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Bringing a Responsible Closure to the gTLD Implement Process

Last Friday ICANN released an updated new generic Top-Level Domain (gTLD) Applicant Guidebook that appears to have taken a number of positive steps toward closing the divide between the ICANN Board and the Governmental Advisory Committee (GAC). One of the more important changes to the Applicant Guidebook was the following text:

GAC Advice on New gTLDs that includes a consensus statement from the GAC that an application should not proceed as submitted, and that includes a thorough explanation of the public policy basis for such advice, will create a strong presumption for the Board that the application should not be approved.

While this text likely would have been sufficient to address the GAC’s concerns approximately six to twelve months ago, the reality of the post ICM Registry resolution probably makes this current text insufficient to address the GAC’s concerns. However, in an effort to keep ICANN’s June 20th celebration on track the following changes to the ICANN bylaws should proactively address the GAC’s concerns and permit the Applicant Guidebook to be finalized in Singapore.

j. The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board believes an action may not be consistent with Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why. The Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.

k. The ICANN Board shall adopt GAC consensus advice unless by a vote of more than sixty-six (66%) percent of the Board determines that such policy is not in the best interests of the ICANN community or ICANN. If the ICANN Board by a 66% vote decides not to follow GAC advice, the ICANN Board will state in its final decision the reasons why the Governmental Advisory Committee advice was not followed, and such statement will be without prejudice to the rights or obligations of Governmental Advisory Committee members with regard to public policy issues falling within their responsibilities.

While ICANN is a private-sector lead organization it’s legitimacy rests upon the private-public partnership principles that are enshrined in its bylaws and articles of incorporation. The long term viability of most partnerships is based upon shared responsibility and equality among the parties. Therefore, just like the ICANN Board shall adopted a GNSO Council supermajority policy recommendation unless 66% of the ICANN Board decides it is not in the best interests of the ICANN community or ICANN (see Paragraph 13.b of Annex A in the ICANN Bylaws), GAC consensus policy advice should be afforded the same deference under the bylaws, no more, no less.

Another reason for hard coding these changes into the bylaws instead of the Guidebook, is to remove any potential ambiguity, e.g. GAC advice fell outside any proscribed window of action. As the recent GAC communiqué accurately stated there is no requirement under the ICANN bylaws when the GAC can provide advice to the Board.

This simple amendment to the ICANN bylaws coupled with the recent applicant guidebook changes and the final ICANN Board/GAC consultation scheduled for May 20th should provide a clear path forward for ICANN’s planned June 20th celebration.

By Michael D. Palage, Intellectual Property Attorney and IT Consultant

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