General Counsel's Analysis of .aero Sponsored TLD Agreement | 24 November 2001

General Counsel's Analysis of .aero Sponsored TLD Agreement 24 November 2001

Analysis of .aero Sponsored TLD Agreement

To the Board:

Procedural Background

On 20 November 2001, I advised you that negotiation of the sixth "New TLD Agreement", with SITA as sponsor of .aero, had been completed and that the proposed agreement and all attachments had been posted on the ICANN web site. This notification brings into play the "last call" procedure for the .aero and .coop agreements established by the Board's resolutions in Montevideo. Those resolutions provided, in relevant part:

Resolved [01.83] that the President and General Counsel are authorized and requested to complete negotiation of the .aero and .coop agreements (including attachments) as soon as feasible and to post the attachments on the ICANN web site;

Resolved [01.84] that the Board shall be notified of the complete posting of the agreement and appendices for each of .aero and .coop and after that notification seven days shall be allowed for Board members to make any additional comments to the President and General Counsel; [and]

Resolved [01.85] that in the absence of the request of any Board member to the contrary based on policy considerations, the President is authorized to sign the posted agreements for .aero and .coop after the conclusion of those seven days[.]

My 20 November 2001 notification therefore set in motion a seven-day period, ending on 27 November 2001, to afford Board members a last opportunity to ensure that the negotiated documents are consistent with the Board's selection of the .aero TLDs and its guidance concerning the new TLD agreements. In the event that a Board member requests, based on policy considerations, that the .aero agreement not be signed, then the matter will be scheduled for a future Board meeting for consideration of the request by the Board. (I previously gave the Board a notification for .coop on 6 November 2001. No "contrary request" was received by 13 November 2001 and that agreement has now been signed.)

Comments by Edward Hasbrouck

In e-mail messages dated 16 November 2001 and 21 November 2001, Edward Hasbrouck requested that the .aero Sponsored TLD Agreement not be signed. Instead, Mr. Hasbrouck urges that the Board schedule a public forum on the .aero Sponsored TLD Agreement "at your next (Accra) or a subsequent meeting."

Mr. Hasbrouck's comments appear to raise one substantive concern—over the specific scope of the .aero charter—and a variety of procedural complaints. They are analyzed below.

Substantive Complaints

In his 16 November comment, Mr. Hasbrouck objected to the scope of the .aero charter. His substantive complaints to the charter are (a) that it is (he asserts) inconsistent with the scope of the proposal made by SITA last year and selected by the Board at its 16 November 2000 meeting and (b) that it fails " to represent the diversity of the sponsored gTLD community and its stakeholders, including failing to allow for registration by many members of the originally-defined community or to provide for at- large participation in the governance or administration of the .aero domain."

After reviewing the original SITA proposal, it is my conclusion that Mr. Hasbrouck's complaints about the charter are not persuasive.

Nature of Sponsored TLDs

In assessing the appropriateness of the .aero charter, it is helpful to first review some basic concepts underlying sponsored TLDs. A sponsored TLD is one that is established to serve a community of limited scope. As explained in the 13 June 2000 staff-prepared topic paper, which formed the basis for the Board's decision in Yokohama to go ahead with introduction of a first round of new TLDs, sTLDs are intended to be vehicles for ICANN to delegate policy-formulation functions for special-purpose TLDs to organizations that can more easily focus on the needs of the stakeholders most directly involved with those TLDs:

D. Delegation of policy-formulation requirements for special-purpose TLDs.

As envisioned by the White Paper, ICANN is responsible for overall coordination of the DNS. In view of the hierarchical nature of the DNS, however, the responsibility for establishment of policies within TLDs varies depending on the nature of the TLD. Policies for fully open TLDs (such as .com, .net, and .org) are formulated through the ICANN process, which involves participation of all segments of the global Internet community. Policies for other TLDs (such as .edu and the ccTLDs), on the other hand, have been formulated by focused constituencies.

