Minutes | Regular Meeting of the New gTLD Program Committee 16 November 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 Buenos Aires, Argentina on 16 November 2013 at 08:00 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 was in attendance as a non-voting liaison to the Committee. Heather Dryden was in attendance as an observer to the Committee. Francisco da Silva (TLG Liaison) sent apologies.

Secretary: John Jeffrey (General Counsel and Secretary).

ICANN Executives and Staff in attendance for all or part of the meeting: Akram Atallah (President, GDD); Michelle Bright (Board Support Manager); Allen Grogan (Chief Contracting Counsel); Dan Halloran (Deputy General Counsel); Jamie Hedlund (Advisor to the President/CEO); Elizabeth Le (Senior Counsel); Cyrus Namazi (Vice President, DNS Industry Engagement); David Olive (Vice President, Policy Development); Cassia Oliveira (Manager, Office of the President & CEO); Karine Perset (Senior Director of Board Support); Erika Randall (Counsel); Amy Stathos (Deputy General Counsel); and Christine Willett (Vice President, gTLD Operations).

These are the Minutes of the Meeting of the New gTLD Program Committee, which took place on 16 November 2013.

  1. Consent Agenda
  2. Main Agenda
    1. Open items from the GAC Beijing and Durban Communiqués, including Category 1 & 2 Safeguard Advice
    2. Report on String Confusion Objection Expert Determinations


  1. Consent Agenda

  2. The Chair introduced the items on the consent agenda and called for a vote. Chris Disspain moved and George Sadowsky seconded the resolution.

    The Committee then took the following action:

    Resolved (2013.11.20.NG01), the NGPC approves the minutes of the 7 October and 5 November 2013 meetings of New gTLD Program Committee.

    All members of the Committee present voted in favor of Resolution 2013.11.20.NG01. The Resolution carried.

  3. Main Agenda

    1. Open items from the GAC Beijing and Durban Communiqués, including Category 1 & 2 Safeguard Advice

      Chris Disspain provided the Committee with a status update on its efforts to address the Category 1 Safeguard Advice in the GAC's Beijing Communiqué. Chris provided an overview of the proposal the Committee sent to the GAC to address the advice and explained the distinction between the safeguards that would applicable to the Category 1 strings associated with highly regulated industries.

      Heather Dryden noted that the initial reaction of some GAC members to the proposal was positive, but there may be some concerns with the categorization of some strings, including those associated with for children. Heather also inquired about how the Committee proposes to address strings categorized as "special safeguards required."

      The Chair asked for input on merits of an alternative proposal (the Policy Advisory Board Model) submitted by a community member on how to implement the Category 1 Safeguards. Christine Willett and Dan Halloran provided an overview of the Policy Advisory Board model, and noted that the model represents a departure from the role of the registry operator as contemplated in the Applicant Guidebook and Registry Agreement.

      The Committee considered whether it was more appropriate for individual registry operators to implement a Policy Advisory Board model, as opposed to ICANN imposing such a model on all of the registry operators for strings listed in the Category 1 Safeguard advice. Dan noted that some individual applications already include structures similar to the Policy Advisory Board model.

      Heather indicated that the Policy Advisory Board proposal was circulated to the GAC and it may generate discussion during the Committee's upcoming meeting with the GAC. Ray Plzak suggested that the Committee be on the same page when approached by the community about this issue.

      Chris also provided the Committee with an update on the progress to date to address the Category 2 Safeguard Advice in the GAC's Beijing Communiqué. Christine reported that ICANN would contact the applicants who confirmed their intent to operate as an exclusive access registry to ask them to provide an explanation for how their exclusive access registry serves a public interest goal. Christine noted that the responses would be available for review.

      Olga Madruga-Forti recommended that a deadline be imposed for the applicants to respond. The Committee agreed that the end of January would be an appropriate deadline because it would allow time for the GAC to review the responses in advance of the ICANN meeting in Singapore.

      Chris gave the Committee an update on additional correspondence received regarding applications for .HALAL and .ISLAM, and noted that before the Committee takes action on the GAC's advice on the strings, it will wait for any additional GAC input during the Buenos Aires meeting.

      The Chair engaged the Committee in a discussion about the recent correspondence from the European Commission on applications for .VIN and .WINE requesting that the Committee not take further action until agreement is reached between applicants and rights-holders. Heather provided an overview of the complexity of the issue on an international level and the process the GAC undertook to consider the strings.

      The Committee considered whether ICANN should act to facilitate a dialogue between the non-government parties and the applicant for .VIN, and potentially .WINE when the contention set is resolved. Heather asked that the Committee respect the GAC's process and the advice it issued to the Board on the .VIN and .WINE.

      The Committee considered whether facilitating such discussions with the stakeholders would act to circumvent or undermine the GAC process. The President and CEO emphasized that the Committee should not undermine the GAC. He noted that any discussions that ICANN would facilitate should not include governments because their process is to go through the GAC. Also, he recommended that in some specific cases after careful consideration, ICANN should act in a role as a facilitator in the public interest.  

      Erika Mann provided additional background on protection of geographic indicators in the international context, and suggested that there may be room for a compromise position with domain names related to eCommerce already affected by accepted WTO agreements. Erika advised the Committee to respond to the European Commission's correspondence. Gonzalo Navarro agreed that a response letter should be sent, and provided additional insight into the international context in which the issues arise.

