Note: On 10 April 2012, the Board established the New gTLD Program Committee, comprised of all voting members of the Board that are not conflicted with respect to the New gTLD Program. The Committee was granted all of the powers of the Board (subject to the limitations set forth by law, the Articles of incorporation, Bylaws or ICANN's Conflicts of Interest Policy) to exercise Board-level authority for any and all issues that may arise relating to the New gTLD Program. The full scope of the Committee's authority is set forth in its charter at http://www.icann.org/en/groups/board/new-gTLD.
A Meeting of the New gTLD Program Committee of the ICANN Board of Directors was held on 10 April 2012 at 5:30 am local time in Los Angeles, California.
Committee Chairman Cherine Chalaby promptly called the meeting to order.
In addition to the Chair the following Directors participated in all or part of the meeting: Rod Beckstrom, Chris Disspain, Bill Graham, Erika Mann, Gonzalo Navarro, Ray Plzak, R. Ramaraj, George Sadowsky, Mike Silber, and Kuo-Wei Wu.
Heather Dryden, GAC Liaison, attended as an observer.
Thomas Roessler, TLG Liaison and non-voting liaison to the committee, sent apologies.
- Defensive Applications for New gTLDs
- GNSO Recommendation for Protection of Red Cross and International Olympic Committee Names in New gTLDs
- Any other business
Heather Dryden requested that she be allowed to participate in the call as an observer.
The Chair confirmed that Heather is welcome to participate as an observer, at this and future meetings. He then briefly reviewed the agenda.
Kurt Pritz noted that his discussion will be based largely on a paper provided for the Costa Rica, augmented after the public comment period closed on 20 March. Kurt recalled that there was a strong sense that the Board should not change the Applicant Guidebook to add additional protections at the top level, as the comments raised many of the same issues that had been thoroughly discussed earlier in the Program development. Many of the comments instead went to the second level protections. Therefore, the issue for the Committee is whether they want to produce a resolution that states that ICANN is not adding additional top-level protections.
Kurt confirmed that the recommendation from staff is to make a resolution with three items: (1) based on public comment, no additional protections will be introduced at the top-level; (2) the comments made about protections at the second level are being taken seriously, and staff should prepare a briefing paper for GNSO consideration on providing additional protections at the second level; and (3) directing staff to continue targeted communications about the protections at the top level that are available under the New gTLD Program. This could signal that the Board understood all the actions that were taken in an effort to address this issue of perception of the need for defensive applications at the top level, and that after studying it, the Board thinks no changes should be made.
The Chair called for discussion.
George Sadowsky noted that he will vote for the resolution, as he does not believe it is appropriate to change the Applicant Guidebook at this stage. George stated his upset that this issue could have been worked through more thoroughly prior to the approval of the Program.
Chris Disspain stated that if there had had been concerted and clear feedback in the public comment about defensive applications at the top level, he would be in support of doing something about it. But it's pretty clear from the public comment and the session in Costa Rica on this issue that whilst there is confusion on this issue, it's also clear that the supposed concerns about people having to register a new gTLD in a defensive way do not rise to the level that may have been perceived earlier. ICANN did not received the input or the pushback that some of us might have expected on this topic. What is also clear is that the major concerns are at the second level.
Chris noted his comfort with passing a resolution to say that the Board has listened, and our assessment of the input from the public comment is that there is not an issue warranting changes to the Applicant Guidebook at the top level. The Committee should make some efforts to do something about the concerns at the second level.
Ray Plzak also stated his intention to vote for this resolution. Earlier he'd planned to abstain from this motion because of the potential indication that there are pieces of the Applicant Guidebook that should have been developed as policies inside the GNSO, as these contentious issues reflect that there was not a community consensus around that point. Putting a document out for comment is not the same as achieving consensus.
Mike Silber noted his support for Ray and Chris's comments, and reminded the Committee of his vote in Singapore on this issue.
Bill Graham also noted his support for Ray and Chris's comments.
George elaborated on Ray's comment that public comment does not imply consensus, stating that ICANN needs to figure out how to get more toward consensus in the future than just averaging public comment.
Gonzalo Navarro noted his support for Chris, Ray and Bill's comments.
Kuo-Wei Wu, Rod Beckstrom, R. Ramaraj, Erika Mann and the Chair also indicated that they will support this resolution.
