opening of applications.
The proposed final version of the Applicant Guidebook is set to be published November 9, and is expected to be approved by the board at its meeting in Cartagena, December 10.
A four-month marketing and outreach period is expected to kick off January 10.
If you’re looking for the specifics of what the Applicant Guidebook will contain, you’re out of luck.

# Vertical Integration – No resolution
# GNSO New gTLD Recommendation 6 Objection Process – No resolution
# GAC Issues Letter including Geographic Names – No resolution
# Affirmation of Commitment Considerations – No resolution

Looks like we’ll have to wait until November 9 to find out what has been agreed on each of these issues.

ICANN could fast-track final new TLD guidebook

ICANN is considering a fast-track process for the final version of its new top-level domain Applicant Guidebook that could see it approved this December, documents have revealed.
Minutes and board briefing materials from ICANN’s August 5 board meeting, published yesterday, seem to demonstrate an eagerness to get the policy finalized by its Cartagena meeting.
Staff and board members favor a limited public comment period prior to the guidebook’s finalization, which could see it approved sooner rather than later.
Briefing documents (pdf, page 111 and on) say:

It is recommended that the Board consider the Final version of the Guidebook for approval at the Cartagena meeting. The final version will be posted for limited comment prior to the meeting.

The minutes of the meeting reveal a preference among staff and some directors, including chairman Peter Dengate Thrush, for this limited comment window.
The comments would be “limited” to new issues, for various reasons, including this:

A full process will bring forth every last attempt for parties to repeat positions to modify the process to be in line with their pecuniary or other interest. The optics might falsely indicate that there is no consensus around the model

ICANN’s obligation to consult its Governmental Advisory Committee would be carried out face-to-face at the Cartagena meeting, further speeding this up.
Tantalizingly, a flow-chart setting out the board’s options contains the possible launch dates for the first-round application window, but they’ve been redacted.
These documents date from August and the ICANN board has met twice since then, so things may have changed.
We’re likely to find out more about the timeline when the board resolutions from its meeting yesterday are published. I’m expecting this later today, so stay tuned.

ICANN ombudsman quits

Frank Fowlie, ICANN’s ombudsman, has announced he will leave the post before the end of January next year.
A statement posted to the ICANN web site does not explain the reasons for his departure, but it does include this nugget:

“After six years with ICANN, I have logged 794 days in travel status, or about two years and five months away from home,” said Fowlie in announcing his departure to the ICANN staff. “It’s time for me to spend a bit more time at home with my wonderful wife.”

Read into that what you will.
ICANN will now look for a replacement. The ombudsman’s role is to hear complaints about ICANN’s actions. Former UN staffer Fowlie was the first to hold the position.
For no other reason than I think that it’s funny, here’s a link to a story about Fowlie getting shirty with a flight attendant.

Will .xxx be approved today?

Will the adults-only .xxx top-level domain be approved today, or will the hot potato be tossed to governments for a decision?
That’s the question facing ICANN’s board of directors, which is set to discuss the controversial TLD for the umpteenth time today.
The last resolution it passed on .xxx called for a public comment period, followed by a decision on whether the registry contract is compatible with old Governmental Advisory Committee advice.
With the comment period closed, it appears that all that remains is to decide whether a new GAC consultation is required before the contract can be approved or rejected.
Some opponents of .xxx are demanding a GAC consultation.
Diane Duke, director of porn trade group the Free Speech Coalition, wrote to ICANN this week, urging it to refer the application back to the GAC.
As Duke knows, many international governments are opposed to .xxx.
A week ago, Australia’s socially conservative, pro-censorship broadband minister, Stephen Conroy, also asked ICANN for another GAC consultation, expressing his “strong opposition” to the TLD due to its “lack of identified public benefit”.
And Conroy is surely not alone. There can be few governments that would be happy to be seen to endorse pornography, regardless of its legal status in their jurisdictions.
The GAC is firmly of the view that “controversial” TLDs present a risk to the global interoperability of the internet. The fear is that strings such as .xxx could lead to blocking at national borders and ultimately fragmentation of the DNS root.
Whichever decision ICANN makes today, it is sure to cause controversy one way or another.

