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 Special Meeting of the New gTLD Program Committee of the ICANN Board of Directors was held in Beijing, China on 5 April 2013 at 8:00 pm local time.
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: Chris Disspain, Bill Graham, Olga Madruga-Forti, Erika Mann, Gonzalo Navarro Ray Plzak George Sadowsky, Mike Silber, Judith Vazquez, and Kuo-Wei Wu. Fadi Chehadé (President and CEO) sent apologies.
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: Akram Atallah, Chief Operating Officer; John Jeffrey, General Counsel and Secretary; Megan Bishop, Michelle Bright, Samantha Eisner, Dan Halloran, Karen Lentz, Cyrus Namazi, Amy Stathos, and Christine Willett.
This is a preliminary report the Meeting of the New gTLD Program Committee, which took place on 5 April 2013.
The Chair outlined the expected timeline for the New gTLD Program Committee's work in Beijing, including the expectation that "closed" generics and reservation of names of IGOs will be discussed later in the week in Beijing. The Chair noted that on "closed" generics, the Committee could have a meeting before the end of April to make a decision. On the IGO names issue, the Chair confirmed that this will be discussed with the GAC at the Board/GAC meeting in Beijing, and then a decision could be taken by July in Durban.
Chris Disspain provided an update on the "closed" generic issue, noting that the term "exclusive use" is more descriptive of the issue. Chris noted that there is a possibility that the Board will be receiving advice from the GAC on restricted-use generics, so the conversation today will not focus much on that topic. Instead, Chris focused the discussion on the situations where an applicant applies for an exemption under the code of conduct, so that the Committee can understand what will happen.
Gonzalo Navarro noted that it is really important to get clear on the issues that are being addressed here, and appreciates Chris' focus for the discussion. However, the Committee will need to be clear with the GAC on the issue, so that it is not about broader international issues with trademarks.
George Sadowsky requested further information on what is meant by "exclusive use."
Chris explained that "exclusive use" is when an applicant has indicated that it intends to operate the string for its own sole use.
Dan Halloran provided some explanation regarding the criteria for getting an exemption to the Registry Operator Code of Conduct. Dan noted that after the first draft of the Code of Conduct was released for comment, there were comments received from some potential applicants that the Code of Conduct would constrain them, because they did not intend to have registrants. Therefore they should not need to have registrant protections built in, and should be able to get an exemption. As a result, ICANN proposed narrow grounds for exemption, when there are no registrants to protect, and all domains are registered to, maintained by, and used exclusively by the registry operator for exclusive use (criteria I). There is also criteria II, that the registry operator does not sell, distribute or transfer control or use of any of the registrations in the TLD to any third-party. Criteria III is if application of the Code of Conduct is not necessary to public the interest. If all are present, then ICANN may, in our reasonable discretion grant an exemption to the code of conduct, which is the five preceding provisions that control the registry. The exemption is from having to offer a level playing field to registrars.
Thomas Narten expressed concern that we are misusing the Code of Conduct, as it is the most convenient tool but not the right tool for the task. The harder problem needs to be solved first, which is how will this be addressed if the applicants don't seek and exemption to the Code of Conduct. The issue here isn't providing a level playing field to registrars; the issue is about the intention of the TLD operator and the names they intend to registrar and which names they don't intend to registrar.
Chris agreed with Thomas, and stated that there really appeared to be only two ways forward at this time: (1) look at the Code of Conduct and acknowledge that it is an imperfect solution with little to do if applicants go around it; or (2) change the program, though the program is far down the road. The other alternative is to do nothing to address this issue. Chris agreed that taking action regarding the Code of Conduct would have to be accompanied by an acknowledgement that it is an imperfect solution, but noting that the Board is not happy with the situation.
Ray Plzak supported Thomas' comment, and addressed George's concern with regards to exclusive use. Ray urged the Committee to think about it in terms of obtaining the right o benefit of the exclusive use of a particular TLD, the corollary of which is that the holder is denying all others the right to derive benefit from the use of the name.
Gonzalo commented that the whole issue for the IP industry is that one particular company will have the opportunity to use a generic term exclusively, and that could raise questions about promoting competition on the Internet.
