ICM Overview: Outline of Significant Changes to the ICM Registry Agreement

ICM Overview:
Outline of Significant Changes to the ICM Registry Agreement

(Produced by ICM in support of their application  |  5 January 2007)

In response to concerns expressed by ICANN’s Governmental Advisory Committee and members of ICANN’s Board of Directors, ICM Registry and ICANN Staff have negotiated significant changes in the registry agreement proposed to govern ICM’s operation of the .xxx TLD. As explained in greater detail below:

  • The Registry Agreement contains a major new section providing specificity with respect to ICM’s policy making and community related obligations;
  • The Registry Agreement contains significant new provisions to ensure that ICANN has concrete and practical mechanisms to enforce the contract; and finally
  • The Agreement retains all of the standard provisions and appendices contained in ICANN’s sTLD agreements.

These changes, which are unique to the ICM Registry Agreement, substantially enhance ICANN’s leverage over the Registry Operator throughout the life of the agreement, and provide robust guarantees that ICM will deliver on the commitments made regarding its operation of the TLD.

First, a major new section has been added to the Registry Agreement providing specificity with respect to ICM’s policy and community related obligations. Appendix S reflects the GAC’s advice to include a “catch-all” provision by referencing the actual documents submitted by ICM, and obligating ICM to fulfill the commitments in those documents. In addition, Appendix S now details ICM’s specific obligations to:

  • Create and enforce specified registry policies, including policies:
    • prohibiting child pornography
    • requiring clear content labeling by registrants (including labeling of sites to which a user entering the URL for a registrant’s xxx site is automatically redirected)
    • prohibiting consumer fraud, and deceptive marketing techniques
    • prohibiting transmission of unwanted and unsolicited email marketing
  • Engage independent third parties to proactively monitor registrant compliance with registry policies prohibiting child pornography and requiring site labeling.
  • Develop industry best practices designed to protect children online and empower parents and other users to avoid content they do not wish to see.
  • C reate and support an independent, globally representative, and credible forum (IFFOR) where all stakeholders are able to discuss and actively respond to concerns about online adult entertainment, allow the sponsoring community and other stakeholders to participate in the development, implementation, and enforcement of best practices.
  • Reserve geographic and religiously/culturally sensitive names.
  • Provide financial support for child safety organizations and to sponsor development of technology to enhance the ability of Internet users to control their online experience.

Second, the Registry Agreement contains significant new provisions to ensure that ICANN has concrete and practical mechanisms to enforce the contract.

Of course, the contract empowers ICANN to terminate the agreement for failure to cure serious breaches, backed up by a mandatory escrow of registry data, authorizes ICANN to use binding arbitration to obtain specific performance of ICM’s obligations as well as punitive, exemplary, and other damages for repeated/willful breach. As before, the contract gives ICANN the right to disapprove any change of control of ICM.

In addition, the Agreement now:

  • Prohibits launch of .xxx until agreements with third parties are in place to monitor registrant compliance with the labeling requirements and prohibition on child pornography;
  • Gives ICANN the right to disapprove ICM’s choice of monitoring service providers, and prohibits launch of .xxx until those agreements are in place; and
  • Requires ICM to provide advance notice of any proposed change in the sponsoring organization, and gives ICANN the right to disapprove any such change.

The Agreement also o bligates ICM to:

  • Provide a draft contract between IFFOR and Registry Operator to ICANN, and to address prior to launch ICANN’s reasonable concerns about that contract.
  • Establish a thirty-day “quick look” opportunity for ICANN to review policies prior to implementation, and resolve any concerns about those policies prior to implementation.
  • Provide quarterly written reports for one year, and as reasonably requested thereafter, detailing and demonstrating reasonable progress towards fulfilling policy commitments .
  • Designate a compliance manager , as well as an independent ombuds-person to address concerns about enforcement of registry policies and handling of complaints related to registrant non-compliance.

Finally, the Agreement retains all of the standard provisions contained in ICANN’s sTLD agreements, and the standard appendices. Under those standard terms, ICM must:

  • Comply with Consensus Policy, and Temporary Specifications and Policies issued by ICANN;
  • Adhere to the New Registry Services Procedures for introducing new services;
  • Escrow registry data in accordance with ICANN’s requirements;
  • Provide a fully compliant WHOIS service;
  • Protect user privacy;
  • Participate in the UDRP;
  • Support ICANN’s operations by paying ICANN fees, including a Registry Level Transaction Fee of $1 per registration per year, with a minimum payment of $90,000 per rolling twelve month period;
  • Cooperate with ICANN in efforts to promote and facilitate the Security and Stability of the Internet and the DNS; and
  • Fulfill specified duties with respect to the sponsored community.