Minutes | Meeting of the New gTLD Program Committee | 13 September 2012

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 13 September 2012 at 5:00 p.m. 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: Akram Atallah, Chris Disspain, Bill Graham, Gonzalo Navarro, Ray Plzak, R. Ramaraj, George Sadowsky, Mike Silber, Judith Vazquez and Kuo-Wei Wu.

Thomas Narten, IETF Liaison, and Thomas Roessler, TLG Liaison, were also in attendance as non-voting liaisons to the committee.

Erika Mann sent apologies.

This is a preliminary report the Meeting of the New gTLD Program Committee, which took place on 13 September 2012.

  1. Enhanced Protections for IOC and Red Cross/Red Crescent Names

    The New gTLD Program Committee continued its discussion of a proposed resolution on enhanced protections for IOC and Red Cross/Red Crescent Names to reflect the changes made since its 12 September 2012 meeting.

    The Chair inquired about how to communicate this request to the GNSO so that they are not taken by surprise when the resolution is published.

    Margie Milam explained the extent of the work that is ongoing within the GNSO on this topic, including an active drafting team that appears to be getting close to reaching consensus on the very issue raised in the resolution. Margie noted that there may be a concern that the Committee is acting prematurely. She suggested waiting until Toronto to take this action, in the event the drafting team work has not reached recommendation by that point.

    Thomas Narten noted that it seems really clear that the Board has to respond to the GAC advice on this topic, and it seems to be the right thing to do to coordinate with the GNSO on this. The resolution is really just to make sure that everyone is doing what they are supposed to be doing, and also providing a date by which, if the GNSO work is not complete, the Committee would like to receive further input.

    Ray Plzak expressed his support for taking this action today as it provides a clear statement of intent and giving notice that we're taking action on this while allowing the GNSO work to proceed. Taking this action early is reducing the possibility of surprise.

    Chris Disspain agreed that this is a positive action, setting out the Committee's position and acknowledging that there are time constraints in completing this work. Chris supported Ray's statement as well.

    George Sadowsky also agreed that this is a good step, and is necessary to respond to the GAC advice.

    Fadi Chehadé noted that the proposed resolution acknowledges the status of the GNSO work on this issue, and encouraged outreach from the Chair of the Committee to the GNSO Council on this to make sure the publication of the resolution does not take them by surprise.

    R. Ramaraj noted that if the main purpose for the resolution is to demonstrate to the GAC that ICANN is working on this issue, that taking this action in Toronto would still be timely.

    Bill Graham noted his opinion that it would be preferable to get this resolution passed today.

    The Chair then called the discussion to a close, noting that he will send an email to the Chair of the GNSO Council on this item.

    Ray Plzak then moved and George Sadowsky seconded the following resolution:

    Whereas, the GAC Communiqué issued in Prague states that the GAC, "requires further clarification as to the status of its pending request for enhanced protections for the [International Olympic Committee] and Red Cross/Red Crescent names at the top and second levels, …"

    Whereas, earlier GAC letters of 11 June 2011 and 12 April 2012 expressed the same advice that "the IOC and Red Cross and Red Crescent [names] should be protected at the first and second top levels, given that these organizations enjoy protection at both the international level through international treaties (e.g. the Nairobi Treaty and the Geneva Conventions) and through national laws in multiple jurisdictions. The GAC considers the existence of such two-tiered protection as creating the criteria relevant to determining whether any other entities should be afforded comparable enhanced protection."

    Whereas, the GNSO is actively engaged in policy discussion regarding second-level protections for the IOC and Red Cross/Red Crescent names, and has convened a drafting team that is working on this issue, and is further considering initiating a PDP on the broader issue of whether to protect the names of international organizations in new gTLDS.

    Whereas, protections for the IOC and Red Cross/Red Crescent names at the top-level are in place for the current round of new gTLDs.

    Whereas, the protections for the second level, if they are provided and if they are to be effective, should be in place before the delegation of the first new gTLDs.

    Whereas, the Board favors a conservative approach, that restrictions on second-level registration can be lifted at a later time, but restrictions cannot be applied retroactively after domain names are registered.

    Resolved, the Board thanks the GNSO for its continued attention and ongoing work on this topic, and requests that the GNSO continue its work on a policy recommendation on second-level protections for the IOC and Red Cross/Red Crescent names on an expedited basis.

    Resolved (NG2012.09.13.01), if it is not possible to conclude the policy work prior to 31 January 2013, the Board requests that the GNSO Council advise the Board by no later than that date if it is aware of any reason, such as concerns with the global public interest or the security or stability of the DNS, that the Board should take into account in making its decision about whether to include second level protections for the IOC and Red Cross/Red Crescent names listed in section of the Applicant Guidebook by inclusion on a Reserved Names List applicable in all new gTLD registries approved in the first round of the New gTLD Program.

    All members of the New gTLD Program Committee in attendance at the meeting voted in favor of Resolutions NG2012.09.13.01. Erika Mann was not available to vote on the resolution. The resolution carried.

    Rationale for Resolution NG 2012.09.13.01

    The New gTLD Program Committee is undertaking this action now to remain accountable to all parts of its community. The New gTLD Program Committee recognizes all of the work that has been done to date on this issue, and the work that is currently underway. For example, a GNSO Drafting Team has already provided recommendations on protections at the top level, and work is continuing on reviewing protections at the second level. There is also work ongoing regarding the broader question of protections at the first and second level for Inter Governmental Organizations (IGO). Through this resolution, the New gTLD Program Committee is working to address the advice of the GAC regarding providing protections to the IOC and Red Cross/Red Crescent names at the second-level within the first round of New gTLDs. This action is not intended to preclude or supplant the ongoing policy work within the community, nor is it intended to direct the initiation of policy development work within the GNSO. The New gTLD Program Committee supports the continued work on these topics within the GNSO, and specifically limits the effect of this resolution to the first round of New gTLDs, to allow for further policy to be developed and implemented.

