ICANN Board Locks Down New gTLD Timeline, Approves .XXX Contract

ICANN’s Board of Directors moved decisively toward final implementation of the new gTLD program with a unanimous vote in favor of setting a timeline that contemplates final approval of the Applicant Guidebook (AG) at the June 2011 ICANN meeting in Singapore. The Board also voted to move forward and sign a contract with ICM Registry to operate the controversial .XXX sponsored TLD for adult content, following a lengthy public debate in which numerous Board members laid out the reasoning for their votes on this long-simmering matter.

Notwithstanding that the Board and the Governmental Advisory Committee (GAC) still have more than fifty areas of partial or complete disagreement on the “GAC Scorecard’s” suggested changes to the AG, the Board adopted a resolution setting forth an aggressive timeline for bringing the pre-application phase of the new gTLD program to a close. That schedule is –

•    March 25 – anticipated receipt of additional written feedback from the GAC

•    April 16 – release of a Final Scorecard that reflects comprehensive Boardresponses to the GAC’s advice, as well publication of AG extracts containing proposed revised language changes, for comment by ICANN constituencies and the public

•    May 15 – close of the public comment period

•    May 20 – Board/GAC teleconference to discuss the Final Scorecard

•    May 30 – posting of the Final Applicant Guidebook

•   June 20—Board consideration and vote on the Final AG at a special meeting to be held on the opening day of the Singapore ICANN meeting

Assuming that this schedule is adhered to and a launch vote occurs on June 20th, a four month global publicity campaign would commence with the application window opening in late October 2011. The first new gTLDs approved under this program would likely be added to the root zone directory in the latter half of Spring 2012.

Board member Rita Rodin Johnston noted that the launch of the new gTLD program would not mark the end of the process but a new beginning, and that continuing adjustments would likely be made in the program based on post-launch experience. GAC Chair Heather Dryden committed it to remaining engaged with the broad ICANN community with the aim of reaching consensus. And Board Chairman Peter Dengate Thrush declared that “the Board is very keen on this timeline and intends to stick to it”.

The critical portion of the adopted timeline will be the 30 day public comment period between mid-April and May. ICA will be critically examining the final proposed alterations to the AG’s language with the aim of assuring that the rights of new gTLD registrants are fully respected and preserved.

The Board’s unanimity and good feelings on the new gTLD timeline decision were not to be replicated in its .XXX vote. As Ms. Rodin Johnston characterized it, they were between a rock and a hard place, with the vote presenting a “lose-lose proposition”. The adopted Resolution authorizes ICANN’s CEO or General Counsel to execute a registry agreement with ICM Registry to operate the new sTLD, while setting forth and providing a lengthy rationale for proceeding with this decision notwithstanding unresolved disagreements with the GAC.

Nearly half the Board members felt compelled to give public explanation of their vote, with the final tally being nine in favor, four against, and three abstentions. The longest and most eloquent statement advocating a No vote was presented by Board member George Sadowsky. He characterized the decision as among the most contentious in ICANN’s history, said his aim was to protect ICANN’s best interests, and based his opposition on multiple factors, including:

•    Insufficient proof of world-wide community support for this sponsored TLD, which he judged to be “illusory”

•    Potential harm to a unified global Internet and its security and stability if governments acted to block or filter .XXX

•    Potential loss of broader free speech in many nations, including political speech, justified as protection from pornography

•    Inconsistency with global cultural norms.

Overall, while Mr. Sadowsky argued that the Board’s decision would have no real impact on the overall availability of online adult content, he stated that approval would be a “victory of compulsory adherence to process”. Other Board members stated that they would vote No out of concern that allowing .XXX to proceed would cause a further rift in relations between ICANN and the GAC.

Taking a contrary position, Board member Bernard de la Chapelle, while admitting it was a “very difficult decision”, observed that a No vote would not end the matter, which would linger until the Board voted outright to reject the ICM application – and that ICM would be free to re-apply for .XXX in the new gTLD program, where its registry contract would contain fewer safeguards. Observing that “the game can’t go on forever, it must be brought to an end”, he argued that the global public interest was best served by an affirmative vote on the proposed registry contract and its protective framework. Other Board members observed that national blocking and filtering already existed and would continue regardless. And Ms, Rodin Johnston, recollecting that she had voted against .XXX contract approval in 2007, said that she could not do so again because, ultimately, “this is a debate about respect for process”. Paraphrasing former President Bill Clinton’s remarks delivered to the ICANN meeting two days prior, she urged the Board to “stumble forward” with approval.

It remains to be seen how the Board’s approval of .XXX will be treated in the media and received by GAC member nations as well as in official Washington. Rumors abounded in San Francisco that the Department of Commerce (DOC) would give negative weight to the .XXX approval as it considered renewal of the IANA contract with ICANN to operate the authoritative root server; the current contract expires in September (although the U.S. can unilaterally extend it for six months, until March 2012) and is the ultimate source of ICANN’s policymaking authority. Congressional inquiry into the decision and its implications are also possible. There was even some speculation that the U.S. might act to block the addition of .XXX to the root zone directory as every ICANN decision to add a TLD is subject to DOC review, which makes the ultimate decision on ordering VeriSign to technically implement the instructions. Such TLD root server blocking would be unprecedented and could well provide rhetorical ammunition to China and other nations that wish to wrest root zone authority away from ICANN and the U.S. and lodge it in the International Telecommunications Union or a new multilateral entity affiliated with the United Nations. For our part, we hope that as the reverberations of .XXX approval manifest themselves, all involved parties will act in adult matter that puts the best interests of the Internet and its global user community in a paramount position.

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