Board Activities and Meetings
Minutes | Meeting of the New gTLD Program Committee 13 July 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 Durban, South Africa on 13 July 2013 at 09:15 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, Erika Mann, Gonzalo Navarro, Ray Plzak, George Sadowsky, Mike Silber, Judith Vazquez and Kuo-Wei Wu.
Olga Madruga-Forti sent apologies.
Thomas Narten, IETF Liaison, and Francisco da Silva (TLG Liaison) were in attendance as non-voting liaisons to the Committee.
Jonne Soininen 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; Susanna Bennett, Chief Operating Officer; John Jeffrey, General Counsel and Secretary; Megan Bishop; Michelle Bright; Dan Halloran; Jamie Hedlund; Amy Stathos; and Christine Willett.
These are the Minutes of the Meeting of the New gTLD Program Committee, which took place on 13 July 2013.
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Main Agenda
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Funding Objections
The Chair introduced the item to the Committee, and the Committee considered the request to fund objections made to the Centre for Expertise of the International Chamber of Commerce. Christine Willett noted that ICANN made a commitment in the New gTLD Applicant Guidebook to fund certain objections, and informed the Committee that there were a total of 27 objections filed with reliance on this funding commitment. Christine reported that all of the objections were submitted to the Centre for Expertise of the International Chamber of Commerce, and the total fees due were in the amount of €2.361 million, which was within the estimates included in the budget. Christine noted that there are opportunities for ICANN to receive refunds, including when the objector is the prevailing party and if applications are withdrawn before the objections are processed.
The Chair reported that the Board Finance Committee found that the costs were reasonable and in line with what was projected in the budget.
Ray Plzak moved and George Sadowsky seconded the resolution to fund objections made to the Centre for Expertise of the International Chamber of Commerce.
The Committee then took the following action:
Whereas, ICANN committed to fund certain objections by the Independent Objector, governments, and ALAC.
Whereas a total of 27 objections that ICANN committed to fund were filed by the Independent Objector, governments, and ALAC.
Whereas the Centre for Expertise of the International Chamber of Commerce (ICC) has accepted these objections, estimated the advance payment of costs, and invoiced ICANN.
Whereas, ICANN budgeted the amount needed to fund such objections.
Whereas, the Board Finance Committee recommended that this resolution be passed.
Resolved (2013.07.13.NG01), the New gTLD Program Committee authorizes the President, Generic Domains Division, to disburse all fees necessary to the ICC for the objection proceedings that ICANN committed to fund, which have been filed by the Independent Objector, governments and the ALAC.
Rationale for Resolution 2013.07.13.NG01
As part of the new gTLD Program, ICANN made a commitment, as set out in the applicant guidebook, to fund objections on behalf of the Independent Objector, governments (one per government), and ALAC. Twenty-seven objections that ICANN committed to fund have been filed. Given that all of these objections were filed with the same dispute resolution service provider, the Centre for Expertise of the International Chamber of Commerce ("ICC"), the ICC has requested advance payment of fees to administer the proceedings and to pay expert panel members for their time in adjudicating the objections.
ICANN must now fulfill its commitment and make a disbursement to the ICC to fund all 27 objections. Given that the amount is over $500,000, in accordance with ICANN Contracting and Disbursement Policy, the Board must approve the disbursement.
This decision will have a fiscal impact on ICANN, but that impact was anticipated and budgeted for. This decision will not have any impact on the security, stability or resiliency of domain name system.
This is an Organizational Administrative Function that does not require public comment at this time. Although it is noted that ICANN's commitment to fund these above-referenced objections has been subjected to public comment on more than one occasion.
All members of the Committee in attendance approved Resolution 2013.07.13.NG01. Olga Madruga-Forti was not available to vote on the Resolution. The Resolution carried.
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Ombudsman Letters
Amy Stathos provided a brief overview of the Ombudsman's process for submitting reports to the Board. Amy noted that certain written reports from the Ombudsman to the Board included recommendations for consideration by the Committee because the recommendations related to certain objection processes in the New gTLD Program. The new gTLD-related complaints to the Ombudsman concerned decisions made by two Dispute Resolution Service Providers (DRSPs) in the New gTLD Program about filing deadlines related to objections to two applications.
Amy provided the Committee with a summary of the facts and analysis prepared by the Ombudsman in each of the cases.
