It’s been almost six weeks since the NTIA announced “that the proposal developed by the global Internet multistakeholder community meets the criteria NTIA outlined in March 2014 when it stated its intent to transition the U.S. Government’s stewardship role for the Internet domain name system (DNS) technical functions, known as the Internet Assigned Numbers Authority (IANA) functions”, and thereby signaled the start of the last lap of the IANA transition marathon.
In the interim since that announcement ICANN held a well-regarded, policy focused mid-year meeting in Helsinki that saw the ICANN community begin to engage on multiple Work Stream (WS) 2 accountability measures that, while deemed not to require resolution prior to the transition, are nonetheless very important matters – including remaining legal jurisdiction questions, heightened transparency tools and powers, human rights, and ICANN staff accountability.
Also, several DC think tanks recently held programs on the transition, at which some speakers advocated the “test drive” approach first broached at a May Senate Commerce Committee hearing. That soft transition concept would somehow provide for a period in which both the transition of IANA functions control and new community accountability powers could be tried out, but with the U.S positioned to intervene if significant problems arose or if the WS2 issues were not resolved satisfactorily. But advocates have yet to advocate a practical means by which this setting ICANN free while retaining residual control could be accomplished, and the clock is steadily ticking down to the September 30th expiration of the current and likely last IANA contract between NTIA and ICANN.
NTIA had already rebuffed the soft transition concept as unnecessary, impractical, and counterproductive, but last week it upped the pressure for transition completion. In remarks delivered last Thursday at the IGF-USA conference in Washington, Assistant Secretary of Commerce for Communications and Information Lawrence E. Strickling delivered a rousing defense of moving forward with the IANA transition, combined with a strong rebuke of transition critics, declaring:
I come here today to speak out for freedom. Specifically, Internet freedom. I come here to speak out for free speech and civil liberties. I come here to speak out in favor of the transition of the U.S. government’s stewardship of the domain name system to the global multistakeholder community. And I come here to speak out against what former NTIA Administrator John Kneuer has so aptly called the “hyperventilating hyperbole” that has emerged since ICANN transmitted the consensus transition plan to us last March…
Extending the contract, as some have asked us to do, could actually lead to the loss of Internet freedom we all want to maintain. The potential for serious consequences from extending the contract beyond the time necessary for ICANN to complete implementation of the transition plan is very real and has implications for ICANN, the multistakeholder model and the credibility of the United States in the global community…
Among the most persistent misconceptions is that we are giving away the Internet… Even more extreme (and wrong) is the claim that we are giving the Internet away to Russia, China, and other authoritarian governments that want to censor content on the Internet….
Another false claim is the fear that ICANN will move its headquarters abroad once the transition is complete and “flee” the reach of U.S. law. However, this ignores the fact that the stakeholder community has spent the last two years building an accountability regime for ICANN that at its core relies on California law and on ICANN to remain a California corporation.
ICANN’s own bylaws confirm that “the principal office for the transaction of the business of ICANN shall be in the County of Los Angeles, State of California, United States of America.” ICANN’s Board cannot change this bylaw over the objection of the stakeholder community…
Other claims keep popping up and I do not have time today to correct every misstatement being made about the transition. For example, after living for two years under an appropriations restriction that prohibits us from using appropriated funds to relinquish our responsibility for the domain name system, it is now asserted that this restriction prevents us even from reviewing the transition plan. Yet this claim ignores the fact that at the same time Congress approved the restriction, it also directed NTIA “to conduct a thorough review and analysis of any proposed transition” and to provide quarterly reports on the process to Congress.
In the last couple of weeks, I have heard new concerns about the possible antitrust liability of a post-transition ICANN. However, this concern ignores the fact that ICANN in its policymaking activities has always been and will continue to be subject to antitrust laws…
I could go on but let me close with some observations on the multistakeholder process. There is no question that within ICANN, the last two years have strengthened the multistakeholder model as it is practiced there. Moreover, the accomplishments of the process at ICANN are serving as a powerful example to governments and other stakeholders of how to use the process to reach consensus on the solutions to complex and difficult issues. However, as we work toward completing the transition, we must recognize that the multistakeholder model will continue to face challenges. It is important that we remain dedicated to demonstrating our support and respect for the multistakeholder approach in all the venues where it is used.
To some extent Secretary Strickling was downplaying unresolved questions that could evolve into significant problems. For example, there are clearly portions of the ICANN community who do not see the transition and accountability plans as a final resolution, but merely as a waystation to moving ICANN out of U.S. jurisdiction. When I advocated in Helsinki that ICANN’s U.S. incorporation be enshrined in a Fundamental Bylaw during the course of WS2 there was vigorous pushback from some quarters. As I wrote back in May:
[E]ven as the transition draws closer, ICANN’s continued status as a non-profit corporation subject to U.S. law — its jurisdictional locus — is rapidly replacing the IANA contract as the new focus for displeasure by those who would have ICANN relocate to another jurisdiction — or even be transformed into a multilateral international intergovernmental organization (IGO), an outcome specifically prohibited under NTIA’s approval criteria. The resolution of this extended debate will have profound ramifications for the future viability of the MSM of Internet Governance (IG), as well as for Internet speech free from governmental interference exercised from the top level of the domain name system (DNS). Until this matter is resolved with finality it will remain a scab to be constantly picked at, always threatening to become a festering sore on the body politic of IG.
Indeed, during the panel discussion that followed Secretary Strickling’s remarks, one speaker opined that if the IANA transition marked ICANN’s “Constitutional moment”, the unresolved corporate jurisdictional question could become for it what the unresolved issue of slavery became for the United States – a cause of eventual civil war.
Nonetheless, with the goal line is sight, NTIA is clearly pressing for transition completion on October 1st. The strong language of Secretary Strickling’s remarks may also be motivated by a sense that NTIA now has the upper hand, given that the likelihood of an extended appropriations freeze preventing a transition in fall 2016 is increasingly doubtful. Last week the Washington Post reported:
Any chance Congress had this year of smoothly completing work on its annual spending bills is now all but dead, leaving Republican leaders to grapple with how to avoid a contentious fight in the weeks before the election over how to avoid the threat of a government shutdown… Republicans are now debating how long a stop-gap spending bill they need to move before the end of the fiscal year on Sept. 30 should last. Congress goes on a seven week recess after this week and will return after Labor Day.
