A Meeting of the New gTLD Program Committee of the ICANN Board of Directors was held on 1 February 2013 at 5:00 pm local time in Los Angeles, California.
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), Chris Disspain, Bill Graham, Olga Madruga-Forti, Erika Mann, Gonzalo Navarro, Ray Plzak, George Sadowsky, Mike Silber, Judith Vazquez, and Kuo-Wei Wu.
Thomas Narten, IETF Liaison and Francisco da Silva, TLG Liaison, were in attendance as non-voting liaisons to the committee.
Heather Dryden, GAC Liaison, was in attendance as an invited observer.
ICANN Staff in attendance for all or part of the meeting: John Jeffrey, General Counsel and Secretary; Megan Bishop, Michelle Bright, Samantha Eisner, Dan Halloran, Karen Lentz, Denise Michel, Margie Milam, Cyrus Namazi, David Olive, Diane Schroeder, Amy Stathos, and Christine Willett.
This is a preliminary report the Meeting of the New gTLD Program Committee, which took place on 1 February 2013.
- Consent Agenda:
- Main Agenda:
The Chair introduced the Consent Agenda, and called for a vote. George Sadowsky moved the resolution.
The New gTLD Program Committee took the following action:
Resolved (2013.02.01.NG01), the New gTLD Program Committee approves the minutes of the 10 January 2013 Meeting of the New gTLD Program Committee.
All members of the New gTLD Program Committee approved of Resolution 2013.02.01.NG01. The Resolution carried.
The Committee received an update on the new format of Board briefing papers.
Chris Disspain then introduced the Committee to a discussion on a proposal of a mechanism to address the GAC advice on enforcement of applicant commitments contained in applications.
Samantha Eisner provided a summary of the recommendation, which is the development of a Public Interest Commitment (PIC) Specification, with three components. There is a mandatory component, which is the obligation to only use registrars under the 2013 Registrar Accreditation Agreement. This will achieve the objective of having new gTLD names rolling out with the protections that are included within the new RAA. The other items are optional. One is an option to designate elements from the applicant's application that will be incorporated into the agreement as commitments, such as responses to question 18, or other places where business plans are set out on how the registry is expected to be run. The other is the option for the applicant to identify additional commitments that they are willing to make in the public interest, such as items that arise from conversations over GAC early warnings.
Chris provided the example of an application that contains a statement that names will only be issued to specific entities, such as those licensed to practice in a specific regulated industry. How will this statement become a commitment in the registry agreement? The PIC specification is a way for this to be incorporated. If the applicant does not provide that commitment in a PIC specification, then that may be a basis for GAC advice to issue against that application. Alternatively, there could be an application against which a GAC Early Warning has already been issued, and the applicant has had conversations with the governments issuing the warning. The applicant could use option three to provide commitments that would address the concerns previously raised.
Judith Vazquez noted that her prior experience with the application led her to conclusion that the plans stated in the application were binding.
Chris confirmed that this does not appear to be an understanding shared by all applicants. Chris noted that there could be some plans that aren't really capable of being a binding commitment; for example, if an applicant noted that it was intending to first focus its efforts in North America and then expand to service offerings in Europe in two-years' time, the change of those business plans is likely not something that would be seen as a change of a binding commitment. That is why it is important to allow the applicants to self-select the commitments.
Ray Plzak explained his understanding that the Committee was being requested to give approval to publish a document for comment. However, the discussion seems to be about the substance of the document, which is a different issue. Any discussion of the merits of the proposal at this time is not to be considered as approval of the proposal; the decision to accept the recommendation for posting will allow the proposal to move forward.
Chris confirmed that the point of this discussion was to result in a decision on publication, but it seems important to understand the substance of what is being published. The decision will only be publication, and not on the merits of the recommendation.
Erika Mann asked for more information about the proposal and how "public interest commitment" is being defined. Erika noted that the "public interest" is not defined within ICANN, which is an issue that arises in the closed generic item as well.
Thomas Narten agreed with Erika, and stated his observation that the GAC's concern did not seem to be about the public interest, but in the applicant's adherence to their stated purposes for the TLD. The GAC seems to be concerned with contract enforcement, which is not really about the public interest.
The General Counsel and Secretary noted that the reason that the term "public interest" is being used is a means to show the importance of the need to bring the commitments into the agreement. It would be hard to demonstrate the import and meet the purpose of the discussion without those words. This is a significant issue, and the proposal is anticipated to have a positive impact.