      Chris cautioned the Committee to consider whether distinguishing between its current treatment of .WINE (which is in a contention set) and .VIN (which is not in contention) could impact the .WINE applicants in the auction process. Chris expressed his concern about having the proper stakeholders represented during the proposed dialogue and suggested that the dialogue should include stakeholders beyond European winegrowers.

      Ray agreed that the Committee should respond to the European Commission's correspondence, and that it must not allow interested parties to circumvent the established GAC process.

      Olga suggested that a response to the European Commission should include reference to the CITEL resolution passed in Mexico supporting the positions in the letter from the European Commission.

      The Committee agreed to continue to discuss the GAC's advice on .WINE and .VIN at its next meeting and a proposed response to the correspondence from the European Commission.

    2. Report on String Confusion Objection Expert Determinations

      The Committee engaged in a discussion regarding concerns highlighted by the community with some seemingly inconsistent expert determinations from the string confusion objection process.

      Akram Attalah presented the Committee with a potential review mechanism to address the seemingly inconsistent expert determinations in the current round, but recommended that the best approach may be to leave the determinations as is to be consistent with process defined in the Applicant Guidebook. Akram explained that the approach would act as a final review and is intended to be very narrow and focused to deal with the specific issue of inconsistent string confusion objection decisions.

      Ray Plzak asserted that in the interest of fairness, it was important not to change the rules in the middle of the current round of the New gTLD Program, even if undesirable for other reasons. Ray noted that deciding not to maintain the status quo could potentially open the door to potential challenges on multiple fronts.

      Ray, however, expressed that the Committee must uphold its fiduciary responsibility and begin the long-term discussion about developing an appeals process for the next round, and it must involve the community in the discussion. Ray noted that he and Bill Graham developed a draft proposal to begin this discussion.

      Ray also recommended that the Committee move forward with considering the outstanding recommendations from the Board Governance Committee on reconsideration requests.

      Olga Madruga-Forti discussed the importance of understanding and balancing the competing interests at play, and noted two concerns that needed focused attention from the Committee. Olga recommended that the Committee consider how to decide which expert determinations would be eligible to utilize the review mechanism, and suggested that the only cause for such a review should be on the basis of inconsistency.

      Olga also recommended that if a new panel is established to review alleged inconsistent expert determinations, the panel should be subject to stringent requirements on recordkeeping and rationale formation so that all parties can understand the decisions. Olga commented that any inconvenience associated with establishing a review mechanism should not outweigh the benefit of it.

      Chris Disspain agreed with Ray that the Committee should begin to tackle the overarching issue of an appeals process for the next round of the New gTLD Program. Chris noted the importance of distinguishing between those decisions that look inconsistent on their face and those that truly may be inconsistent. Chris provided examples of some expert determinations that seem inconsistent but have well-reasoned analysis justifying the determination. Chris noted, however, that there are some expert determinations that may be problematic and agreed with Olga's recommendation that the review mechanism should only apply to a very narrow range of circumstances.

      Mike Silber expressed the importance of not sacrificing overall consistency and correctness as TLDs are delegated to the root for the sake of convenience. Mike recommended that the Committee must ensure consistency across the results and the process because the root is being changed and the consequences will be long lasting.

      The General Counsel and Secretary asked the Committee to reframe the issues by distinguishing between reconsideration requests and the issues with the expert determinations from the string confusion objections. He highlighted the importance of continuing to follow the Bylaws process for reconsideration requests and resolving the outstanding requests. He also reminded the Committee about the work undertaken by the community and jurists two years ago to review the reconsideration request process.  

      Ray agreed that the reconsideration request process must remain intact, and advised the Committee to determine whether the proposed review mechanism actually addresses the underlying problem or simply a symptom of the problem. Ray suggested that the Committee determine whether the expert panel is applying the correct standards and acting in a proper manner.

      George Sadowsky agreed that the Committee needs to determine whether the underlying problem lies with the expert panels or with the methodology created to address string similarity. George advised that the Committee take the time solve the issues now because of the long-term implications.

      Bill Graham agreed that the existing reconsideration request process must be respected, and expressed that the Committee needs to keep the community's concerns central in its thinking about these issues. Bill suggested there should not be a great rush to insert the maximum number of TLDs into the root as quickly as possible if there is inconsistency or unfairness. Bill recommended holding back a grouping of strings in the current round and looking at them as a class of concerns to see if any patterns emerge that might help address the overarching issues.

      Gonzalo Navarro agreed that the decisions made now will affect the domain space for years to come, and agreed with Bill's recommended approach. Bill also recommended that the Committee begin work very soon on what to do to avoid these issues in the next round.

      The Committee agreed that it needed to move forward to address the remaining recommendations from the Board Governance Committee on the pending Reconsideration Requests. The Committee also indicated general support for moving forward with considering the proposal for addressing the narrow issue of inconsistent string confusion objection expert determinations, but agreed that more consideration needs to be given to the overarching issues of fairness and consistency highlighted during the discussion.

      The General Counsel and Secretary noted that the Committee should ensure that it has received adequate comment from the public and applicants before a final decision is made on the proposal for a new review mechanism.

      The Chair requested that the matter continue to be discussed at the next meeting, and noted that the Committee could not resolve Reconsideration Requests 13-9 and 13-10 until this matter is resolved.

      The Chair called the meeting to a close.

Published on 10 January 2014