That view was buttressed by a story in the Wall Street Journal:
Heading into this election year, Republican leaders pledged the GOP-controlled Congress would aim to do at least one thing: pass spending bills on time, without a lot of drama…But as Congress enters its last week in session before a seven-week break through Labor Day, the two chambers have yet to pass a single spending bill through both chambers….Congress will still have a few weeks in September to try to pass spending bills before the government’s current funding expires on Oct. 1. Most likely, lawmakers will be forced to pass a short-term spending bill keeping the government running through the election, likely until the end of the year or the first quarter of 2017.
This Congressional spending impasse is directly related to the fate of the IANA transition. The statutory language preventing NTIA from completing the transition expires at the end of FY 2016, which is one second before midnight on September 30th. One second later, at midnight on October 1st, NTIA will be free to hand off the IANA functions to ICANN, assuming that ICANN has completed its remaining pre-transfer obligations.
Prior to the summer recess the House passed a Department of Commerce appropriations bill extending the transition freeze for a year, but the Senate has not followed suit and the prospects for stand-alone DOC funding legislation now appear slim to none. In addition, the language of the FY 2016 freeze was written in a way that a simple FY 17 Continuing Resolution will not carry the freeze language forward into the new fiscal year; it would take an additional explicit provision being grafted on to the C.R. for the transition freeze to be extended. While that’s not impossible, it would be a heavier lift in a hyper-partisan Presidential election year.
Speaking of partisan politics, on July 12th it was reported that the 2016 draft GOP Platform blasts the Administration’s transition plans, stating,
The survival of the Internet as we know it is at risk… [President Obama] unilaterally announced America’s abandonment of the international Internet by surrendering U.S. control of the root zone of web names and addresses. He threw the Internet to the wolves, and they—Russia, China, Iran, and others—are ready to devour it… [Republicans] will therefore resist any effort to shift control away from the successful multi-stakeholder approach of Internet governance and toward governance by international or other intergovernmental organizations
The breakdown of the appropriations process and the failure of “test drive” proponents to provide a detailed blueprint for accomplishing a soft transition argue in favor of the IANA transition proceeding on October 1st. But when members of Congress return in September political passions will be running high, and opponents of the transition may well attempt a Hail Mary play — with NTIA ready to go all out to break it up and push the transition across the finish line. We’ll find out who prevails in late September.
“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” – U.S. Supreme Court Justice Louis D. Brandeis
ICA has long been an advocate for greater transparency in ICANN operations, especially in the decision-making activities of the Board. Back in May 2012, reacting to the announcement that the Board would no longer hold decisional sessions on the final day of each of the three yearly ICANN public meetings, we published a blog titled, “ICANN Board Meetings Should be Webcast Live”. Our view at that time was:
Just because all the ICANN meetings we have attended since ICA’s formation ended with a Board meeting doesn’t mean that particular scheduling is sacrosanct. But we think it’s very beneficial for the global Internet community that ICANN serves to be able to view its decision-making process – and that it’s a big plus for ICANN’s credibility and reputation to open that process to public view… Nowadays any public policy body that makes its decisions behind closed doors is going to be perceived as having something to hide… There’s a lot of U.S. DNA in the DNS. ICANN was created by the U.S. government and is a California non-profit corporation… Sessions of the U.S. House and Senate, and virtually every hearing and markup of every Congressional committee, are now Webcast in real time and then archived for future viewing.
ICANN should do no less. Every official ICANN Board meeting should be webcast in real time. When the Board is meeting telephonically then the Web audiocast should be available simultaneously. And all should be archived for future access and review. Only limited redactions should be made, such as when the Board is discussing internal personnel matters or when the proprietary and confidential information of a contracted party might be revealed, and then only if a rationale is provided. ICANN’s continued authority ultimately rests upon the consent of the networked, and in 2012 the networked expect open access to information about vital decisions with broad repercussions. And, as Supreme Court Justice Louis Brandeis once observed, sunlight is the best disinfectant.
Four years after we expressed that viewpoint, we’re happy to report that ICANN’s Board is finally taking a step toward meeting 21st Century expectations of information access. of At its meeting of May 15, 2016, ICANN’s Board adopted a Resolution on “Enhancing Openness and Transparency” that makes an overdue move toward providing transparency in regard to Board decision-making.
The operative portion of the Resolution reads as follows:
Resolved, the Board directs the President and CEO, or his designee(s), to work with the Board to develop a proposed plan for the publication of transcripts and/or recordings of Board deliberative sessions, with such plan to include an assessment of possible resources costs and fiscal impact, and draft processes to: (i) ensure the accuracy of the transcript; and (ii) for redaction of portions of the transcript that should be maintained as confidential or privileged.
Resolved, the Board expects to evaluate the plan in Helsinki, and if satisfactory to begin testing of the proposed processes relating to publication of transcripts and/or recordings of the Board’s deliberative sessions as soon as practicable after Helsinki.
The Rationale for the Resolution explains the Board’s reasons for adoption:
In support of the continued call for visibility into Board deliberations and processes, the Board has determined to make available transcripts or recordings, where appropriate, of the Board’s deliberative sessions. This effort to enhance openness is likely to also support the ICANN community in enhancing ICANN’s accountability, as it will reduce questions of how and why the Board reaches its decisions. This decision also directly supports ICANN’s previous efforts and the continued goal of operating as openly and transparently in its decision-making. ICANN is also acting consistently with the ICANN’s Bylaws, as set out in Article III, section 1 of the ICANN Bylaws, that, “ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.”
There will be issues before the Board for which confidentiality is still required, and that may require redaction of parts or withholding of full transcripts, and it is important that the community and the Board understand how those decisions will be taken. To that end, the Board is directing the development of a plan, which would include proposed processes by which those redaction decisions for confidentiality and privilege are to be made. That plan should be developed as soon as practicable, and should be ready for Board consideration during ICANN56 in Helsinki.
In a contemporaneous blog post, Board Chairman Steve Crocker shed a bit more light on the Resolution:
We’ve all been talking about trust lately, and the workshop gave the Board an opportunity to take a hard look at what we can do to build trust between ICANN as an organization and all of its stakeholders. This is also an ongoing discussion, and one that we all have a stake in. During the workshop, we considered concrete steps that the Board could take to increase our transparency and accountability. We agreed to post the transcripts and/or recordings of our deliberative sessions and, as a result of this discussion, passed a resolution asking Göran and his team to develop a plan for the implementation of this new procedure, also making sure that we respect confidentiality, as necessary. We know there is a lot of interest in our meetings and discussions, and we look forward to reviewing Göran’s proposal in Helsinki.