The Chair asked staff to provide its rationale for the recommendation to have the Committee direct the President, Generic Domains Division to ask the DRSPs to revisit their decisions in light of the facts and analysis stated in the Ombudsman's reports.
Christine Willett clarified that it is important that the DRSPs utilize their own judgment and follow their own rules in these situations, and noted that the recommendation does not ask the Committee to make a determination on the merits of each case, but rather suggests that the DRSPs revisit their decisions in light of the Ombudsman's facts and analysis.
Amy also recommended that the Committee consider adopting a catchall provision in the resolutions in the interests of fairness and reasonableness so that in the future, DRSPs can use their discretion, in light of the facts and circumstances of each matter, as to whether or not to grant extensions or deviate from the deadlines in the Applicant Guidebook.
Erika Mann asked why the Ombudsman thinks that WIPO will reconsider its rejection. The General Counsel and Secretary noted that it is possible that WIPO will consider the request since it is the arbitration division of WIPO dealing with this issue.
George Sadowsky moved, and Ray Plzak seconded the resolution. The Committee than took the following action:
Whereas, the Ombudsman has issued two reports to the ICANN Board relating to deadlines found in the New gTLD Dispute Resolution Procedures and set out facts based on his investigations and made specific recommendations in each report.
Whereas, given the subject matters of the reports, the New gTLD Program Committee (NGPC) has reviewed those reports.
Whereas, the two issues relating to deadlines addressed by the Ombudsman's reports to the Board are not the only inquiries about whether the Dispute Resolution Service Providers (DRSPs) must strictly adhere to the deadlines set forth in the New gTLD Program Dispute Resolution Procedures in all circumstances.
Resolved (2013.07.13.NG02), the New gTLD Program Committee directs the President, Generic Domains Division, or his designee, to forward to the World Intellectual Property Organization Arbitration and Mediation Center (WIPO) the Ombudsman's report about the applicant's response to the objection that WIPO is administering relating to .AXIS and ask WIPO to reconsider its stance with regard to the rejection of the applicant's response in light of the facts and analysis stated in the Ombudsman's report.
Resolved (2013.07.13.NG03), the New gTLD Program Committee directs the President, Generic Domains Division, or his designee, to forward to the ICC the Ombudsman's report about GOProud's objection to a .GAY application and ask the Centre for Expertise of the International Chamber of Commerce to revisit its decision in light of the facts and analysis stated in the Ombudsman's report.
Resolved (2013.07.13.NG04), in the interests of fairness and reasonableness, notwithstanding the deadlines set out in the Applicant Guidebook, in the future, the DRSPs are permitted and encouraged to use their discretion, in light of the facts and circumstances of each matter, and in cases where it is shown that the affected party is making a good faith effort to comply with the deadlines, as to whether to grant extensions, or deviate from the deadlines set forth in the Applicant Guidebook.
Rationale for Resolutions 2013.07.13.NG02 – 2013.07.13.NG04
The ICANN Ombudsman reports directly to the ICANN Board. The purpose of the Ombudsman is to ensure that the members of the ICANN community have been treated fairly. The Ombudsman acts as an impartial officer in attempting to resolve complaints about unfair treatment by ICANN using ADR techniques. Where, in the conduct of an investigation of a complaint, the Ombudsman forms an opinion that there has been a serious breach of administrative fairness or maladministration, the Ombudsman may notify the Board of Directors of the circumstances.
The Ombudsman has issued two reports to the Board (through the NGPC) regarding decisions made by two Dispute Resolution Service Providers ("DRSPs'") in the New gTLD Program. In one instance, the Ombudsman has requested the NGPC ask the applicable DRSP to reconsider its stance of strictly adhering to the deadlines set forth in the Applicant Guidebook. In the other instance, although the Ombudsman does not request specific action from the Board, he thinks the matter should be revisited. Both reports and respective requests therein are presented in the spirit of fairness and reasonableness to the affected parties. Beyond the two Ombudsman reports, ICANN has received several other inquiries from objectors, applicants, and the DRSPs about issues related to late filing and whether the DRSPs have the discretion to deviate from the specific deadlines set forth in the Applicant Guidebook.
In the interest of fairness and reasonableness, and after a review of the Ombudsman reports, the NGPC has determined that it is appropriate for the NGPC to ask the DRSPs, in light of the circumstances presented by the Ombudsman, to reconsider their strict adherence to the deadlines set forth in the Applicant Guidebook and apply reasonable judgment in such matters. Taking this action will have a positive impact on ICANN's accountability to the community, as it is appropriate to review of all applicable circumstances when taking decisions that have significant impact on participants within ICANN.