ICANN “intervention” needed on TLD ownership rules

ICANN’s board of directors is today likely to step in to create rules on which kinds of companies should be able to apply for new top-level domains.
Chairman Peter Dengate Thrush now says “intervention appears to be required” on the issue of registry-registrar cross-ownership, after a GNSO working group failed to create a consensus policy.
In an email to the vertical integration working group yesterday, Dengate Thrush thanked particpants for their efforts and added:

The board is faced, in the face of absence of a GNSO position, to examine what should be done. This is a matter we are actively considering.
My sense is that, while reluctant to appear to be making policy, the Board is unwilling to allow stalemate in the GNSO policy development process to act as an impediment to implementing other major policy work of the GNSO, which calls for the introduction of new gTLDS. Some kind of Board intervention appears to be required, and we are considering that.

Currently, placeholder text in the new TLD Draft Applicant Guidebook calls for a 2% cross-ownership cap and effectively bans registrars from applying to become registries.
Such a scenario would very likely make single-registrant “.brand” TLDs unworkable. Canon, for example, would be forced to pay a registrar every time it wanted to create a new domain in .canon.
It would also put a serious question mark next to the viability of geographical and cultural TLDs that may be of limited appeal to mass-market registrars.
Many in the VI working group are in favor of more liberal ownership rules, with larger ownership caps and carve-outs for .brands and “orphan” TLDs that are unable to find registrars to partner with.
But others, notably including Go Daddy and Afilias, which arguably stand to gain more economically from the status quo, favor a stricter separation of powers.
This latter bloc believes that allowing the integration of registry and registrar functions would enable abusive practices.
Dengate Thrush’s email has already raised eyebrows. ICANN is, after all, supposed to create policies using a bottom-up process.
Go Daddy’s policy point man, Tim Ruiz, wrote:

I am hopeful that you did not intend to imply that if the bottom up process does not produce the reults that some of the Board and Staff wanted then the Board will just create its own policy top down.
I hope that the Board keeps its word regarding VI as it was given to the GNSO. To not do so would make it difficult to have any confidence in the Board whatsoever.

It’s a tightrope, and no mistake.

Employ Media answers .jobs critics

The .jobs registry has responded to insinuations from its critics that it set out to break its own sponsorship rules with a plan to open up the TLD to generic and geographic domain names.
In a filing with ICANN (pdf), Employ Media denies that its liberalization program would permit people from outside the human resources sector to register domains, in violation of its Charter.

Employ Media categorically rejects such allegations as unfounded speculation, and made solely to delay the launch of the .JOBS Phased Allocation Program.

The program, which would see non-companyname .jobs registrations allowed for the first time, has already been approved, but a Reconsideration Request was filed by the .JOBS Charter Compliance Coalition in an effort to get the decision reversed.
The Coalition is an ad-hoc group of jobs boards that believe Employ Media’s plans could harm their businesses by attracting users of nursingjobs.com (for example) to nursing.jobs.
Employ Media plans to allocate thousands of premium domains such as these to the DirectEmployers Association, in order to feed traffic to a huge free jobs board at universe.jobs.
The Coalition sent ICANN a list of questions for Employ Media, and ICANN followed up last week with 13 of its own questions, all of which seem to dance around the issue of whether this was kosher.
The registry’s responses, published by ICANN a couple of days ago (and subsequently disappeared), basically deny that it has done anything that would allow non-Charter registrants into its TLD.
It also seeks to put distance between itself and DirectEmployers:

At the time of the 5 August 2010 Board action [approving the program], Employ Media did NOT have any intention of registering names under the Phased Allocation Plan to any entity other than Employ Media.

That appears to be a roundabout way of describing its original plan to register all the premium names to itself, but to allow DirectEmployers to use them, basically hacking its own registry contract.
Universe.jobs, for example, is registered in Employ Media’s own name, but appears to be primarily operated by DirectEmployers (blog posts from Employ Media executives notwithstanding).

