On 20 April 2007, ICANN posted for public comment the proposed sponsored TLD agreement with DotCooperation LLC, sponsor of the .COOP TLD. The proposed agreement contains language that preserves the authority delegated to the sponsor in the original 2001 Sponsorship Agreement to create policy for its sponsored community. The proposed agreement also includes a process by which the sponsor may seek an exemption from complying with a particular ICANN consensus policy.
Background on Delegated Policy-making Authority
In 2000, ICANN launched a proof-of-concept round for the addition of new top-level domains (TLDs). In this round, the new TLD application instructions (see, http://www.icann.org/tlds/new-tld-application-instructions-15aug00.htm) highlighted the distinction between sponsored and unsponsored TLDs and their associated application processes. For sponsored TLDs, certain policy-formulation responsibilities were delegated to the sponsoring organization (see, http://www.icann.org/yokohama/new-tld-topic.htm#IID). In this round, DotCooperation LLC (.COOP), MuseDoma (.MUSEUM) and Société Internationale de Télécommunications Aéronautiques SC (.AERO) submitted applications identifying themselves as sponsored TLDS.
Following selection of their applications, the aforementioned applicants entered into TLD sponsorship agreements with ICANN in 2001. Those agreements may be found at http://icann.org/registries/agreements.htm. Attachment 2 to these agreements outlines 17 areas of responsibility for development of policies that have been delegated to the sponsor.
On 15 December 2003, ICANN posted the New sTLD Application (see, http://www.icann.org/tlds/new-stld-rfp/new-stld-application-parta-15dec03.htm) that launched the 2004 round. Applicants in this round included Employ Media LLC (.JOBS), Tralliance (.TRAVEL), mTLD Top Level Domain, Ltd (.MOBI), DotAsia Organization Limited (.ASIA), Telnic Limited (.TEL) and Fundació puntCAT (.CAT).
Applicants approved in this round were presented with an agreement that was substantially shortened and simplified from that used in the 2000 round. The current form of agreement contains language in Appendix S, Part II, that highlights areas of responsibility for policy development delegated to the Sponsor. The agreement also contains a provision in section 3.1(b) that states, “ At all times during the term of this Agreement and subject to the terms hereof, Registry Operator will fully comply with and implement all Consensus Policies found at http://www.icann.org/general/consensus-policies.htm, as of the Effective Date and as may in the future be developed and adopted in accordance with ICANN's Bylaws and as set forth below.” During the period between 5 May 2005 and 6 December 2006, these six sTLDs (.JOBS, .TRAVEL, .MOBI, .CAT, .TEL and .ASIA) entered into this form of registry agreement with ICANN.
On 21 December 2005, per section 5.2.1 of their sponsorship agreements, .COOP, .AERO and .MUSEUM’s renewal proposals were posted for public comment (see, http://www.icann.org/announcements/announcement1-21dec05.htm). Following the public comment process, ICANN began negotiations with the sponsors to renew these sTLD agreements.
To launch the renewal negotiations, ICANN provided to the sponsors a draft agreement that was similar in form and content to those signed by sTLDs in the 2004 round. In early conversations about the renewal process, the three sponsors contended that the language in the 2004 sTLD agreement did not adequately protect the policy making authority delegated to them in 2001. A joint communication from .COOP, .AERO and .MUSEUM on 15 December 2006 stated:
“ In the universe of all gTLDs these three TLDs represent a very distinct group, created under specific and narrowly defined rules during ICANN’s 2000 proof of concept round. At that time, ICANN made a public commitment to our respective communities to delegate certain policy making rights and obligations to established organisations within those communities and, in the spirit of ICANN’s core value 3.”
Moreover, the communication stated: “I t has become apparent that ICANN is itself proposing substantial modifications in the nature of our existing agreements. These include fundamental changes in the nature of the delegation of policy development rights to our communities as agreed to in a public process during 2000 and 2001.”
As contract negotiations continued, .COOP, .MUSEUM and .AERO were steadfast in their position about their ability to make policy for their community. They included in their 15 December 2005 letter, “ We appreciate ICANN's desire to establish standard templates for all gTLD entities: sponsors, registries, and registry operators. However, we feel that key aspects of the proof of concept round in 2000 make it difficult to impose all of the subsequently developed terms on the proof of concept sTLDs. The three sponsors were designated on the basis of their ongoing role in representing their respective communities, and their clearly established positions as leading members of those communities. The additional obligations undertaken by the sponsors to those communities as part of the delegation of their respective TLDs include but are not limited to the autonomous development of their policies. Implicit in this is the obligation to our communities to preserve the full extent and substance of that autonomy as mutually agreed in 2001, regardless of any modification to the structure of the contractual instrument.”
ICANN continued to maintain the need for all gTLD registries under contract with ICANN to comply with consensus policies. The end result of the completed renewal negotiations (.MUSEUM and .COOP) was to include proposed language that would maintain the terms of the previous agreement by requiring the sTLD to comply with Consensus Policies, as outlined in section 3.1(b)(iv), except to the extent policy development authority is delegated to the Sponsor by Appendix S, Part II.
In the case of .COOP, the sponsor did not feel the language adequately protected their authority and proposed language that stated, “ In the event that the Sponsor has a reasonable basis to believe that the established Consensus Policy is not relevant, or may represent an unreasonable burden to the Sponsored Community, Sponsor shall have the right to seek an exemption from ICANN. If ICANN declines the exemption, the Sponsor and ICANN shall utilize the process for resolution of disputes set forth in Article 5 .” The thought behind the .COOP offer was that ICANN would not grant such an exemption unless it were found to be true that the new policy was not relevant or was unreasonably burdensome to the sponsoring community, i.e., that the inclusion of this language does not represent a means to arbitrarily abstain from implementation of Consensus Policies. If the Sponsor were to seek an exemption in the instance of a particular policy, the written communication would be posted for public comment and subject to consideration by the ICANN Board.
Extended Public Comment Period
While the public comment period on the proposed .COOP sponsored TLD agreement formally closed on 11 May 2007, in light of the considerable importance of this issue to the sponsors of .AERO, .COOP, and .MUSEUM, and due to recently expressed interest in this issue from some members of the Registrars constituency, ICANN will conduct an additional 21-day public comment period prior to any action by the ICANN Board on any sTLD agreement renewal.