(Written by Michael Palage, David Taylor and Faisal Shah)*

The following is a proposal for an “Early Warning” system to resolve one of the remaining impasses between the ICANN Board and the ICANN Governmental Advisory Committee (GAC) as identified in the GAC Scorecard. Based upon phased array radar technology, this proposal is designed to incorporate multiple discrete evaluation phases into the new generic Top-Level Domain (gTLD) program to provide an integrated and comprehensive early warning system for the GAC in providing advice to the ICANN Board, potential applicants, and the broader Internet community.

These discrete evaluation phases are designed to encompass a multiple step review, evaluation and advice process. The first review is focused primarily on the string itself and incorporates some of the elements of ICANN’s previous expression of interest concept, whereas the secondary review involves an analysis of the applicant in connection with the string. These early warning systems are designed to provide prospective applicants with important information regarding potential public policy considerations to empower applicants to make an informed business decision, thus mitigating the potential of a repeat of the 12 million dollar ICM Registry multi-year saga.

First Round—String Analysis

Phase 1: Following a minimum two month global advertising campaign, ICANN would begin accepting expressions of interests from prospective applicants in connection with specific strings for a four week period of time. Applicants would be required to pay a $10,000 fee which would be credited toward the full $185,000 application fee if they decided to proceed.

The only questions a prospective applicant would have to answer are: (1) is the gTLD an ASCII or IDN string; (2) the specific string; and (3) nature of the proposed string: community/geographic/neither.
This information would immediately be posted on the ICANN website upon verifying receipt of payment. No identifying information regarding the potential applicant would appear. However, if ICANN were to receive multiple applications for the same string, ICANN would indicate the actual number of applications received on the public list.

Phase 2: Immediately following the close of the submission period ICANN will publicly publish a final list of potential gTLD strings in the first round, with a formal copy provided to the GAC. ICANN will then create a public forum for each of the proposed strings where the public will be able to submit comments. While these public forums will remain open through the end of Phase 3, ICANN or an independent third party retained by ICANN will conduct a snapshot analysis of the comments received after a four week period. This Snap Shot report will have to be completed within two weeks for submission to the ICANN Board for their consideration. The GAC would be expected to provide a communication to the ICANN Board identifying any potential public policy issues in connection with the strings themselves at this six week milestone.

In those instances in which there is not a consensus position of the GAC in connection with a string, the GAC communication will be required to identify the specific GAC member, the string, and the basis of that GAC member’s public policy concern. The failure of the GAC or of any individual government member to raise a concern in this report would neither expressly or impliedly constitute a waiver under either the ICANN bylaws or the Applicant Guidebook.

Phase 3: The ICANN Board would then meet in person to review the proposed strings and the summary of the initial public comment received as well as the initial GAC communiqué. Ideally this meeting would be held within one month after the receipt of the initial public comment analysis and the GAC communiqué. Specifically, this would allow the ICANN staff two weeks to prepare the Board briefing materials while still providing the Board their two week window to receive briefing documents before a meeting.

At their next scheduled Board meeting, the ICANN Board would pass a resolution directing staff to accept applications from prospective applicants in connection with those strings that received the affirmative support of at least nine ICANN directors, as currently required by Article II, Section 1 of the ICANN bylaws. Following this ICANN Board resolution, the public forum associated with each proposed string would be formally closed.

Given that adding a new gTLD string to the Internet’s authoritative root is not an insignificant act, consideration should be given to amending the ICANN bylaws to require a supermajority (66%) approval of the non-conflicted directors. This proposal would proactively address a number of concerns. First, a number of directors may have conflicts of interests that would prevent them from voting in connection with a specific string, as evidenced in the recent ICM registry resolution. Second, this heightened approval would align with the supermajority requirement that the Board must have to reject a GNSO supermajority vote in connection with a policy development process.

Phase 4: ICANN staff would immediately begin accepting applications from any interested third party in connection with the preapproved strings for a period of two months. Specifically, there would be no requirement for a prospective applicant to have participated in any earlier phases, e.g. any interested third party could submit an application on any of the approved string notwithstanding their non-participation in any of the earlier phases.

