Renewal of .MOBI registry contract

Why the Board is addressing the issue now?

ICANN Org and Afilias Technologies Limited (the "Registry Operator") entered into a Registry Agreement on 10 July 2005 for operation of the .MOBI top-level domain. The current .MOBI Registry Agreement expires on 31 March 2017. The proposed Renewal Registry Agreement was posted for public comment between 23 December 2016 and 01 February 2017. At this time, the Board is approving the proposed .MOBI Renewal Registry Agreement for the continued operation of the .MOBI top-level domain by the Registry Operator including the transition of the operations of the legacy .MOBI top-level domain to an unsponsored generic top-level domain using substantially the same terms offered to New gTLDs under the form of New gTLD Registry Agreement.

What is the proposal being considered?

The proposed .MOBI Renewal Registry Agreement, approved by the Board, includes modified provisions to bring the Agreement in line with the form of the New gTLD Registry Agreement. The modifications include: updating technical specifications; Public Interest Commitments including the obligation to only use registrars under the 2013 Registrar Accreditation Agreement; and requiring the implementation of additional Rights Protection Mechanisms, namely the Uniform Rapid Suspension and the Post-Delegation Dispute Resolution Procedure.

While the .MOBI top-level domain will no longer be a sponsored community top-level domain, all approved registry services in the legacy .MOBI Registry Agreement carry over to the proposed Renewal Registry Agreement. These approved registry services include the common TLD Zone Contents language, Anti-Abuse Services, Registry Lock, Bulk Transfer After Partial Portfolio Acquisition, Searchable Whois, Whois Contact Lookup, and second-level Internationalized Doman Names. The Approved Services for .MOBI also include a 270-day implementation grace period to allow sufficient time for Afilias to complete the transition of its technical operations to meet the requirements of the renewal agreement.

With regard to the Schedule of Reserved Names, the renewal Registry Agreement retains the ability of the Registry Operator to allocate previously reserved single-character labels at the second level within .MOBI through ICANN Org-accredited registrars based on its implementation process. Additionally, the Registry Operator may also release previously reserved two-character names to the extent that the registry operator reaches agreement with the government and country-code manager, or the ISO 3166 maintenance agency. The Registry Operator may also propose release of these names based on its implementation of measures to avoid confusion with the corresponding country codes.

Additionally, the Sponsorship Charter contained in the previous .MOBI Registry Agreement in Appendix S was not carried over to the.MOBI Renewal Registry Agreement. While prior legacy sponsorship charters have been carried over to the form New gTLD Registry Agreement in the form of Specification 12 (Community Registration Policies), the proposed .MOBI Renewal Registry Agreement will not be a sponsored or community top-level domain. ICANN Org highlighted this material change in the request for public comment, no comments or objections were received on this topic.

Which stakeholders or others were consulted?

ICANN Org conducted a public comment period on the proposed .MOBI Renewal Registry Agreement package of terms from 23 December 2016 through 01 February 2017. Subsequently, ICANN Org summarized, analyzed and published a report of public comments. Additionally, ICANN Org engaged in bilateral negotiations with the Registry Operator to agree to the package of terms to be included in the proposed Renewal Registry Agreement that was posted for public comment.

What concerns or issues were raised by the community?

The public comment forum on the proposed .MOBI Renewal Registry Agreement closed on 01 February 2017, with ICANN Org receiving four comments. The comments were comprised of commentary from four independent organizations summarized in the three main categories listed below.

Inclusion of new gTLD rights protection mechanisms and safeguards in legacy gTLDs: Some commenters expressed support for the inclusion of certain rights protection mechanisms, such as Uniform Rapid Suspension and Trademark Post-Delegation Dispute Resolution Procedure, and the inclusion of the Public Interest Commitments (i.e., safeguards) contained in the New gTLD Registry Agreement such as the requirement to use registrars under the 2013 Registrar Accreditation Agreement. Others expressed concern over the inclusion of New gTLD rights protection mechanisms into legacy agreements. They argued that these provisions should not be added as a result of bilateral contract negotiations but should be addressed through the policy development process.
Transition to a new fee schedule: Some commenters suggested Global Domains Division personnel are using economic leverage, i.e. fee reductions, in the proposed Renewal Registry Agreement to induce registry operators to accept non-economic provisions of the New gTLD Registry Agreement, such as those noted in 1 above.
Negotiation process for the proposed renewal of the .MOBI Registry Agreement and legacy gTLD registry agreement negotiations in general: Some commenters questioned whether the negotiation process for renewing and amending legacy registry agreements is sufficiently transparent and how the renewal agreement was arrived at.
Other: Additionally, one comment submitted referred to "Registry Level Transaction Fee Adjustment Approval Date" being conditioned upon ICANN Org's sole discretion that 'no unresolved compliance issues remain'. However, the proposed .MOBI Renewal Registry agreement does not include such a provision and it appears the comment was referring to a previously posted public comment announcement related to a contract amendment for a different gTLD.
What significant materials did the Board review?

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

.MOBI form of the New gTLD Registry Agreement [PDF, 867 KB]
.MOBI Addendum to form of the New gTLD Registry Agreement [PDF, 300 KB]. At this time, ICANN Org is implementing the incorporation of terms unique to a legacy TLD, such as .MOBI, through an "Addendum" to the Registry Agreement. The Addendum will show the terms of the .MOBI Registry Agreement that are unique from the form of the New gTLD Registry Agreement that are incorporated into the .MOBI Registry Renewal Agreement.
Public comments Received
Summary and analysis of public comments [PDF, 384 KB]
Current .MOBI Registry Agreement and Appendices
New gTLD Registry Agreement – Updated 09 January 2014 [PDF, 651 KB]
What factors has the Board found to be significant?

