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Background Information Regarding Previous New GTLD Application Rounds

13 February 2008

In planning for implementation of the new gTLD policy recommendations, and in response to inquiries form the ICANN community, ICANN is conducting a review of the status of applications from the New gTLD round in 2000 that were not selected for negotiations.

During the ICANN meeting in Los Angeles in 2007, ICANN’s General Counsel agreed to review references and information relating the prior gTLD applications. Below is a summary of relevant background material identified.

Interested parties should review this information and provide any additional information or provide corrections to the information provided. ICANN intends to consider this information in conjunction with the ongoing creation of implementation plans for the proposed new gTLD policy.

Any and all additional facts, information, comments or suggestions can be submitted to newgtld@icann.org.

The 2000 TLD Application Round
1. Formation and Structure
In initiating the 2000 New TLD selection process, ICANN provided a list of frequently asked questions (“FAQs”) relating to the application procedure. See http://www.icann.org/tlds/tld-faqs.htm. Certain of those FAQs frame the initial intentions of the proof of concept process in the 2000 Round.

FAQ #10: Will there at any time be the opportunity to secure an extended window to lodge an application or the possibility of securing some sort of option over the right to lodge an application? The very short time frame within which to lodge applications is short.

Answer: The current application process is part of a "proof of concept" program that is intended to involve introduction of only a limited number of new TLDs. In recognition of the limited recent experience in introducing new TLDs, the program is meant to allow the Internet community to evaluate possible additions and enhancements to the DNS and possible methods of implementing them. After these initial introductions, decisions can be made about evolution of the DNS (including new TLDs) based on the experience gained. While it would not be appropriate to prejudge those decisions, they may involve seeking additional applications in the future.

FAQ #28: Can you provide any estimate on the timing for the "proof of concept" phase for new TLDs, and when the next opportunity to propose TLDs after this initial phase will be?

Answer: There is not yet any date that has been scheduled for a "next round," and at present we have no predictions as to the schedule. In the current round of applications, applicants are requested to describe the value of their proposals as proofs of concept. Item E30 of the Description of TLD Policies requests suggestions for how the results of the introduction being proposed should be evaluated. Once a decision is made on the evaluation procedure to be used for TLDs introduced in the current round, the timing of future steps should become clearer.

See FAQ #54 for related information.

FAQ #54: If our TLD application is not accepted, what becomes of our application? I understand that the $50,000 is non-refundable, but does the application remain active for the second round of TLD applications?

Answer: As stated in FAQ #28, plans for any subsequent rounds of TLD introductions will not be made until evaluation of the present "proof of concept" round. It is likely that, if there are subsequent rounds, there will be revisions in the program based on experience in the first round. This will likely require submission of new application materials. As to the non-refundable application fee, please note that it "is only an application fee to obtain consideration of this application." See Items A7 and B6 of the transmittal forms.

The FAQs also reference the purpose and use of the $50,000 application fee.

FAQ #13: I have the question about paying the US$50,000 fee. If the application is not granted, is ICANN giving the US$50,000 back?

Answer: No. The fee is only an application fee, in exchange for which ICANN will review your application. ICANN will keep your fee even if it does not grant your application.

There is only one situation in which your application fee might be returned. If you claim your application contains confidential information and ICANN disagrees, ICANN will delete the information before reviewing your application on the merits. In this situation, you will be offered the opportunity to withdraw the application and obtain a refund of the US$50,000 application fee. See section I of the Statement of Requested Confidential Treatment of Materials Submitted for details.

FAQ #22: What is the procedure in the event of duplicate submission of a domain name by different parties? Which party would get preference? Would the fee be non-refundable for the party that is not selected?

Answer: Applications to sponsor or operate a TLD will be evaluated according to the Criteria for Assessing TLD Proposals, under which all aspects of the proposal (operational, financial, technical, etc.) will be considered. The particular TLD string requested is only one of many factors in the evaluation. Clearly, the same TLD cannot be established for both proposals; differences between the applications would be considered according to the criteria. The fee paid by a non-selected applicant would not be refundable.