This decision will not have direct fiscal impact on ICANN. There is potential financial impact to the filing parties to the Objection proceedings, although ICANN cannot infer the magnitude of such and the impact is dependent upon the DRSP response to the NGPC directive. This decision will not have any impact on the security, stability or resiliency of domain name system.
This is an Organizational Administrative Function that does not require public comment.
All members of the Committee in attendance approved Resolutions 2013.07.13.NG02 – 2013.07.13.NG04. Olga Madruga-Forti was not available to vote on the Resolutions. The Resolutions carried.
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IGO protections and Category 1 advice
Chris Disspain provided the Committee with an overview of its previous actions and discussions on GAC advice in the Beijing Communiqué concerning IGO protections and Category 1 Safeguards in preparation for discussions with the GAC in Durban. Chris explained that the IGO position is that the Committee has already agreed to provide protections for IGOs so the discussion should be focused on the process for providing those protections. Chris noted that the Committee has not permanently agreed to provide protections to IGO acronyms due to the implementation issues.
The Committee discussed the implications of extending permanent protections to IGO names and acronyms. Chris compared these permanent protections to the special protections afforded to the RCRC and IOC based on unique protections provided in international treaties and national law in multiple jurisdictions around the world. Chris highlighted protecting IGO acronyms as contemplated would provide a greater level of protection for IGOs than the Committee granted to the RCRC and the IOC.
Jamie Hedlund provided the Committee with additional background on the GAC's advice on protections for the names and identifiers of the IOC and RCRC, noting that the GAC saw the protections as very unique to these organizations that are protected by international treaty and national law in multiple jurisdictions.
The Committee also discussed its approach to begin a dialogue with the GAC on the Category 1 Safeguard advice, and considered ideas on how to make progress on resolving concerns with the advice. Chris noted difficulties with implementing advice for categories of strings, and highlighted the Brussels meeting where the Committee previously found unworkable advice applicable to broad categories of strings.
The President and CEO suggested a way forward, which could included having a third-party international expert review specific names that have unique protections in multiple jurisdictions and provide some recommendations on the Category 1 list of strings.
The Secretary and General Counsel revisited the procedures in the Bylaws requiring the Committee to consider GAC advice, including timing considerations if the Committee determines that it will act inconsistently with the advice. Bill Graham confirmed that the process developed by the Board/GAC Working Group for consultations with the GAC extends for approximately six months at a minimum.
The Chair inquired about next steps after the Durban meeting and the need to schedule a Committee meeting to continue to work through the GAC's advice. The Committee decided to have a meeting during the first week of August to make progress on the remaining open issues of GAC advice.
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AOB
The Committee considered its upcoming discussions with members of the GAC who have concerns about applications for .HALAL and .ISLAM. The Chair noted that objections were filed against both strings, and Chris Disspain discussed the impact of the objections on the proposed dialogue. The President and CEO noted that the Organization of Islamic States has agreed to join the GAC at this meeting.
Ray Plzak inquired about whether there were any limitations on the number of Committee members who could or should attend the dialogue, and raised concerns that if there is more than a quorum, the dialogue could be viewed as a formal Committee meeting.
Jamie Hedlund cited to the section of the Applicant Guidebook that establishes the process for what happens when the GAC advises that there are concerns about a particular application. Chris advised that the dialogue will be held pursuant to this requirement in the Applicant Guidebook. Ray and Erika Mann advised that if the full GAC is not attending the meeting, it should be clear that the selected members of the governments in attendance are present for purposes of the dialogue required by the Applicant Guidebook.
The President and CEO provided an update on the SSAC's paper on name collision issues, and noted that the final report would be issued later in the week. The Committee also discussed the status of the report on dotless domains and requested information regarding when the report would be shared with the community.
Thomas Narten asked for clarification about the next steps for the community and the Committee on the issue of dotless domains and the name collision reports, including the process for public comments on the reports. Thomas suggested that it might be useful to have a comment period on the quality and details of the name collision report independently from staff's recommendation on the report given that it may take staff additional time prepare its recommendations.
The Chair suggested that these items be included on future agendas for the Committee to consider. Akram Atallah described the process for soliciting public comments before the Committee would take action on the name collision report.
The Chair then called the meeting to a close.
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Published on 11 September 2013