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.
Formal Minutes are still to be approved by the New gTLD Program Committee. This has not been approved by the New gTLD Program Committee and does not constitute minutes but does provide a preliminary attempt setting forth the unapproved reporting of the resolutions from that meeting. Details on voting and abstentions will be provided in the Minutes, when approved at a future meeting.
NOTE ON ADDITIONAL INFORMATION INCLUDED WITHIN PRELIMINARY REPORT – ON RATIONALES -- Where available, a draft Rationale for each of the Board's actions is presented under the associated Resolution. A draft Rationale is not final until approved with the minutes of the Board meeting.
A Regular Meeting of the New gTLD Program Committee of the ICANN Board of Directors was held telephonically on 10 September 2013 at 13:00 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: Fadi Chehadé (President and CEO, ICANN), Chris Disspain, Bill Graham, Olga Madruga-Forti, Erika Mann, Ray Plzak, George Sadowsky, Mike Silber, and Kuo-Wei Wu.
Gonzalo Navarro sent apologies.
Jonne Soininen (IETF Liaison) and Francisco da Silva (TLG Liaison) were in attendance as non-voting liaisons to the Committee. Heather Dryden was in attendance as an observer to the Committee. Bruce Tonkin was in attendance as an invited (non-voting) observer for Item 1 on the Main Agenda.
ICANN Staff in attendance for all or part of the meeting: Akram Atallah, President, Generic Domains Division; John Jeffrey, General Counsel and Secretary; Megan Bishop; Michelle Bright; Samantha Eisner; Allen Grogan; Dan Halloran; Jamie Hedlund; Elizabeth Le; Karen Lentz; Cyrus Namazi; Olof Nordling; David Olive; Karine Perset; Erika Randall; Amy Stathos; Christine Willett; and Mary Wong.
This is a preliminary report the Meeting of the New gTLD Program Committee, which took place on 10 September 2013.
- Consent Agenda
- Main Agenda
- Update on String Similarity
- BGC recommendation on Reconsideration Request 13-5
- GAC Communiqué Durban – Comprehensive Review of the Scorecard
- GAC Communiqué Beijing – Scorecard
- GAC Communiqué Beijing – Category 1
- ALAC Statement on the Preferential Treatment for Community Applications in String Contention
- ALAC Statement on Community Expertise in Community Priority Evaluation
The Committee took the following action:
Resolved (2013.09.10.NG01), the NGPC approves the minutes of the 13 July 2013 and 17 July 2013 New gTLD Program Committee Meetings.
All members of the Committee present voted in favor of Resolution 2013.09.10.NG01. One member of the Committee was not available to vote on the Resolution. The Resolution carried.
The Chair introduced the item to the Committee, the Committee was provided with an overview of how the string similarity standards were developed, including a discussion of the GNSO policy recommendation requiring that strings must not be confusingly similar to an existing top-level domain or an applied-for top-level domain. The Committee was also provided with a summary of the process for reviewing visual similarity and the string similarity objection process. The recent filings of Reconsideration Requests relating to the string similarity objection decisions were noted for the Committee.
The Committee engaged in a discussion about community comments regarding the decisions of the String Similarity Objection dispute resolution panelists. The Committee discussed the importance of understanding the consequences of taking action that could impact the current round or future rounds of the New gTLD Program and stressed the need to understand whether there was a genuine problem.
The Committee decided that it was premature to take action, and requested staff provide a detailed summary of the string similarity objection decisions so that the Committee could understand the concerns and revisit the issue.
The Chair introduced the item to the Committee, and staff presented an overview of Reconsideration Request 13-5 and the BGC's recommendation to the Committee. Staff noted that the requester primarily argued that the decision of the string similarity review panel should be reversed so that "hotels" and "hoteis" not be in a contention set. The BGC determined that the requester had not stated proper grounds for reconsideration.
