NTIA Approves .Com RA Extension

Verisign has just filed a Form 8-K with the U.S. Securities and Exchange Commission (SEC) revealing that the National Telecommunications and Information Administration (NTIA) has approved the extension of the .Com registry Agreement through November 30, 2024.

We previously reported that, on September 15th, ICANN’s Board approved the .Com RA extension’ and simultaneously approved an extension of the existing $7.85 ceiling on .Com wholesale prices through 2024. Notwithstanding that price cap extension, the wholesale pricing of .Com domains could be revisited by ICANN and Verisign if NTIA does not extend the separate Cooperative Agreement (CA), currently in force through  November 30, 2018; or does extend it but with a different pricing control.

As described in the SEC filing, the NTIA action took the form of two separate amendments to the CA, as follows:

On October 20, 2016, Verisign and the U.S. Department of Commerce (the “DOC”) entered into Amendment Number Thirty-Three (33) (“Amendment 33”) to the Cooperative Agreement between Verisign and the DOC. Except as modified by Amendment 33, the terms and conditions of the Cooperative Agreement, remain unchanged. Amendment 33 relieves, releases and discharges Verisign from all root zone operation, management and maintenance responsibilities, obligations or requirements under the Cooperative Agreement, including but not limited to, those contained within Amendments 11 and 31. Following this release, the RZMA between Verisign and ICANN became effective.

On October 20, 2016, Verisign and the DOC entered into Amendment Number Thirty-Four (34) (“Amendment 34”) to the Cooperative Agreement between Verisign and the DOC. Except as modified by Amendment 34, the terms and conditions of the Cooperative Agreement, remain unchanged. Under the terms of Amendment 34, the DOC approves the amendment to the Registry Agreement as in the public interest, which extends the term of the Registry Agreement to coincide with the eight-year term of the RZMA. In addition, the DOC retains the right to conduct a public interest review for the sole purpose of determining whether the DOC will extend the term of the Cooperative Agreement before it expires on November 30, 2018. Verisign agrees to cooperate with such a review and to work in good faith to reach mutual agreement with the DOC to resolve issues identified in such review and to work in good faith to implement any agreed upon changes as of the expiration of the current term of the Cooperative Agreement. (Emphasis added)

The Root Zone Maintainer Service Agreement (RZMA) referenced in both amendments was the major component of the CA. With its termination, and transfer of the RZMA counterparty role from NTIA to ICANN, about all that remains of the CA is the wholesale price cap. So in essence when the NTIA decides whether to extend the CA beyond 2018 or let it terminate it will be deciding whether .Com should continue to be subject to a wholesale price cap. If the NTIA conducts a public interest review to determine whether the CA will be extended beyond 2018 it will likely solicit input from the public.

The NTIA’s approval of the .Com RA extension also contains the caveat that “This approval is not intended to confer federal antitrust immunity on Verisign with respect to the .com Registry Agreement, as amended.” However, it is highly unlikely that Verisign would ever face antitrust scrutiny for its .Com pricing while it is charging a government-imposed wholesale price.

In addition to its SEC filing, Verisign has also just published a separate FAQ document providing its explanation of these developments; it is published in full at the end of this post. Let’s focus on these two questions and answers:

Q: Will the Department of Commerce extend the Cooperative Agreement?

A: The Department of Commerce has reserved the right to conduct a public interest review to determine whether the Cooperative Agreement should be extended.

Q: Will the public interest review result in changes to Verisign’s pricing for .com domain name registrations?

A: The purpose of the public interest review will be solely to determine whether the Cooperative Agreement should be extended. (Emphasis added)

That second answer is factually correct, yet incomplete – because a decision to terminate the CA would end the U.S. government imposed price cap on .Com. As we noted when reporting on the ICANN Board’s approval of the .Com RA, its adopted Resolution contained this language:

Whereas, the proposed Amendment also requires Verisign and ICANN to cooperate and negotiate in good faith to: (1) amend the .COM Registry Agreement by the second anniversary date of the proposed Amendment in order to preserve and enhance the security of the Internet or the TLD; and (2) as may be necessary for consistency with changes to the Cooperative Agreement between Verisign and the U.S. Department of Commerce. All other terms and conditions in the existing Registry Agreement remain unchanged.