The creation of the 2000 TLD Application round is documented on the ICANN website. The 2000 TLD Application round began after the Board passed resolutions approving of the process at the July 2000 Yokohama meeting.¹ See http://www.icann.org/tlds/new-tld-resolutions-16jul00.htm. These resolutions, while setting forth the $50,000 fee, do not address other issues of continuity of applications received.

In a description of the application process, issued in August 2000, applicants were informed:

It is anticipated that only a few of the applications that are received will be selected for further negotiations toward suitable contracts with ICANN. Those submitting applications that are not selected for negotiations, or that are selected but do not result in successful negotiation of mutually satisfactory agreements, will not be refunded their application fee, nor will ICANN reimburse their (probably larger) cost of preparing the application.

http://www.icann.org/tlds/application-process-03aug00.htm. The official criteria to be used in the TLD Application process were released on 15 August 2000, at http://www.icann.org/tlds/tld-criteria-15aug00.htm. At that time ICANN again stated that “it is likely that only a few of these will be selected by the ICANN Board for negotiations toward registry sponsor and operator agreements. . . . [T]he current program [TLD application round] is intended to serve as a ‘proof of concept’ for ways in which the DNS might evolve in the longer term.” The criteria document, however, does not make any statements regarding the fate of the applications after the evaluation process.
1. Review of Applications
ICANN received 47 applications. See http://www.icann.org/tlds/tld-applications-lodged-02oct00.htm for a log of all applications received. Many of the applicants included multiple strings in their applications, therefore more than 47 strings were proposed, including a mixture of generic and sponsored TLDs. Three of 47 applications were withdrawn prior to completion of evaluation. On 8 November 2000, an evaluation report covering all 44 completed applications was released. This report is available at http://www.icann.org/tlds/report/, and summarizes which applications were granted further review and provides commentary on many of the applications denied further review.

The evaluation report, included the following statement:

A decision not to proceed past the initial threshold examination of any particular application was not necessarily a judgment that either the applicant or its proposal had no merit, or could never qualify under other circumstances. At this "proof of concept" stage, the evaluation process was focused on identifying a finite, relatively small number of strong applications that could serve the purpose of this effort -- to authorize the inclusion in the root server system of a relatively small number of diverse TLD strings in a way that allowed the Internet community to evaluate the effects (if any) on the DNS of additional TLDs and that would minimize to the extent possible any possible disruption of or instability in the DNS as a result of the addition of multiple new TLDs.

See http://www.icann.org/tlds/report/report-iiib1a-09nov00.htm.
1. Approval of Applications for Contractual Negotiation
At the 16 November 2000 ICANN Board Meeting, the Board approved a resolution selecting seven of the applications for contractual negotiations.² See http://www.icann.org/minutes/minutes-annual-meeting-16nov00.htm#SelectionofNewTLDProposalsforNegotiation. The Board did not reference the 37 applications not selected for negotiation in the resolution and there were no comments during the Public Forum before the Board vote addressing the status of remaining applications. See http://cyber.law.harvard.edu/icann/la2000/archive/scribe-icann-111500.html#pubtldcomments.
1. Remaining Applicants Seek Reconsideration
After the 16 November 2000 selection, applicants for 11 of the 37 applications not selected submitted Requests for Reconsideration to the ICANN Reconsideration Committee.³

In making recommendations to the Board on the Reconsideration Requests, the Reconsideration Committee set forth a universal introduction for all requests. See http://www.icann.org/committees/reconsideration/rc00-8.htm (discussing need for introductory statement). The Committee stated:

[W]hen the ICANN Board called for proposals for new TLDs, the clearly stated purpose was to find a limited number of diverse proposals which, taken in the aggregate, could safely be introduced and would likely produce enough information to enable ICANN and the community to make educated decisions about the speed and type of future TLD introductions.
* * *
Given the large number of submitted proposals, compared to the small number to be included in this proof of concept, it was inevitable that many proposals would not be selected. Likewise, given the experimental nature of this unique process, and the inherent subjectivity of many of the criteria established for the evaluation of proposals, it was inevitable that reasonable people could conclude that some different collection of proposals would be as well (or even better) suited for this proof of concept than those chosen.
* * *
Second, it should be clear that no applications were rejected; the object was not to pick winners and losers, but to select a limited number of appropriate proposals for a proof of concept. All of the proposals not selected remain pending, and those submitting them will certainly have the option to have them considered if and when additional TLD selections are made.