The Board carefully considered the public comments received for the Renewal Registry Agreement, along with the summary and analysis of those comments. The Board also considered the terms agreed to by the Registry Operator as part of the bilateral negotiations with ICANN Org. While the Board acknowledges the concerns expressed by some community members regarding the inclusion of the Uniform Rapid Suspension, Post-Delegation Dispute Resolution Procedure, and Public Interest Commitments in the Renewal Registry Agreement, the Board notes that the inclusion of the these provisions is based on the bilateral negotiations between ICANN Org and the Registry Operator, where Registry Operator expressed their interest to renew their registry agreement based on the form of the New gTLD Registry Agreement.

The Uniform Rapid Suspension, Post-Delegation Dispute Resolution Procedure, and Public Interest Commitments have not been adopted as Consensus Policy. As such, ICANN Org has no ability to make these provisions mandatory for any TLDs other than new gTLD applicants who applied during the 2012 New gTLD round. However, a legacy Registry Operator may agree to adopt these provisions during bilateral negotiations and as a result of moving to the form of the New gTLD Base Registry Agreement.

Accordingly, the Board's approval of the proposed .MOBI Renewal Registry Agreement does not mandate the addition of Uniform Rapid Suspension, Post-Delegation Dispute Resolution Procedure, and Public Interest Commitments as mandatory requirements for legacy TLDs. These provisions are only adopted on a case-by-case basis as a result of bilateral negotiations.

The Board acknowledges comments questioning whether Global Domains Division personnel are using economic leverage, i.e. fee reductions, in the proposed Renewal Registry Agreement to induce registry operators to accept non-economic provisions of the new gTLD Registry Agreement, such as additional rights protection mechanism and public interest commitments. The Board notes that as with other terms in the renewal agreement, the fee reduction is the result of bilateral negotiations and agreement between ICANN Org and the Afilias. The updated fee schedule is the same schedule contained in previously renewed legacy gTLDs, namely .CAT, .JOBS, .PRO, .TEL, and .TRAVEL. The legacy renewal process includes Global Domains Division personnel evaluating the fiscal impact to ICANN Org's budget. As with other legacy gTLDs, this evaluation was completed and Global Domains Division personnel concluded the result would have minimal, negative fiscal impact. The effect of the fee change to ICANN Org's annual budget was also considered as part of the evaluation.

The Board acknowledges comments questioning whether the negotiation process for renewing and amending legacy registry agreements is transparent enough and how the renewal agreement was arrived at. All Registry Operators have the ability to negotiate the terms of their Registry Agreement with ICANN Org, which inherently means discussions between the two contracted parties – ICANN Org and the applicable Registry Operator. This was the case with Afilias and the.MOBI renewal agreement. The Board notes the process is straightforward and involves discussions between the two parties until agreement is reached. Once agreement is reached, ICANN Org invites community feedback through the public comment process to ensure transparency and to collect valuable input.

The Board notes that current .MOBI Registry Agreement calls for presumptive renewal of the agreement at its expiration so long as certain requirements are met. The .MOBI Renewal Registry Agreement is subject to the negotiation of renewal terms reasonably acceptable to ICANN Org and the Registry Operator. The renewal terms approved by the Board are the result of the bilateral negotiations called for in the current .MOBI Registry Agreement, and transitioning to the form of the New gTLD Registry Agreement would not violate established GNSO policy. As described below, the new form of the registry agreement offers positive technical and operational advantages, in addition to benefits to registrants and the Internet community including public interest commitments, requiring the use of registrars under the 2013 Registrar Accreditation Agreement, and the ability for ICANN Org to designate an emergency interim registry operator in the event that emergency thresholds for critical registry services is reached.

Are there positive or negative community impacts?

The Board's approval of the Renewal Registry Agreement offers positive technical and operational benefits. Pursuant to Renewal Registry Agreement, in the event that any of the emergency thresholds for registry functions is reached, Registry Operator agrees that ICANN Org may designate an emergency interim Registry Operator of the registry for the TLD, which would mitigate the risks to the stability and security of the Domain Name System. Also, technical onboarding of the Registry Operator to comply with the provisions in the New gTLD Agreement will allow the registry to use uniform and automated processes, which will facilitate operation of the TLD. As part of the renewal process, ICANN Org conducts a review of contractual compliance under the .MOBI Registry Agreement. Afilias was found to be in substantial compliance with its contractual requirements.

There will also be positive impacts on registrars and registrants. The transition to the form of the New gTLD Registry Agreement will provide consistency across all registries leading to a more predictable environment for end-users. The fact the .MOBI Renewal Registry Agreement mandates the use of accredited registrars that are subject to the 2013 Registrar Accreditation Agreement, provides numerous benefits to registrars and registrants. The .MOBI Renewal Registry Agreement also requires the Registry Operator adopt additional rights protection mechanisms to protect rights holders and public interest commitments which provide benefits to intellectual property constituents and the public.

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

There is no significant fiscal impact expected from the .MOBI Renewal Registry Agreement. It should be noted that as a result of approval of the Renewal Registry Agreement, projected annual registry fees to ICANN Org will result in a minimal negative fiscal impact. This change has been considered in ICANN Org's budget.

Are there any security, stability or resiliency issues relating to the DNS?

The .MOBI Renewal Registry Agreement is not expected to create any security, stability, or resiliency issues related to the DNS. The Renewal Registry Agreement in fact includes terms intended to allow for swifter action in the event of certain threats to the security or stability of the DNS, as well as other technical benefits expected to provide consistency across all registries leading to a more predictable environment for end-users.