Proponents of limited-purpose TLDs have advocated a "sponsorship" paradigm, in which policy-formulation responsibility for the TLD would be delegated to an organization that allows participation of the affected segments of the relevant communities. The sponsoring organization would have authority to make decisions regarding policies applicable to the TLD, provided they are within the scope of the TLD's charter and comport with requirements concerning interoperability, availability of registration data, and the like intended to ensure that the interests of the overall Internet are served. For example, the TLD .museum might be sponsored by an association of museums and the .union TLD might be sponsored by a group of labor unions. In many respects, the sponsorship paradigm is a generalization of the concepts underlying appointment of managers for ccTLDs under existing ccTLD delegation policy.

Consistent with the Board's authorization in Yokohama, the application program for new TLDs made arrangements for "unsponsored" and "sponsored" TLDs. Commercial organizations would apply to operate uTLDs (such as .biz and .info) while "sponsoring organizations" would apply to assume the sponsorship of sTLDs. As described in the 3 August 2000 New TLD Application Process Overview (based on which the new TLD proposals were submitted), a "sponsoring organization" is:

An organization to which ICANN delegates some defined level of ongoing policy-formulation responsibility regarding the manner in which a particular TLD is operated, provided the policies are within the scope of the TLD's charter and comply with requirements concerning interoperability, availability of registration data, and the like intended to ensure that the interests of the overall Internet are served. In TLDs which have a sponsoring organization, that organization is primarily responsible for choosing the registry operator (see below).

The extent to which certain policy-formulation responsibilities are appropriately delegated to a sponsoring organization will depend upon the characteristics of the organization that may make such delegation appropriate. These characteristics may include the mechanisms the organization proposes to use to formulate policies, its mission, who will be permitted to participate and in what way, and the degree and type of accountability to the community it will serve (to the extent these are necessary and appropriate). The Sponsoring Organization's Proposal provides an opportunity to provide information on these characteristics.

At its 16 November 2000 meeting in Marina del Rey, after reviewing the characteristics of many applicants seeking to become sponsoring organizations, the Board selected three sTLDs, .aero, .coop, and .museum. The Board authorized the negotiation of "appropriate agreements" with the sponsors for these sTLDs. Pursuing this direction, we have negotiated a standard agreement, reflecting the delegation and representation principles inherent in sTLDs, with all three sponsors.

The standard sTLD agreement is accompanied by 23 attachments that allow for tailoring the agreement to accommodate features of the sponsor's proposals in a manner consistent with the overall design of sTLDs and other ICANN policies. The three attachments most relevant to Mr. Hasbrouck's objections are:

Attachment 1: The Charter. This attachment defines the purposes for which the sTLD is established. In particular, it describes the range of purposes for which the sponsor may choose to register names within the sponsored TLD. The sponsor may, through exercise of its delegated authority, further restrict the scope under which the sTLD is operated.

Attachment 2: Delegated Authority. This attachment defines the extent to which ICANN's policy-formulation responsibilities are delegated to the sponsor. The four main areas of policy delegation are: (a) naming conventions and registration restrictions within the sponsored TLD; (b) selection and oversight of the performance of the registry operator; (c) selection of registrars; and (d) the terms of dealing among the registry operator, registrars, and registrants as necessary to give effect to (a)-(c).

Attachment 5: Description of the Sponsored TLD Community. This is a definition of the community for which the sTLD is to be operated. Subsection 4.2 of the Sponsored TLD Agreement requires the sponsor to be representative of, and operate openly and transparently with respect to, this community. The sponsored TLD community is generally intended to be either commensurate in scope with or broader than the registrants within the scope of the charter.

Comparison of the Original SITA "Sponsored TLD Proposal" with the .aero Charter

The context described above facilitates a well-informed comparison of the original SITA proposal with the .aero charter. Mr. Hasbrouck's comments assert that SITA originally proposed an sTLD that included both providers and "users or purchasers" of air transport services—airlines as well as passengers. He complains that the charter is narrower, in that it contemplates names will be registered only to providers of air transport services. He also complains that the charter does not include others who may be affected by noise and other aspects of air transport operations—such as "affected homeowners, neighborhood organizations, civil liberties organizations, etc."

Mr. Hasbrouck's characterization of the .aero charter is mostly correct. The charter's definition of the purpose of the .aero sTLD is as follows:

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.

(It should be noted that any suggestion that the .aero TLD will be limited to companies, rather than individuals, is incorrect. In addition to airlines and other companies providing air transport services, the charter also covers pilots, mechanics, air crews, consultants, and other individuals engaged in providing air transportation.)