Some members of the Committee expressed their reasoning for deciding to abstain from the vote, noting that while the process was followed, they were left unsatisfied by the outcome. The Committee began discussions regarding the feasibility of creating a process for those dissatisfied with the outcome of the string similarity review panel, as several members of the Committee expressed a considerable level of discomfort and dissatisfaction with the process. The Committee agreed to discuss the process further at its meeting in Los Angeles.
Members of the Committee also noted the importance of evaluating the objection processes to determine whether improvements or enhancements should be made for future rounds to deal with the community concerns about having further avenues for review.
The Committee then took the following action:
Whereas, Booking.com B.V.'s ("Booking.com") Reconsideration Request, Request 13-5, sought reconsideration of the ICANN staff action of 26 February 2013, when the results of the String Similarity Panel were posted for the New gTLD Program, placing the applications for .hotels and .hoteis into a string similarity contention set.
Whereas, the BGC considered the issues raised in Reconsideration Request 13-5.
Whereas, the BGC recommended that Reconsideration Request 13-5 be denied because Booking.com has not stated proper grounds for reconsideration.
Resolved (2013.09.10.NG02), the New gTLD Program Committee adopts the BGC Recommendation on Reconsideration Request 13-5, which can be found at http://www.icann.org/en/groups/board/governance/reconsideration/recommendation-booking-01aug13-en.pdf [PDF, 117 KB].
ICANN's Bylaws call for the Board Governance Committee to evaluate and make recommendations to the Board with respect to Reconsideration Requests. See Article IV, section 3 of the Bylaws. The New gTLD Program Committee ("NGPC"), bestowed with the powers of the Board in this instance, has reviewed and thoroughly considered the BGC Recommendation on Reconsideration Request 13-5 and finds the analysis sound.
Having a reconsideration process whereby the BGC reviews and, if it chooses, makes a recommendation to the Board/NGPC for approval positively affects ICANN's transparency and accountability. It provides an avenue for the community to ensure that staff and the Board are acting in accordance with ICANN's policies, Bylaws, and Articles of Incorporation.
The Request seeks a reversal of the 26 February 2013 decision of the String Similarity Review Panel (the "Panel") to place Booking.com's application for .hotels in the same contention set as .hoteis. Specifically, Booking.com asserted that its applied for string of .hotels can co-exist in the root zone with the applied for string .hoteis without concern of confusability, and therefore, .hotels should not have been placed in the same contention set with .hoteis.
The Request calls into consideration: (1) whether the Panel violated any policy or process in conducting its visual similarity review of Booking.com's application; and (2) whether the NGPC has the ability to overturn the Panel's decision on .hotels/.hoteis on the basis that the decision was provided as an "advice to ICANN" and that ICANN made the ultimate decision to accept that advice.
The BGC noted that a similar reconsideration request was previously submitted by Booking.com on 28 March 2013 and placed on hold pending the completion of a request pursuant to ICANN's Documentary Information Disclosure Policy. Therefore, this Request relates back to the date of the original filing and should be evaluated under the Bylaws that were in effect from 20 December 2012 through 10 April 2013.
In consideration of the first issue, the BGC reviewed the grounds stated in the Request, including the attachments, and concluded that Booking.com failed to adequately state a Request for Reconsideration of Staff action because they failed to identify any policy or process that was violated by Staff. The BGC noted that Booking.com does not suggest that the process for String Similarity Review set out in the Applicant Guidebook was not followed, or that ICANN staff violated any established ICANN policy in accepting the Panel's decision to place .hotels and .hoteis in the same contention set. Rather, Booking.com seeks to supplant what it believes the review methodology for assessing visual similarity should have been as opposed to the methodology set out in Section 188.8.131.52.2 of the Applicant Guidebook and asks that the BGC (and the Board through the New gTLD Program Committee) retry the 26 February 2013 decision based upon its proposed methodology. The BGC concluded that this is not sufficient ground for Reconsideration because the Reconsideration process is not available as a mechanism to re-try the decisions of the evaluation panels.