    This resolution is not expected to have an impact on ICANN's fiscal resources. Nor Is it expected to impact the security, stability or resiliency of the DNS.

  2. Letter from Business Constituency on Objection Process

    The Chair introduced conversation on a letter received from the Business Constituency on the Objection Process and the perceived change in the length of the objection period.

    Kurt Pritz explained the concern stated, which is that the objection period that runs for only seven months, as opposed to an objection period lasting until two weeks after the publication of the initial evaluation results, is a change to the Guidebook. Kurt then provided an overview of the published materials that highlight the ambiguities surfaced in the Business Constituency letter, including statements and diagrams from the Guidebook regarding the objection period being open for a period of approximately seven months. This statement has been reiterated on web postings and in communications to the GAC. The seven-month period provides both ample time of objection and predictability, and would avoid the concern of having applicants pursue applications for long periods of time during which objectors may "pocket" objections.

    Chris Disspain noted that there is ambiguity, as both time frames were stated in the guidebook and both may be considered material. Chris asked for more information on why it is not feasible now to have the period run to two weeks after the publication of the initial evaluation results.

    Kurt noted that the objection period was first proposed to be for six months, and then after community discussion, it was agreed that that could be extended for an additional month. However, having the objection period run for over a year would now pose some transparency issues to applicants, who are expecting to understand whether an objection will be raised within a predictable time as they are expending money on operations. In addition, there are financial and operational concerns in extending the service of the dispute resolution providers to beyond a year.

    Chris asked why the "two weeks after" item was put into place in the first place if it could cause those issues, as it seems to indicate that the thought process was that we needed to wait until initial evaluation results were posted in order to close the objection process.

    Ray Plzak asked for information on whether substantive or editorial changes had been made to the Guidebook, and also if there are two different versions of the Guidebook that demonstrate the discrepancy that the Business Constituency raises.

    The Chair explained that the Guidebook was drafted on the assumption of 500 applications that could be processed in one single batch that would take approximately six to seven months to evaluate, so the two time frames identified were quite close to each other. However, we exceeded that number, which now leaves ICANN with two competing definitions.

    Ray clarified that his question was in reference to the Business Constituency's concern that there was an unauthorized change to the Guidebook made by staff. However, that does not seem to be the case, rather the ambiguity of the two competing time frames has been exposed. There has not been a change to the Guidebook by staff.  The issue is really about making clear how ICANN is interpreting the language of the Guidebook.

    Chris Disspain clarified that the Business Constituency is not claiming that there has been a change to the Guidebook, but rather a deviation from the Guidebook.

    Akram Atallah noted that the ambiguity in the Guidebook was created because of the number of applicants. The issue now is moving forward with the seven month timeframe. Going with the seven month objection period does not encourage those with objections to hold on to those for a year, where the applicants could be incurring further costs without knowing about the existence of an objection. If the main concern with not waiting until after the initial evaluation period is closed is for the potential of lost objection fees if the application does not pass initial evaluation, then there could be some consideration of how to address that situation.

    Ray responded that ICANN has to be clear in addressing this situation, and some of the detail Akram provided may be of help.  The issue here is matter of interpretation, and we need to discuss why we interpreted it the way that we did.

    George Sadowsky stated that we have two interpretations, either of which could be used. What is the best thing for the community in this situation?

    Thomas Narten followed up on George's comment noting that it makes sense to try to find a way forward that will work for people.

    The Chair asked who would make the decision of what would work – the Committee? Staff? Is it a matter for public comment?

    Thomas noted that there may be more choices than the three raised by the Chair. It would be helpful to know the pros and cons of each of the two time frames, and assess the concerns associated with each time frame.

    Ray agreed with Thomas, noting that the most important facet is to take an ordered approach to reaching the solution.

    Kurt explained that in making the interpretation of the Guidebook to proceed with the seven month objection period, staff first reviewed principles of transparency, predictability, fairness and a smooth-running process. Seven months was identified as the path. It is fair because seven months is enough time to review the applications and decide whether to object. The time frame is predictable to applicants, as it provided a seven-month window for learning of objections. It provides for a smoother process as the dispute resolution processes will have to operate for a shorter time frame. That was balanced against the fact that objection fees would have to be filed before knowing whether an application was approved. The fees would be refunded in the event the objection succeeded. This decision was made, and a letter submitted to the GAC, before the reveal date.

    Chris suggested that there be a promise of a refund to those who submit objections to applications that are not endorsed.

    Kurt suggested that a path forward may be to respond to the Business Constituency and reference earlier writings on the issue, and then discuss how to move forward in a way that could ameliorate some of their concerns.

    Chris noted that this is a situation that we can learn from, to have more awareness of how important a decision may be to others when we are making this type of judgment call. There are consequences that flow from the timing of either of the objection periods. Chris asked how the seven month objection period would coincide with the GAC's stated timeline for providing advice on the New gTLD applications.

    Thomas Narten noted that Kurt's proposed path forward sounds good – a response to the letter and call for a meeting to work through the issues.

    Thomas Roessler commented that its not clear that there's any need to consider re-opening the decision on the length of the window solely because there's a complaint. This has been weighed and considered.

    Kurt commented that Chris' concern about the timing of objections along with the GAC advice timeline was a point worthy of consideration.

    The Chair suggested that Kurt's proposed outreach happen as soon as possible.

    The Chair then called the meeting to a close.

Posted on 5 November 2012.