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GAC Advice

The GAC provides advice to the ICANN Board on policy matters where there may be an interaction between ICANN’s policies and various laws, international agreements and public policy objectives. GAC Advice is communicated to the ICANN Board through either a Communique or a formal piece of Correspondence.

2013-04-11-PICSPEC

GAC Advice

Reference No. :

2013-04-11-PICSPEC

First Delivered via :

N/A

Consenus:

Consensus met

2013-04-11-PICSPEC

Communication

1. Public Interest Commitments Specifications

The GAC requests:

  1. more information on the Public Interest Commitments Specifications on the basis of the questions listed in annex II.

ANNEX II

List of questions related to Public Interest Commitments Specifications

  1. Could a third party intervene or object if it thinks that a public interest commitment is not being followed? Will governments be able to raise those sorts of concerns on behalf of their constituents?
  2. If an applicant does submit a public interest commitment and it is accepted are they able to later amend it? And if so, is there a process for that?
  3. What are ICANN’s intentions with regard to maximizing awareness by registry operators of their commitments?
  4. Will there be requirements on the operators to maximize the visibility of these commitments so that stakeholders, including governments, can quickly determine what commitments were made?
  5. How can we follow up a situation where an operator has not made any commitments? What is the process for amending that situation?
  6. Are the commitments enforceable, especially later changes? Are they then going into any contract compliance?
  7. How will ICANN decide whether to follow the sanctions recommended by the PIC DRP? Will there be clear and transparent criteria? Based on other Dispute Resolution Procedures what is the expected fee level?
  8. If serious damage has been a result of the past registration policy, will there be measures to remediate the harm?

GAC Acknowledgement of Register Entry

GAC: 2 May 2013

Board: 9 May 2013

Next Steps/Required Action

QuestionsAnswers
1

With regards to the importance of having a date in which the first agreements or contracts will be signed – April 23rd – and taking into consideration the fact that there are discussions regarding the insertion of new gTLDs; what do you do in the event that an application that is ready to be approved and put in the IANA database is discovered not to be in line with the GAC as well as the community objections?

When the Registry Agreement is signed, it means that the applicant has passed all of the requirements in the Applicant Guidebook. However, the applicant still needs to complete pre-delegation testing before they apply to IANA for delegation.

On the GAC advice, we are waiting for the GAC advice to come out before signing registry agreements. Subsequently, when we get the GAC advice, the Board will have to consider it, and then will have to decide on the next step.

Regarding the gTLD program dates, if everything comes together as expected, April 23rd is the target date for signing the first contract.

2

In the process of approving an application that falls in the geographic names category, what criteria are going to be implemented to make sure that the one that is being approved in the first slide does not create a precedent in the discussion concerning category problems?

ICANN is following the Applicant Guidebook as much as possible, which will lead to more accurate and straightforward results.

3

Standing for objections - will governments be able to raise issues that they see on behalf of constituents?

For the formal objection process, standing requirements vary by the type of objection. For the limited public interest objection, it is expected that governments would be able to do that, given their public interest status.

ICANN made funding available for objection filing fees, as well as for advance payment of costs, to individual national governments in the amount of USD 50,000 with the guarantee that a minimum of one objection per government will be fully funded by ICANN where requested. The procedure for application and disbursement of funds is available at http://newgtlds.icann.org/en/program-status/odr/government-funding.

4

If an applicant does submit a public interest commitment and it is accepted, are they able to later amend it and if so, is there a process for that?

Yes, applicants have the ability to submit updates by making a change request. Also, we will post change requests for public comment for at least a 30-day period.

5

Some have expressed an interest in filing public interest commitment specifications where they didn't at all, thus some applicants didn't file commitments yet, any comments on that?

If somebody wants to make later changes and add certain commitments to their PIC Specifications, we're going to work with the applicant and make sure that they have the ability to do that without major delays.