Within the scope of the .aero charter, SITA as the .aero sponsor is delegated responsibility for establishing naming conventions and restrictions on who may register within the .aero sTLD. In the charter, SITA has set forth a bulleted list of twenty-five categories of people and entities within the scope of the charter; the charter provides that SITA may add additional categories of registrants within the scope of the indented definition quoted above.

Mr. Hasbrouck's claim that this "provider only" focus of the .aero sTLD is inconsistent with the SITA proposal is refuted by the proposal itself. As required in the application process, SITA submitted a "Sponsoring Organization's Proposal" describing SITA's characteristics and stating why it was an appropriate organization to sponsor the proposed TLD. (Like the other parts of its application, this document was posted for public comment on ICANN's web site prior to the Board's selections.) In this document, SITA discussed the community that it sought to represent as follows (in what follows, text from SITA's proposal appears in magenta; passages copied from the ICANN-prepared application form are in green; boldface type is added to emphasize relevant portions):

(ICANN:) C5. Appropriateness of Community. If the organization is intended to serve or represent a particular community, define the community and explain why that definition fits the TLD proposal.

(SITA:) The Air Transport Community is the driving force behind the travel and tourism industry, the fastest growing sector and largest employer in the world today. It encompasses all of those companies and organizations that make up aviation, including airlines and airports, as well the regulators of the industry, the civil aviation organizations, working together at an intergovernmental level in ICAO. It comprises the aerospace industry, including the major manufacturers, and other suppliers to the industry. Among these are the computer reservation systems linking airlines and other suppliers with the travel agents that have direct contact with the consumers.

Interaction between each of these companies—airlines, manufacturers and airports, etc.—is extremely complex. They have to address a number of often competing concerns daily, and have the lives of others to consider as a primary issue at all times. It is a community that requires stability, secure and reliable access to information and certainty in locating that information. There is and will continue to be a need for considerable sharing of information from a steady platform. The need for consistent standards and common delivery platforms will be just as great for Internet based systems.

An example may illustrate this point. A passenger travelling on a journey involving more than one airline, or even a change of aircraft, will require consistent and accurate information to be accessible to check-in, baggage, catering, aircraft loading, refueling, flight planning and customer service staff. In a normal journey, this may involve staff of at least three different companies. There is a need for all of these groups to access information. The Internet will increasingly be the platform from which this information is accessed, subject to there being consistency and reliability in its display, and security in its storage. A domain for the Air Transport Community will give the industry the basis from which to work co-operatively, as it has done in the past, to develop new generation systems.

SITA elaborated on this provider-only purpose of the .aero TLD in its "Description of TLD Policies," which was posted for public comment. That document begins with a description of "General TLD Policies", as follows :

(SITA:) This proposes the adoption of a Top Level Domain for the entire Air Transport Community (ATC), ".air". In this Description of TLD Policies proposal, the definition of ATC is: "All companies and organizations for which the main activity is related to Air Transport."

The ATC includes airlines, aerospace companies, airport authorities and governmental organizations. This TLD will provide a clear and relevant presence and access for air transportation in cyberspace.

The policies that already exist for the airline industry will be applied. These policies have been used for 50 years and have stood the challenge of technology evolution, and time. . . .

The section of the SITA Proposal on "REGISTRATION RESTRICTIONS" then described the provider-only focus of the proposal in detail:

(ICANN:) III. REGISTRATION RESTRICTIONS (Required for restricted TLDs only)

E16. As noted in the New TLD Application Process Overview, a restricted TLD is one with enforced restrictions on (1) who may apply for a registration within the domain, (2) what uses may be made of those registrations, or (3) both. In this section, please describe in detail the restrictions you propose to apply to the TLD. Your description should should define the criteria to be employed, the manner in which you propose they be enforced, and the consequences of violation of the restrictions. Examples of matters that should be addressed are:

(SITA:) The intention of the ".air" is to provide a service to the air transport industry and registrants are restricted to legitimate members of the industry.

For example, IBERIA.air will legitimize the Spanish airline in the corresponding air transportation cyberspace to perform business.

In Spain there other companies that have the same name. IBERIA (travel agency) and IBERIA (Insurance company). In such case, IBERIA.air is clear and allows to position IBERIA airlines in the sector.