The .Com RA extension became effective on October 1, 2106 when the IANA transition occurred, so ICANN and Verisign are now committed to review the RA and amend it to make it consistent with any future changes to the CA. As we read that Resolution provision, if NTIA decides not to extend the CA, or extends it with a different price control provision, the RA would no longer be consistent with it and good faith negotiations would ensue to make it so.

The direct relationship between the CA and the continuation of the .Com price freeze was outlined in the August 31st letter from the Department of Justice to Sen. Cruz, which stated:

We note that the current extension proposal contemplated by ICANN and Verisign does not change the price cap contained in the 2012 .com Registry Agreement, which will remain in effect through November 30, 2018. Nor does the current extension proposal alter the price cap in Amendment 32 of the Cooperative Agreement. Moreover, if NTIA were to approve an extension of the .com Registry Agreement, it would have the right in its sole discretion to extend the term of the Cooperative Agreement with the current price cap in place until 2024 at any time prior to November 30, 2018, the date on which the Cooperative Agreement is currently scheduled to expire. If this occurs, the $7.85 fee cap would be extended another six years to 2024. (Emphasis added)

As the last sentence makes clear, if NTIA determines not to extend the CA and lets it expire then the $7.85 fee cap would no longer be in effect.

Now it’s true that since DOJ wrote that letter ICANN’s Board approved the RA extension accompanied by an amendment to the RA extending the $7.85 price cap through 2024. But it’s also true that the very same RA obligates ICANN and Verisign to engage in good faith negotiations to bring the RA into consistency with any changes in the CA – and its termination would certainly be a major change.

The bottom line is that NTIA’s approval of the .Com RA extension constitutes the last official act to extend Verisign’s role as registry operator through at least 2024, and probably beyond as it does not alter the RA’s presumptive renewal clause.

But it does not determine .Com pricing beyond 2018, as whether the price cap or some other form of pricing control continues past 2018 depends on the NTIA’s future  decision on whether and in what form to extend the CA. And that NTIA decision will be followed up by ICANN-Verisign negotiations to render the RA consistent with the CA.


Here’s the full text of Verisign’s FAQ document on today’s development:


Frequently Asked Questions

Q: Has the Cooperative Agreement been amended to remove Verisign’s root zone

maintainer obligations?

A: Yes, those functions will now be performed by Verisign for ICANN under the

Root Zone Maintainer Service Agreement, which ICANN posted for public review at


Q: Who will authorize changes to the root zone file?

A: ICANN will authenticate and verify submitted changes, which are then submitted to

Verisign for publication, per the RZMA.

Q: Has the term of the .com Registry Agreement been extended?

A: Yes, the Department of Commerce has approved the extension as in the public

interest. The registry agreement term now ends on November 30, 2024.

Q: Was the Cooperative Agreement extended?

A: No. However, the Department of Commerce has the right, in its sole discretion, to

extend the Cooperative Agreement before it is scheduled to expire on November 30,


Q: Will the Department of Commerce extend the Cooperative Agreement?

A: The Department of Commerce has reserved the right to conduct a public interest

review to determine whether the Cooperative Agreement should be extended.

Q: Will the public interest review result in changes to Verisign’s pricing for .com

domain name registrations?

A: The purpose of the public interest review will be solely to determine whether the

Cooperative Agreement should be extended.

Q: What happens if issues arise during the public interest review?

A: The parties have agreed to work in good faith to reach mutual agreement to resolve

any issues.



Court of Appeals Avoids “Doomsday Effect” in Iran ccTLD Decision

Earlier today the U.S. Court of Appeals for the DC Circuit issued its decision in Weinstein vs. Iran, a case in which families of terror victims sought to have ICANN turn over control of Iran’s .IR ccTLD to plaintiffs. In a unanimous decision the three judge panel stated, “On ICANN’s motion, the district court quashed the writs, finding the data unattachable under District of Columbia (D.C.) law. We affirm the district court but on alternative grounds.”

