Having canceled all scheduled afternoon discussions to confer separately, the ICANN Board and GAC returned to their Brussels meeting room late Tuesday afternoon for a short and inconclusive exchange of views on their Applicant Guidebook disagreements, as well on as mapping the path forward.
Opening the session, ICANN Chairman Peter Dengate Thrush announced that, while the Board had not yet made its way to preliminary responses to the twelve categories of items in disagreement between it and the GAC, it had made some progress and was in a position to respond on four. However, he further noted, these initial reactions were but the “Board’s current thinking” and should not be assumed to be its final positions. The Board’s goal remained the elimination of at least some of the dozen contentious issues prior to its formal consultation with the GAC on March 17 in San Francisco.
Not withstanding the lack of any agreement produced by the two day Brussels conclave, he nevertheless pronounced the gathering as “very productive”. He then outlined the categorization system that the Board would be using to measure the size of its disagreement with the GAC scorecard:
• 1A – GAC advice we can follow
• 1B – A principle we can live with, but implementation issues to be resolved
• 2 – At this stage, unworkable advice we cannot follow
He then proceeded to provide Board ratings of the first four issues in the GAC scorecard, with the promise that there would be feedback on the remaining eight at an unplanned, short meeting of those participants still remaining in Brussels at 10 am the following morning (meaning that U.S. “remote participants” can look forward to another jolting alarm in the middle of the night so they can bask in the glow of their computer monitor).
The Board’s current ratings of those first areas in disagreement are—
1. Governmental objection process for proposed gTLDs – 1B, with the Board believing it can work things out with the GAC
2. Review of “sensitive strings” and expansion of the community strings category – 2 generally, although the Board might be agreeable to a revised objection standard and waiving of fees for community string objections
3. Root zone scaling – 1A, with all the GAC positions being generally acceptable, and with a strong commitment to monitor, mitigate, and rectify any destabilizing effect on the DNS from new gTLDs and an overall commitment to protection of all the IANA root zone functions and to informing all members of the IANA implementation chain (a wise commitment, we would add, given that the NTIA has just posted a Federal Register inquiry regarding whether the IANA management contract should be renewed with ICANN this coming September)
4. Market and economic impacts of new gTLDs – 1B and 2, with the Board agreeing to reasonable collection and reporting of data, but disagreeing strongly on the GAC’s recommended degree of detail
So, on the first four issues, on two there remains strong disagreement and on only one is there general acquiescence.
The GAC then advised the Board that, with many of its members scheduled to leave by early Wednesday, the GAC would be unable to fully respond at the unplanned morning session – and that this would add more time to the process of resolving differences on the Guidebook. U.S. GAC member Suzanne Sene reinforced that potential for additional delay, stating that the Board’s feedback was very helpful, but that clearly there were implications for the overall length of the process.
ICANN Board Member Mike Silber observed that the Board and GAC could get into further details on a series of conference calls to be held between now and ICANN’s San Francisco meeting. (That remark raises some interesting questions about who will be allowed to be on these calls, given GAC Chair Heather Dryden’s remark in the morning session that the GAC would want its “IP experts’ on them to discuss the rights protection issues. ICA will be carefully monitoring this process, as it would be absolutely outrageous if private sector attorneys representing large brand owners were permitted to join the calls.)
Chairman Thrush made brief comments regarding some of the remaining issues, then stated it was the Board’s intent to complete reporting of its current thinking on Wednesday morning, with written responses to follow. In closing, he noted that Board member Rita Rodin Johnston, their lead on the rights protection issue, was “still waiting for quite a lot in information on trademark protection issues”, indicating that the GAC had yet to provide any rationale for the sweeping changes it had proposed on behalf of corporate brand owners.
Overall, while the Brussels discussions have been generally non-rancorous and both sides remain committed to narrowing differences, it is becoming quite evident that the process will be a prolonged one. Many attendees will hardly get home before they start packing for San Francisco, leaving little time for much meaningful further interchange. And ICANN staff will be saddled with all the usual flood of preparatory work before that meeting starts in ten days, and hardly in a position to focus laser-like on this matter. Plus, GAC members often lack authorization to make decisions on the fly, and must consult with their minister back in the capital before the GAC can ask for a vote on any proposal, adding yet more delay. Additionally, the Board has already identified two of the first four issues as ones on which there is a strong current disagreement with the GAC, and more are likely to be ranked the same when it reports further. And, while there are twelve major categories of issues in current disagreement, each of them contains numerous sub-issues of considerable complexity – and, as was remarked more than once in Brussels, many of the major categories are interconnected and how one comes out affects the ability to resolve others.
So, while we await further feedback from the Board, we simply observe that all involved in this exercise will be challenged for the current expectation that the Board will launch new gTLDs with an approving vote at its June meeting in Singapore to be realized.