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Minutes | Regular Meeting of the New gTLD Program Committee 28 September 2013

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 Regular Meeting of the New gTLD Program Committee of the ICANN Board of Directors was held in Los Angeles, California on 28 September 2013 at 16:40 local time.

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: Fadi Chehadé (President and CEO, ICANN), Chris Disspain, Bill Graham, Olga Madruga-Forti, Erika Mann, Gonzalo Navarro, Ray Plzak, George Sadowsky, Mike Silber, and Kuo-Wei Wu.

Jonne Soininen (IETF Liaison) and Francisco da Silva (TLG Liaison) were in attendance as non-voting liaisons to the Committee. Heather Dryden was in attendance as an observer to the Committee.

ICANN Staff in attendance for all or part of the meeting: Akram Atallah (President, Generic Domains Division); John Jeffrey (General Counsel and Secretary); Francisco Arias; Megan Bishop; Michelle Bright; Samantha Eisner; Allen Grogan; Dan Halloran; Jamie Hedlund; Elizabeth Le; Karen Lentz; Cyrus Namazi; David Olive; Karine Perset; Erika Randall; Amy Stathos; and Christine Willett.

These are the minutes of the Meeting of the New gTLD Program Committee, which took place on 28 September 2013.
  1. Consent Agenda
    1. Approval of NGPC Meeting Minutes
  2. Main Agenda
    1. Remaining Items from Beijing and Durban GAC Advice
    2. Name Collision Discussion
    3. Update on String Similarity

 

  1. Consent Agenda:

    1. Approval of NGPC Meeting Minutes

      The Chair provided an overview of the meeting agenda, and introduced the items on the Consent Agenda.

      George Sadowsky moved and Mike Silber seconded the resolution on the Consent Agenda. The Committee took the following action:

      Resolved (2013.09.28.NG01), the NGPC approves the minutes of the

      13 August 2013 and 10 September 2013 New gTLD Program Committee Meetings.

      All members of the Committee present voted in favor of Resolution 2013.09.28.NG01. The Resolution carried.

  2. Main Agenda:

    1. Remaining Items from Beijing and Durban GAC Advice

      The Committee discussed each of the items on the proposed iteration of the scorecard to address the remaining open items of the GAC's advice in the Beijing and Durban Communiqués.

      The President and CEO provided the Committee with an overview of the new correspondence from the GAC regarding .WINE and .VIN, and explained that the GAC advised the ICANN Board that the GAC finalized its consideration of the .WINE and .VIN, and further advised that the applications should proceed through the normal evaluation process. The President and CEO recommended that ICANN show leadership on the issue and possibly take a role to create a space for a dialogue between the affected parties.

      The President and CEO also recommended that a timeline should be placed on the matter so that the parties can move forward one way or another. Chris Disspain made note of the letter received from the European Union on the applications, and suggested that the appropriate timeline would be the ICANN meeting in Buenos Aires.

      Olga Madruga-Forti asked for clarification about whether inviting the affected parties for a dialogue would constitute adding an additional step to the process established in the Applicant Guidebook, and wanted to understand the ramifications of doing so.

      Chris Disspain expressed concern about requiring the affected parties talk further or reach agreement, since there are opposing views among governments. Mike Silber noted concern that governments generally only negotiate with other governments, not with third parties in the private sector.

      Mike also expressed concern that given the sensitivities of the issue and concerns about consumer confidence, the presumption should not automatically be that the applicant is awarded a TLD.

      Heather Dryden informed the Committee of the hard work and deliberations of the GAC to try to reach consensus on the issue. Heather noted that the GAC's communication is meant to provide an explanation as to why there is a range of views on safeguards for .WINE and .VIN. Heather encouraged the Committee to find a way to respond to the GAC's advice that acknowledges and reinforces the processes and procedures that have been followed in the GAC to issue the advice.

      Erika Mann provided historical background on the issue of geographical indicators in international trade and intellectual property environments, and noted the difficulty in reaching consensus on the issue. Erika noted that there may be difficulty in extending protections for geographical indicators in the domain name environment. Erika Mann suggested that the Committee be provided with additional analysis on this subject enhance its understanding of the issue. Bill Graham and Gonzalo Navarro agreed.

      Bill Graham cautioned that the Committee should be mindful of how it involves itself in the issue, given the range of views expressed and the inability to reach consensus. Olga also advised that the Committee should be mindful of taking an action that might detract from having the GAC strive for consensus.

      Gonzalo Navarro expressed concern about whether it was appropriate to expand the application of certain protections of governments for geographic identifiers into this forum. The President and CEO agreed that it was important to acknowledge that ICANN cannot make regulations and laws that other bodies are entrusted to do.

      The Committee also discussed a proposed path forward for considering its position on the GAC consensus objection advice concerning .AMAZON given the information presented in the applicant's response.