In reaching its decision, the Court opined (but did not decide) that a top level domain constitutes an attachable property interest. Nonetheless, the Court used its statutory authority to avoid a result  that could have led to a “doomsday effect” for ICANN and all Internet users by creating technical instability in the DNS, as well as undermining confidence in ICANN and possibly leading to an end of voluntary participation in its root zone by many entities, who might then go on to establish an  alternate DNS and thereby “split the root”.

In my view, this result avoids the possibility of a major erosion of confidence and participation in ICANN by ccTLD operators by making clear that a respected Court of Appeals in the U.S. possesses adequate technical understanding of the DNS to avoid a legal decision that could lead to technical and political instability – many nations would not wish to continue in a DNS coordinated by a U.S. non-profit corporation if it could be ordered by a U.S. court to transfer control of any nation’s ccTLD. This decision will also hopefully tamp down calls by some parties for ICANN’s place of incorporation to be moved outside of the U.S. by demonstrating that ICANN’s jurisdiction does not create a threat to other nation’s ccTLDs. Remaining jurisdiction issues will be addressed in work stream 2 of ICANN’s ongoing accountability process.

While the plaintiffs could seek Supreme Court review of the decision, the  Supreme Court would likely  be unwilling to take the case given the rarity of the legal question it presented, and the lack of any split in Circuit Court decisions on it.

The operative portion of the decision states:

We assume without deciding that the ccTLDs the plaintiffs seek constitute “property” under the FSIA and, further, that the defendant sovereigns have some attachable ownership interest in them. Nonetheless, pursuant to the terrorist activity exception, the court has the “authority” to “prevent appropriately the impairment of an interest held by a person who is not liable in the action giving rise to a judgment”—i.e., we are expressly authorized to protect the interests of ICANN and other entities. 28 U.S.C. § 1610(g)(3). Because of the enormous third-party interests at stake—and because there is no way to execute on the plaintiffs’ judgments without impairing those interests—we cannot permit attachment. 

The plaintiffs demand, in effect, that ICANN delegate management of the “.ir” ccTLD28 so that they can “sell or license the operation of the ccTLD[] to a third party.” Appellants’ Reply Br. at 26. As explained, the power to operate a ccTLD includes the power to register (or remove) domain names from that registry. Thus, an entity seeking a “.ir” domain name will have to register through the plaintiffs or their designee—a process in which the ccTLD manager can extract a fee. The plaintiffs’ plan plainly impairs the interests of “person[s] who [are] not liable in the action giving rise to [the] judgment” in myriad ways. 18 U.S.C. § 1610(g). 

First, requiring ICANN to delegate “.ir” to the plaintiffs would bypass ICANN’s process for ccTLD delegation, which includes ensuring that the incoming manager has technical competence and a commitment to serving the Iranian Internet community’s interests. The plaintiffs and, more importantly, their prospective designee may not possess that technical competence or commitment. Granted, the plaintiffs are “aware that the . . . court can—and should—protect the interests of third parties” and they “welcome the opportunity to work together with the district court and ICANN to ensure a smooth transition.” Appellants’ Reply Br. at 26. But even if the plaintiffs are able to show adequate competence and commitment, the act of forced delegation itself impairs ICANN’s interest in “protect[ing] the stability . . . [and] interoperability . . . of the DNS.” Decl. of John O. Jeffrey, App’x 24.2 ¶ 5.

Recall that a change in the root zone file will only affect the routing of a search for “.ir.” But a change in the root zone file does not also transfer the information stored on the ccTLD server. To ensure that any delegation occurs seamlessly, ICANN requires that the incoming manager provide a plan to preserve the stability of the ccTLD, which plan explains how existing registrants will be affected. According to ICANN, the current ccTLD managers in the defendant countries will not voluntarily transfer information regarding their registrants and, because the relevant servers are located abroad, we are powerless to so require them. If ICANN is required to direct an end-user looking for “.ir” web pages to the plaintiffs’ server but the plaintiffs are unable to direct them to the requested SLD, the Internet’s stability and interoperability are undermined. 