(ICANN:)E17. Describe in detail the criteria for registration in the TLD. Provide a full explanation of the reasoning behind the specific policies chosen.

(SITA:) The ".air" name is a restricted TLD for the air transportation industry sector. A limited number of exceptions will be constituted for those names that are unknown to the current IATA, ICAO, ACI codes and branding names. The exception names will need to be approved by the Air Name Policy Group.

The Registry will maintain a list of contact persons for each registrant. When a name is requested for registration the corresponding contact points will be advised of the request in order to minimize future dispute problems.

After an initial phase of operation further registrants may be considered if the industry bodies believe that their inclusion is in the best interests of the community.

(ICANN:)E18. Describe the application process for potential registrants in the TLD.

(SITA:) Registrants wishing to register names will be registered after the evaluation process. At the same time we will register a set of standard third level names which will be proposed or coordinated allowing the standardization of names in the ".air". The purpose of standard names is to facilitate the communications among industry participants, particularly at the host system level. These names are covered in IATA recommended practice 789 and will be updated through the standard committee working groups.

Where appropriate, the registrants will be required to produce evidence that the name is a legal entity.

For the registrars joining after the initial group of ATC registrars, a set of procedures will be explicitly defined.

(ICANN:) E19. Describe the enforcement procedures and mechanisms for ensuring registrants meet the registration requirements.

(SITA:) Registrants already comply with IATA, ICAO, and ACI procedures. The current enforcement process will continue. If registrants do not comply with these requirements they will not be granted a ".air" name.

(ICANN:)E20. Describe any appeal process from denial of registration.

(SITA:) The current industry appeals process will continue to apply. Where the issues fall outside those encountered in past airline activity, ICANN procedures will apply (standards procedures for appeal could be submitted to the ANPG).

(ICANN:)E21. Describe any procedure that permits third parties to seek cancellation of a TLD registration for failure to comply with restrictions.

(SITA:) The current industry processes for appeal will apply.

In view of these many statements that the .aero TLD was proposed to be used by those engaged in providing air transportation and related support services, there appears to be no basis in fact for Mr. Hasbrouck's claim that the .aero charter is inconsistent with SITA's proposal that was selected by the Board in November 2000.

"Content Neutrality"

Mr. Hasbrouck's comments also assert that the .aero charter violates what he refers to a principle of "content neutrality". He asserts that the charter would allow only "boosters" of the air transport industry, but not its critics, to register within .aero. His assertion rests on a strained interpretation of the term "support" used in the charter. As stated in the charter, the .aero TLD is established for use by those that directly provide air transport services (airlines and pilots) and those that provide necessary support services (airplane manufacturers, air traffic control, mechanics, etc.):

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.

The suggestion that the term "support" in the above passage is used as a means of "content" control is not persuasive. (It should be noted that one bulleted item in the .aero charter allows registration by "aviation media".)

Objection to SITA

In his 16 November message, Mr. Hasbrouck asserts that SITA is an inappropriate representative of the sponsored TLD community for .aero because "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)." This assertion is based on incorrect assumptions about the scope of the .aero community as proposed and selected by the Board in November 2000. SITA's background indicates that it is well-situated to represent the providers of air transport services for which the TLD was originally proposed.

Procedural Objections

Mr. Hasbrouck's comments also raise a variety of procedural objections to the .aero Sponsored TLD Agreement. These objections do not appear to be well-founded:

1. He asserts that because the agreement was negotiated by a "closed procedure", it violates the principles of openness and transparency on which ICANN is based. This complaint is based on mistaken notions of what the openness and transparency principles require. Those principles apply to ICANN's establishment of policies, not the drafting of contracts. What is important is that ICANN's policies are open for public review, comment, and participation before they are established, not that the actual drafting process, whether for contracts or even policies, be done in public. Indeed, it is difficult to imagine how well-crafted legal documents could be prepared without providing the drafters the solitude to carefully consider the consequences of the words they employ. Openness and transparency do not require that documents be subject to public view at every stage of their development; it is sufficient that the policies embodied in those documents be open to public scrutiny and comment.