      Amy Stathos inquired whether any member of the Committee had conflicts related to any applications identified in the GAC advice that the Committee was responding to in the proposed scorecard. No conflicts were noted.

      Ray Plzak moved and Olga Madruga-Forti seconded the resolution.

      The Committee then took the following action:

      Whereas, the GAC met during the ICANN 46 meeting in Beijing and issued a Communiqué on 11 April 2013 ("Beijing Communiqué").

      Whereas, the GAC met during the ICANN 47 meeting in Durban and issued a Communiqué on 18 July 2013 ("Durban Communiqué").

      Whereas, the NGPC adopted a scorecard to respond to the GAC's advice in the Beijing Communiqué and the Durban Communiqué, which were adopted on 4 June 2013 and 10 September 2013, respectively.

      Whereas, the NGPC has developed another iteration of the scorecard to respond to certain remaining items of GAC advice in the Beijing Communiqué and the Durban Communiqué.

      Whereas, the NGPC is undertaking this action pursuant to the authority granted to it by the Board on 10 April 2012, to exercise the ICANN Board's authority for any and all issues that may arise relating to the New gTLD Program.

      Resolved (2013.09.28.NG02), the NGPC adopts the "Remaining Items from Beijing and Durban GAC Advice: Updates and Actions" (28 September 2013), attached as Annex 1 [PDF, 96 KB] to this Resolution, in response to remaining items of GAC advice in the Beijing Communiqué and the Durban Communiqué as presented in the scorecard.

      All members of the Committee present voted in favor of Resolution 2013.09.28.NG02. The Resolution carried.

      Rationale for Resolution 2013.09.28.NG02

      Article XI, Section 2.1 of the ICANN Bylaws <http://www.icann.org/en/about/governance/bylaws#XI> permit the GAC to "put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies." The GAC issued advice to the Board on the New gTLD Program through its Beijing Communiqué dated 11 April 2013 and its Durban Communiqué dated 18 July 2013. The ICANN Bylaws require the Board to take into account the GAC's advice on public policy matters in the formulation and adoption of the polices. If the Board decides to take an action that is not consistent with the GAC advice, it must inform the GAC and state the reasons why it decided not to follow the advice. The Board and the GAC will then try in good faith to find a mutually acceptable solution. If no solution can be found, the Board will state in its final decision why the GAC advice was not followed.

      The NGPC has previously addressed items of the GAC's Beijing and Durban advice, but there are some items that the NGPC continues to work through. The NGPC is being asked to consider accepting remaining Beijing and Durban GAC advice items as described in the attached scorecard dated 28 September 2013.

      As part of its consideration of the GAC advice, on 18 April 2013, ICANN posted the Beijing GAC advice and officially notified applicants of the advice, <http://newgtlds.icann.org/en/announcements-and-media/announcement-18apr13-en> triggering the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1. Additionally, on 1 August 2013, ICANN posted the Durban GAC advice and officially notified applicants of the advice <http://newgtlds.icann.org/en/announcements-and-media/announcement-01aug13-en>, triggering the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1. The complete set of applicant responses are provided at: <http://newgtlds.icann.org/en/applicants/gac-advice/>.

      In addition, on 23 April 2013, ICANN initiated a public comment forum to solicit input on how the NGPC should address Beijing GAC advice regarding safeguards applicable to broad categories of new gTLD strings <http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13-en.htm>. The NGPC has considered the applicant responses in addition to the community feedback on how ICANN could implement the GAC's safeguard advice in the Beijing Communiqué in formulating its response to the remaining items of GAC advice.

      As part of the applicant response period, several of the applicants indicated that they have entered into dialogue with the affected parties, and they anticipated reaching agreement on the areas of concern. Some of the applicants noted that they have proposed additional safeguards to address the concerns of the relevant governments are unsure as to whether a settlement can be reached. These applicants asked that the ICANN Board allow their applications to proceed even if an agreement among the relevant parties cannot be reached. Additionally, inquiries have been made as to whether applicants and the relevant governments will have the opportunity to comment on conversations among the GAC, ICANN Board, and ICANN staff. There have been requests that that the GAC, NGPC, and ICANN staff consult with applicants before decisions regarding any additional safeguards are made.

      Other applicants noted the important role of governments in the multi-stakeholder model, but advised the NGPC that it should not allow governments to exercise veto power over ICANN policies adopted through the multi-stakeholder process.

      Additionally, some members of the community opposed the NGPC accepting the GAC's advice concerning safeguards. Opposing commenters generally expressed concern that this is new and unanticipated policy, contrary to the bottom-up process. They also indicated that the safeguards are vague and not adequately defined, and are therefore not possible to implement.