The impairment does not end there. As the plaintiffs recognize, ICANN occupies its position only because “the global community allows it to play that role.” Appellants’ Br. at 34 (emphasis added). “[T]he operators of . . . top level domains” can “form a competitor to ICANN and agree to refer all DNS traffic to a new root zone directory.” Id.; see also Br. for United States as Amicus Curiae at 13 (“As a technological matter, nothing prevents an entity outside the United States from publishing its own root zone file and persuading the operators of the Internet’s name servers to treat that version as authoritative instead.”). This result, known as “splitting the root,” is widely viewed as a potentially disastrous development; indeed, some regard it as the beginning of “ultimate collapse of Internet stability”—a “doomsday scenario for the globally accessible” network and, thus, for ICANN. Harold Feld, Structured to Fail: ICANN and the ‘Privatization’ Experiment, in WHO RULES THE NET?: INTERNET GOVERNANCE AND JURISDICTION 351 (Cato Inst. 2003). Whether that description of a split root is accurate need not concern us; ICANN’s interests, as a third party “not liable in the action giving rise to [the] judgment,” 18 U.S.C. § 1610(g)(3), are sufficient for us to protect them pursuant to section 1610(g)(3) of the FSIA. See Appellee’s Br. at 34 (“[F]orced re-delegation of the Subject ccTLDs would . . . wreak havoc on the domain name system.”); see also Br. for United States as Amicus Curiae at 13 (“[T]he result would be devastating for ICANN, for the [current] model of Internet governance, and for the freedom and stability of the Internet as a whole.”). 

But given that the ICANN-administered DNS is the beneficiary of substantial network effects, how could such a doomsday scenario arise? And why would forced delegation hasten its arrival?  In light of the plaintiffs’ recognition that ICANN’s control “stems only from the fact that the global community allows it to play that role,” Appellants’ Br. at 34, and considering that the delegation of the three defendant sovereigns’ ccTLDs could likely antagonize the global community, see Br. for United States as Amicus Curiae at 13 (“It is not difficult to imagine that a court-ordered change to the authoritative root zone file at the behest of private plaintiffs would prompt members of the global Internet community to turn their backs on ICANN for good.”), we believe the doomsday scenario is not beyond imagining. 

For the foregoing reasons, the judgment of the district court is affirmed. (Emphasis added)


TMCH Review Recommends Status Quo

On July 25th ICANN announced the publication of the Draft Report of the Independent Review of the Trademark Clearinghouse (TMCH). This study was coordinated for ICANN by the Analysis Group, in conjunction with researchers from the Center for Internet and Society at Stanford as well the University of Pennsylvania’s Wharton School.

The Report’s Executive Summary provides a background on its origin and purpose:

The Trademark Clearinghouse (“TMCH”) was established in March 2013 and serves as central repository for information to be authenticated, stored, and disseminated, pertaining to the rights of trademark holders in ICANN’s New Generic Top-Level Domain (“new gTLD”) program. Analysis Group was commissioned by ICANN to undertake an independent review of TMCH services based on the Governmental Advisory Committee (“GAC”) recommendation in May 2011 that a comprehensive, post launch review be performed. The purpose of this review is not to make policy recommendations, but to assess the strengths and weaknesses of the TMCH services in conjunction with the specified areas for review proposed by the GAC. Specifically, our review is focused on the TMCH matching criteria, as well as the Claims Service and Sunrise Services. (Emphasis added)

That section makes clear that, while public comments on the draft report will be accepted through September 3rd, this Report was triggered by GAC concerns expressed before the Applicant Guidebook for the new gTLD program was even completed, and is not the work product of a GNSO-created working group and therefore will not directly result in the establishment of any new ICANN policy.

