Generic Top-Level Domain (gTLD) Registry Agreements
The following comment, dated 16 November 2001, on the proposed .aero TLD Sponsorship Agreement was sent by Edward Hasbrouck to the ICANN Board of Directors.
I am writing to you as members of the ICANN Board of Directors (and the ICANN At-Large Study Committee) concerning the latest sections of the draft sponsorship agreement for the ".aero" global top-level domain (gTLD) posted 9 November 2001 to the ICANN web site.
I believe that the terms of the most recently posted sections of the draft agreement, the ".aero Charter" (Attachment 1) <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att1-09nov01.htm> and the "Description of the Sponsored TLD Community" (Attachment 5) <http://www.icann.org/tlds/agreements/aero/sponsorship-agmt-att5-09nov01.htm>:
Under the procedure established by ICANN Resolutions 01.83-01.86 <http://www.icann.org/minutes/prelim-report-10sep01.htm#01.83>, ICANN's President is authorized to sign the .aero sponsorship agreement unless a member of the ICANN Board of Directors requests otherwise within seven days of the completion of posting of the draft agreement. Affirmative action by you is required to prevent the signing and implementation of the draft agreement.
Some sections of the draft .aero sponsorship agreement have not yet been posted as of this writing (15 November 2001), so the seven-day comment and objection period has not yet begun. However, since the portions of the agreement already posted are clearly contrary to ICANN principles and the public interest, I urge you to record your request that the draft .aero agreement not be signed, without delay. Once that request has been recorded, the Board of Directors can schedule consideration of the .aero agreement for full consideration at a future board meeting.
The .aero gTLD was proposed by the "Societe Internationale de Telecommunications Aeronautiques" (SITA) as "a Top Level Domain for the entire Air Transport Community (ATC)...) the definition of ATC is: 'All companies and organizations for which the main activity is related to Air Transport.'" <http://www.icann.org/tlds/air1/18Oct-Description%20of%20TLD%20Policies.htm>
The inclusiveness of this proposal for a domain for all stakeholders in the air transport community was a significant factor in ICANN's selection of this proposal, from among many others, for negotiation towards a sponsorship agreement.
The draft .aero sponsorship agreement continues to refer to the "Air Transport Community", but defines it very differently: "The .aero TLD is restricted to people, entities and government agencies which: (1) provide for and support the efficient, safe, and secure transport of people and cargo by air; and (2) facilitate or perform the necessary transactions to transport people and cargo by air." <http://www.icann.org/tlds/agreements/aero/sponsorship- agmt-att1-09nov01.htm> <http://www.icann.org/tlds/agreements/aero/sponsorship- agmt-att5-09nov01.htm>
There are three material changes from the proposal to the draft agreement:
ICANN general terms for all gTLD Sponsorship Agreements include the following: "3.1. Obligation to Maintain Representative Characteristics Justifying Original Selection of Sponsor. During the Term of this Agreement, Sponsor (a) agrees to ensure it remains at least as representative of the Sponsored TLD Community as it was at the time of its selection, and (b) shall be responsible for developing policies for, and providing for the operation of, the Sponsored TLD in the interest of the Sponsored TLD Community." <http://www.icann.org/tlds/agreements/sponsored/sponsorship-agmt-16oct01.htm> As described above, the draft .aero sponsorship agreement with SITA clearly fails to meet this requirement. SITA has failed to represent the diversity of the community as it was represented in the SITA proposal for .aero, excluding significant segments of the community (particularly users and purchasers of air transport services, and those critical of air transport). SITA has proposed no policies whatsoever, in the draft agreement, providing any mechanism for accountability to those stakeholders. Indeed, SITA's conduct in negotiating a draft agreement excluding large and significant segments of the community calls into serious question its ability or commitment to administering the .aero gTLD in their interests. At a minimum, since the draft agreement makes clear that SITA is no longer as representative of the air transport community as it claims to be in its initial proposal and at the time of its selection, ICANN should requires SITA to resubmit its application for .aero for de novo, clean-slate consideration on the basis of a narrower and more accurate description of how inclusive a community SITA really is capable and committed to represent.
SITA's failure to fulfill its responsibility to represent the community of stakeholders in the .aero gTLD, and its failure to ensure that it exercises its delegated authority in the interest of the community, is an almost inevitable outcome of ICANN's failure to include mandatory provisions for transparency and at-large participation in the exercise of delegated authority. On this issue, I recommend to your attention my testimony and comments to the ICANN At- Large Study Commitee, with particular reference to the example of SITA and .aero, available at <http://hasbrouck.org/icann/alsc.html>. The Delegation of Authority for .aero (Attachment 2 of the sponsorship agreement) has not yet been posted for public comment, but I urge you not to approve it unless it is conditioned on transparency and at-large participation.
The defects in the .aero draft agreement, and the closed procedure by which was negotiated, are significant not just for themselves but because, as SITA itself correctly states, "This is the first time any specific industry grouping would be allowed to adopt its own TLD." There are likely to be many more gTLD's for specific economic sectors, and the ".aero" application warrants particular care because it is setting precedents. The handling of .aero is the test case for you as the ICANN Board of Directors as to how ICANN will deal with the balancing of corporate boosters and critics, at-large stakeholders, and public interests in the establishment of new domains for specific economic sectors that are already largely dominated by corporate interests. This precedent-setting importance makes it particularly inappropriate for the .aero sponsorship agreement to be signed without full opportunity for public and at-large input and full consideration by the ICANN Board of Directors.
Accordingly, I urge that—in addition to recording your request to ICANN's President that the draft .aero agreement not be signed—you schedule a public hearing and full consideration of the .aero agreement for a future ICANN Board of Directors meeting.
Passenger air travel and travel e-commerce consumer advocate, author, and FAQ-maintainer
Member-at-large of the Air Transport Community and the ".aero" gTLD constituency
"The Practical Nomad Guide to the Online Travel Marketplace"
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