      As part of its deliberations, the NGPC reviewed the following materials and documents:

      In adopting its response to remaining items of Beijing and Durban GAC advice, the NGPC considered the applicant comments submitted, the GAC's advice transmitted in the Communiqués, and the procedures established in the AGB. The adoption of the GAC advice as provided in the attached scorecard will assist with resolving the GAC advice in a manner that permits the greatest number of new gTLD applications to continue to move forward as soon as possible.

      There are no foreseen fiscal impacts associated with the adoption of this resolution, but fiscal impacts of the possible solutions discussed will be further analyzed if adopted. Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS.

      As part of ICANN's organizational administrative function, ICANN posted the Durban GAC advice and officially notified applicants of the advice on 1 August 2013. Likewise, ICANN posted the Beijing GAC advice and officially notified applicants of the advice on 18 April 2013. In each case, this triggered the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1.

    2. Name Collision Discussion

      The Chair introduced the agenda item, and the President, Generic Domains Division gave the Committee an overview of the public comments received on the study regarding the use of TLDs that are not currently delegated at the root level of the public DNS, and the companion proposal to manage the risks identified in the study. The President, Generic Domains Division noted that the proposed path forward ensures that ICANN takes deliberate steps to move forward in a way that mitigates risk.

      The President, Generic Domains Division reported on the mitigation steps that certificate authorities have taken to revoke certain internal name certificates after ICANN enters into a registry agreement with a new gTLD applicant.

      The President, Generic Domains Division presented a proposed framework for additional study in response to the public comments to examine the severity of the collision occurrences, and a potential path forward to delegation while the additional study is being completed.

      Additionally, the President, Generic Domains Division provided the Committee with metrics from preliminary studies on some causes of name collisions, noting that some common browser configurations and operating systems may be causing some of the name collision issues shown in the data set. Ray Plzak noted that this is similar to past behavior of certain applications that were causing similar impacts to the root servers.

      The President, Generic Domains Division informed the Committee that the proposed framework to manage the collision occurrences would require registry operators to provide a point of contact to enable an affected party to report second level domains that are causing severe harm as a consequence of name collision occurrences, and would establish a targeted public outreach campaign.

      Jonne Soininen noted support for the proposed approach and recommended the Committee to move forward with the proposal. George Sadowsky asked whether the Committee should first review any report that the SSAC may publish on the issue. The President, Generic Domains Division noted that the proposed approach was a conservative path forward, and that the proposed study would be adjusted, as needed, to take into account input from any forthcoming SSAC report. The President and CEO asked about potential reaction in the community to this approach.

      Ray Plzak recommended that a letter be sent to the SSAC to inform the SSAC of the proposed plan, and George agreed. The President and CEO informed the Committee that staff had been communicating with members of the SSAC as the proposed framework was being developed. The President and CEO committed to providing the SSAC with a communication on the proposed name collision management plan. Heather Dryden also reminded the Committee of its agreement to send a written briefing to the GAC on the name collision matter prior to delegation of new gTLDs.

      Olga Madruga-Forti recommended that the framework to address collision occurrences needs to focus on the fairness of the method by which an applicant's applied-for string is placed in a particular risk category.

      The Committee agreed to consider this topic further at its next meeting.

    3. Update on String Similarity

      The Committee continued its discussions on some of the recent expert determinations made by the dispute resolution service provider on string confusion objections.

      Mike Silber inquired about outreach to the dispute resolution service provider, and Amy Stathos provided an update, noting that the dispute resolution service provider was reviewing the determinations to analyze whether there are true inconsistencies that need to be addressed. Amy noted that the dispute resolution service provider indicated its willingness to work with the Committee to the extent the Committee provides direction to the dispute resolution service provider.

      Amy and Mike also provided a summary of the process for reviewing visual similarity and the string similarity objection process, and explained the differences between the two, and the standards of review for each process.   

      Chris Disspain noted that generally, most of the string similarity objections determinations have been well argued and reasoned, but he had concerns about certain decisions.

      Mike Silber expressed concern that although the string similarity objection determinations may be satisfying from a legal perspective, the determinations may not be satisfying from the perspective of the global public interest in whether there is benefit to having singular and plural versions of a string. Mike stressed the importance of looking at the global public interest, and not simply the impact on the objectors.

      Ray Plzak made note that almost all of the recent submissions of Reconsideration Requests were from parties aggrieved by the string similarity objection determinations, and questioned whether there was something the Committee could provide to the dispute resolution panels that might help reduce the flow of the Reconsideration Requests. Mike noted that all of the objections were either completed or waiting final decision, and suggested that there is no longer an opportunity for intervention.

      The Chair asked the Committee about what it should do as a next step. The President, Generic Domains Division noted the importance of timing, given that the contracting process is ongoing and it would be more difficult to change courses later.

      The Committee requested that staff continue to provide updates on the string similarity objection determinations so that the Committee could continue to monitor the concerns expressed by the community.

      The Chair called the meeting to a close.

Published on 18 November 2013

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