Businesses to object to Arab UDRP provider

ICANN’s business constituency is to object to a new Jordan-based UDRP provider, saying that no new providers should be approved until rules governing their behavior are put in place.
The BC reckons that UDRP decisions need to be more consistent and predictable, and that a good way to achieve this would be with standard accountability mechanisms.
In a draft position statement, expected to be finalized and filed with ICANN tomorrow, the BC says that it:

strongly advocates that ICANN must first implement a standard mechanism with any and all UDRP arbitration providers that defines and constrains their authority and powers, and establishes regular and standardized review by ICANN with flexible and effective means of enforcement.

Its comment is expected to be filed in response to the Arab Center for Domain Name Dispute Resolution’s request for official recognition as a UDRP provider last month.
The BC does not appear to object to the ACDR on its own merits or on the basis of its location.
The statement notes that registrars are bound by contracts setting the rules for domain registrations, but that UDRP providers can force transfers unconstrained by any ICANN guidelines or oversight.
It’s well-known that UDRP decisions from the various existing providers are currently about as predictable as flipping a coin, with panelists frequently interpreting the rules along quite different lines.
The BC seems concerned that this could be exacerbated as more UDRP providers are approved and as new TLD registries start popping up in different countries.
The draft statement notes that currently about 99% of UDRP cases are heard by WIPO and NAF, and that most gTLDs are “based in a limited number of national jurisdictions”.

Survey reveals demand for .brand TLDs

Almost half of trademark-conscious companies are considering a “.brand” top-level domain, according to a survey carried out by World Trademark Review magazine.
The survey also found that there is much more interest in new TLDs among marketing folk than lawyers, which is perhaps not surprising.
So far, only a few potential .brand applicants have been revealed. Canon has been the most brazen about its plans, but others including IBM and Nokia have also dropped hints.
The WTR reported:

WTR’s survey of in-house trademark counsel, attorneys in law firms and marketing professionals found that an average of 54% responded “Yes”, “It’s likely” or “Maybe” when asked whether their company/client would apply for a new gTLD. Of these, 81% confirmed, like Canon, that the string would be their master brand.

A break-down of these numbers kindly provided by WTR show that “Yes” was easily the least common response, but that marketing professionals expressed more interest than lawyers.
Asked whether their company would apply to run a new TLD, only 6.8% and 9.5% of in-house counsel responded “Yes” or “It’s likely”, compared to 19.6% and 15.2% for marketers.
About 54% and 33% responded “No” to the same question, respectively. The remainder were on the fence with a “Maybe” response.
Lawyers in private practice, when asked the same question, were more confident than their in-house counterparts, with 18.9% saying it was “likely” at least one client would want a gTLD
Whichever way you cut it, this adds up to a pretty decent chunk of .brand applicants. ICANN has previously said it expects between 100 and 200 such applications in the first round.
About 350 people responded to the survey in total. The full results and analysis are published in the latest edition of WTR.

Former ICANN chief speaks out against new TLD morality veto

Former ICANN president and CEO Paul Twomey has expressed his support for rules curbing the ability of international governments to object to new top-level domains.
Twomey’s suggestions could be seen as going even further to limit government powers in the new TLD process than previous recommendations from the community.
The advice came during the ICANN comment period on the so-called “Rec6” recommendations, which previously sought to create an objection process based on “morality and public order” or “MOPO” concerns.
There had been a worry from some elements of the ICANN community that backwards governments could use Rec6 to arbitrarily block controversial new TLDs on national interest grounds.
But a cross-constituency working group, which included a few members of ICANN’s Governmental Advisory Committee, instead developed recommendations that would create a much narrower objections process with a greater emphasis on free speech.
Twomey, who quit ICANN in June 2009, has now expressed broad support for the working group’s recommendations, and suggests a few tweaks to make the process less open to abuse.
He said ICANN “should be careful not to view one government alone as having veto power over any particular gTLD string which is designed to serve a global or at least international user group”.
Notably, Twomey has urged ICANN to steer clear of the phrase “national interest”, which appears in the current Rec6 recommendations, and instead use “national law”.
He reasons that giving weight to “national interests” could enable fairly junior civil servants to object to new TLDs without the full backing of their governments or legislation.

phrases such as “perceived national interest” reflect a degree of political consideration which can be more fleeting, be expressed by very junior officials without Ministerial or Parliamentary approval, and often is a matter of debate between different groups within the country and government. In some respects it is similar to the phrase “public policy”. I remember a GAC member many years ago stating that “public policy is anything I decide it is”.

