ICANN to publish final new TLD rulebook before December

The ICANN board of directors said it will publish the final Applicant Guidebook for new top-level domains before the public meeting in Cartagena this December.
(UPDATE: that statement is not 100% accurate. See this post for an update.)
The decision came at the end of its two-day retreat in Trondheim, Norway yesterday, which seems to have left a number of important issues as yet unresolved.
The matters of registry-registrar cross ownership and morality and public order objections are both still unfinished business, while the intellectual property lobby has at least one bone thrown its way.
On the morality or “MOPO” problem, now known as the “Rec6” problem, the board had this to say:

The Board will accept the Rec6 CWG recommendations that are not inconsistent with the existing process, as this can be achieved before the opening of the first gTLD application round, and will work to resolve any inconsistencies.

The Rec6 working group had recommended a re-framing of the issue that would eliminate the possibility of any one government blocking a new TLD application based on its own laws and interests.
So the board resolution sounds like progress, until you realize that every decision on new TLDs made at the retreat is going to be re-evaluated in light of a shamefully eleventh hour wish-list submitted by the Governmental Advisory Committee on Thursday.
Having failed to get what it wanted through cooperation with the Rec6 working group, the GAC essentially went over the heads of the GNSO, taking its demands directly to the board.
So much for bottom-up policy making.

Resolved (2010.09.25.02), staff is directed to determine if the directions indicated by the Board below are consistent with GAC comments, and recommend any appropriate further action in light of the GAC’s comments.

In other words, the board may only accept the parts of the Rec6 recommendations that the GAC agrees with, and the GAC, judging from its latest missive, wants the first round of applications limited to purely “non-controversial” strings, whatever those may be.
The board also made no firm decision of the issue of registry vertical integration and cross-ownership. This is the entirety of what it said on VI:

The Board will send a letter to the GNSO requesting that the GNSO send to the Board, by no later than 8 October 2010, a letter (a) indicating that no consensus on vertical integration issues has been reached to date, or (b) indicating its documented consensus position. If no response is received by 8 October 2010, then the Board will deem lack of consensus and make determinations around these issues as necessary. At the time a policy conclusion is reached by the GNSO, it can be included in the applicant guidebook for future application rounds.

That’s actually borderline amusing, given that the GNSO working group on VI has recently been waiting for hints from the board about what it intends to do, rather than actually getting on with the job of attempting to create a consensus policy.
The bone I mentioned for the trademark crowd amounts to knocking a week off the length of time it takes to resolve a complaint under the Uniform Rapid Suspension policy.
The Trondheim resolutions also make it clear that the ICANN board will only be required to vote on a new TLD application in limited circumstances, such as when an objection is filed.
For all other applications, a staff mechanism for rapidly signing contracts and adding TLDs to the root will be created.

Crunch day for new TLDs

The ICANN board has kicked off a two-day retreat during which it will attempt to finalize the rules for applying for new top-level domains.
The big question for many is this: are more delays or the cards, or will ICANN finally put a firm timeline on the first new TLD application round?
One constituency that seems bent on more delays is the intellectual property community.
Dozens of organizations, including Microsoft, AT&T, Time Warner, Adobe and Coca-Cola, told ICANN in late July that the current IP protections in version 4 of the Draft Applicant Guidebook are not good enough.
The proposed Uniform Rapid Suspension process has become bloated and burdensome and the Trademark Clearinghouse does not go far enough to proactively protect trademarks, they say.
Just this week, it emerged that the International Trademark Association has called for further studies into the potential economic harms of new TLDs, which could easily add a couple of quarters of delay.
But there are good reasons to believe ICANN is done with being pushed around by IP interests.
As I reported earlier this week, chairman Peter Dengate Thrush has recently publicly stated that the current state of intellectual property protection in the DAG is a compromise position reflecting the views of all stakeholders and that IP lawyers “have had their chance”.
It’s not just IP interests that will be affected by the ICANN board’s discussions this weekend. The board’s decisions on “vertical integration” will make or break business models.
The VI issue, which governs whether registrars can apply for new TLDs and whether registrars can act as registrars, is perhaps the most difficult problem in the DAG. The working group tasked with sorting it out failed to reach consensus after six months of debate.
The DAGv4 currently says, as an explicit placeholder, that there can be no more than 2% cross-ownership of a registry by a registrar and vice versa.
This would mean that registrars that want to get into the TLD game, such as Demand Media’s eNom, would not be allowed to apply.
It may also cause problems for publicly listed registries such as VeriSign and Neustar, or registries that already have registrar shareholders, such as Afilias.
The proposals on the table include raising the ownership cap to 15% to eliminating it altogether.
A move by ICANN to restrict ownership will certainly attract allegations of anti-competitive behavior by those companies excluded, while a move too far in the opposite direction could lead to accusations that the rules do not go far enough to protect registrants.
There are no correct answers to this problem. ICANN needs to find a balance that does the least harm.
Also up for debate will be the rules on how governments and others can object to new TLD applications on “morality and public order” grounds.
Following the report of a working group, which I blogged about here, it seems likely that the term “morality and public order” will be replaced entirely, probably by “Objections Based on General Principles of International Law”.
If the board adopts the recommendations of this “Rec6” working group, there will be no special provision in the Guidebook for governments to make objections based on their own national laws.
There’s also the suggestion that ICANN’s board should have to vote with a two-thirds super-majority in order to deny a TLD application based on Rec6 objections.
It’s another almost impossible problem. Some say the Rec6 recommendations as they currently stand are unlikely to appease members of the Governmental Advisory Committee.
In summary, ICANN’s board has just two days to define the competitive parameters of a market that could be worth billions, figure out how to politely tell some of the world’s largest IP rights holders to back off, and write the rule-book on international governmental influence in the new TLD process.
I predict a small boom in sales of coffee and pizza in the Trondheim region.