With respect to Booking.com's contention that the 26 February 2013 decision was taken without material information, such as that of Booking.com's linguistic expert's opinion or other "information that would refute the mistaken contention that there is likely to be consumer confusion between '.hotels' and '.hoteis'", the BGC concluded that there is no process in the String Similarity Review for applicants to submit additional information. As ICANN has explained to Booking.com in response to its DIDP requests for documentation regarding the String Similarity Review, the Review was based upon the methodology in the Applicant Guidebook, supplemented by the Panel's process documentation; the process does not allow for additional inputs. The BGC noted that Booking.com's disagreement as to whether the methodology should have resulted in a finding of visual similarity does not mean that ICANN (including the third party vendors performing String Similarity Review) violated any policy in reaching the decision (nor does it support a conclusion that the decision was actually wrong).
In consideration of the second issue, the BGC determined that Booking.com's suggestion that the Board (through the NGPC) has the ability to overturn the Panel's decision on .hotels/.hoteis because the Panel merely provided "advice to ICANN" and that ICANN made the ultimate decision to accept that advice is based upon inaccurate conclusions of the String Similarity Review process. As such, the BGC concluded that Booking.com has not stated sufficient grounds for reconsideration. The BGC noted that all applied for strings are reviewed the Panel according to the standards and methodology of the visual string similarity review set out in the Applicant Guidebook. The Guidebook clarifies that once contention sets are formed by the Panel, ICANN will notify the applicants and will publish results on its website. (AGB, Section 184.108.40.206.1.) Whether the results are transmitted as "advice" or "outcomes" or "reports", ICANN had always made clear that it would rely on the advice of its evaluators in the initial evaluation stage of the New gTLD Program, subject to quality assurance measures. The subsequent receipt and consideration of GAC advice on singular and plural strings does not change the established process for the development of contention sets based on visual similarity as the ICANN Board is required under the Bylaws to consider GAC Advice on issues of public policy, such as singular and plural strings. The BGC concluded that Booking.com is actually proposing a new and different process when it suggests that ICANN should perform substantive review (instead of process testing) over the results of the String Similarity Review Panel's outcomes prior to the finalization of contention sets.
In addition to the above, the full BGC Recommendation that can be found at http://www.icann.org/en/groups/board/governance/reconsideration/recommendation-booking-01aug13-en.pdf [PDF, 117 KB] and that is attached to the Reference Materials to the Board Submission supporting this resolution, shall also be deemed a part of this Rationale.
Adopting the BGC's recommendation has no financial impact on ICANN and will not negatively impact the systemic security, stability and resiliency of the domain name system.
This decision is an Organizational Administrative Function that does not require public comment.
Five members of the Committee voted in favor of Resolution 2013.09.10.NG02. Four members of the Committee abstained from voting on Resolution 2013.09.10.NG02. Two members of the Committee were not available to vote on the Resolution. The Resolution carried.
The Committee discussed each of the items on the proposed scorecard to address the GAC's advice in the Durban Communiqué, and considered the applicant comments submitted on the advice. The Committee discussed that additional time was needed to consider its position on the GAC consensus objection advice concerning .AMAZON given the information presented in the applicant's response.
The Committee also discussed the new correspondence from the GAC regarding .WINE and .VIN, and the Committee decided to consider the advice at its next meeting in Los Angeles.
The Committee then took the following action:
Whereas, the GAC met during the ICANN 47 meeting in Durban and issued a Communiqué on 18 July 2013 ("Durban Communiqué").
Whereas, on 1 August 2013, ICANN posted the Durban Communiqué and officially notified applicants of the advice <http://newgtlds.icann.org/en/announcements-and-media/announcement-01aug13-en>, triggering the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1.