We look forward to hearing about the proposed details of the transparency plan when we attend the Helsinki meeting in a few weeks – where the community will also kick off its own discussion of Work Stream 2 accountability measures, including greater transparency within every facet of ICANN operations.
Ideally, the Board transparency measures should take effect as soon as possible, and reasons for redaction should be kept to a minimum and explained in all instances. While transcripts and audio recordings are welcome steps, especially for telephonic meetings, our preference remains for real time webcasts of all physical meetings of the Board. Public portions of the agenda could be addressed first, with anything requiring redaction left for the end of the meeting.
That would let the sunlight of transparency and the electric light of the video image illuminate all future Board decisions. ICANN and its stakeholders will be better off for the transparency this change will bring to ICANN’s most important decision-making process.
During its regular monthly meeting on Thursday, May 12th, ICANN’s GNSO Council confirmed the appointment of ICA Counsel Philip S. Corwin to be a Co-Chair of the Review of all Rights Protection Mechanisms (RPMs) in all gTLDs PDP Working Group (WG). Corwin represents ICA on ICANN’s Business Constituency (BC) and is one of the BC’s two representatives on the Council.
Corwin is one of three Co-Chairs selected by the WG’s membership. The others two are:
The RPM Review will be conducted in two phases. In Phase One (expected to run through January of 2018), the WG will study the rights protection measures created for the new gTLD program, and also make recommendations regarding whether any changes should be made. That review will proceed in this order:
After completion of Phase One, the WG will move on to Phase Two in which it will review and consider modifications of the Uniform Dispute Resolution Policy (UDRP). Consideration will also be given in this second phase to whether any of the new gTLD RPMs, including URS, should become Consensus Policies applicable to .Com and other legacy gTLDs.
Several ICA members have already joined the WG and other members of the domain investment community are encouraged to do so. ICA has also established its own internal working group to develop policy positions regarding the UDRP, including proposals for its modification, so that ICA’s positions are well developed by the time the Phase 2 UDRP review commences in early 2018.
In an unexpected move, the two top U.S. officials charged with the Obama Administration’s Internet policy have issued a joint statement severely criticizing draft Chinese domain policies. On May 16th, the State Department’s Ambassador Daniel A. Sepulveda and NTIA’s Assistant Secretary for Communications and Information Lawrence E. Strickling issued an official statement titled “China’s Internet Domain Name Measures and the Digital Economy”. In it, they charge that “ the Chinese government’s recent actions run contrary to China’s stated commitments toward global Internet governance processes as well as its stated goals for economic reform”.
The focus of their ire are new proposed rules issued in March by China’s Ministry of Industry and Information Technology. The officials describe them as:
draft measures that would require all Internet domain names in China to be registered through government-licensed service providers that have established a domestic presence in the country and would impose additional stringent regulations on the provision of domain name services …The most controversial provision of China’s draft domain name measures – article 37 – has attracted considerable international concern, as some have interpreted the article to mean that all websites with domain names registered outside China will be blocked, thereby cutting off Chinese Internet users from the global Internet.
The statement also throws down the gauntlet in regard to China’s recent efforts to push alternative, government-centric models of Internet governance. In this regard, it states:
China’s approach to DNS management within its borders could still contravene, undermine, and conflict with current policies for managing top level domains that emerge from the Internet Corporation for Assigned Names and Numbers (ICANN), which follows a multistakeholder model in its community-based and consensus-driven policymaking approach.
While probably not affecting the content of the statement, the timing of its issuance may in part be to demonstrate a tough stance toward China’s DNS policy in advance of next Tuesday’s Senate Commerce Committee oversight hearing on the IANA transition and ICANN accountability. Committee member Ted Cruz has been peppering ICANN with questions regarding former ICANN CEO Fadi Chehade’s participation in China’s World Internet Conference (WIC) last December, and his agreement to become Co-Chair of the Advisory Committee to the 2016 WIC meeting. Many speakers at the 2015 WIC meeting defended Internet censorship and heightened government control.
Adding gasoline to the fire, the statement also lashes Chinese Internet censorship, stating in that regard:
The regulations would also appear to formalize an explicit system of online censorship by forbidding the registration of websites containing any one of nine categories of prohibited content, broadly and vaguely defined, and creating a blacklist of “forbidden characters” in the registration of domain names, adding an extra layer of control to China’s Great Firewall… What we do not accept is the exercise of aggressive authority over people’s use of the Internet or the ability of a government to prevent the world from reaching its people. Sadly, this is exactly what Chinese authorities, through these recent measures, are trying to do.
While such views have likely been advanced in confidential meetings between Chinese and U.S. officials, it is highly unusual to see such bold charges levied against another nation in an official statement.
China has yet to respond to the U.S. allegations, and it remains to be seen if it will moderate its position regarding the draft rules – or whether it will react to this criticism by digging in and implementing them. It is also unclear what effect implementation might have on burgeoning purchases of domain names by Chinese registrants, who have flooded the secondary domain market over the past year through high-dollar purchase of short letter and number domains, and who reportedly also account for more than half the purchases of domains originating from ICANN’s new gTLD program. The draft rules could make many registries and domain names off-limits for Chinese purchasers.
The full text of the statement follows—
China’s Internet Domain Name Measures and the Digital Economy
May 16, 2016 by Ambassador Daniel A. Sepulveda and Assistant Secretary for Communications and Information Lawrence E. Strickling
Ambassador Daniel A. Sepulveda and Assistant Secretary for Communications and Information Lawrence E. Strickling
May 16, 2016
This post was cross posted to the State Department’s blog: https://blogs.state.gov/stories/2016/05/16/china-s-internet-domain-name-measures-and-digital-economy 
China is a force in the global digital economy and an important player in global Internet policy discussions. Today, more than 700 million people have access to the Internet in China, more than any country in the world. Several of the most valuable Internet-based companies call China home. Global innovators and service providers from around the world, including from the United States, are eager to enter its market.
That’s why it is incredibly important that China use its power and influence in a manner that supports the continued development of the global Internet and the prosperity of its domestic digital economy.
