Approval of the Global Amendment to the Base New gTLD Registry Agreement

Why is the Board addressing the issue now?

The process to amend the Registry Agreement began in July 2014 when the Registries Stakeholder Group (RySG) notified ICANN organization that it wished to initiate negotiations for contract amendments. Following a discussion period between the Working Group and ICANN organization, the proposed contract amendments were submitted for public comment in the form of the Global Amendment. ICANN organization and the Working Group reviewed the public comments and revised the Global Amendment based on comments received.

As outlined in Section 7.7(c) of the Registry Agreement, both the ICANN Board and Applicable Registry Operators must approve the Global Amendment in order for it to be deemed an approved amendment pursuant to the terms of the Registry Agreement. Applicable Registry Operators approved the Global Amendment upon the conclusion of the voting period on 10 April 2017. The Registry Agreement defines the approval of Applicable Registry Operators as both: (1) the affirmative approval of the Applicable Registry Operators whose payments to ICANN accounted for two-thirds of the total amount of fees paid, pursuant to the Registry Agreement, the immediately previous calendar year; and (2) the affirmative approval of a majority of the Applicable Registry Operators at the time such approval is obtained.

With the Board's approval, the Global Amendment would achieve both required approvals and would, therefore, be effective and deemed an amendment to the Registry Agreement following a 60-day notice from ICANN organization to registry operators.

What is the proposal being considered?

The Global Amendment [PDF, 424 KB] is the result of bilateral negotiations between ICANN organization and the RySG Working Group as well as a subsequent public comment proceeding. Section 7.7(a) of the Registry Agreement provides a mechanism enabling ICANN organization or the Registries Stakeholder Group (RySG) to periodically initiate negotiations to discuss revisions to the Registry Agreement. The proposed revisions in the Global Amendment largely focus on technical corrections and clarifications with a few substantive changes as outlined below:

Revisions to Section 2.9 (Registrars) and 2.10 (Pricing for Registry Services), which enable registry operators to change the pricing terms of the Registry-Registrar Agreement without seeking ICANN organization's approval since the Registry Agreement does not specify a specific price for domain names registration; however, such notice must still be given to registrars that have executed a Registry-Registrar Agreement for the TLD. Registry operators remain subject to the substantive requirements of the provision whether or not ICANN organization is informed of price increases by the registry operator.
Revisions to Section 6.7 (Fee Reduction Waiver), which permit ICANN organization to exercise its discretion to determine to reduce the fees payable by a registry operator under the Registry Agreement. Under the provision, ICANN organization would retain discretion to determine whether a reduction in fees is appropriate and the terms of any such reduction.
Revisions to Section 7.5 (Change of Control; Assignment and Subcontracting), which create a new defined term, "Affiliated Assignee," and have the effect of facilitating reorganizations by a registry operator without triggering a consent right of ICANN.
Revisions to Specification 13; Section 11 (.BRAND TLD Provisions), which were made in response to requests by .BRAND TLD operators and specify that global amendments (i.e. amendments approved pursuant to Section 7.6 or 7.7 of the Registry Agreement) amend the provisions of Specification 13, such that amendments that impact .BRAND TLD registry operators must be approved by .BRAND TLD registry operators.
Full details of the changes within the Global Amendment, including technical corrections and clarifications, are available in the published summary of changes table [PDF, 487 KB] and in the published cumulative redlines to the Registry Agreement [PDF, 1.01 MB].

Which stakeholders or others were consulted?

ICANN organization and the Working Group collaborated frequently throughout the development of the Global Amendment to negotiate and discuss proposed revisions, to consider comments received from the public comment proceeding, and to agree to the process of a vote for Applicable Registry Operators.

The Global Amendment was submitted for public comment from 31 May 2016 to 20 July 2016. After the close of the public comment period, ICANN organization received twenty-two comments by individuals, organizations, and groups and published an initial summary report [PDF, 404 KB] on 17 August 2016.

ICANN organization and the Working Group collectively considered comments received and incorporated certain revisions into the Global Amendment. On 22 December 2016, ICANN organization published a supplemental public comment report [PDF, 545 KB] with additional analysis as well as an updated Global Amendment [PDF, 424 KB] revised to reflect the comments received.

What concerns or issues were raised by the community?

After the proposed Global Amendment was posted for public comment, ICANN organization and the Working Group collectively reviewed concerns and issues raised during the public comment period. Commenters expressed their views in five key areas:

Overall support: comments generally supportive of the proposed amendments to the Registry Agreement, highlighting that the proposed amendments clarify ambiguous language and fix grammatical and typographical errors.
Request for additional edits or clarity: suggestions for further changes or additional clarity to the amendments proposed within the Global Amendment.
With respect to the request for added clarity in comments received, ICANN organization and the Working Group collectively agreed to additional modifications that further clarified Section 4.3(e) and provisions within Specification 5, 6, and 13.
With respect to comments received pertaining to additional edits to those listed above, following the process outlined in the registry agreement, ICANN organization and the Working Group concluded that no additional changes would be made. While both parties reviewed and appreciate these comments, comments relating to sections where no amendment was proposed were not considered as part of this negotiation round. If Section 7.7 is implicated in the future, ICANN may consider these comments in determining its approach for such future negotiation process.
Overall concerns: concerns over aspects of the proposed amendments, including:
The removal of the requirement that a registry operator notifies ICANN organization of increases in the price charged by the registry operator to register a domain name in the TLD in Section 2.9 and 2.10.
Transparency of the proposed fee waiver provision in Section 6.7 in which ICANN organization can determine to reduce the fees payable by a registry operator under the Registry Agreement.
Registry Agreement text and other topics out of scope: comments on the existing provisions in the Registry Agreement where no amendment was proposed. These comments include thoughts on topics such as dotless domains and sections of the Registry Agreement where no amendment was proposed as well as general comments about the Registry Agreement.
Process concerns: thoughts on the negotiation and review process of the Registry Agreement. Various commenters expressed concern regarding the fact that negotiations took place between ICANN organization and only a small portion of the Registries Stakeholder Group.
What significant materials did the Board review?