Whereas, the NGPC met on 12 August 2013 to consider a plan for responding to the GAC's advice on the New gTLD Program, transmitted to the Board through its Durban Communiqué.
Whereas, the NGPC has considered the applicant responses submitted during the 21- day applicant response period, and the NGPC has identified items of advice in the attached scorecard where its position is consistent with the GAC's advice in the Durban Communiqué.
Whereas, the NGPC developed a scorecard to respond to the GAC's advice in the Durban Communiqué similar to the one used to address the Beijing Advice as well as during the GAC and the Board meetings in Brussels on 28 February and 1 March 2011, and has identified where the NGPC's position is consistent with GAC advice, noting those as "1A" items.
Whereas, the NGPC is undertaking this action pursuant to the authority granted to it by the Board on 10 April 2012, to exercise the ICANN Board's authority for any and all issues that may arise relating to the New gTLD Program.
Resolved (2013.09.10.NG03), the NGPC adopts the "ICANN Board New gTLD Program Committee Scorecard in response to GAC Durban Communiqué" (10 September 2013), attached as Annex 1 [PDF, 119 KB] to this Resolution, in response to the items of GAC advice in the Durban Communiqué as presented in the scorecard.
Why the NGPC is addressing the issue?
Article XI, Section 2.1 of the ICANN Bylaws <http://www.icann.org/en/about/governance/bylaws - XI> permit the GAC to "put issues to the Board directly, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies." The GAC issued advice to the Board on the New gTLD Program through its Durban Communiqué dated 18 July 2013. The ICANN Bylaws require the Board to take into account the GAC's advice on public policy matters in the formulation and adoption of the polices. If the Board decides to take an action that is not consistent with the GAC advice, it must inform the GAC and state the reasons why it decided not to follow the advice. The Board and the GAC will then try in good faith to find a mutually acceptable solution. If no solution can be found, the Board will state in its final decision why the GAC advice was not followed.
What is the proposal being considered?
The NGPC is being asked to consider accepting the GAC's Durban advice as described in the attached ICANN Board New gTLD Program Committee Scorecard in response to GAC Durban Communiqué" (10 September 2013). As noted in the scorecard, most items of advice are scored as "1A," which indicates that the NGPC's position is consistent with GAC advice as described in the scorecard.
Which stakeholders or others were consulted?
On 1 August 2013, ICANN posted the GAC advice and officially notified applicants of the advice <http://newgtlds.icann.org/en/announcements-and-media/announcement-01aug13-en>, triggering the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1. The complete set of applicant responses are provided at: http://newgtlds.icann.org/en/applicants/gac-advice/durban47. The NGPC has considered the applicant responses in formulating its response to the GAC advice as applicable.
What concerns or issues were raised by the community?
As part of the 21-day applicant response period, several of the applicants indicated that they have entered into dialogue with the affected parties, and they anticipated reaching agreement on the areas of concern. Some of the applicants noted that they have proposed additional safeguards to address the concerns of the relevant governments are unsure as to whether a settlement can be reached. These applicants asked that the ICANN Board allow their applications to proceed even if an agreement among the relevant parties cannot be reached. Additionally, inquiries have been made as to whether applicants and the relevant governments will have the opportunity to comment on conversations among the GAC, ICANN Board, and ICANN staff. There have been requests that that the GAC, NGPC, and ICANN staff consult with applicants before decisions regarding any additional safeguards are made.
Other applicants noted the important role of governments in the multi-stakeholder model, but advised the NGPC that it should not allow governments to exercise veto power over ICANN policies adopted through the multi-stakeholder process.
What significant materials did the Board review?
As part of its deliberations, the NGPC reviewed the following materials and documents:
- GAC Durban Communiqué:
https://gacweb.icann.org/download/attachments/27132037/Final_GAC_Communique_Durban_20130717.pdf?version=1&modificationDate=1374215119858&api=v2 [PDF, 104 KB]
- Applicant responses to GAC advice:
- Applicant Guidebook, Module 3:
http://newgtlds.icann.org/en/applicants/agb/objection-procedures-04jun12-en.pdf [PDF, 261 KB]
- Summary of Applicant Responses to GAC Advice in the Durban Communiqué (see reference materials).