Both of our countries participate actively in a range of international organizations and processes that discuss the global development and deployment of the Internet. We have both argued that the current processes, which rely on the cooperation of all stakeholders including government, industry, and civil society, are working effectively for the Internet’s future development and management.
However, the Chinese government’s recent actions run contrary to China’s stated commitments toward global Internet governance processes as well as its stated goals for economic reform.
In late March 2016, China’s Ministry of Industry and Information Technology issued draft measures that would require all Internet domain names in China to be registered through government-licensed service providers that have established a domestic presence in the country and would impose additional stringent regulations on the provision of domain name services.
The regulations appear to create a barrier to access and force localization of data and domestic registration of domain names. Whether driven by a motivation to increase control over Internet content in China or a desire to increase the quantity of Chinese-registered domain names, these regulations would contravene policies that have been established already at the global level by all Internet stakeholders (including Chinese). If put into effect, these regulations would have potentially large and negative repercussions for everyone.
The regulations have led to expressions of concern in comments formally submitted by governments, including the United States, companies, and other stakeholders around the world that support an open and interoperable Internet.
The most controversial provision of China’s draft domain name measures – article 37 – has attracted considerable international concern, as some have interpreted the article to mean that all websites with domain names registered outside China will be blocked, thereby cutting off Chinese Internet users from the global Internet. While Chinese authorities have clarified that the intent of the article would be to prohibit access to Chinese-registered domain names that are acquired from registries/registrars that are not in compliance with Chinese regulations, concerns remain that the language in its current form is vague and open to differing interpretations. Even if applied to Chinese-registered domain names, China’s approach to DNS management within its borders could still contravene, undermine, and conflict with current policies for managing top level domains that emerge from the Internet Corporation for Assigned Names and Numbers (ICANN), which follows a multistakeholder model in its community-based and consensus-driven policymaking approach.
Other concerns with the measures include requirements for forced data localization and real name verification for the registration of Internet addresses. For instance, the draft measures appear to mandate that all Internet domain name registrars, registries, root server operators, and others, maintain zone files in China, thereby compelling firms to create a system for their China operations, which is entirely separate from their global operations. This forced localization, though not unprecedented in China, would potentially create new barriers to the free flow of information and commerce across borders and consequently infringe upon internationally recognized commitments on free expression and trade. The regulations would also appear to formalize an explicit system of online censorship by forbidding the registration of websites containing any one of nine categories of prohibited content, broadly and vaguely defined, and creating a blacklist of “forbidden characters” in the registration of domain names, adding an extra layer of control to China’s Great Firewall.
The United States supports the open global Internet as a platform for free expression and economic and human development worldwide, and we support the growth of China’s digital ecosystem within that context. We welcome the Chinese adoption and creation of Internet-based technologies and services.
What we do not accept is the exercise of aggressive authority over people’s use of the Internet or the ability of a government to prevent the world from reaching its people. Sadly, this is exactly what Chinese authorities, through these recent measures, are trying to do. Such efforts will not only create undue burdens and challenges for enterprises, both Chinese and foreign, operating in China, but they will also diminish the view of China as a constructive partner in the development of the global Internet. Furthermore, they will hinder Chinese technology and services from achieving acceptance outside of China.
We have listened to company concerns, consulted with diplomatic partners, and shared our views directly with the Chinese government, while calling for China to continue dialogue with a broad group of stakeholders as its draft regulations are revised.
The digital economy has become one of the most powerful engines for global economic growth. If left unchanged, China’s regulations would undermine some of the most fundamental aspects of the Internet – openness, reliability, and interoperability – within China. By creating its own rules for domain name management, China is threatening to fragment the Internet, which would limit the Internet’s ability to operate as a global platform for human communication, commerce, and creativity.
Lawrence E. Strickling  serves as Assistant Secretary of Commerce for Communications and Information and Administrator of the National Telecommunications and Information Administration. Ambassador Daniel A. Sepulveda  serves as U.S. Coordinator for International Communications and Information Policy at the U.S. Department of State.
National Telecommunications and Information Administration
1401 Constitution Ave., NW Washington, DC 20230
On March 9th, 2016, during its final open meeting at ICANN 55 in Marrakech, Morocco, the GNSO Council approved a motion that I proposed to adopt the Charter of the Policy Development Process (PDP) to Review all Rights Protections Mechanisms in all Generic Top-Level Domains. I serve on the Council as one of the two representatives of ICANN’s Business Constituency, and my fellow Councilors designated me to serve as the GNSO’s Liaison to the Working Group (WG), and as its Interim Chair.
The Motion approved by the Council provided ICANN staff with a 21-day deadline, ending March 30th, to issue a public call for volunteers to serve on the WG. It is expected that the WG will likely schedule its first virtual meeting in the latter half of April, at which point it will begin to organize its work plan and select a permanent Chair or, more likely, several Co-Chairs. While my selection as Interim Chair is not a guarantee of being one of this WG’s Co-Chairs, I do hope to secure that official role. While not being precluded from advocating particular views in their personal capacity, a Chair or Co-Chair must be fully committed to putting aside their personal views or those of their clients/employer in regard to their official administrative duties and responsibilities to the diverse membership of the WG — and to assure that all WG volunteers have a fair chance to advocate their views and have them considered. Should I secure a Co-Chair slot I will be committed to helping to manage a fair and open process that produces a final report and recommendations that is based in sound legal reasoning and verified empirical data – and that all WG participants can be proud of having contributed to.
While many volunteers will already be participants in ICANN Supporting Organizations (SO) or Advisory Committees (AC), that is not a prerequisite for WG participation. ICANN’s WG Guidelines note that a WG should ideally “mirror the diversity and representativeness of the community”, and that the WG Chair(s) have the responsibility of continually assessing whether the WG has sufficiently broad representation or, conversely, “over-representation to the point of capture”.
The Charter sets forth a two-phased approach, described here:
This PDP Working Group is being chartered to conduct a review of all RPMs in all gTLDs in two phases: Phase One will focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP. By the completion of its work, the Working Group will be expected to have also considered the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals.
This PDP may well draw volunteers by the dozens given the importance of the issues it will examine to the trademark law, brand protection, domain investment, and IP public policy sectors, as well to the business models of ICANN’s contracted parties, both registries and registrars. Involvement may be further boosted by the likelihood that any final recommendations made by this WG that are subsequently adopted by ICANN may well fix the rules for the intersection of trademark law and domains for the next decade or more.
