ICANN Staff Overview of Recent Discussion Regarding the Proposed .travel Wildcard

Recent comments (i.e., Bret Fausett’s blog at http://blog.lextext.com/) intimate that ICANN has not followed a well-defined process and has ignored independent comment in determining that the proposed Tralliance registry service (i.e., the insertion of a wildcard in the root zone) presented significant stability or security issues (as defined in the GNSO consensus policy).

This is not true. ICANN followed precisely the process laid out by the GNSO consensus policy (see, http://www.icann.org/registries/rsep/rsep.html). That process provided for three independent consultations and two public comment periods. What is true is that ICANN, in posting the independent technical panel report on the subject, also indicated that a comment period on that report would be open until December 7. While this is technically true and ICANN continues to take comment, the Board took a decision on the matter in the last Board meeting on November 22 (agreeing with the technical panel) after the comment period had been open 13 days.

ICANN staff should not have published a closing date on the comment period. It was a clerical error that the closing date included. The process does not specify a comment period length. However, it does require that the Board takes action within 30 days of the technical panel report.

The process does provide substantial opportunity for independent comment besides the public comment period on the technical report.

In order to operate a transparent process, all the documents concerning the application were posted in a timely manner (see, http://www.icann.org/registries/rsep/submitted_app.html).

The consensus policy and opportunity for independent review and public comment

Following written notification by a Registry Operator to ICANN that the Registry Operator may make a change in a Registry Service, ICANN shall have 15 calendar days to make a "preliminary determination" whether a Registry Service requires further consideration by ICANN because it reasonably determines such Registry Service: (i) could raise significant Security or Stability issues or (ii) could raise significant competition issues. ICANN may seek expert advice during the preliminary determination period (from entities or persons subject to confidentiality agreements) on the competition, Security or Stability implications of the Registry Service in order to make its "preliminary determination."

In the case of the Tralliance proposal, ICANN sought independent opinion on both the security/stability and competition issues.

In the event that ICANN reasonably determines during the 15 calendar day "preliminary determination" period that the proposed Registry Service might raise significant stability or security issues, ICANN will refer the proposal to the independent technical evaluation panel (as defined in the consensus policy) within five business days of making its determination, or two business days following the expiration of such 15 day period, whichever is earlier, and simultaneously invite public comment on the proposal.

In this case, the public comment period was open for the full length of the technical review period: 45 days. There were 13 comments received during this period.

The technical evaluation panel has 45 calendar days from the referral to prepare a written report regarding the proposed Registry Service's effect on Security or Stability, which report (along with a summary of any public comments) shall be forwarded to the ICANN Board. The report shall set forward the opinions of the technical evaluation panel, including, but not limited to, a detailed statement of the analysis, reasons, and information upon which the panel has relied in reaching their conclusions, along with the response to any specific questions that were included in the referral from ICANN staff. Upon ICANN's referral to the Registry Services Technical Evaluation Panel, the Registry Operator may submit additional information or analyses regarding the likely effect on Security or Stability of the Registry Service.

In this case, the report was forwarded to the Board with links to public comment received. In addition, Tralliance took advantage of the opportunity to comment on the referral to the technical panel and also on some of the comment that was posted.

Upon its evaluation of the proposed Registry Service, the technical evaluation panel will report on the likelihood and materiality of the proposed Registry Service's effects on Security or Stability, including whether the proposed Registry Service creates a reasonable risk of a meaningful adverse effect on Security or Stability.

In this case, the technical panel reported that the proposed service would create a reasonable risk of a meaningful adverse effect on Security or Stability.

Following receipt of the Registry Service Technical Evaluation Panel's report, which will be posted (with appropriate confidentiality redactions made after consultation with Registry Operator) and available for public comment, the ICANN Board will have 30 calendar days to reach a decision. In the event the ICANN Board reasonably determines that the proposed Registry Service creates a reasonable risk of a meaningful adverse effect on stability or security, the Registry Operator will not offer the proposed Registry Service.

In this case, it can be inferred from the discussion that the Board decided that information beyond that provided in two independent consultations, the technical panel consultations and a 45-day and 13-day comment periods would not affect the decision to be taken.

The policy also provides for reconsideration in that the gTLD registry operators or registry sponsoring organizations affected by an ICANN decision on a proposed new registry service may use the existing reconsideration processes in the ICANN bylaws.

In this case, Tralliance has written a letter to the Board but has not yet requested reconsideration in accordance with the Bylaws. This letter is posted at http://www.icann.org/registries/rsep/letter-to-icann-board.pdf.

Conclusion and Recommendation

Each step of the well defined process was followed in accordance with the timeframes established. There was significant and considerable independent and public comment. The closing date cited in the public comment forum was not required by the policy and should not have been included. The requirement that the Board act within 30 days of the publication of the posting of the technical report will often result in relatively (or very) short comment periods. If there is significant commentary that the approved consensus policy should be changed to provide for a comment period of certain length, ICANN staff will include that feedback into its review of the policy to the GNSO.