See http://www.icann.org/committees/reconsideration/rc00-8.htm.
1. ICANN’s Congressional Statements on TLD Process
As the negotiation process and the Reconsideration process were moving forward, ICANN appeared before Congressional sub-committees to discuss ICANN’s work. The TLD application process was a large part of both Mike Robert’s and Vint Cerf’s February 2001 testimony.⁴ In his testimony, see http://www.icann.org/correspondence/roberts-testimony-14feb01.htm, Mr. Roberts stated as follows:

The goal here was not to have a contest and pick winners; it was not to decide who "deserved" to have a new TLD; it was not even to attempt to predict the kind or type of TLDs that might get public acceptance. The goal, articulated plainly from the beginning of the process more than a year ago, was to identify from suggestions by the community a limited number of diverse TLDs that could be introduced into the namespace in a prudent and controlled manner so that the world could test whether the addition of new global TLDs was feasible without destabilizing the DNS or producing other bad consequences.
This was not a race, with the swiftest automatically the winner. It was a process that was intended to enable an experiment, a proof of concept, in which private entities were invited to participate if they chose to do so -- and those who did choose to participate did so voluntarily, knowing that the odds of being selected were not high, that the criteria for being included in this experiment were in some measure subjective, and that the goal was the production of experimental information that could be evaluated.
***
It is also possible, as some of those not selected have complained, that those selected will have a head start (to the extent that matters) over future TLD applicants, but this would be an inevitable consequence of any selection of less than all applicants. Those who were not selected, no matter who they are, were predictably going to be dissatisfied, and those who were selected were predictably going to be glad, but neither was an ICANN goal. ICANN's goal, and its responsibility, was to find a limited collection of diverse new TLDs that could be prudently added to the namespace while minimizing any risk of instability. While time will tell, at this point we believe we faithfully carried out that responsibility.

See http://www.icann.org/correspondence/roberts-testimony-14feb01.htm. Mr. Roberts did not make any reference to the actual status of the “disappointed applicants.”
Subsequent ICANN Statements And Occurrences
1. ICP-3
In July 2001, ICP-3 was issued, titled A Unique, Authoritative Root for the DNS. See http://www.icann.org/icp/icp-3.htm. ICP-3 addressed the proliferation of alternate roots and the risks to the security and stability of the DNS caused by such proliferation. ICP-3 addressed the idea that certain operators of alternate roots believed the existence of strings in the alternate root should entitle those operators to priority in entering the authoritative root:

Some of these operators and their supporters assert that their very presence in the marketplace gives them preferential right to TLDs to be authorized in the future by ICANN. They work under the philosophy that if they get there first with something that looks like a TLD and invite many registrants to participate, then ICANN will be required by their very presence and force of numbers to recognize in perpetuity these pseudo TLDs, inhibiting new TLDs with the same top-level name from being launched through the community's processes.

ICP-3 continues:

No current policy would allow ICANN to grant such preferential rights. To do so would effectively yield ICANN's mandate to introduce new TLDs in an orderly manner in the public interest to those who would simply grab all the TLD names that seem to have any marketplace value, thus circumventing the community-based processes that ICANN is required to follow. For ICANN to yield its mandate would be a violation of the public trust under which ICANN was created and under which it must operate. Were it to grant such preferential rights, ICANN would abandon this public trust, rooted in the community, to those who only act for their own benefit. Indeed, granting preferential rights could jeopardize the stability of the DNS, violating ICANN's fundamental mandate.
1. The New gTLD Initiative, beginning 2002
As part of the evolution of ICANN procedure, and following along the proof of concept process from the 2000 TLD round, ICANN embarked on an initiative for new TLDs. The ICANN CEO Mr. Stuart Lynn set forth his “Plan for Action Regarding New gTLDs” in a comprehensive document, posted at http://www.icann.org/committees/ntepptf/new-gtld-action-plan-18oct02.htm. Certain passages within the Plan are germane to this issue.