Those considering volunteering should be aware of the substantial time commitment involved. Once the WG launches I would expect it to hold a one-hour call almost every week. My personal guesstimate is that the review of new gTLD RPMs will take at least twelve to eighteen months – and that the subsequent UDRP review could take even longer, given the breadth of potential procedural and substantive issues, and the fact that this will constitute the first review of the UDRP since it was adopted at the dawn of ICANN’s creation.
Some members of the domain investment community, as well as other interested parties, may be thinking of waiting until the phase two review of the UDRP commences before becoming engaged in the WG. In my view that would be shortsighted, as working relationships and individual credibility will be established during the RPM phase that will be critically important when the WG pivots to review of the UDRP.
In addition, as the non-exclusive list of Potential Issues listed in the Charter makes clear, the Phase One determination of answers to some of the questions could have a substantial impact on, and set precedents for, the subsequent UDRP review. For example, regarding Uniform rapid Suspension (URS), issues to be considered include:
Likewise, the review of the Trademark Clearinghouse (TMCH) will address such questions as:
TMCH registrations are currently limited to trademarks meeting high verification standards – plus, under the Trademark+Fifty supplementary implementation measure, variations of the mark that have actually been recovered by the rights holder in a UDRP filing or trademark infringement litigation can also be registered. Attempting to register a domain matching a registered mark or TM+50 variation generates a Trademark Claims Notice to the potential registrant, and UDRP panels have yet to clearly define the weight that will be given to receipt of a Claims Notice in determining whether a subsequent domain registration was made in bad faith.
Finally, as for Trademark Claims, review issues include:
While the review has been designed as a two-phased process to make the workload manageable, and to first address potential modifications of new gTLD RPMs before a subsequent round of new gTLDs is launched, this illustrative list of issues makes clear that determinations made during phase one will inevitably implicate the phase two UDRP review.
There is of course a possibility that the WG will encounter significant internal turbulence, especially if some participants seek to re-litigate every substantive aspect of the new gTLD RPMs as well as of the UDRP. On the other hand, there is tremendous opportunity to seek common ground and undertake procedural reforms that provide greater assurance of consistency and predictability for both rights holders and domain registrants — especially if undertaken within a balanced approach recognizing the legitimate rights and interests of all parties, and acknowledging that ICANN’s proper role is to respect legal rights while refraining from the creation of new extralegal rights.
Anyone with a serious interest in trademark rights, domain monetization, and domain industry operations should give serious consideration to joining this WG, while remaining fully cognizant of the long and potentially difficult road ahead. Important and challenging work will be on the agenda for all who choose to engage as volunteers.
On February 11th VeriSign held its Fourth Quarter and Full-Year 2015 Earnings Call with stock analysts. In the course of the call VeriSign revealed that it had reached tentative agreement with ICANN to extend the .Com Registry Agreement (RA) by ten years, with the extension’s start coinciding with the effective date of the IANA contract transition. The current .Com RA is scheduled to terminate on November 30, 2018, with VeriSign having a presumptive right of contract renewal so long as it has effectively managed the premier gTLD and has not materially breached the RA.
Our review of the analyst call yields this preliminary analysis:
As we presently understand the situation, the Cooperative Agreement between VeriSign and the NTIA that imposed the .Com price freeze would remain unchanged and in place through late 2018, and any request by VeriSign to ease the pricing restrictions would be reviewed by NTIA and not by ICANN. That is important, because in 2012 ICANN’s Board approved a .Com renewal agreement that would have permitted four separate seven percent price increases during its six year term, and it was NTIA that imposed the price freeze urged by ICA. It’s also worth noting the near-final ICANN Accountability Proposal that will be delivered to ICANN’s Board next month restricts ICANN’s mission and core functions so that it cannot take on regulatory powers, including those of a competition authority.
ICA will carefully monitor this developing situation as it moves toward the public comment stage, when we will have an opportunity to review the actual written terms of the proposed agreement.
Our preliminary understanding of the agreement is based on the following statements made by VeriSign CEO D. James Bidzos during yesterday’s call:
ICANN and VeriSign are in the final stages of drafting the new Root Zone Maintainer Agreement to perform this Root Zone Maintainer role as a commercial service for ICANN upon the successful transition of the IANA functions… To ensure that root operations continue to perform at the same high level during the expected 10-year term of the Root Zone Maintainer Agreement, ICANN and VeriSign are in discussions to extend the term of the .com Registry Agreement to coincide with the expected 10-year term of the Root Zone Maintainer Agreement, ensuring that the terms of the two agreements are the same, will promote the stability of root operations, and will remove potential instability that might otherwise arise if the terms did not coincide…
While ICANN and VeriSign are in the final stage of preparing the Root Zone Maintainer Agreement and the .com Registry Agreement extension documents, there are several important steps that still need to occur including completing the drafting of the agreements, posting them for public comment and obtaining approvals from ICANN’s and VeriSign’s Board of Directors.
Additionally, under the Cooperative Agreement, we may not enter into the contemplated extension of the .com Registry Agreement without the prior written approval of the Department of Commerce. If the department does not approve the extension, then the current .com Registry Agreement will remain unchanged. We will provide periodic updates, as appropriate, on our progress toward these objectives…
So, first of all, I think it helps to just understand that we’re not actually changing the terms of the .com Registry Agreement. And this is not a renewal. This is an extension… In order to ensure the same steady, available, uninterrupted, secure and stable environment that we’ve been providing for three decades as a Root Zone Maintainer, it is also anticipated – we are discussing – the extension of the .com Registry Agreement for 10 years.
So at that point, should all of these conditions that I described earlier, for example, approval of ICANN’s Board of Directors and VeriSign’s Board of Directors, no changes whatsoever can be made to the .com Registry Agreement without the consent of the NTIA.
So subject to those approvals and the transition occurring, then we would have 10-year concurrent terms for the Root Zone Maintainer Agreement and the .com Registry Agreement. So what you would see is essentially a change of the date, the term, of the .com Registry Agreement.