Chris stated his understanding, that the concern is not with an applicant seeking to limit a TLD to only qualified registrants, and to put in requirements that the registrars must follow in order to verify the validity of the registrants. That is fine. But if that same generic term will only be used by the applicant, without anyone else eligible to register/use the names, that is the concern here.
Olga Madruga-Forti agreed with how Chris framed the issue.
Judith Vazquez offered that the question is actually simpler; it's a yes or no question – do we or do we not allow an application to be closed to a registrant that believes it can benefit from it?
Chris disagreed that it is that simple of a question.
Thomas supported Judith's statement. There is a spectrum from opening a TLD all the way through to exclusivity, while there could be some areas where an operator would open it up to a few people. Exclusivity is almost too black and white, because it remains a judgment call who is allowed to register a second-level domain name. On closed generics, the concern is the operator will be saying no when they should be saying yes.
Chris asked Thomas for clarification on where he recommends this to go.
Thomas noted that to some extent, the Board should just do nothing. This is a classic example of a judgment call that was carefully avoided during the GNSO PDP on this. There are a lot of pragmatic questions that come up around this.
Ray noted that even some of the limitations that could make sense on who can register a second-level domain name could be seen as too limiting. How is the Board supposed to make a judgment as to the scope of the name and the proposed limitation?
Chris responded that this is the exact issue that has been part of why coming to clarity on this topic is challenging. That is why "exclusive use" is a clearer term than "closed" generics, though others may not be comfortable with it. The objections arose because of issues with applications, not because of hypothetical situations.
George responded to Thomas' suggestion that the GNSO did not address this issue; they didn't say that they were for it or against it. But the GNSO was dominated at that time by people with commercial interests in the program being developed. It is the Board, not the GNSO, which is charged to act in the public interest in approving and implementing policy.
Olga noted that the concept of "exclusivity" is an improvement, because it focuses on the applicant intent with the name. There may be other issues, as Ray suggested, regarding the relationship between the applicant and others that wish to register names. Therefore it is important to see who is the TLD exclusive to? Is it limited to a single entity, or to subsidiaries and affiliates, or those that they have contractual relationship with? That could be a lot different than a TLD for the use of a community, even if the community is rather limited in scope.
Heather Dryden confirmed that the GAC intends to provide safeguard language regarding the "closed" generic or exclusive use category of names.
Chris noted that this is a good place to stop the discussion, as it will be wise to wait to see what advice comes out of the GAC on this topic prior to having further in-depth conversation.
The Chair confirmed that the next steps would be agreed upon after the receipt of the GAC advice.
The Chair introduced the topic regarding performance of a functional audit of the New gTLD Program. There has been some nervousness in the community as the Program proceeds through implementation, and some questioning of whether ICANN is ready. Are we ready to contract and delegate? Should we bring in an expert now to help assess our readiness? The practice has been waiting for issues to hit a fever pitch in the community prior to solving, and some have raised the concern of whether there are additional items that will arise that could be uncovered in an audit.
Ray Plzak started by reciting the adage that when you're up to your neck in alligators, it's hard to remember your mission was to drain the swamp. That is the position that many see ICANN in today. And ICANN is both fighting the alligators and working to clear the swamp. It may be the case that it is time to sit down and take a look at the processes and look for the unintended consequences that could still arise, and deal with those in a timely fashion. There's a sense that we do not know fully what we are dealing with.
Thomas Narten expressed general support for Ray's position, citing the example of root scaling. Though we have the ability to slow down delegation if the introductions come too fast, we have not yet sat down and wrote up a plan for how we would address the issue if it arises. To whom would someone report the concern? What process should be followed?
George Sadowsky seconded the comments made already, and cited the issues raised in VeriSign's recent letter. There could be things that may cause problems, but have not been fully evaluated. The question is, have we lowered the level of risk in the Program to an acceptable level, and are equipped with sufficient policies and resources to address unanticipated events when they occur?
The Chair responded to some of the points made. To the question of do we know all the issues, even if we know all of the issues we cannot respond to each one; it's unrealistic. Otherwise, our work would never be done. Some say unless an issue is seen as serious by the community, it does not need to be dealt with now. On the topic of the audit, who would perform that? This is the job of a CEO with his management team. Would we take the time now to educate a third party while staff is at the 11th hour of delivering the program? Do we want to delay the Program for a month to have an outside readiness assessment done, when we've already planned for a measured, staged introduction of new TLDs?