Ray then moved and Kuo-Wei seconded the following resolution:
Whereas, the Board approved the New gTLD Program with protections for certain interests and rights, and intellectual property rights in particular (http://www.icann.org/en/groups/board/documents/resolutions-20jun11-en.htm);
Whereas, the Board provided its rationale for approving the New gTLD Program with these elements (http://www.icann.org/en/groups/board/documents/resolutions-20jun11-en.htm);
Whereas, the availability of the objection process and other aspects of the program have been actively communicated;
Whereas, ICANN received comment describing an apparent need to submit gTLD applications for defensive purposes to protect established legal rights;
Whereas, ICANN responded by establishing a public comment period to seek input on the sources of this perception and how it could be addressed (http://www.icann.org/en/news/public-comment/new-gtlds-defensive-applications-06feb12-en.htm);
Whereas, ICANN held a public workshop during ICANN's public meeting in Costa Rica to hold a community discussion regarding suggestions raised during the comment period, and additional suggestions with participation from the community (http://costarica43.icann.org/node/29711);
Whereas the New gTLD Program goals include the protection of established legal rights,;
Whereas, a summary and analysis of public comment was performed and the discussion in the public workshop was transcribed;
Whereas the sense of the public discussion indicated that trademark protections should continue to be discussed and developed for the registration of second-level domain names and also indicated that cybersquatting was not likely to be a significant issue in the registration of top-level domain names;
Whereas, ICANN is committed to reviewing the effectiveness of the application and evaluation process, and of the safeguards put in place to mitigate issues involved in the introduction of new gTLDs, following the initial application round;
Whereas, the comments indicated that significant concerns about awareness of the protections available and that renewed efforts should be undertaken to broadly communicate those protections to rights holders;
Resolved (2012.04.10.NG1), the New gTLD Program Committee thanks the community for its participation in the discussion of this issue.
Resolved (2012.04.10.NG2), while the New gTLD Program Committee is not directing any changes to the Applicant Guidebook to address defensive gTLD applications at this time, the New gTLD Program Committee directs staff to provide a briefing paper on the topic of defensive registrations at the second level and requests the GNSO to consider whether additional work on defensive registrations at the second level should be undertaken;
Resolved (2012.04.10.NG3), the New gTLD Program Committee directs staff to continue implementing targeted communications about the processes used and protections available in the New gTLD Program.
All voting members of the Committee voted in favor of the Resolutions. The Resolutions carried.
In furtherance of its commitment to accountability and transparency, ICANN opened a public comment period regarding reported perceptions of the need to file defensive applications that arose as the application window for new gTLDs drew near. While some of the comments were in favor of providing additional protections, such as block lists, "do not sell" lists, or additional refund levels to allow the withdrawal of applications after the reveal of all strings, some commenters noted that the Board should not attempt to introduce new protections at the top level at this stage in the first round of applications without bottom-up policy discussion. The protections that exist within the New gTLD Program were already the result of extensive community discussion and debate. That discussion has included the proposals made during this most recent round of public comment.
Instead of approving any changes at this time, the Committee directs ICANN to continue emphasizing the existing protections at the top level within communications on the New gTLD Program. As many comments referred to the potential for defensive registrations at the second level, the Committee is directing further work on this issue, to allow continued community discussion regarding whether further policy work should proceed on introducing additional protections at the second level. Further, ICANN has committed to conducting a post-first round study on whether the trademark protections should be adjusted.
Not introducing changes to the Applicant Guidebook at this time will better serve the public interest as those rules are being relied upon in the ongoing process. This action is not expected to have an impact on resources, nor is it expected to have an impact on the security or the stability of the DNS.
GNSO Recommendation for Protection of Red Cross and International Olympic Committee Names in New gTLDs
The Chair and the General Counsel and Secretary had a conversation as to whether the Committee was required to pass a resolution on this item given that the Committee was leaning towards not directing any changes at this time. Staff had provided a written recommendation to the Board to not take any action on the GNSO Recommendation at this time.
Kurt Pritz noted that whether or not to take a resolution is a choice for the Committee, and its not clear that the path towards implementing the GNSO Recommendation is clear at this time, as the application window is soon closing.
Ray Plzak proposed that the Committee take a resolution to receive the GNSO Recommendation and then send it back to the GNSO for full development through the policy development process. It is not clear that there was consensus on the GNSO Council, as all of the abstentions are really "no" votes and they are all speaking to the process of how this Recommendation was reached.
Chris Disspain commented on the difference between the defensive applciaiton item and this item. In respect to defensive applications at the top level, there was nothing in the guidebook to address that issue. After the concern was raised, the Board agered there would be a public comment period. The Committee has now listened to that comment and made a decision. On the Red Cross/IOC, there are already changes to the Applicant Guidebook to receiver certain names, and the Board asked the GNSO and the GAC to provide additional input. Now there is a recommendation to make additions to that change, and create a modified reservation status for certain names. The Committee does not have to pass a resolution in respect to the additional recommended changes; the Committee can simply acknowledge the existence of those recommendations. Chris noted that the GAC has not yet weighed in on these specific recommendations. Because the GNSO and the GAC were requested to work on a tight deadline, whether or not a resolution is passed, it is very important for the committee to acknowledge the input from the GNSO in some formal way, as well as acknowledgement of input from the GAC when it is received. However, the Committee could accompany this with a statement tht at this stage there is not a reason to make any changes.
Heather Dryden noted that the GAC is working to provide some sort of reply before 12 April 2012, but that is unlikely a recommendation would be coming through that would require action.
Bill Graham noted that the items raised by Chris and Ray help point a way forward.
The President and CEO noted his interest in Ray's proposed resolution, but wanted to make sure this did not raise any unintended effects.
Bill asked for clarification from Ray as to whether the proposed resolution included a request for this issue to be put through a full GNSO policy development process to attempt to achieve consensus.