However, this Report will be of use to the Working Group (WG) established to review all Rights Protection Mechanisms (RPMs) in all generic Top Level Domains (gTLDs), of which I am one of three Co-Chairs. A sub-team of the WG is currently engaged in identifying available data to inform its policy discussions focusing on the TMCH and the related Claims Service and Sunrise Registration programs. The full WG will engage in an intensive review of all the available data relating to these subjects, including this Report, and then will reach its own consensus conclusions on policy recommendations.

As summarized by ICANN, the Report made three key findings (which are reproduced below along with relevant quotes from the Report’s Executive Summary) :

  • Expanding Matching Criteria to include non-exact matches may be of limited benefit:The dispute rate of completed registrations that are variations of trademark strings is very low. – “We also find that trademark holders infrequently dispute registrations that are variations of trademark strings. Given the low dispute rates, an expansion of the matching criteria may bring little benefit to trademark holders and only harm non trademark-holder domain registrants, who may be deterred from registering trademark string variations that would otherwise not be considered a trademark infringement by trademark holders or authorities who make such determinations.”
  • Extending the Trademark Claims Service may have diminishing value:Registrations of names matching trademarks decline after the required 90-day Claims service period ends. – “[E]xtending the Claims Service period or expanding the matching criteria used for triggering Claims Service notifications may be of limited benefit to trademark holders and may be associated with costs incurred by other stakeholder groups, such as registries, registrars, and non-trademark-holder domain registrants. Although our data do not permit us to perform a cost-benefit analysis of extending the Claims Service or expanding the matching criteria, the tradeoffs felt by different stakeholder groups should be considered when weighing those policy decisions. The effectiveness of Claims Service notifications depends on how many registration attempts are being made. We find that registration activity declines after the 90-day Claims Service period ends, so any additional months added to the Claims Service period will likely have diminishing value.”
  • Few trademark holders utilize the Sunrise period:Most users of the Trademark Clearinghouse submit proof of use to gain access to the Sunrise period. However, across eligible trademark holders, fewer than 20 percent have used the Sunrise period to date. – “[W]e find that although trademark holders expressed valuing the Sunrise period through questionnaire feedback and many trademark holders apply for Sunrise eligibility by submitting proof of use when recording their marks in the TMCH, many trademark holders do not utilize the period. This could be due to the expense of Sunrise registrations or because other protections of the TMCH services, such as the Claims Service, reduce the need for trademark holders to utilize Sunrise registrations.”

These are valuable findings and observations and will receive due consideration by the RPM Review WG.

In regard to any proposed expansion of the matching criteria, I lean against that option for two separate reasons. First, the TMCH is supposed to be a repository of registered trademarks meeting certain qualitative criteria, and permitting the registration of inexact matches would erode its value as a global trademark database. Second, after all the divisive debate within ICANN over adoption of Trademark-plus-Fifty, which permits trademark owners to register inexact matches of their marks in the TMCH corresponding to typosquat or domain-plus-product/services domains that were recovered in trademark litigation or a UDRP actions, the actual registration of Trademark-plus-Fifty terms in the TMCH has been quite low.

Finally, the Report was unable to quantify the extent to which the transmission of Claims Notices by registrars to individuals attempting to register domains that matched marks in the TMCH was either deterring infringing registrations, or causing non-infringing registrations to be abandoned out of fear of unwarranted resulting legal action. In this regard the Report states:

Although it is possible that the Claims Service and matching criteria may help deter rights-infringing registrations that are exact matches to trademark strings recorded in the TMCH, it is also possible that some good-faith registrations are being deterred by the current Claims Service system, which may be detrimental to the registration activity of non-trademark-holder domain registrants. Limitations of our data do not allow us to definitively conclude whether Claims Service notifications have a deterrent effect on either type of registration activity.