As part of the Plan, Dr. Lynn summarized the process of 2000 TLD Application round:

These seven new gTLDs were selected from among 44 complete proposals submitted. The proposers were each required to pay US$50,000 as a non-refundable proposal fee, with the full knowledge that only a few would be selected and that those who were not selected could not expect any special privilege in any future undertaking. The amount of the fee was calculated based on the estimated future total costs (across all proposals, both those that were selected and those that were not) to ICANN of evaluation and selection, negotiation of agreements, implementation, evaluation of the results and other follow-up activities, including any possible litigation.
* * *

The Board made its choice of the seven new gTLDs following extensive community input. The choice was made without prejudice as to the future status of the 40 or so proposals that were not accepted at that time.

See http://www.icann.org/committees/ntepptf/new-gtld-action-plan-18oct02.htm.

As part of the Plan, Dr. Lynn also made a recommendation regarding expansion of the proof of concept round:

A Proposal for the Board to Extend the Proof of Concept in Parallel with Evaluation of the new gTLDs: This proposal provides the Board with the option, should it so wish to do so, of extending the original "Proof of Concept" to solicit up to three more sponsored TLDs, subject to certain conditions, following a suitable, but short, bidding process. Applicants for sponsored TLDs from the previous round would be invited to update their proposals and resubmit them, but new proposals would also be invited.

This step was not implemented exactly as envisioned by Dr. Lynn, therefore the mechanism for allowing the update/resubmission was never defined.

Dr. Lynn also addressed the possibility of a separate sTLD application round running concurrently with the new gTLD initiative:

Finally, let me say a few words about how a new round of sponsored TLD proposals would be evaluated. In my conception, all of the applicants that submitted unsuccessful proposals for new sponsored TLDs in 2000 would be invited to update and resubmit their proposals; in addition, new sponsored TLD proposals would be accepted from new proposers. Cost allocation would have to be assessed, but there should be a differential fee recognizing, in all due fairness, that the original proposals from the 2000 round of applicants from 2000 (who have already paid $50,000 to ICANN) have already been subjected to evaluation.

Though the sTLD round went forward in 2004, the ultimate process selected for that round rejected this fairness/fee differential suggestion and required all applicants to submit the same fees, regardless of prior application fees paid to ICANN.

On 10 December 2002, Dr. Lynn posted answers to some specific comments and concerns raised during the public comment period on the Plan. See http://www.icann.org/amsterdam/gtld-action-plan-topic.htm. Some of these comments address favoring of applicants from the 2000 TLD Round.

Ray Fassett states that any process is flawed that involves ICANN making inevitably subjective decisions to choose three applications from among hundreds or thousands submitted. He advocates reopening the original sponsored new TLD applications first and considering them "in full public view", and even not moving forward at all if none of them are selected. As an alternative, if the proposed process does indeed move forward, he recommends that it be stated up front that all applicants will receive some special standing in future rounds of new sTLD processes should their application be unsuccessful.

***

Response: Mr. Fassett raises an important point. It is unlikely that there will ever be an evaluation process that will be regarded as objective by everyone, especially by those whose applications did not succeed in the process (who would ever admit that their application simply was not as good as others, when complaining about the process has so much more press value in today's world?). . . . His point about favoring the original applications is interesting, but it is likely that with the passage of time the authors of many of the original applications would wish to update them to the point that they in effect become new applications. But Mr. Fassett's point about looking forward in this regard is something to be considered.

See http://www.icann.org/amsterdam/gtld-action-plan-topic.htm.