As part of its deliberations, the Board reviewed various materials, including, but not limited to, the following:

Global Amendment as published 22 December 2016, [PDF, 424 KB];
Cumulative redlines to the Registry Agreement of all modifications resulting from the Global Amendment (includes redlines from before and after the public comment period), December 2016, [PDF, 1.01 MB];
Summary of changes table (includes cumulative redlines of all modifications to the Registry Agreement resulting from the Global Amendment as well as rationale), 3 February 2017, [PDF, 487 KB];
Clean version of the Registry Agreement amended by the Global Amendment (amended version of the Registry Agreement should the Global Amendment achieve Applicable Registry Operators and ICANN Board approval), December 2016, [PDF, 1.16 MB];
Reissued Staff Report of public comment proceeding (reissued to include analysis from the Working Group and ICANN organization of the comments received), 22 December 2016, [PDF, 545 KB];
Initial Staff Report of public comment proceeding (to summarize the comments received), 17 August 2016, [PDF, 404 KB];
Public Comment on the Proposed Amendments to Base New gTLD Registry Agreement, 31 May 2016, ;
Current Registry Agreement (current version of the New gTLD Registry Agreement), 9 January 2014, [PDF, 651 KB];
Global Amendment Voting Process Frequently Asked Questions, 17 February 2017, [PDF, 1.01 MB];
Global Amendment Webinar Slide Deck, 7 February 2017, [PDF, 2.23 MB];
Global Amendment Webinar Recording, 7 February 2017, ; and
Global Amendment Webpage on ICANN.org, .
What factors has the Board found to be significant?

The Board carefully considered the proposed Global Amendment [PDF, 424 KB] agreed to by the Working Group and ICANN organization as part of the bilateral negotiations. The Board also considered the public comments received for the Global Amendment along with the summary and analysis [PDF, 545 KB] of those comments.

The Board acknowledges that the Global Amendment was voted on and approved by Applicable Registry Operators as of 10 April 2017, the conclusion of the requisite voting period. As outlined in Section 7.7(c) of the Registry Agreement, both the ICANN Board and Applicable Registry Operators must approve the Global Amendment in order for it to be deemed an approved amendment pursuant to the terms of the Registry Agreement.

The Board acknowledges the requests for additional edits or clarity and concerns raised during the public comment period to revisions within the Global Amendment. ICANN organization and the Working Group collaborated to address these requests for edits and concerns in the supplemental public comment report [PDF, 545 KB] and in the updated Global Amendment [PDF, 424 KB] revised to reflect comments received.

The Board acknowledges the concerns expressed by some community members regarding suggested improvements on the negotiation, review process, and transparency of the Registry Agreement amendment negotiation process. The Registry Agreement provides for negotiations to be between ICANN organization and the Working Group designated by the RySG. While ICANN organization and the Working Group conducted the negotiation process for the proposed Global Amendment according to the terms outlined in the Registry Agreement, ICANN organization intends to further collaborate with the Working Group to develop a process that keeps the ICANN community more informed if contract negotiations are triggered in the future. These efforts may include improved communications to the ICANN community that the negotiation process has been initiated and periodic updates to the ICANN community concerning overall status of discussions with the Working Group.

Finally, the Board acknowledges and appreciates comments on the existing provisions in the Registry Agreement where no amendment was proposed. While ICANN organization and the Working Group reviewed these comments, comments relating to sections where no amendment was proposed were not considered as part of this negotiation round. ICANN organization and the Working Group may consider these comments if negotiations under Section 7.7 are triggered in the future.

Are there positive or negative community impacts?

The Board's approval of the Global Amendment offers positive technical and operational benefits to registry operators. The proposed Global Amendment includes revisions intended to bring the Registry Agreement up to date with operational and technical expectations between registry operators and ICANN organization. Some of the positive technical impacts to registry operators include modifying the reporting requirements to take into account the timing of a TLD's delegation and clarifying technical specifications within the contract to accurately reflect current practices. Overall, the revisions clarify certain provisions to limit misinterpretations of the requirements within the Registry Agreement.

Additionally, this negotiation and amendment process provides a mechanism for ICANN organization and registry operators to collaborate to maintain and update the Registry Agreement as needed, enabling a periodic review of the terms that guide both parties.

Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, budget); the community; and/or the public?

There are no significant fiscal impacts expected if the ICANN Board approves the Global Amendment.

Are there any security, stability or resiliency issues relating to the Domain Name System?

There are no expected security, stability, or resiliency issues related to the Domain Name System if the Board approves the Global Amendment. The proposed Global Amendment in fact includes terms intended to bring the Registry Agreement up to date with operational and technical expectations between Registry Operators and ICANN organization. As part of ICANN organization's administrative function, ICANN posted the draft Global Amendment for public comment on 31 May 2016.