Ray noted that his earlier statement didn't take into account that GAC input was still forthcoming. At this point it may be appropriate for the Committee to just receive the GNSO Recommendation, to allow for the community to understand that the Committee considered the recommendations. If the GAC comes forward with more advice, then the Committee can decide what to do then.
The Chair summarized that the resolution now considered by the Committee is to acknowledge receipt of the GNSO Recommendation. He asked whether the Committee should say that no changes will be made until we hear from the GAC?
Ray suggested that the Committee should not be committing to taking any sort of action, as it could be construed to say that if the GAC input suggests proceeding with the GNSO Recommendations, that the Committee is bound to move forward in that way, and the Committee may have reasons why it does not want to move forward. The resolution should simply be about receipt.
The Chair noted that some people are asking for the Committee to do something before 12 April 2012 and asked if the Committee should be clear that no changes will be made before that date?
Ray noted that the 12th is the close of the public comment period, and not a deadline for action.
Chris commented that the difference between the GNSO Recommendation and the current status is that the names of the IOC and the Red Cross are fully reserved at the top level in the first round. The GNSO Recommendation is for those names to be reserved, but open to the IOC and the Red Cross to apply for those names. It is not known whether the IOC or the Red Cross have reserved a place in the TAS system to apply for any top-level names in the event they were allowed to – but it does show that what the Committee does today could have an affect on the first round, so the Committee needs to have an affirmative statement so the status of this item is understood.
The Chair noted that in his personal opinion, it makes sense for the Committee to provide stability and announce that the Applicant Guidebook will not change before 12 April 2012.
Mike Silber noted his agreement with the Chair and the Applicant Guidebook should be left as is. The Board already put in place a stopgap measure to address the Red Cross/IOC concerns, and it stands now.
The Chair stated that there seem to be two options for a resolution: to acknowledge receipt of the GNSO Recommendation, or to acknowledge receipt and confirm that the Committee is not going to change the Applicant Guidebook.
The President and CEO noted that he is comfortable with either approach, but proposed that the Committee state that it chooses not to make a change to the Applicant Guidebook at this point in time, which could leave the opportunity for the Committee to consider changes on this item at any point in the future.
Ray and George Sadowsky noted their agreement with Rod's proposal.
Chris clarified that he was urging the Committee to be clear, and simply receiving the GNSO input may not be enough. He agreed with the formation of the resolution as provided by the President and CEO.
Heather noted that there is a linkage between the IOC/Red Cross issue and the question of protections for IGOs. The GAC input that is being worked on deals with both issues for the first round. It will be submitted to the Board if approved by the GAC.
Ray noted that he supports the wording used by Rod and does not support the mention of the GAC in a resolution.
The President and the CEO then moved and Ray Plzak seconded the following resolution:
The Committee then took the following action:
Resolved (2012.04.10.NG4), the New gTLD Program Committee acknowledges receipt of the GNSO's recommendation on extending certain protections to the Red Cross/Red Crescent and the International Olympic Committee names at the top level.
Resolved (2012.04.10.NG5), the New gTLD Program Committee chooses to not change the Applicant Guidebook at this time.
All voting members of the Committee voted in favor of the Resolutions. The Resolutions carried.
The Committee thanks the GNSO for its work to date on this issue. While the recommendations of the GNSO are well taken, changing the Applicant Guidebook at this time must be balanced against ICANN's commitment to accountability and transparency. The public comment "reply" period remains open on this topic through 14 April 2012, therefore any Committee action at this time – other than maintaining the status quo – could not reflect all of the inputs received on this issue. The comments received to date also demonstrate the existence of opposition to the adoption of the recommendations.
Implementation details have not been worked out to address these recommendations. In addition, a change of this nature to the Applicant Guidebook nearly three months into the application window – and after the date allowed for registration in the system – could change the basis of the application decisions made by entities interested in the New gTLD Program.
Comments received in the public comment forum also raise procedural issues with these recommendations that indicate concerns with the multi-stakeholder process utilized in this instance. While the Committee is not making a determination at this time about these procedural concerns, their existence also weighs towards maintaining the status quo at this time.
The status quo is that the Applicant Guidebook already provides several other protections available to the IOC and Red Cross for the top level, including a moratorium on the delegation of certain names at the top level in the first round of applications; an objection process which allows parties with standing to submit an objection on the grounds that an application infringes its existing legal rights; and the GAC Early Warning and Advice Processes. As protections already exist, when balanced with the accountability and operational issues posed by changing the Applicant Guidebook at this time, the public interest will be better served by maintaining the status quo. This action is not expected to have an impact on resources, nor is it expected to have an impact on the security or the stability of the DNS.
Nothing in the Committee's action or this rationale is intended to preclude the consideration of the GNSO recommendations for future rounds of applications within the New gTLD Program.
The Chair reminded the Committee of an email from the Chair of the GAC addressing a variety of issues such as foreign currency control and root scaling, following up item identified in discussions in Costa Rica.
The President and CEO offered for staff to prepare a response to the email.
The Chair agreed with that proposal.
Heather Dryden confirmed that her note did not represent GAC advice, but was seeking information on open action items.
The Chair then called the meeting to close.