Twomey then recommends that even when a government has an objection based on an actual national law, that law “should only derive from a national law which is in accordance with the principle of international law.”
A law which violated human rights treaties, for example, or which was hurriedly passed specifically in order to scupper a TLD bid, would therefore not be valid grounds for objection.
Twomey’s reasoning here is fascinating and a little bit shocking:

without such a linkage, a unique, one-off power to a government would be open to gaming by well-funded commercial interests with political influence.
…
I am aware of some commercial entities involved in the ICANN space in years past that quietly boasted of their ability to get laws passed in certain small jurisdictions which would suit their commercial interests in competing with other players. This is not behaviour the ICANN Board should inadvertently incent.

I’ll leave it for you to speculate about which companies Twomey is referring to here. I don’t think there are many firms in the domain name space that well-funded.
Prior to becoming ICANN’s president, Twomey chaired the GAC as the Australian representative. He’s currently president of Leagle and managing director of Argo Pacific, his own consulting firm.
His full commentary, which delves into more areas than I can get into here, can be found here. The Rec6 working group’s recommendations can be found here (pdf). My previous coverage of the Rec6/MOPO issue can be found here.

Review reveals ccTLD fast-track criticisms

ICANN has launched a review of its internationalized domain name fast-track process, revealing a number of criticisms its country-code domain applicants have apparently had.
The IDN ccTLD Fast Track Process is a way for ccTLD operators to quickly start selling fully non-Latin domains in their own local script.
It’s so far been successfully used to delegate IDN ccTLDs in Arabic, Chinese and Cyrillic scripts, among others.
ICANN now wants to know if it should make any improvements to the process and has opened a 60-day public comment period to solicit suggestions.
Because quite a lot of the Fast Track takes place behind closed doors, ICANN has also offered up a fairly revealing list of possible discussion topics.
It appears that the process has created new pressure points between ICANN and international governments, which are often formally affiliated with their ccTLDs.
For example, some governments dislike the fact that Fast Track requires the applicant to show support for its chosen string from its local community. ICANN reported:

Some [applicants] do not find it necessary to demonstrate community support for the string nor the manager. The reason being that such decisions can be made by government entities, and the need for support undermines the authority of the government in the country or territory.

There also appears to have been a bit of push-back from governments on the issue of “meaningfulness”, where applicants have to show their requested string adequately represents their territory’s name.
ICANN said:

Some requesters have stated that this requirement is not necessary in cases where the strings requested are agreed to by the government and otherwise seem obviously meaningful.

In a concession to governments with sovereignty or financial concerns, ICANN does not charge an up-front fee for handling IDN ccTLD requests under the Fast Track.
Instead, it “recommends” a processing fee of $26,000 per string, which it invoices toward the end of the process, plus an ongoing 1-3% of IDN registration revenue.
So far, it has received $106,000 (covering presumably four strings, accounting for exchange rates), indicating that there are 11 IDN ccTLDs currently in the root that have not yet been paid for.
It will be interesting to see how many ccTLDs ultimately choose to pay up, and how many are happy for ICANN’s costs to be covered by fees paid by gTLD registrants like me and you.
The Fast Track review may also cover the topic of disputes and appeals. Currently, there is no dedicated mechanism by which a ccTLD that has had its requested string rejected can ask for reconsideration.
ICANN asks whether this should be changed.
Earlier this year, Bulgaria had its request for .бг (.bg) declined on the grounds that it looks too much like Brazil’s Latin ccTLD, .br and said it planned to appeal.
The ICANN public comment period, with the full list of suggested discussion topics, can be found here.