That’s essentially the change. From an investor viewpoint, instead of a renewal in 2018, you would see a 10-year term that starts with the effective date of the two changes, the Root Zone Maintainer Agreement and the extended .com Registry Agreement. So, instead of November 30, 2018, you would see a date that is 10 years from the effective date of those two…
So, again, qualifying all of this to say that if we conclude our negotiations, we get all the necessary approvals, the triggering event that marks the “effective date” would then be the IANA transition occurring… The target date is September of 2016… I would just reiterate again that what we’re contemplating here, what we’re working towards, is an extension of the .com agreement. So, the terms wouldn’t change in the .com agreement…
So let me just say that, first of all, the terms of the .com agreement will not change, and the presumptive right of renewal, of course, would remain in the .com agreement. The .com agreement doesn’t actually address pricing. That’s addressed separately in the Cooperative Agreement.
The Amendment 11 of the Cooperative Agreement is the section that describes our contractual relationship with NTIA with respect to the root zone maintainer role. And that is the portion that it’s contemplated would essentially move into a new contract, the RZMA that we’re negotiating with ICANN.
Amendment 32 is a separate part of the Cooperative Agreement that addresses pricing with respect to our ability to seek a price change if we think it’s justified by market conditions. So I certainly don’t anticipate that that would change. That would remain. So VeriSign’s right to seek relief from price controls based on market conditions that would warrant it would remain…
I think the extension means that the date changes on the agreement. But any change to the agreement requires the consent of the NTIA. And so, I can’t speak for NTIA. This is their process. The part of the process we’re involved in would be to negotiate the Root Zone Maintainer Agreement with ICANN to present that along with a .com contract that has the date extended and present that to NTIA.
This is, of course, in response to their March 2015 request for a way to transition the root zone maintainer role and to take NTIA out of that process. So that will be up to them when they see it. So I think that’s what they asked for and that’s what they’re looking for. This is not a renewal in the sense that all of the normal things that happen during a renewal would happen. So I don’t quite see it that way…
I anticipate that we would have our Amendment 32 rights to petition based on changing market conditions for price relief. And also that, certainly, the agreement calls for the ability for VeriSign to seek so-called cost-justified price increases and that includes things like cost of implementing Consensus Policies or specific threats to the DNS that are extraordinary that we have to respond to – unanticipated expenses associated with responding to threats. So I don’t see those changing at all… What we’re doing here is we’re seeking an extension to the .com Registry Agreement. The Cooperative Agreement expires in 2018, and we are not seeking any change to that. That is up to NTIA. That is their process, their contract, so I would certainly defer to them… It expires in 2018, but it’s up to NTIA to decide at that point what happens.
The domain investment community represented by the Internet Commerce Association extends a warm welcome to incoming ICANN President and CEO Göran Marby.
Mr. Marby’s selection was announced by ICANN on February 8th. He presently serves as Director-General of the Swedish Post and Telecom Authority and has more than 20 years of experience in the Internet and technology sectors, following his earning of Bachelor of Science from the University of Gothenburg School of Economics in Sweden. His tenure with ICANN will start officially in May 2016, but he is expected to attend the upcoming ICANN 55 meeting in Marrakech, Morocco next month.
“ICA has been directly engaged with ICANN since joining its Business Constituency in 2007, and ICA Counsel Philip Corwin currently serves as one of the BC’s two elected representatives on ICANN’s policymaking GNSO Council”, stated ICA President Jeremiah Johnston. “We happily noted Mr. Marby’s enthusiasm for assuming the CEO role, his commitment to the multistakeholder model, and his intent to build upon ongoing ICANN work processes, all evident in the remarks he made during his initial Press Conference. ICA looks forward to working with him as he guides ICANN through completion of the IANA transition and the transfer of accountability oversight from the U.S. Government to the global multistakeholder community. We also intend to make constructive contributions as the ICANN community grapples with such important policy matters as the upcoming review of the new gTLD rights protection mechanisms as well as the first-ever review of the UDRP.”
Domain registrants have long voiced their desire for a comprehensive review and subsequent reforms of the Uniform Dispute Resolution Policy (UDRP). That goal is now in sight, and is set to proceed in the manner recommended to ICANN by ICA.
On January 11, 2016 ICANN policy staff submitted to the GNSO Council the “Final Issue Report on a Policy Development Process to Review All Rights Protection Mechanisms in All Generic Top-Level Domains”. That Final Report is culmination of a public comment process that started last October, in which ICA actively participated, considering how a review of the rights protection mechanisms (RPMs) for the new gTLD program should be related to an unprecedented review of the UDRP, the only ICANN Consensus Policy that has never been subjected to scrutiny since its creation. Domain registrants desiring a balanced approach to their rights versus those of trademark owners have a big stake in both reviews. RPMs should recognize and protect the rights of both domains and trademarks.
In its December 1st comment letter, ICA stated its preference for a sequential review process:
ICA prefers a separate and sequential approach for the reviews and subsequent reports and recommendations, with the RPM review preceding and thereby informing the UDRP review.
ICA further explained its practical and policy reasons for that preferred two-part approach:
Both domain registrants and trademark owner complainants deserve, after nearly two decades of unexamined use, a UDRP review and reform process that is accorded adequate time for comprehensive review and development of subsequent recommendations. This review of necessity must be preceded by the RPM review, as it was the intent of the GNSO Council in 2011 that the UDRP review be informed by that of the RPMs and by any changes made to them….We fully expect that there will be substantial interest in completing the RPM review prior to the opening of any second round of new gTLDs, and that consideration provides another reason for structural separation. If the RPM and UDRP reviews were addressed together, substantial pressure could arise to truncate the UDRP portion lest it delay the timing and adoption of final RPM recommendations. As a result this first-ever UDRP review could get short shrift and inadequate attention.