In relation to this inconclusive analysis, the report also documents that:

  • As of April 1, 2016, there were 40,465 records in the TMCH, of which 32,528 were current and have been verified to have accurate and correct information meeting TMCH guidelines.
  • There were 113.2 million unique download requests for TMCH records between October 2013 and February 2016 (note: registrars download a record each time there is an attempted registration of a new gTLD domain — but registrars may also download records when no registration attempt has been made).
  • Roughly 26,405 unique, verified trademarks in the TMCH (81% of all verified trademarks in the TMCH) have been downloaded during the Claims Service period at least once.
  • 93.7% of the 1.8 million registration attempts that received a Claims Service notification were abandoned, and only 6.3% went on to complete the domain registration. Of the nearly 114,000 registrations receiving a notification that were completed, only 0.3% were subject to subsequent domain disputes as of December 2015.

In regard to that very low dispute rate involving completed registrations of domains that triggered generations of a Claims Notice, the Report suggests possible reasons:

There are several possible reasons why the dispute rate on Claims Service notifications is so low. First, bad-faith registrations may be largely abandoned when a Claims Service notification is received, so very few domains are registered that trademark holders would wish to dispute. Second, there may be a lag between the time a domain is registered and discovered by a trademark holder and when a dispute is filed, causing us to see some registrations as non-disputed when they may become disputed in the future (i.e., we do not observe a dispute in the dispute data because it is limited to disputes that occurred before the end of 2015). Third, trademark holders may be generally less concerned by the domain registrations in the Claims Service data, either because the domain names are low-priority for disputes or because exact match registrations made in new gTLDs are less threatening to trademark holders than registrations in legacy TLDs like .com.

To evaluate whether the first explanation explains our results, we would need information on the domain names that were attempted in abandoned registrations. However, the Claims Service data only contain domain names for completed registrations. Therefore, we are unable to evaluate the characteristics of abandoned registration attempts.

I have been concerned since Spring 2015 that receipt of a highly legalistic Claims Notice may have scared off potential new gTLD registrants with no infringing intent but who are not sophisticated about trademark law, writing at that time:

No doubt there have been attempts by intentional cybersquatters to register trademarked names that have been effectively deterred when they received a Claims Notice and realized that the trademark owner would be notified of the domain registration immediately and might well take some form of legal response.

But there also may have been lots of potential registrants for non-infringing uses of short and meaningful generic dictionary words as domain labels who were spooked enough when they received the Claims Notice to abandon the registration. While the Claims Notice does provide a prospective registrant with information regarding the Jurisdiction where the trademark is registered and the class of Goods and Services that the trademark covers, most prospective registrants of non-infringing domains are not well versed in trademark law, don’t want to have to spend money to consult a lawyer to see if their registration will be infringing or not, and don’t want to risk being hit with a cease-and-desist letter, UDRP or URS filing, or a trademark infringement lawsuit. The same could be true even for potential registrants well versed in trademark law who simply don’t wish to expose themselves to a potential legal action, regardless of its merits — especially since continuing on to registration after receipt of the Notice might be alleged to constitute proof of bad faith registration…the TMCH has almost surely been quite effective in deterring infringing domain registrations at new gTLDs. But it appears to also have been a substantial damper on total new gTLD domain registrations. The unanswered question is how big of a headwind it has been.

The RPM Review WG may well try to find a more definitive answer to that question, and one promising area of inquiry is finding out what relevant data may lie outside of the TMCH in any records of attempted and abandoned registrations held by registrars. The WG may also consider making the language of the Claims Notice more understandable and less intimidating for the domain purchasing general public.

Overall, the Report provides much useful data and analysis for the Working Group’s further consideration, as it proceeds to comprehensively review the new gTLD PRMs and considers whether to recommend any modifications of them.




NTIA Revs up Rhetoric as IANA Transition Looms

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.



ICANN Board Decisions to become More Transparent


“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 Transparencythat 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.