Phase 5: The new gTLD process would then proceed according to the process outlined in the current Applicant Guidebook incorporating the following proposed changes:

• The initial public forum may need to be expanded to allow for the GAC to provide a communiqué to the ICANN Board identifying any public policy concerns with regard to specific strings (e.g. reiteration of previous advice provided to the Board in Phase 2) and specific applications in which the prospective applicant and the string that they have applied for may give rise to public policy concerns.

• Similar to Phase 2, there shall be no express or implied waiver in connection with any GAC or individual government rights under the ICANN bylaws or the Applicant Guidebook.

• ICANN shall provide any applicant whose application has been identified in the GAC communiqué as raising potential public policy concerns the ability to withdraw their application with an 80% refund of the initial application fee within a defined period of time.

Subsequent Rounds—String Analysis

To address the concerns of those applicants that do not wish to identify their strings prior to submitting an application in the First Round, ICANN could launch a second round of new gTLDs that would immediately precede Phase 4 identified above. The only differences being that ICANN would not post the strings until the close of the submission period and potential applicants in the next round would be limited to those entities that submitted an application, e.g. submission of an expression of interest in subsequent rounds is a mandatory requirement for prospective applicants.

Once these stings were approved and applications accepted, the applications would be placed in the same queue as the first round. Therefore, an uncontested string in the subsequent rounds could proceed to allocation while strings from the first round where still subject to challenges, extended evaluation, or string contention.

Potential Implementation Timeline

Listed below is a proposed implementation timeline based upon a 20 June 2011 approval date:

20 June 2011—(First Round) ICANN Board approves the Applicant Guidebook and launches the Global Advertising Campaign and immediately begins accepting applications;

15 August 2011—(First Round) Close of the string submission period, commencement of the public comment forum begins, communication to GAC with list of proposed strings;

12 September 2011—(First Round) Begin production of Snap Shot report of initial public forum comment in connection with specific strings;

26 September 2011—(First Round) Due date of Snap Shot report for initial public forum comment and initial GAC communiqué;

24 October 2011—(First Round) Proposed ICANN Board meeting. Could be held in advance or in conjunction with the proposed ICANN annual meeting scheduled for Dakar, Senegal (Oct 23-28);

2 January 2012 (Subsequent Round)—Commencement of second string submission period;

13 January 2012 (Subsequent Round) - Close of string submission period;

16 January 2012 (Subsequent Round)—Publication of string list, communication to GAC with list of proposed strings;

13 February 2012 (Subsequent Round) - Begin production of Snap Shot report of initial public forum comment in connection with specific strings;

27 February 2012 (Subsequent Round) - Due date of Snap Shot report for initial public forum comment and initial GAC communiqué; and

March 2012—(Subsequent Round) Proposed ICANN Board meeting. Could be held in advance or in conjunction with the proposed ICANN annual meeting scheduled for Latin America (March 11-16).

This proposed timeline provides for two rounds of new gTLD applications to be processed within the first year of implementation. This goal would be achievable even if there was a delay in the launch of the second round based upon processing delays experienced in the first round. Specifically, the second round of string submissions could begin as late as March 2012 and the second round of applications would still be able to be received by June of 2012.

Risk Benefit Analysis

The following is a risk benefit analysis of the proposed Early Warning System.

Benefits:

• Respects and incorporates GAC public policy advice in connection with an Early Warning System;

• Proposed Early Warning System provides for multi-phased evaluation process: string and string/applicant;

• Provides prospective applicants with maximum advance warning regarding potential public policy concerns prior to the filing of an application;

• Saves brand owners substantial financial resources by mitigating the need for defensive gTLD applications by providing certainty as to the first round of strings;

• Increases the efficiency of processing applications in the first round by minimizing the number of defensive gTLD applications;

• Eliminates the potential for contentious “submarine” applications in the first round;

• Creates an environment where ICANN is maximizing the potential to attract the best “trustee” for a given string; and

• Given that ICANN has stated that the Applicant Guidebook will not be a static document and will evolve over time, this phased approach allows for any evolutionary changes based upon lessons learned being incorporated into the Applicant Guidebook before the second round.

Risks:

• Delays new gTLD applications from prospective applicants that do not wish to disclose their strings until the second round (approximately 6-8 months).

* This paper was written in the authors’ individual capacities and does not represent the viewpoint of their employer, and/or any past, current or future clients, nor does it reflect the formal position of any ICANN stakeholder groups in which the authors’ participate.