That ICA suggestion was essentially adopted by ICANN staff. In this regard, the Final Report suggests the following procedure:
Following review of community feedback received regarding the three options for a RPM review that were presented in the Preliminary Issue Report for public comment, ICANN staff recommends that the GNSO Council launch a PDP in accordance with what was presented as the third option in the Preliminary Issue Report: namely, to conduct a policy review of all the RPMs in two phases. The initial phase would focus on a review only of the RPMs developed for the New gTLD Program, and the second phase would focus on a review of the UDRP. The second phase may also include any issues identified during the first phase of the PDP that are more appropriately considered during the second phase. Cumulatively, the results of both phases of the PDP would be a full review of all RPMs developed to date for all gTLDs….Staff recommends that the work in the initial phase of the RPM PDP be performed by a standalone PDP Working Group that liaises with the recently launched PDP Working Group on New gTLD Subsequent Procedures as there may be overlapping issues arising during the work of both groups that would warrant careful coordination. Staff does not recommend folding in a review of the RPMs that were developed for the New gTLD Program into the scope of work for the New gTLD Subsequent Procedures PDP due to the likely complexity and size of that PDP….Staff also recommends that, upon completion of Phase One, the PDP Working Group submits a First Initial Report to the GNSO Council that is also published for public comment….The second, subsequent phase of work in the RPM PDP would be a review of the UDRP, ideally carried out by the same PDP Working Group….Staff believes that a benefit of this two-phased approach is a better alignment of the timing of the work on reviewing the New gTLD Program RPMs with the operational reviews of the New gTLD Program17 (including the CCT Review) and the PDP on New gTLD Subsequent Procedures. (Emphasis added)
The GNSO Council has already proceeded in harmony with that suggested approach. During its meeting of January 21st, Council adopted a Charter for The New gTLD Subsequent Procedures PDP Working Group that specifically prohibits it from addressing the RPMs, stating:
Second-Level Rights Protection Mechanisms: Proposing recommendations directly related to RPMs is beyond the remit of this PDP. There is an anticipated PDP on the “current state of all rights protection mechanisms (RPMs) implemented for both existing and new gTLDs, including but not limited to the UDRP and the URS…”. Duplication or conflicting work between the New gTLD Subsequent Procedures PDP and the PDP on RPMs must be avoided. If topics related to RPMs are uncovered and discussed in the deliberations of this PDP, those topics should be relayed to the PDP on RPMs for resolution. To assure effective coordination between the two groups, a community liaison, who is a member of both Groups, is to be appointed jointly by both Groups and confirmed by the GNSO Council. (Emphasis added)
That means that review of all the new gTLD RPMs—the Trademark Clearinghouse (TMCH) and related Sunrise and Trademark Claims service periods; Uniform Rapid Suspension System (URS); and Post-Delegation Dispute Resolution Procedures (PDDRPs) — should be the sole preserve of a new Working Group (WG) on all RPMs in all gTLDs. Following that review, it will proceed to review the UDRP and consider whether it should be reformed.
The GNSO Council will likely take up a Motion to establish that RPM WG, as well as adopt its Charter, at its next meeting scheduled to take place on February 18th.
Once Council takes that next step, ICA intends to fully engage in the review of the new gTLD RPMs and, of course, the UDRP review. ICA will advocate an approach that, while fully respecting the legitimate rights of trademark owners, brings greater balance to the exercise of all the RPMs and that helps to make the application of the UDRP a more consistent and predictable process in the future. We will of course keep our members comprehensively informed as the reviews proceed, and will solicit their feedback and guidance as critical questions emerge.
Washington, DC; December 11, 2015 —
The Internet Commerce Association today released the following initial statement in regard to the November 30 decision of the WIPO Administrative Panel in the case of Camilla Australia Pty Ltd v. Domain Admin, Mrs Jello, LLC (Case No. D2015-1593; http://www.wipo.int/amc/en/domains/search/text.jsp?case=D2015-1593):
The egregious three-member panel decision in this Uniform Domain-Name Dispute-Resolution Policy (UDRP) dispute departs substantially from prevailing UDRP practice and relies on criteria inconsistent with those set forth in the UDRP as adopted by ICANN. This decision demonstrates once again that review and reform of the UDRP by ICANN is an urgent priority.
“The panelists on the Camilla.com dispute disregarded 15 years of UDRP practice, rewrote and distorted the Policy, and set an impossible standard for domain registrants to meet to avoid the loss of their valuable generic domains” said ICA Board member Nat Cohen, President of Telepathy Inc. “If this decision stands and guides panelists in other future cases, it would undermine the rights of millions of domain owners, undercut much of the domain industry, and would encourage further abuse of the UDRP system”, added Cohen.
The decision states that “the Panel accepts that the Respondent did not and could not reasonably have known of the Complainant’s trademark when it registered the disputed domain name in May 2009”. Based on prevailing and proper UDRP practice, that should have ended the analysis; the Respondent clearly could not have had bad faith intent when it registered the domain. Indeed, in ICA’s view, at that point the Panel would have had clear grounds to cite the Complainant for attempted reverse domain name hijacking. Complainant received its Australian trademark more than two years after the U.S.-based Respondent registered the domain, and only has a pending “intent to use” application for a U.S. trademark.
Instead, the panelists created new and unprecedented duties for registrants, proclaiming that a “registrant of domain names that adopts a PPC revenue model must ensure that after registration the disputed domain name is not used in a deceptive or confusing manner with new or developing trademarks” and a “registrant of domain names from the moment of acquisition must be prepared to take necessary steps to ensure that the PPC links generated by algorithm do not infringe existing trademarks, or any trademarks that may emerge in future”. (Emphasis added.) The panel’s decision would place a burden on domain registrants of generic words to monitor ongoing trademark registrations in every nation in the world. It would also require them to influence the proprietary ad placement algorithms of Yahoo!, Google, and other major online ad providers. Both of these new responsibilities are nowhere to be found in the UDRP rules and are impossible to meet.
The Camilla decision overthrows an important balance between trademark and domain registrant rights and provides a blueprint for any future trademark registrant to steal valuable generic domains without paying market value by simply initiating a UDRP action.
“While ICA respects trademark rights, the UDRP cannot be allowed to become a vehicle for legitimizing domain theft,” said Cohen.
The decision of whether to appeal this UDRP decision lies with the registrant. ICA believes that this decision should be overturned under the U.S. Anticybersquatting Consumer Protection Act (ACPA). If an appeal is filed, ICA will give full consideration to providing support to help persuade the court that the panel’s finding of bad faith registration and use is contrary to U.S. law.
ICA and its Counsel and legal advisory group are continuing to review the decision and may issue a further statement once that review is completed.
On November 30th ICA filed its comment letter regarding the “Preliminary Issue Report on a GNSO Policy Development Process to Review All Rights Protection Mechanisms in All gTLDs” that was published for public comment on October 9, 2015. ICA’s complete comment can be viewed at http://forum.icann.org/lists/comments-rpm-prelim-issue-09oct15/msg00021.html, and all 24 filed comments are available at http://forum.icann.org/lists/comments-rpm-prelim-issue-09oct15/index.html.