What factors did the Board find to be significant?
In adopting its response to the GAC's advice in the Durban Communiqué, the NGPC considered the applicant comments submitted, the GAC's advice transmitted in the Durban Communiqué, and the procedures established in the AGB.
Are there positive or negative community impacts?
The adoption of the GAC advice as provided in the attached scorecard will assist with resolving the GAC advice in manner that permits the greatest number of new gTLD applications to continue to move forward as soon as possible.
Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?
There are no foreseen fiscal impacts associated with the adoption of this resolution.
Are there any security, stability or resiliency issues relating to the DNS?
Approval of the proposed resolution will not impact security, stability or resiliency issues relating to the DNS.
Is this either a defined policy process within ICANN's Supporting Organizations or ICANN's Organizational Administrative Function decision requiring public comment or not requiring public comment?
ICANN posted the GAC advice and officially notified applicants of the advice on 1 August 2013. This triggered the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1.
All members of the Committee present voted in favor of Resolution 2013.09.10.NG03. Two members of the Committee were not available to vote on the Resolution. The Resolution carried.
- GAC Durban Communiqué:
The Committee engaged in a discussion on the open items of GAC advice in the Beijing Communiqué, including the Category 1 and Category 2 safeguard advice, and the protections for IGOs. The Committee received an update on the current proposed approach to address protections for IGOs, which is proposed to leverage the functionality of the current Trademark Clearinghouse claims function and the rapid take-down process of the URS.
With respect to the Category 2 safeguard advice, staff provided the Committee with an update of responses received from the applicants of strings identified in the GAC's advice regarding exclusive access for a generic string. Staff noted that most of the responses received to date indicated that only a handful of the applicants indicated they intended to provide exclusive access. The Committee agreed to discuss the path forward for the Category 2 safeguard advice at its next meeting after all responses from the applicants were received.
The Committee engaged in a discussion regarding a potential path forward to address the GAC's Category 1 safeguard advice in the Beijing Communiqué. The discussion included consideration of how the safeguards could be implemented as contractual provisions, and distinguishing the list of Category 1 strings between those strings associated regulated industries, and all other listed strings.
Since further discussion with the GAC is needed, some members of the Committee recommended that GAC members from non-English speaking nations be included in the discussions. The Committee acknowledged the difficulty in scheduling an intersessional meeting with the GAC on this matter given the timing of the Buenos Aires meeting, and discussed how to move forward in advance of the Buenos Aires meeting. The Committee also noted the importance of having the full GAC consider the proposed approach before it is finalized for approval by the Committee.
The Committee received an overview of the concern expressed by the ALAC in its Statement on the Preferential Treatment for Community Applications in String Contention, noting that ALAC requested the Committee to provide preferential treatment to applications that meet the characteristics of community applications even if not submitted as a community application. The Committee discussed the concerns with implementing the recommendation and the need to be consistent with the position the Committee has communicated to the GAC on this issue. The Committee agreed to provide a response letter to the ALAC.
The Committee discussed the concerns in the ALAC Statement on Community Expertise in Community Priority Evaluation, noting that the ALAC questions the ability of the chosen community priority evaluator to evaluate with respect to a mind-set that is more community-focused as opposed to business-focused. The Committee considered whether it would be appropriate to accept the ALAC's advice for ALAC to supply evaluators from the community to the panel.
The Committee requested staff to alert the panel of the concerns expressed in the ALAC statement, and discussed its proposed response to the ALAC. The Committee also considered whether staff should perform an informal audit at the end of the evaluation process.
The Committee did not discuss any other business, and the Chair called then called the meeting to a close.
Published on 19 September 2013