6

Being that the GAC would like to have extra safeguards on certain applications, if this needs contractual change for them to be implemented, what are the possibilities of putting this in the contracts?

The Board would have to make a decision based on the GAC advice that comes to them, and if the Board decides that they need some more time to make a decision, then we would wait for that to happen. So we will not enter into a contract before all of these issues are addressed. Our aim is that if the GAC advice comes after Beijing or during Beijing, that we will have two to three weeks to finalize whatever we need to do for the advice and decide whether we can stick to the schedule or whether we need to change it.

7

What are ICANN’s intentions with regard to maximizing awareness by registry operators of their commitments? Will ICANN provide some facility through its website where this is highly visible? Will there be requirements on the operators to maximize the visibility of these commitments so that stakeholders, including governments, can quickly determine what commitments were made when they start to hear about issues about how the business is being conducted?

The PIC Specifications have been published and area available on the website (see https://gtldresult.icann.org/application-result/applicationstatus/viewstatus). Also, we are moving to a better Customer Relationship Management tool that will be up and running by the end of the year. This will allow for an easier way to navigate and get additional information about TLDs. So there will be more opportunities to make these PICs more visible, easier to understand and to track.

8

What is the process for submitting a complaint or a concern that those commitments are not being adhered to or being disregarded or amended without anybody being fully aware of it?

The idea of the PIC Specification was that we would hold the applicant responsible to its commitments, and the public would monitor how the TLD is behaving. If there is an issue with the TLD, then the people who are affected can raise an objection or a dispute with the TLD.

Once the dispute resolution process comes out with a finding on the issue, then ICANN steps in to ensure that the registry is behaving accordingly. This is a great improvement. ICANN is not suited to be the monitor of this issue and could not do the job on its own, but the community now has a mechanism to be able to address these things.
9

How can we follow-up a situation where an operator has not made any commitments?

The PIC Specification allowed applicants, which were worried that they were going to get advice because maybe their application is not clear or their commitments are not clear, to clarify these commitments to mitigate that risk. If an applicant has not put in their commitments yet, they can always do so, and if the GAC believes this is needed, they can still provide that advice.

10

How will you ensure that this whole area of commitments is going to be functioning in a way that's going to serve the interest of the entire community of users, stakeholders, everybody?

The PIC Specification is designed to serve the interests of the global Internet community, to provide a mechanism for public interest commitments by applicants, and to provide a means to address any issues that arise. The PIC Specification with the dispute resolution procedure to address issues means we are doing this in a way that will be implementable.

11

We had the understanding that there would be no substantive change of an application that would be allowed once it's been filed, but now, with these public interest commitments we got the feeling that basically you can add and change and amend whatever you want. Additional clarification needed on where the line is between clarifying commitments and adding new commitments or changing, amending commitments. How should we take this into account in terms of legal effects, but also the effects on competitors and so on and so forth that these public interest commitments have? Applicants are also afraid that their commitments are now just copy pasted by competitors and they care about whether the others that now maybe copy paste their commitments are actually able to implement these commitments and how ICANN will make sure that these commitments are implemented.

Any commitments set out in a PIC Specification that result in a change to the application must be accompanied by a change request to change the corresponding portions of the application.

Prior to signing the Registry Agreement, ICANN will accept a change request that is directed solely to a change to the PIC Specification unless there are indications that the change is being requested to manipulate the process. An example of a change that could be viewed as a manipulation of process is the change of a PIC Specification after the close of the objection period to remove commitments that appeared to be included to avoid the filing of an objection.

Changes to PIC Specifications will be subject to a further 30-day public review period.

All public interest commitments made by applicants are expected to be fulfilled. The PIC Dispute Resolution Process (PICDRP) is intended to provide a mechanism for consideration of complaints regarding the Registry Operator's compliance with the commitments made in the PIC Specification.