ICA Counsel Confirmed As Co-Chair of RPM Review WG

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:

  • Scott Evans, trademark Counsel at Adobe, which he represents on the BC. He is also immediate Past President of the International Trademark Association (INTA), and former Chair of ICANN’s Intellectual Property Constituency IPC).
  • Kathy Kleiman, an attorney at the Virginia-based firm of Fletcher, Heald and Hildreth, and an active member of ICANN’s Non-Commercial Users Constituency (NCUC).

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:

  • the Post-Delegation Dispute Resolution Procedures (PDDRPs);
  • the Trademark Clearinghouse (TMCH) and the associated availability through the TMCH of Sunrise period registrations and the Trademark Claims notification service; and
  • the Uniform Rapid Suspension system (URS)

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.



ICA Counsel Chosen as Interim Chair of Working Group to Review all RPMs in all gTLDs – Including the UDRP

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:

  • Is the URS’ ‘clear and convincing’ standard of proof appropriate? This is higher than the UDRP’s preponderance of the evidence standard and demarks a clear difference between the URS and UDRP by placing a higher burden of proof on the Complainant.
  • Should the URS allow for additional remedies such as a perpetual block or other remedy, e.g. transfer or a “right of first refusal” to register the domain name in question? Many domain investors fear that permitting domain transfer could convert the URS into a UDRP substitute and low-cost vehicle for domain hijacking; trademark owners counter that mere suspension of a blatantly infringing domain allows it to be re-registered in the future.
  • Should there be a loser pays model? If so, how can that be enforced if the respondent does not respond? Monetary penalties are not a current feature of the UDRP for either abusive registrants or complainants.
  • What sanctions should be allowed for misuse of the URS by the trademark owner? There is presently no penalty for attempted use of the UDRP for Reverse Domain Name Hijacking, other than a verbal citation.
  • How can the appeals process of the URS be expanded and improved? While the UDRP permits either losing party to appeal to a court of mutual jurisdiction, there are no mechanisms to set binding precedents that would assure greater consistency and predictability in panelist decisions.

Likewise, the review of the Trademark Clearinghouse (TMCH) will address such questions as:

  • Should the TMCH matching rules be expanded, e.g. to include plurals, ‘marks contained’ or ‘mark+keyword’, and/or common typos of a mark?
  • Should notices to the trademark owner ought to be sent before the domain is registered?

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:

  • Should the Trademark Claims period be extended beyond ninety (90) days?
  • Does a Trademark Claims period create a potential “chilling effect” on genuine registrations, and, if so, how should this be addressed?
  • Is the TMCH providing too much protection for those with a trademark on a generic or descriptive dictionary word, thus allowing a trademark in one category of goods and services to block or postpone the legitimate and rightful use of all others in other areas of goods and services? Are legitimate noncommercial, commercial and individual registrants losing legitimate opportunities to register domain names in New gTLDs?
  • How should the TMCH scope be limited to apply to only the categories of goods and services in which the generic terms in a trademark are protected?
  • Should TM +50 be reversed?

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.


ICANN and VeriSign Reach Deal for Ten Year .Com Agreement Extension

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:

  • Verisign has negotiated an agreement with ICANN that would establish a new 10-year Root Zone Maintainer Agreement (with ICANN stepping into NTIA’s shoes) and link it to a 10-year extension of the separate .Com RA, both of which would commence on the date of the IANA transition. (So, if the transition occurs on October 1, 2016 – the date on which the current Congressional appropriations freeze on transfer of the IANA contract lapses — the expiration date of the .Com registry agreement would change from November 30, 2018 to October 1, 2026.)
  • The deal requires approval of the ICANN and VeriSign Boards, and then of the NTIA. It will be subject to public comment.
  • The deal does not lift the .Com price freeze contained in a separate Cooperative Agreement between VeriSign and NTIA. VeriSign retains its existing contract rights to petition for pricing relief if market conditions change sufficiently to restrain its .Com pricing power.

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.

 (Emphasis added)



ICA Welcomes New ICANN CEO Göran Marby

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.”


ICA Asks ICANN BGC to Reconsider Approval of Legacy gTLD Registry Agreements Containing URS

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.