Category 2 Safeguard Advice re Restricted and Exclusive Registry Access

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 Beijing Communiqué dated 11 April 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 Category 2 safeguard advice identified in the GAC Register of Advice as 2013-04-11-Safeguards-Categories-2. For applicants not seeking to impose exclusive registry access, the NGPC is being asked to consider including a provision in the PIC Specification in the New gTLD Registry Agreement that would require TLDs to operate in a transparent manner consistent with general principles of openness and non-discrimination. Additionally, the proposed PIC Specification would include a provision to preclude registry operators from imposing eligibility criteria that limit registration of a generic string exclusively to a single person or entity and their "affiliates." The term "affiliate" is defined to mean a person or entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the person or entity specified, and "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a person or entity, whether through the ownership of securities, as trustee or executor, by serving as an employee or a member of a board of directors or equivalent governing body, by contract, by credit arrangement or otherwise. [New gTLD Registry Agreement § 2.9(c) http://newgtlds.icann.org/en/applicants/agb/base-agreement-specs-29apr13... [PDF, 600 KB]]

For applicants seeking to impose exclusive registry access for "generic strings", the NGPC is being asked to defer moving forward with the contracting process for these applicants, pending a dialogue with the GAC. The term "generic string" is defined in the PIC Specification to mean "a string consisting of a word or term that denominates or describes a general class of goods, services, groups, organizations or things, as opposed to distinguishing a specific brand of goods, services, groups, organizations or things from those of others."

To implement the advice in this way, the PIC Specification will define exclusive registry access as limiting registration of a generic string exclusively to a single person or entity and their affiliates (as defined above). All applicants would be required to respond by a specified date indicating whether (a) the applicant is prepared to accept the proposed PIC Specification that precludes exclusive registry access or (b) the applicant is unwilling to accept the proposed PIC Specification because the applicant intends to implement exclusive registry access.

Which stakeholders or others were consulted?

On 23 April 2013, ICANN initiated a public comment forum to solicit input on how the NGPC should address GAC advice regarding safeguards applicable to broad categories of new gTLD strings http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13.... The public comment forum closed on 4 June 2013. The NGPC has considered the community comments in formulating its response to the GAC's Category 2 Safeguard Advice.

What concerns or issues were raised by the community?

ICANN received several responses from the community during the course of the public comment forum on broad categories of GAC safeguard advice. Of the limited number of comments specific to the Category 2, Restricted Access safeguards, approximately 60% expressed support versus approximately 40% expressing concern or opposition. Supporting comments generally agreed that, for certain strings, restricted access is warranted. Opposing comments generally indicated that this is unanticipated and wholly new policy without justification and that these strings would be unfairly prejudiced in the consumer marketplace. Of the comments specific to the Category 2, Exclusive Access safeguards, approximately 86% expressed support versus approximately 14% expressing concern or opposition. Supporting comments indicated that exclusive registry access should "serve a public purpose." Others indicated that "closed generics" should not be allowed at all.

In adopting this Resolution, the NGPC specifically acknowledges comments from the community opposed to the NGPC accepting the GAC's advice. Opposing commenters generally expressed concern that this is new and unanticipated policy, contrary to the bottom-up process. They also indicated that the concept of public interest is vague and not adequately defined. The NGPC notes that the Beijing Communiqué was published to solicit public comment on the broad categories of the GAC's safeguard advice. This demonstrates ICANN's commitment to a bottom-up, multi-stakeholder model, and provided stakeholders with approximately six weeks (including the public comment and reply periods) to analyze, review and respond to the proposed recommendations. The NGPC views finding a workable solution to the GAC's advice as a step forward as the community continues to respond to the needs of registrants, the community and all stakeholders.

For the comments specifically concerning restricted registry access (i.e. Paragraph 1 of the Category 2 Advice), the NGPC takes note of the concerns expressed in the comments regarding the "general rule" that a TLD should be operated in an open manner. The NGPC understands the GAC's advice for TLDs for which registration is restricted to generally be operated in an open manner to be a call for transparency, which is fundamental to providing consumers choice in the marketplace, and a goal that ICANN supports. In light of the comments raised, ICANN included new language in the PIC Specification to accept and respond to the GAC advice regarding restricted access in a way that balances the concerns raised in the public comments with the GAC's advice for restricted TLDs. The revised PIC Specification establishes what it means for a TLD to be operated consistent with principals of openness and non-discrimination. Specifically, by establishing, publishing and adhering to clear registration policies, the TLD would fulfill its obligation to be operated in a "transparent manner consistent with general principles of openness and non-discrimination."

With respect to comments specifically regarding exclusive registry access safeguards (i.e. Paragraph 2 of the Category 2 Advice), the NGPC understands that the GAC and other members of the community have expressed concerns regarding "closed generic" TLDs. In February 2013, the NGPC directed ICANN staff to initiate a public comment period on the issue of closed generic TLD applications so that the NGPC could understand and consider all views and potential ramifications related to closed generic TLDs. . In light of the comments raised in this public comment forum, the closed generics public comment forum, and the GAC advice, ICANN is proposing a way for a large number of strings to move forward while the community continues to work through the issue.

While respecting the community's comments, the NGPC revised the PIC Specification to address the GAC's advice regarding exclusive registry access. The proposed PIC Specification includes a provision to preclude registry operators from imposing eligibility criteria that limit registration of a generic string exclusively to a single person or entity and their "affiliates." The definition for "affiliates" is the definition in Section 2.9(c) of the New gTLD Registry Agreement. For applicants seeking to impose exclusive registry access for "generic strings", the NGPC agrees to defer moving forward with the contracting process for these applicants, pending a dialogue with the GAC to seek clarification regarding aspects of the advice, including key definitions, and its implementation. Revising the PIC Specification in this way permits the greatest number of strings to continue moving forward while recognizing the concerns raised in the community's comments, including additional policy work.

The complete set of public comments can be reviewed at: http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13....

What significant materials did the NGPC review?

As part of its deliberations, the NGPC reviewed the following significant materials and documents:

GAC Beijing Communiqué: http://www.icann.org/en/news/correspondence/gac-to-board-18apr13-en.pdf [PDF, 156 KB]

Public comments in response to broad categories of GAC safeguard advice: http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13...

Report of Public Comments, New gTLD Board Committee Consideration of GAC Safeguard Advice dated 18 June 2013: http://www.icann.org/en/news/public-comment/report-comments-gac-safeguar...

What factors did the Board find to be significant?

The Beijing Communiqué generated significant interest from the community and stimulated many comments. The NGPC considered the community comments, the GAC's advice transmitted in the Beijing Communiqué, and the procedures established in the AGB for addressing GAC advice to the New gTLD Program.

Are there positive or negative community impacts?

The adoption of the GAC advice as provided in the attached Annex I [PDF, 52 KB] will assist with resolving the GAC advice in a manner that permits the greatest number of new gTLD applications to continue to move forward as soon as possible. However, applicants seeking to impose exclusive registry access would not be able to progress to the contracting process at this time if the NGPC adopts the proposed Resolution. Those applicants would be on hold pending the outcome of the dialogue with the GAC.

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?

On 23 April 2013, ICANN initiated a public comment forum to solicit input on how the NGPC should address GAC advice regarding safeguards applicable to broad categories of new gTLD strings http://www.icann.org/en/news/public-comment/gac-safeguard-advice-23apr13.... The public comment forum closed on 4 June 2013.