It is anticipated that, in the event the Registry Operator does not prevail in the PIC DRP, the dispute resolution provider could recommend a variety of remedies, such as specific performance of certain commitments.
12

Who is going to go through all the applicants and make assessment of what applicants should have posted public interest commitments or not?

The other thing with the public interest commitment is that as we have understood they are a volunteer so perhaps they should have been made mandatory for certain types of applicants.

All applicants have the opportunity to submit PIC Specifications; however, applicants are not required to submit a PIC Specification if they do not wish to incorporate binding commitment into the registry agreements.

The PIC Specifications received have been posted on the ICANN website for public review (including review by members of ICANN's Governmental Advisory Committee).

If an applicant does not submit a PIC Specification, the GAC may still elect to provide advice on the application as appropriate.
13

Are the commitments then enforceable? In terms of later changes to the public commitment and other commitments, are they then entering any contract compliance issues? Link between public interest commitments and contract terms, and how to enforce it once they have committed to it.

Governments will not be able to monitor changes or any breaches, thus a monitoring system must be put in place by ICANN to be able to monitor that all the applicants comply with the requirements.

To resolve any issues that might arise regarding non-compliance with a registry’s public interest commitments, a third party-administered dispute resolution procedure (the PIC-DRP) will be in place.

If there is an issue with the TLD, then those who are affected can raise an objection or a dispute with the TLD. ICANN is not suited to be the monitor of this issue and could not do the job on its own, but the community now has a mechanism to be able to address these things. Once the dispute resolution process comes out with a finding on the issue, then ICANN steps in to ensure that the TLD is behaving accordingly.

14

How will ICANN decide whether to follow the sanctions recommended by the PICDRP? Will there be clear and transparent criteria as to when you actually decide to follow the recommendation?

ICANN will review any recommendation for reasonableness prior to continuing with enforcement, and the Registry Operator will have an opportunity to contest the reasonableness of the remedy as well.

15

Based on other dispute resolution procedures, what is the expected fee level?

The service provider(s) will determine the costs for the proceedings that it administers, to cover the fees and expenses of the members of the Panel, as well as the administrative fees of the DRSP.

16

If there has been a serious damage before the PICDRP, such as when a government wants to put forward a case of a breach about a PIC and once finalized in the panel the paper explains one cannot go back and remediate the registrations that have been done prior to the PICDRP process, will there be no measures to remediate that harm?

Since registrants of domain names registered in violation of the PIC(s) are not a party to the PICDRP proceeding, a recommended remedy cannot take the form of deleting, transferring or suspending registrations that were made in violation of the PIC(s) (except to the extent registrants have been shown to be officers, directors, agents, employees, or entities under common control with a registry operator).

17

What is the possible precedent that these agreements that would possibly be signed on the 23rd of April would set in terms of the other gTLDs and categories that fall in the same the field? Could you elaborate on how we would work out the time frames if they were to be different between the GAC advice and what you are intending to do in terms of contract signing?

The reason the date was chosen to be April 23rd is that we wanted to hear from the GAC on the GAC advice and see what the Board comes back with on that before we can move forward. We will wait for the GAC advice, the Board reasoning on that, and how they will handle the GAC advice before we sign any contract. We will not put ourselves in a position to sign a contract and then have a contract changed later. We will make sure that there's clarity on the Board reply to the GAC, and from there we can decide if we can move forward or if we need to finish/change the contract before we move forward.

18

We are aware of the strings that have been the targets/subjects of the different objections, if you will. However, the actual substance of the objections, could you please confirm they are not presently available, to my knowledge? And when might they be?

Notice of the objections is published on the dispute resolution service provider websites, and will also be published on the ICANN website. The objections themselves are not published as part of the procedure; however, the decisions rendered by dispute resolution service provider panels are generally expected to be published.

Responsible Party

Board/Staff

Current Status/Communications Log

GAC-gTLD-QA-04apr13.docx

Board Action (Accept/Disagree)

Accept

NGPC Consideration of GAC Beijing Advice 07-03-13[2].docx