Erika Mann noted that the President and CEO and his team could probably answer these questions best. A short audit could be acceptable now, but there will be sufficient time afterwards to evaluate and capture the concerns noted. But if the goal is to gain a complete and comprehensive understanding today through a functional audit, Erika stated that she would not be in favor of that. There could be small points, such as those Thomas raised, but a not a comprehensive overview at this time
Ray agreed with Erika's points, and responded to George's comment that we will never identify all of the issues. This will have to become a continuous process of trying to identify issues in advance, but you will never catch all of them, particularly the corner cases. But once the issues are identified, this should be an iterative process. There are things, as Thomas noted, that we seem to have been sitting on, so there is an inventory that we can start with. We could even look through Board resolutions and find where there are incomplete actions of the Board that still remain. While the sources are there, this has to be an ongoing process to move forward, and we have to be capable of identifying issues that we hadn't anticipated before. It would have to be short, but it has to be iterative. It could be on an as-necessary basis, but we have to identify some way to implement a regular process. The Committee needs to discuss how to organize this, the length of the process, and other aspects.
George asked the President and CEO how he feels about the potential for unintended consequences, as he has the view from the inside.
The Chair clarified that this conversation is no way a criticism of staff that have the full support of the Committee. It is, in fact, the good relationship between management and the Committee that allows this conversation to move forward.
The President and CEO thanked the Board for their inquiry and concern as to the state of the Program. We are now in the last mile, and frequently in the last mile is when panic and concern is raised. For those on the ground level, there are things that are apparent to us that aren't always clear to those at the 30,000 foot view that the Board has. For example, the hours of work to close an issue are not visible, so there will always remain the gap between what is visible to the Board and where things actually are, which is normal. However, when words such as "crises" are used, it's important to know the top crises that are being identified, because that is a big word. If the crises can be identified, the President and CEO confirmed that he would provide information for how those are being addressed. As to performing an audit when systems are ready to launch, it's not the right time. It sends a very strange message to the community and to the staff. The audit comes after the systems are online so we see how we can improve. The President and CEO also confirmed that there are no fixed dates; the April 23rd event that has been discussed does not have to be a date for signing if contracts are not ready. Nothing is being forced to a deadline.
There are already guidelines and timelines. The programs are moving forward. Some of the potential risks that have been identified in the community, such as the trademark clearinghouse, don't seem real. For example, we don't need to audit IBM to see if they can run a database, which is the service they are going to provide.
Companies are finally starting to line up towards launch, looking for distribution channels, planning, counting on the timelines that have been set forward. While a date can still slip, it is no longer at risk of slipping for a period of years. We will act with security and stability at the top of our priorities, and will be deliberate in how we operate. We know how to coordinate among root server operators, and together need to remain loosely coordinated.
The President and CEO concluded that he is supportive of an audit, immediately after launch. It can be an ongoing process. But before we get to that, the crises must be identified.
Ray reiterated that the focus of his conversation is that we have to pay attention. If it's best to do that by declaring the day the audit will start, post launch, that's fine. But it has to be done and it should be in planning now.
The President and CEO agreed with Ray. The Guidebook hasn't been finalized for long, and systems were being built along with it. But we have a remarkable team that delivering in an agile manner, where not everything has to be buttoned up before they start. The community demanded this agile path, so that we do not have more years of delay. It's also important to recall that ICANN is in control of the systems and can slow them if necessary after the launch; we have the controls if things go wrong. We will move forward only when the work is done, and the work is being done to plan. But we are moving forward.
The Chair thanked the President and CEO for confirming that there is not a drop date. This is a clear and reassuring message.
Olga Madruga-Forti supported the idea of an audit, but that it should occur after the systems have launched. Staff should not lose valuable time and effort now in order to support an audit. Both the staff and the Committee have proved to be agile when issues arise.