Ray explained his understanding that ICANN is not trying to define the public interest in taking this action, rather that the action that is being taken is believed to be in the public interest. That is the explicit reason for taking this action.
Bill Graham confirmed that if the GAC advice is part of the impetus for doing this, the GAC advice is on public policy issues, which are issues related to the public interest. There does not seem to be a problem using the term in this way.
The President and CEO confirmed that this is the intent of the public interest commitment process, that they are commitments being made by the applicants in the public interest.
Judith confirmed that those applications of good intentions and business practice will embrace this process.
Olga Madruga-Forti inquired as to whether it is necessary to pick and choose among the statements in the application, or whether we could just have the applicants designate the entirety of their statements and representations as binding commitments? The application does not appear to be a business plan, but more akin to a regulatory filing. However, if the GAC supports the approach, then Olga confirmed that she can support it.
The General Counsel and Secretary explained that some of the statements in the applications were made in the short term or intended to be changeable as plans; they were not stated as obligations. The applicants did not fill out the application with the understanding that they were framing binding obligations, and they might have included language that was superfluous to those items that could be made into binding commitments. It could be too difficult a bar to set to have the full application be deemed a binding commitment. For example, it could be almost negligent to require an applicant to remain bound by a security plan developed in 2012 when standards will change and the plans need to evolve. We also see in the applications that the applicants approached them in different ways. Some took Judith's view that the application is full of binding commitments. Others provided loose business plans. This process will provide a way to determine what the actual commitments are.
The President and CEO confirmed that he initially agreed with Olga, but was persuaded when he considered, with the businesses that he has been involved with in the past, the types of plans set forth when the business is launching and how those plans often need to change as the business moves forward and you learn. Placing the applicants in a state where they are bound by all of their statements without flexibility would put everyone in an untenable situation. Here, many applicants are already aware, through the GAC Early Warnings, that there are public interest concerns with their applications, and the PIC Specification process will allow them to come forward and address these issues without having to commit to every aspirational statement in an application.
Chris then moved to a discussion of the next steps. If the Committee approves, the PIC Specification idea will be put out for public comment. During that same time frame, the applicants will be requested to submit PIC Specifications, to keep the timelines in order and provide the GAC with an opportunity to see the PIC Specifications in advance of Beijing.
Ray confirmed that he would support the public comment posting of this process, as a proposed mechanism intended to address the GAC advice on this topic.
Ray Plzak then moved and George Sadowsky seconded the following resolution:
Whereas, applicants for new gTLDs identified certain purposes of the applied for gTLD and certain business plans that they intend to incorporate into the operation of their registry, but much of these plans are not currently anticipated to be incorporated as obligations into Registry Agreements.
Whereas, the GAC's Toronto Communiqué includes advice to ICANN that "it is necessary for all of these statements of commitment and objectives to be transformed into binding contractual commitments, subject to compliance oversight by ICANN."
Whereas the New gTLD Program Committee has devised a proposed mechanism to address the advice of the GAC.
Resolved (2013.02.01.NG02), the New gTLD Program Committee directs the President and CEO to seek public comment on a proposed mechanism to address the GAC advice on these additional applicant commitments.
All members of the New gTLD Program Committee approved of Resolution 2013.02.01.NG01. The Resolution carried.
It is important to determine if it is possible to address the advice received from the GAC on this issue. Creating a mechanism through which applicants will make binding commitments to ICANN in alignment with their applications could serve to promote the transparency and accountability of all within the ICANN community. While work still remains in developing this mechanism, it is anticipated that the creation of these binding commitments will benefit the public interest.
The work called for in this resolution will require resources to complete, though it is not anticipated that this planning work will exceed budgeted resources. If properly implemented, the introduction of a mechanism to incorporate additional binding commitments could result in a positive benefit on the security, stability and resiliency of the DNS.
No resolution taken.
Christine Willett provided the Committee with an update on the overall program activity and the status of the New gTLD Program, noting that the program is still on track to release the first initial evaluation results on March 23, with all initial evaluation results published by the end of August 2013. The time for applicants to respond to clarifying questions has been increased to four weeks, as many applicants were requesting additional time and there are many upcoming holidays around the world that could affect response time.
Christine also presented updates on key projects, including the Trademark Clearinghouse, the URS, the EBERO, and predelegation testing, noting the status of work.
The Chair noted that this is the type of reporting that must be regularized for the committee oversight, and Ray Plzak requested that information from the report, as appropriate, be provided to the full Board.
The Chair called the meeting to a close.
Published on 12 April 2013