ICANN had approximately $350,000 remaining from the application fees from the 2000 round. Members of the public raised the suggestion of returning the remainder to the original applicants. This suggestion was rejected by Dr. Lynn:

Page Howe advocates returning the US$350,000 pro-rata among the original applicants, claiming that the applicants would not benefit from further consultants and evaluations.

Response: The purpose of the original fees was not to benefit the applicants per se – although a few would clearly benefit – but to fund an entire "proof of concept", including an evaluation of what was done.

In the course of the public comment on the Plan, one of the original applicants from 2000 submitted the following comment:

Bret Fausett writes on behalf of the applicants for the .iii TLD [a gTLD] application (originally submitted in 2000 as one of the 42 original applicants) re-iterating their desire and ability to move forward with their application whenever it might be approved by the ICANN Board.

Response:Mr. Fausett's comment is noted.

ICANN did not comment or present any position on the status of the remaining applications.⁵
1. The 2004 sTLD Application Round
Arising out of the New gTLD Initiative, in 2004 ICANN opened a round of applications for sponsored TLDs only. In forming the sTLD round, ICANN addressed the question of whether it was appropriate to limit the round only to those remaining applicants from the 2000 TLD application process who sought sTLD strings.

One of the first mentions of this possible limitation occurred at the 13 October 2003 Board meeting, raising the question and determining that public comment was necessary on this issue, among others. See http://www.icann.org/minutes/minutes-13oct03.htm. This issue was resolved at the 31 October 2003 Board meeting, where the ICANN Board determine that the sTLD Round should be open to all:

The board recognizes in this one "whereas" that the community consensus has it that it would be difficult to restrict the applications in this round to the prior applicants of 2000. So this round will be -- if it's passed, this resolution allows for an open opportunity to apply in the sTLD space.

See http://www.icann.org/carthage/captioning-board-31oct03.html. The Board discussion resulted in resolutions approving the finalization of the request for proposals for sTLDs and reference not restricting round to prior applicants:

Whereas the Board resolved in Montreal to invite public comment on the draft request for proposals for sTLDs posted on 24 June 2003, and in particular on the question whether or not the RFP should be limited to applicants who proposed sponsored sTLDs in November 2000.

Whereas the Board recognizes community consensus that it would be very difficult, both for practical reasons and as a matter of equitable policy, to restrict a new sTLD round to prior applicants from the 2000 round.

See http://www.icann.org/announcements/advisory-31oct03.htm.

In allowing all of the community to participate in the sTLD Application process, ICANN did not give any limitation or priority to the sTLD strings applicants could propose. ICANN publicly posted a response regarding this issue in a forum addressing frequent questions on the sTLD RFP:

19. Are there any strings that will not be considered by ICANN with a view to issuing in this coming round? Specifically, will ICANN positively consider all strings that were applied for in 2000?

ICANN will consider any and all applications, but for any number of reasons it is possible that particular strings will not be allocated; see for example the response to question #6 (above). Applicants are encourage [sic] to pay particular attention to the following text from the RFP:

"The applicant (or, if there are multiple applicants, each applicant) understands and agrees that the $US45,000 is only an application fee to obtain consideration of this application; that the fee will not be refunded or returned in any circumstances; that there is no understanding, assurance, or agreement that this application will be selected; or that establishment of an sTLD as sought in this application will be the result. The applicant (or, if there are multiple applicants, each applicant) understands and acknowledges that ICANN has the right to reject all applications for new sponsored top-level domains that it receives and that there is no assurance that any additional sponsored top-level domains will be created. The decision as to whether to proceed with further review and consideration of applications submitted for the purpose of establishing one or more new sTLDs is entirely at ICANN's discretion."

January 30, 2004 Responses to Questions re New sTLD Applications, http://www.icann.org/tlds/new-stld-rfp/questions.htm.

During the 2004 Round, the question about whether remaining applicants from 2000 would receive any concession on payment of sTLD application fees.:

20. What is the final decision from ICANN regarding either waiving or reducing the application fees for original year 2000 TLD applicants that were not refused? Exactly, what is the second-round application fee for original sponsored TLD applicants who paid the 2000 application fee?

