Minutes | Meeting of the New gTLD Program Committee 1 April 2015

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 telephonically on 1 April 2015 at 22:00 UTC.

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: Rinalia Abdul Rahim, Fadi Chehadé (President and CEO, ICANN), Steve Crocker (Board Chairman), Chris Disspain, Asha Hemrajani, Markus Kummer, Gonzalo Navarro, George Sadowsky, and Mike Silber.

Bruno Lanvin, Erika Mann, Ray Plzak, and Kuo-Wei Wu and sent apologies.

Thomas Schneider (GAC Liaison) was in attendance as a non-voting liaison to the Committee.

Secretary: John Jeffrey (General Counsel and Secretary).

ICANN Executives and Staff in attendance for all or part of the meeting: Akram Atallah (President, Global Domains Division); Megan Bishop (Board Support Coordinator); Allen Grogan (Chief Contract Compliance Officer); Jamie Hedlund (Vice President, Strategic Programs – Global Domains Division); Kevin Kreuser (Senior Counsel); Serena Lai (Paralegal); Cyrus Namazi (Vice President, DNS Industry Engagement); Erika Randall (Senior Counsel); Amy Stathos (Deputy General Counsel); and Christine Willett (Vice President, Operations – Global Domains Division).

These are the Minutes of the Meeting of the New gTLD Program Committee, which took place on 1 April 2015.

  1. Main Agenda:
    1. GAC Category 2 Safeguard Advice - Exclusive Access
    2. GAC Category 2 Safeguard Advice – Non-Discrimination
    3. Update on Public Interest Commitments
    4. Any Other Business


  1. Main Agenda:

    1. GAC Category 2 Safeguard Advice - Exclusive Access

      The Committee continued its discussion of advice issued by the Governmental Advisory Committee (GAC) to the Board concerning safeguards for New gTLD applicants who proposed to provide exclusive registry access for generic strings. Erika Randall presented an update on the number of applicants who maintain that their applied-for TLD would be operated as an exclusive access registry, and provided background on the GAC's advice. Akram Atallah also noted that some of the applications are in a contention set with other applications, and resolution of the GAC's advice is holding up the resolution of the contention sets.

      The Committee considered several options as a path forward to addressing the GAC's advice, including prohibiting exclusive registry access for generic strings, or accepting the GAC's advice and requiring applicants to submit pubic interest commitments to be included as binding contractual commitments in the Registry Agreement. The Committee engaged in a discussion to explore the relative merits and complexities of each option.

      Mike Silber noted that a key premise of the New gTLD Program was expanding the name space, and exclusive generic TLDs create the possibility of abuse and harm. He suggested that the Committee consider the option of not allowing the operation of exclusive generic TLDs until such time as the GNSO develops a policy on the matter.

      Rinalia Abdul Rahim commented that the community seems split on whether or not exclusive generic TLDs should be permitted, and referenced a February 2013 public comment period on "closed generic gTLD applications". Gonzalo Navarro sought clarification about whether the options presented were consistent with the existing processes in the Applicant Guidebook. The Chair questioned whether some of the options would be seen as the Board creating policy, and the Committee considered whether the GAC advice raised policy questions that may require policy advice.

      The Committee noted that the GAC's advice centers on how to evaluate whether an applicant's proposed exclusive registry access for a generic term serves a public interest goal, and they considered how such goals could be evaluated and by whom.

      George Sadowsky suggested possible use of a balancing test to evaluate the applicants' stated public interest goals, and Thomas Schneider suggested the possibility of analyzing the public interest goals from the perspective of consumer or economic harm. Thomas also noted that the Committee might wish to consider how various countries define and evaluate the public interest to see if there are some common denominators that would help in the development of a common standard to evaluate an applicant's stated public interest goals.

      The Committee engaged in a discussion of the next steps if a particular option were selected. Akram noted that the applicants' public interest goals could be included in the Registry Agreement as Public Interest Commitments, and the Committee discussed how public interest goals would be enforced if included in the Registry Agreements. Rinalia asked how PICs would be enforced in cases where an applicant's public interest goals extend beyond the remit of ICANN, and Akram referenced the Public Interest Commitments Dispute Resolution Procedure.

      The Committee decided to discuss the matter further at its next meeting in April.

    2. GAC Category 2 Safeguard Advice – Non-Discrimination

      The Committee began discussions about the GAC's advice in the Singapore Communiqué (February 2015) wherein the GAC urged the Committee to provide greater clarity as to the mechanisms for redress in the event registrants believe they have been unduly discriminated against. Jamie Hedlund provided the Committee with a historic overview of related GAC advice initially delivered in the Beijing Communiqué (April 2013), and the steps the Committee has taken over time to work with the GAC to address the advice. Thomas Schneider provided some additional insight into to the GAC's request for clarity expressed in the Singapore Communiqué.

      Allen Grogan provided an overview of the applicable provisions in the New gTLD Registry Agreement regarding non-discrimination, and the Committee engaged with staff to consider whether the existing provisions in the Registry Agreement provide a path for redress in the event a registrant believes they have been unduly discriminated against. As part of its discussion, the Committee considered whether the Public Interest Commitments Dispute Resolution Procedure would provide redress for such complaints, and if so, the mechanics for a registrant to file such a complaint.

      The Committee asked staff to prepare additional briefing materials on this matter for further discussion at its next meeting.

    3. Update on Public Interest Commitments

      The Chair provided a status update on discussions in Singapore between members of the Committee and various members of advisory committees and stakeholder groups regarding safeguards for the Category 1 strings associated with highly regulated industries. He reported on the agreed upon action items from the discussion, and informed the Committee that a follow-up meeting had been scheduled for April 7. Akram Atallah provided a status update on the various work streams agreed upon during the discussions in Singapore, and provided an overview of the next steps to move the process forward.

    4. Any Other Business

      At the Committee's request, staff provided an overview of the points raised in a 27 March 2015 letter from the Intellectual Property Constituency concerning the .SUCKS TLD. The letter requested that ICANN halt the rollout of the .SUCKS Trademark Clearinghouse Sunrise Period to allow time for the community to examine the validity of the registry operator's plans for the TLD.

      Akram Atallah clarified the purpose of the  "registry access fee" and "registry administration fee" included the .SUCKS Registry Agreement, and noted in the IPC letter. Akram reported that some affiliates of Momentous, the majority owners of the .SUCKS Registry Operator, had previously defaulted on substantial payments to ICANN. Given this previous experience, the registry access fee and registry administration fee contract provisions were negotiated into the Registry Agreement to provide additional financial assurances.

      Allen Grogan pointed out different mechanisms in the Registry Agreement that could potentially be invoked by complaining parties to address some of the noted concerns in the IPC letter. John Jeffrey suggested the possibility of contacting certain regulatory authorities to see if they may be able to provide guidance on the claims raised in the IPC letter.

      Committee members expressed various views about the claims made in the IPC letter, and staff noted that it was evaluating the claims, and exploring possible alternatives to address the noted issues. The Committee asked to receive updates on this matter going forward.

      The Chair called the meeting to a close.

Published on 22 June 2015