On October 13th ICA filed a formal Reconsideration Request (RR) asking ICANN’s Board Governance Committee (BGC) to rethink The Board’s approval of the renewal registry agreements (RAs) for .Travel, .Cat and .Pro. All three renewal agreements contain Uniform Rapid Suspension (URS) and other rights protection mechanisms (RPMs) drawn from the new gTLD program. Those RPMs are in the contracts largely because staff of ICANN’s Global Domain Division (GDD) started the RA renewal process by proposing their inclusion “to increase the consistency of registry agreements across all gTLDs”. ICA had previously filed comments on all three proposed RAs protesting the inclusion of the URS, as did the large majority of all those who commented.
The explanations of the Board Resolutions approving the three RAs, accomplished with no formal vote on the Consent Agenda of its September 28th meeting, contains the comforting words that “the Board’s approval of the Renewal Registry Agreement is not a move to make the URS mandatory for any legacy TLDs, and it would be inappropriate to do so”. However, it also includes the highly questionable assertion that the inclusion of the URS in the Renewal RAs is based on the bilateral negotiations between ICANN and the Registry Operator, where Registry Operator expressed their interest to renew their registry agreement based on the new gTLD Registry Agreement…and transitioning to the new form of the registry agreement would not violate established GNSO policy“.
There are two major problems with that reasoning:
- First, there is no equality of bargaining position between a registry that needs its contract renewed, and that often is seeking to obtain beneficial amendments to its prior RA, and GDD staff who take RPM inclusion as their starting point and insist on that throughout the negotiation process as the price of reaching a deal. The assertion that these Registry Operators “expressed their interest” in adopting the URS is a convenient fiction when, by their own admission, GDD staff proposed it at the start of negotiations. The very fact that all three of these registries adopted the RPMs is circumstantial evidence that the action was coerced and hardly voluntary.
- Second, and more important for preserving ICANN’s multistakeholder bottom-up policy development process, GDD staff subverted it by making what is incontrovertibly a policy decision on a critical question that has not yet been addressed by the community. Now that the Board has condoned this GDD staff initiative they are free to pursue the same RPMs end with every legacy gTLD when their contracts come up for renewal – including .Org, .Net and .Com.
As ICA explained in its RR:
“We believe that this attempt by ICANN contracting staff to create de facto Consensus Policy via individual registry contract, absent a relevant Policy Development Process (PDP), is a glaring example of the type of top down, unaccountable action that should be targeted by enhanced accountability measures accompanying the IANA transition proposal. Contracts with legacy gTLDs can contain and enforce Consensus Policy, but it is an impermissible violation of ICANN’s Bylaws for contracts to attempt to create Consensus Policy.
… We further note that ICANN staff has just issued, on October 9th, the “Preliminary Issue Report on a GNSO Policy Development Process to Review All Rights Protection Mechanisms in All gTLDs”. This report will be considered by the GNSO Council and the ICANN community at the upcoming ICANN 54 meeting in Dublin, Ireland and, following a public comment period scheduled to end on November 30th, will result in a Final Staff report being issued on or about December 10th.
That Final Report will probably provide the foundation for the initiation of one or more Policy Development Processes (PDP) addressing whether the new gTLD RPMs should be adjusted and, more relevant to this reconsideration request, whether they should be adopted as Consensus Policy and applied to legacy gTLDs and/or integrated with the UDRP. Indeed, the Preliminary Issue Report notes (at pp.22-23):
“These [potential] issues would be specific topics to be addressed as part of their Charter by the PDP Working Group, in addition to the more general, overarching issues such as:
- Whether any of the new RPMs (such as the URS) should, like the UDRP, be Consensus Policies applicable to all gTLDs, and the transitional issues that would have to be dealt with as a consequence.”
This passage of the Preliminary Issue Report constitutes further and new material evidence, provided directly by ICANN policy staff, that the question of whether the URS should become a Consensus Policy applicable to all gTLDs is an overarching policy matter, and that it is wholly inappropriate for GDD staff to seek imposition of it on legacy gTLDs as the starting point for registry renewal agreement negotiations because doing so creates de facto consensus policy via contract. It also identifies the presence of “transitional issues” that have in no way been considered in pressing for the inclusion of the URS in the three renewal agreements that are the focus of this reconsideration request.
Unless and until the URS is adopted as a Consensus Policy for all gTLDs, ICANN staff should not be initiating the registry agreement renewal process with any legacy gTLD by suggesting that new gTLD RPMs be the starting point for contract negotiation as, given the inequality in bargaining power, this can have the effect of making the URS a de facto Consensus Policy notwithstanding the fact that the regular order PDP outlined in and required by the Bylaws has not been followed. Such GDD staff actions make a mockery of and undermine the integrity of the GNSO’s upcoming PDP review of RPMs.ICA will continue to use all available means to assure that the policies imposed on the registrants of more than 100 million legacy gTLD domains are determined through the policymaking process mandated by ICANN’s Bylaws and not set by the whims and coercive pressure of GDD staff.”
BGC action on a RR is generally supposed to take place within 30 days of its filing. The RR process is constructed in a manner to provide multiple procedural grounds for summary dismissal without ever reaching the merits of the situation. While that unfortunate avoidance tactic could be utilized, we are hopeful that the importance of this precedent-setting situation, as well as the fact that a similar RR was jointly filed by ICANN’s Business Constituency (BC) and Non-Commercial Stakeholder Group (NCSG), will convince the BCG to do the right thing and address the RRs on their substantive merits.
And we will of course comment upon the recently issued Preliminary Report on Rights Protection Mechanisms in All gTLDs and participate in any subsequent policy development process (PDP) to ensure that RPM Consensus Policies are balanced, and respectful of the procedural and substantive due process rights of domain registrants.