The application fee for consideration in this round is the same for all applicants in this round: $45,000.

See http://www.icann.org/tlds/new-stld-rfp/questions.htm.

10 applications were submitted in response to the RFP for sTLD Applications. Four of the applications were submitted by applicants from the 2000 TLD round for the same strings previously sought: Pulver for .tel; Telnic for .tel; ICM Registry for .xxx; and Universal Postal Union for .post. See http://www.icann.org/tlds/stld-apps-19mar04/stld-status-report.pdf. New applicants also came forward seeking sTLD strings raised in the 2000 TLD Application round, including an application for .mobi (previously raised by Nokia), .travel (previously raised by Name.Space, Inc. and International Air Transport Association), and .jobs (previously raised by Name.Space, Inc.). Of the 2000 applicants, Telnic (.tel) and Universal Postal Union (.post) were approved for negotiations in the sTLD round.⁶ In addition, the new 2004 sTLD applications for .mobi, .travel and .jobs were all approved for negotiation. Seeid. The applications for .mail and .tel (Pulver) were not accepted. Id. No suggestion arose that either of the rejected applications remained “continuing” or viable in any form.

¹ No comments relating to the future expectations of applicants not selected in the 2000 round appear in the scribe’s notes from the Yokohama Public Comment session, at http://cyber.law.harvard.edu/icann/yokohama/archive/scribe-icann-071500.html, or in the Board minutes from the Yokohama meeting, at http://www.icann.org/minutes/minutes-16jul00.htm.

² “Resolved [00.89], the Board selects the following proposals for negotiations toward appropriate agreements between ICANN and the registry operator or sponsoring organization, or both: JVTeam (.biz), Afilias (.info), Global Name Registry (.name), RegistryPro (.pro), Museum Domain Management Association (.museum), Société Internationale de Télécommunications Aéronautiques (.aero), Cooperative League of the USA dba National Cooperative Business Association (.coop).” See http://www.icann.org/minutes/minutes-annual-meeting-16nov00.htm#SelectionofNewTLDProposalsforNegotiation.

³ Two additional remaining applicants filed Requests for Reconsideration arising out of the 2000 TLD Application Process, but these Requests were not addressed to the Board’s failure to select their applications.

⁴ Vinton Cerf’s February 8, 2001 testimony before the House Committee on Energy & Commerce is nearly identical to Mr. Robert’s February 11, 2001 testimony to the Senate. http://www.icann.org/correspondence/cerf-testimony-08feb01.htm. In addition, the following exchange did occur during the public hearing:

“Mr. Markey. Let me ask, Dr. Cerf, what criteria would you look at on appeal in order to expand the number----

Mr. Cerf. The reconsideration process, as Mr. Kerner points out, is a very general one. It is for any actions taken by the board, and principally it looks to see whether the process was followed. It is not intended to reconsider decisions made by the board on, you know, on the merits. In fact, one of the things that allowed us to I think achieve consensus was the belief that any of the qualifying TLD applications would, in fact, be considered later once we had----” http://energycommerce.house.gov/reparchives/107/hearings/02082001Hearing37/print.htm. It appears that Mr. Cerf’s statement was interrupted before completion.

⁵ During the Public Comment Section of the October 2002 Shanghai Meeting addressed to a plan for new TLDs, one of the ICANN Board members raised the question of how the remaining 2000 TLD applicants viewed their status: “Karl Auerbach: Yeah, Elliot. Two part question. Wasn't Tucows one of the 40 of the new accepted first round? And if so, what do you consider your current status to be under this newly suggested [omitted from transcript].” See http://www.icann.org/shanghai/captioning-afternoon-30oct02.htm#EvaluationPlanforNewTLDs. No substantive answer was provided, as the person questioned was not an actual applicant in 2000. No similar questions/answers have been located.

⁶ ICM Registry’s application for .xxx entered into the negotiation phase, but was denied in 2007.