On July 31st ICANN staff finally published the Report of Public Comments regarding the Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement, after missing the July 5th due date by more than three weeks.
The Report accurately reflects that all but two of the many comments filed on the proposal opposed imposition of Uniform Rapid Suspension (URS) by contract upon a legacy gTLD, and took the view that new gTLD rights protection mechanisms (RPMs) should only be implemented at legacy gTLDs through a standard policy development process (PDP) that made them a Consensus Policy.
In defense of the inclusion of the URS in the proposed .Travel Registry Agreement and other RAs, the report says:
Although the URS was developed and refined through the process described here, including public review and discussion in the GNSO, it has not been adopted as a consensus policy and ICANN staff has no ability to make it mandatory for any TLDs other than those subject to the new gTLD registry agreement. Accordingly, ICANN staff has not moved to make the URS mandatory for any legacy TLDs, and it would be inappropriate for staff to do so. In the case of .TRAVEL and other legacy TLD registry agreement renewals (.JOBS) and proposed renewals for .CAT and .PRO registry agreements, inclusion of the URS was developed as part of the proposal in bilateral negotiations between the registry operator and ICANN. It should also be noted that there are no restrictions on Registry Operators to impose further rights protection mechanisms, such as the URS, which could also be included in the Registry Agreement in other ways, such as through the RSEP process. However, due to the approaching expiration date of the .TRAVEL Registry Agreement and the interest of the Registry Operator to renew their Registry Agreement based on the new gTLD Registry Agreement, the proposed renewal language is similar to the new gTLD Registry Agreement except for the provisions stated above and also explained in detail in the public comment announcement. (Emphasis added)
The notion that .Travel and other incumbent gTLDs agreed to the URS voluntarily is belied by the original request for comments, which clearly states that, “ICANN has proposed that the renewal agreement be based on the approved new gTLD Registry Agreement as updated on 9 January 2014.”(Emphasis added) Contracted parties have told us that ICANN staff takes a very hard line in these closed door negotiations and that they must pretty well go along with whatever provisions staff insist upon.
As for “Next Steps” for the .Travel RA, the Report says:
After taking into consideration the public comments received (see summary and analysis below), some revisions to the proposed renewal of .TRAVEL Registry Agreement are proposed.
The proposed renewal of .TRAVEL Registry Agreement includes substantial and material changes to the original .TRAVEL Registry Agreement, which are based on the existing New gTLD Registry Agreement terms (as described above). Similarly, .JOBS Registry Agreement, another Sponsored TLD, was renewed on 20 February 2015 (see: https://www.icann.org/resources/agreement/jobs-2015-02-20-en).
As a next step, ICANN intends to consider the renewal proposal taking into account the comments. (Emphasis added)
That really doesn’t make clear whether the URS will stay in the final contract.
ICA has told ICANN, via its written comments as well as its presentation to the Board at the Buenos Aires Public Forum, that the Board should have the final word on this RA if the URS stays in, and should thereby take direct responsibility for the final agreement. There’s no assurance that the Board will take that step and be accountable, but we shall continue to monitor this situation.
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This is how the Report summarized ICA’s comments:
ICA also raised their concern that “The potential addition of these RPMs to legacy gTLDs through this inappropriate avenue will have a substantial and deleterious effect on ICANN’s policy making process going forward, will create a new and dangerous precedent whereby de facto Consensus Policy can be created by contractual fiat in violation of ICANN Bylaws, and will substantially and adversely affect third parties around the world consisting of the existing registrants of more than one hundred million legacy gTLD domains.”, adding that “the RPMs could be imposed on legacy gTLDs only after their impact and efficacy was fully assessed, and then only via a standard PDP to create new Consensus Policy in conformity with ICANN Bylaws. ”… While BC stated that their concern is not in regards to the adoption of new gTLD RPMs for legacy TLDs, BC, ICA and NCSG expressed their objection to the decision by ICANN staff to take the new gTLD registry agreement as the starting point for renewal RAs for legacy gTLDs since it has the effect of transforming the PDDRP and the URS into de facto Consensus Policies without following the procedures laid out in ICANN’s Bylaws for their creation… Both BC and ICA indicated in their comment that their comments also apply to similar proposed renewal of .CAT and .PRO Registry Agreements currently under public comment period… Both BC and ICA also raised their concern on ICANN staff’s seeking to insert specific new gTLD program RPMs in legacy gTLD renewal RAs when ICANN policy staff have yet to define the issues they implicate, and the GNSO has yet to receive the Issues Report that may be the basis of one or more PDPs; including one addressing whether they should become Consensus Policies applicable to all gTLDs… One of the comments suggested that “if the decision is made by staff to retain these RPMs in the .Travel renewal RA following the close of the public comment period, we believe that the proposed final contract must be forwarded to, reviewed by, and voted upon by the ICANN Board.” (ICA)