Erika commented that the Committee honors the work that all on the team are doing, and the conversation is not about criticism. The conversation is simply asking if there's anything that can be done quickly to capture some items that may be outstanding. It is not a deeper issue than that. There is natural concern because this is pioneering work, and caution is important. But on the whole the staff work is honored.
George noted that it is important for the President and CEO to communicate to the community that this does not all start on April 23rd, as there seems to be different understanding in the community.
Akram Atallah addressed Thomas to let him know that there has been benchmarking work done regarding the root servers, which has been shared with the RSSSAC, which provides ability to monitor the root for any possible degradation.
The President and CEO reiterated his request for identification of crises from the Committee.
The Chair noted that the real concern seems to be that there are a lot of issues that are converging now, which gives the impression that there is still a lot to do. However, there is not a particular crisis.
Ray confirmed that though definition of crisis may differ among people, the really important factor is that the Committee has to go out of crisis management mode and into a different form of oversight. In terms of crises, there do not appear to be any showstoppers for the entire program.
The Chair challenged that the Committee is always in issue resolution mode. And we learn that some issues have been identified years before and we keep going back to try to resolve them in different ways.
Chris Disspain agreed with the Chair that the Committee is in issue resolution mode, and that is where the Committee should stay. Sometimes the issue is resolved by doing nothing, but issue resolution is important. For example, on closed generics, we are taking the time to have the conversation; that is not crisis management mode. But the term crisis is used by others when they are pressed to make decisions and when something actually has to be dealt with. That is not a bad thing here that we are pressing the community for action and offering solutions.
Thomas noted that the root scaling issue, the concern raised was more of process, and he will continue the issue offline.
Mike Silber expressed his frustration with the communication from the staff to the Committee, and that the community seems to get better information than the Committee. The Committee has to pull information from webinar reports, while the Committee receives letters and other inputs without analysis. That leads to issues being perceived as crises.
The President and CEO noted that the Committee does receive robust presentations from the staff, but acknowledged that there is a lot going on and things are moving very fast. The Committee communication structure is not developed with enough frequency or analysis to share all that seems to be requested. As a solution, he offered to provide weekly updates to the Committee, in single page form, to provide better information.
The Chair thanked the President and CEO for his suggestion, and then raised the issue of the circulation of letter to the Committee, which the Chair was providing for information sharing.
Mike suggested that accompanying the update is a communication analysis on the correspondence that has come in, with some links if available and analysis. This would be far more useful than the receipt of individual letters.
The President and CEO also offered that some of the Committee could attend a weekly internal operational review meeting, to hear about what is working and not working, listening to the staff reports. The Committee members may even have items to add. Though the Committee has an oversight role, this would be a way to involve the Committee in the last mile.
George commented that the offer to attend the meetings is good, as the lack of information is what leads to a sense of unease. The concern is about what we know, and what we don't know, and sometimes that is hard to predict. George noted that the issues of the highest concern are the technical issues, such as those the SSAC highlights.
Ray suggested that maybe an RSS feed could be set up for those who wish to find more information. There are better alternatives than having information pushed out to the Committee without analysis. On the operational review meetings, Ray noted that the Committee had one big operational review session prior to reverting back to the issues management. So if attendance at these meetings will bring the Committee back to the oversight role, or prepared briefings, those have to continue once they are started. Ray thanked the President and CEO for all of his work and the ability to have this conversation.
Christine Willett offered some responses to the requests. The letters that are forwarded to the Committee are those that the team is trying to understand whether action is needed. A majority of the letters are posted as correspondence and will be included on a MyICANN feed. For items that are application specific, those are dealt with a bit differently. The weekly reporting is a good idea, to get more frequent communication to the Committee.
The President and CEO confirmed that communications with the Committee would be reviewed after the program is fully launched.
Mike requested a summary of the weekly meetings for those who cannot attend. He also thanked the President and the CEO for the openness and willingness to extend the invite in the first place.
The Chair summarized the conversation: (1) there is no drop date timeline, though the program will happen in 2013; (2) and audit will happen, but not now when it will be disruptive; (3) a weekly report will be generated for the Committee; (4) and the Chair will stop the circulation of letters to the Committee and will be made available to the Committee through other means.
The Chair called the meeting to a close.
Published on 20 May 2013