In fact, the Sponsored TLD Agreement was opened for a full opportunity for public review and comment, though little comment was actually received. The Sponsored TLD Agreement was originally posted on the ICANN web site on 20 August 2001, with minor revisions being made and posted on 29 August, 13 October, and 16 October 2001. Throughout this period, a web-based forum on the New TLD Agreements was maintained. A topic paper on the Sponsored TLD Agreements was posted on 5 September 2001 to prompt discussion at the Montevideo meeting. An in-person public comment period was held on 9 September 2001 in Montevideo. Although the comments received were few in number, a full opportunity was presented to comment on the standard agreement.

At the time of the Montevideo meeting, many of the attachments for the .aero agreement were not yet completed and had therefore not been posted. These documents were posted as soon as they were completed, with the .aero charter being posted originally on 9 November 2001 (a revision not relevant to this discussion was posted on 20 November 2001) and the Definition of the Sponsored TLD Community being posted also on 9 November 2001. These documents do not themselves create any new "policy"; instead they are intended to implement in legal language the scope of the .aero TLD that was selected by the ICANN Board, after very extensive public discussion, in November 2000. The only issue at this point should be whether or not the documents faithfully reflect the proposal selected a year ago and other established ICANN policies. Mr. Hasbrouck has taken the opportunity to comment on that issue; for the reasons described above his objections are not persuasive.

2. Mr. Hasbrouck objects that the delegation of authority to sponsors of sTLDs violates ICANN's bylaws because the sponsors operate under different procedures than ICANN. Delegation of policy-development responsibility to a TLD sponsor is, of course, a longstanding feature of the domain-name system. In fact, the IANA long ago created ccTLDs and delegated them to trustees for the various countries. This delegation was based on the policy determination that the DNS would be most useful if TLDs were established for specialized communities and delegated to those that could serve those communities through focused representation. As described above, the ccTLD model was the basis on which the decision to establish sponsored TLDs was made. Just as ccTLD managers are not required to follow procedures identical to ICANN's, there is no reason to impose such a requirement on sTLD sponsors.

In fact, the Sponsored TLD Agreement requires that SITA, like all sponsors, operate in an open and transparent way, providing a forum for the sponsored TLD community to develop policies for the sTLD. Subsection 4.2 of the agreement requires the sponsor, when exercising its delegated authority, to:

4.2.1. publish [its] standards, policies, procedures, and practices so they are available to members of the Sponsored TLD Community;

4.2.2. conduct its policy-development activities in manner that reasonably provides opportunities for members of the Sponsored TLD Community to discuss and participate in the development of such standards, policies, procedures, or practices;

4.2.3. maintain the representativeness of its policy-development and implementation process by establishing procedures that facilitate participation by a broad cross-section of the Sponsored TLD Community;

4.2.4. ensure, through published procedures, adequate opportunities for members of the Sponsored TLD Community to submit their views on and objections to the establishment or revision of standards, policies, procedures, and practices or the manner in which standards, policies, procedures, and practices are enforced;

4.2.5. ensure that any revenues received by Sponsor or any affiliated entity directly or indirectly from the provision of Registry Services are used solely for the benefit of the Sponsored TLD Community; and

4.2.6. ensure that any contract with a Registry Operator precludes any control by that Registry Operator over the policy-development process of the Sponsored TLD.

These contractual provisions provide safeguards against a sponsor's inappropriate use of the delegated authority.

3. In his comments, Mr. Hasbrouck complains that not all of the information in SITA's reports to ICANN will be made immediately available to the public. In fact, however, the vast majority of the information provided in those reports (70 of 77 items to be reported) will either be immediately subject to public disclosure or may be released after only three months. Of the 77 items of information to be reported, only one (involving breakdowns of marketing and capital expenditures) will be confidential for eighteen months and six items will be confidential for six months. All of the information reported by SITA will be ultimately available to the public. The benefits of obtaining commercially sensitive information at an early stage, so that the "proof of concept" can be fully evaluated based on solid data, are readily apparent.

Conclusion

On careful analysis, the objections to the .aero Sponsored TLD Agreement raised by Mr. Hasbrouck are not well founded. The agreement is faithful to the SITA proposal selected by the Board in November 2000 and is consistent with ICANN policies. It was negotiated following a process authorized by the Board and consistent with the ICANN bylaws.

Respectfully submitted,

Louis Touton
General Counsel