GAC Category 2 Safeguard Advice – Exclusive Generic TLDs

The NGPC's action addresses an open item of advice from the Governmental Advisory Committee (GAC) concerning the New gTLD Program. This action is part of the ICANN Board's role to address advice put to the Board by the GAC. Article XI, Section 2.1 of the ICANN Bylaws permits 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 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.

The GAC issued advice to the Board on the New gTLD Program through its Beijing Communiqué dated 11 April 2013. In the Beijing Communiqué, the GAC advised the Board that, "For strings representing generic terms, exclusive registry access should serve a public interest goal" (the "Category 2.2 Safeguard Advice"). The GAC identified a non-exhaustive list of strings in the current round of the New gTLD Program that it considers to be generic terms where the applicant is proposing to provide exclusive registry access.

ICANN solicited responses from 186 applicants for the strings identified by the GAC's Category 2.2 Safeguard Advice asking whether they planned to operate the applied-for TLDs as exclusive access registries (defined as a registry restricted to a single person or entity and/or that person's or entity's "Affiliates" (as defined in Section 2.9c of the Registry Agreement)). Out of those 186 applicants, currently there remain five applications where the applicant has indicated that it intends to provide exclusive registry access for its applied-for generic string.

The NGPC's action today addresses the GAC's Category 2.2 Safeguard Advice and creates a path forward for the remaining applicants in this round of the New gTLD Program who propose to provide exclusive registry access for a generic string ("Exclusive Generic Applicants"). The NGPC's action acknowledges that exclusive registry access for generic strings may raise policy considerations that require input from the GNSO through the bottom-up policy development process.

More specifically, the NGPC is directing the President and CEO to proceed with initiating or restarting, as applicable, other New gTLD Program processes that were put on hold for the Exclusive Generic Applicants until the NGPC addressed the GAC's Category 2.2 Safeguard Advice. For example, there are some applications that are the subject of objection proceedings (pursuant to Module 3 of the Applicant Guidebook), which have been stayed by the parties or the dispute resolution provider pending the outcome of the NGPC's resolution of the GAC's Category 2.2 Safeguard Advice. As a result of the NGPC's action, the dispute resolution service provider for the objection proceedings will be directed to expeditiously bring to conclusion and publish Expert Determinations for the unresolved proceedings that were stayed pending the NGPC's resolution of the Category 2.2 Safeguard Advice, notwithstanding any agreements by the parties to stay those proceedings. Additionally, ICANN will move forward with scheduling auctions for applications for contending strings (.DATA, .FOOD, and .PHONE).

The NGPC is also requesting that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue. The President and CEO should provide the GNSO with information needed to support this request.

Additionally, the President and CEO is being directed to advise Exclusive Generic Applicants for non-contended strings, or Exclusive Generic Applicants prevailing in contention resolution regarding their options for executing Registry Agreements with ICANN. Such Exclusive Generic Applicants must elect within a reasonably limited time to do one of the following:

a. Submit a change request to no longer be an exclusive generic TLD, and sign the current form of the New gTLD Registry Agreement, which includes the standard Public Interest Commitment (PIC) prohibiting exclusive generic TLDs ("Registry Operator of a 'Generic String' TLD may not impose eligibility criteria for registering names in the TLD that limit registrations exclusively to a single person or entity and/or that person's or entity's 'Affiliates' [as defined in Section 2.9(c) of the Registry Agreement]. 'Generic String' means 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").

b. Maintain their plan to operate an exclusive generic TLD. As a result of this action, their application will be deferred to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLDs.

c. Withdraw their application for a refund consistent with the refund schedule in the Applicant Guidebook.

As part of its consideration of the GAC advice, ICANN posted the GAC advice and officially notified applicants of the advice, triggering the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1. The Beijing GAC advice was posted on 18 April 2013. The complete set of applicant responses is provided at: http://newgtlds.icann.org/en/applicants/gac-advice/. In addition, on 23 April 2013, ICANN initiated a public comment forum to solicit input on how the NGPC should address Beijing GAC advice regarding safeguards applicable to broad categories of new gTLD strings.

The NGPC has deliberated on the GAC's advice concerning exclusive registry access for generic strings at more than ten of its meetings over the last two years. In formulating its response, the NGPC considered all material and relevant facts and information, including applicant responses and community feedback on how ICANN could implement the GAC's safeguard advice in the Beijing Communiqué. Each of the NGPC members exercised independent judgment in taking this decision, was not conflicted on this matter, and believes that this decision is in the best interests of the ICANN. The comments from the community express a diversity of views on how, and whether the NGPC should implement the GAC's advice. Some of the significant themes raised by community comments, and considered by the NGPC in taking this action, are as follows:

∙ A Policy Development Process with respect to operating exclusive generic strings in the "public interest" should be undertaken by the community. Policy issues on "closed generic" TLDs should be resolved through the multistakeholder process.

∙ The public interest goal requirement as stated is too general and requires greater specificity for enforceability. The NGPC should add relevant meaning to the "public interest" concept by applying the GNSO rationales regarding the promotion of competition, consumer choice, market differentiation, and geographical and service provider diversity as standards for such affirmative objective showings and findings.

∙ Safeguards are important when applicants have chosen to apply for closed control of a generic term designating a particular industry where the applicant is engaged in the conduct of business activities in that industry.

∙ Requiring applicants to demonstrate some additional public interest goal in the context of exclusive registry access for generic strings would reverse the deliberate choices made by the ICANN community in its bottom-up process and impose new evaluation criteria.

∙ The status quo as set out in the Applicant Guidebook should apply so that both "open" and "closed" registry access for generic strings should continue to be allowed in this first application round, but both should be subject to significant scrutiny after launch by ICANN to ensure that the interests of rights owners and consumers are protected.

The community and applicant comments highlight the complexity of the issue, which the NGPC has taken into account in response to the GAC's advice. These themes are also reflected in a previous public comment period on the issue of "closed generic" gTLD applications, as reported in the Report of Public Comments [PDF, 407 KB] dated 8 July 2013. As part of this public comment period, the NGPC requested the GNSO to provide guidance on the matter. Given the short timeframe to respond to the request the GNSO Council [PDF, 249 KB] noted that it was not in a position to provide formal policy guidance on the issue at that time. The GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not."

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

∙ GAC Beijing Communiqué [PDF, 238 KB] (April 2013); GAC Buenos Aires Communiqué [PDF, 97 KB] (November 2013); GAC London Communiqué [PDF, 138 KB] (June 2014)

∙ Applicant responses to GAC advice: http://newgtlds.icann.org/en/applicants/gac-advice/

∙ Applicant Guidebook, Module 3: http://newgtlds.icann.org/en/applicants/agb/objection-procedures-04jun12... [PDF, 260 KB]

∙ Letter dated 7 March 2013 from the GNSO Council regarding "Closed Generic" TLDs.

The adoption of the GAC advice will have a positive impact on the community because it will assist with resolving the GAC advice concerning the New gTLD Program. There are no foreseen fiscal impacts associated with the adoption of this resolution. Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS. As part of ICANN's organizational administrative function, ICANN posted the Beijing Communiqué and officially notified applicants of the advice on 18 April 2013. This triggered the 21-day applicant response period pursuant to the Applicant Guidebook Module 3.1.