The principal question raised by the Report was whether the review and possible adjustment of new gTLD RPMs and the review and potential reform of the UDRP should be combined or separated. On that key decision, our comment letter said that the RPMs should be addressed prior to the UDRP review for these reasons:
We believe that the RPM review and the UDRP review each constitutes a highly complex array of interrelated questions and judgments, and that trying to combine the two into a single mega-review will tax any Working Group (WG) inordinately.
In particular, the UDRP review will constitute the first comprehensive inquiry into ICANN’s oldest Consensus Policy. It may address structural issues; such as whether ICANN should enter into uniform contractual agreements with all UDRP providers, whether there should be clear boundaries to prevent individual dispute providers’ Supplementary Rules from influencing decisional outcomes, and whether an internal appeals procedure should provide an avenue for a ‘UDRP Supreme Court’ to address and reconcile disparate decisions by different providers on nearly identical fact patterns.
…Both domain registrants and trademark owner complainants deserve, after nearly two decades of unexamined use, a UDRP review and reform process that is accorded adequate time for comprehensive review and development of subsequent recommendations. This review of necessity must be preceded by the RPM review, as it was the intent of the GNSO Council in 2011 that the UDRP review be informed by that of the RPMs and by any changes made to them. Further, as staff notes at page 8 of the Report, one result of “this approach is the fact that community consideration of the more general overarching issue concerning the comprehensiveness of all the RPMs as a set of aggregate protections for trademark holders in all gTLDs, as well as the issue of whether any of the new RPMs should be considered Consensus Policies like the UDRP, will necessarily be postponed to the second phase of work”. Unlike staff, we do not view that consideration as a drawback but as a far more responsible approach than considering integration of any of the new gTLD RPMs in legacy gTLD without knowing whether or in what manner they may be altered.
We agree with staff that “One benefit of this two-pronged approach is better alignment of the timing of the work on reviewing the new RPMs with the operational reviews of the New gTLD Program (including the CCT Review) and, conceivably, a new PDP on New gTLD Subsequent Procedures”. We fully expect that there will be substantial interest in completing the RPM review prior to the opening of any second round of new gTLDs, and that consideration provides another reason for structural separation. If the RPM and UDRP reviews were addressed together, substantial pressure could arise to truncate the UDRP portion lest it delay the timing and adoption of final RPM recommendations. As a result this first-ever UDRP review could get short shrift and inadequate attention.
Many of the other groups and individuals who filed comments also took the view that the RPM and UDRP reviews should be separate, with the RPMs teed up first.
What did surprise us was the reluctance of the trademark community to even contemplate a review of the UDRP, much less consider any changes based on nearly twenty years of experience with it.
The International Trademark Association (INTA) asserted that it is “is strongly opposed to opening the Uniform Dispute Resolution Policy (UDRP) to review as the UDRP has been functioning efficiently and well for over fifteen years. It is important to maintain this effective mechanism which combats the most blatant instances of cybersquatting within the domain name system. Any review or subsequent modifications could jeopardize the benefits that the UDRP is intended to provide to trademark owners.” Having attended INTA conferences along with thousands of others, and seen the money invested in global branding as well as the sector’s political influence, it strains credulity to believe that trademark owners could be “rolled’ in the course of a UDRP review.
ICANN’s Intellectual Property Constituency (IPC) warned “that the complexity of any review would be immense and the drain on resources considerable, with a risk of creating new problems via an overly complicated review process… the IPC has a serious concern that if a review were to be carried out, there is a risk of a polarization of views into two camps – each with a fear that the other camp would either dilute or overly strengthen the UDRP. Improvements sought by one side would be seen as potentially abusive to registrants, improvements sought by the other as potentially diluting the effectiveness of a mechanism for resolving disputes efficiently… if a review of the UDRP as a policy is to be considered, an “Expert Group” should be assembled to carry out this review.” For ICA’s part, we think that, just like war is too important to just be left to the generals, UDRP review and reform is too important to just be left to “experts” and must include participation by those with broader views of the UDRP’s impact on domain registrants and free expression, among other key considerations.
And UN agency and accredited UDRP provider the World Intellectual Property Organization (WIPO) opined that “the UDRP continues to function as intended. In its harmonized criteria and universal application, this anti-cybersquatting mechanism has come to be recognized as an international policy success… Destabilization of the predictable UDRP framework may have a range of unintended consequences. It would disrupt the body of precedent carefully developed by hundreds of panelists from across jurisdictions in tens of thousands of cases… Each day, the UDRP demonstrates the flexibility to meet the demands of an evolving DNS; it does not need system-wide updates that would imprudently limit this flexibility”. To the contrary, domain investors would respond that this “flexibility” is code for a lack of any binding precedent that makes the UDRP more of a casino game in a world of proliferating UDRP providers.
We are pleased that ICANN’s Business Constituency, of which ICA is a member, took a more balanced approach, stating, “While the BC believes that the UDRP is working well overall, it now seems timely to engage in a review of its performance with an eye toward considering possible improvements, so long as that UDRP review commences after completion of the RPM review.”
In response to the trademark community’s message of opposition and excessive caution, ICA added this final point to our comment’s Executive Summary, to wit:
Finally, we have strong disagreement with the view expressed by a minority of commenters that the UDRP review anticipated by the GNSO Council’s Resolution of December 15, 2011 should not proceed at all, and that any such undertaking would be unduly arduous and dangerous. The UDRP is the only ICANN Consensus Policy that has never been reviewed. Like any human undertaking, it is not perfect and was drafted by individuals who could not have known how it would be implemented in practice. Any UDRP review should of course be fully informed by the actual record of UDRP practice and experience of participants, and should proceed carefully. But we are confident that a good faith UDRP review that considers the legitimate rights and interests of both registrants and complainants, as well as related public policy issues, can produce a more balanced and consistent system that preserves the fundamental virtues of the UDRP while yielding modifications that benefit all affected parties.
ICA looks forward to participating in both the RPM and UDRP reviews. ICANN staff is scheduled to deliver a Report summarizing comments and suggesting next steps by December 10th. Following receipt of that report, the GNSO Council will decide on a way forward and, if ICA’s and other commenters’ proposed procedure is followed, will consider a draft Charter for an RPM review working group in the initial months of 2016.
Throughout the coming review processes, ICA will be an active participant seeking to protect the legitimate rights and interests of domain investors and developers and to bring greater balance between trademark and domain rights.
Here’s the rest of our comment letter’s Executive Summary: