“The current Board-GAC relationship is dysfunctional and has been so for several years.”¹ Never has this line from the ATRT Report seemed so apt as now, when the ICANN board and the GAC are preparing to meet in Brussels. Part 1 of this blog will describe their impasse over the introduction of new generic Top-Level Domains (gTLDs). Part 2 will analyze that impasse and offer recommendations to begin resolving it.

The GAC’s Cartagena Communiqué expressed frustration about the ICANN board’s position on new gTLDs, stating that “many of the concerns of the GAC remain unresolved” and that “the Board has decided to explicitly reject GAC advice in several specific cases.”² Among the GAC’s “outstanding issues”³ include:

• “The apparent intent of the Board to approve the current version of the DAG on the same day that the public comment period expires, raising questions regarding ICANN’s ability to take those comments into account;
• The posting on 3 December 2010 of the second phase of the economic study, again raising questions regarding ICANN’s ability to take the public comments on this study into account; and
• The absence of a detailed explanation and rationale for the decisions taken to date on the new gTLD program, exemplified by the recent Board decision on vertical integration.”⁴

The GAC committed to “provide the Board at the earliest opportunity with a list or ‘scorecard’ of the issues that GAC feels are still outstanding and require additional discussion between the Board and the GAC.”⁵

The U.S. government’s scorecard proposes deep changes to DAG4. One amendment provides: “Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application.”⁶ This amendment, the government argued, serves the “compelling goals” of “diminish[ing] the potential for blocking of top level domain strings considered objectionable by governments” and “affording governments the opportunity, through the GAC, to advise the ICANN Board that there is consensus GAC advice regarding particular proposed strings that should not be processed ...”⁷

Behind the U.S. proposal stands a history of frustrated communication over introducing new gTLDs. Two years ago the NTIA requested the ICANN board to conduct economic studies to clarify “the threshold question of whether the potential consumer benefits outweigh the potential costs”⁸ and underscored that “the results should be considered by the community before new gTLDs are introduced.”⁹ In December NTIA wrote again, calling out ICANN for its “apparent failure ... to carry out its obligations” under the Affirmation of Commitments.¹⁰ NTIA reiterated its concern that “despite ICANN’s commitments in the Affirmation to adequately address this and other issues prior to implementation of an expansion program, you still have not performed the studies to answer the threshold question whether the benefits of expansion outweigh the costs.”¹¹

ICANN’s board responded to the GAC’s concerns with the following resolutions:

“Resolved (2011.01.25.22), the Board will not commission any further economic studies on new gTLDs in advance of making its decision on the launch of the new gTLD Program as the Board has determined that no further commissioned economic studies could better inform the Board’s decision.

. . .

“Resolved (2011.01.25.24), the ICANN Board hereby determines that it intends to progress toward launching the New gTLD Program, as close as practically possible to the form as set out in the Proposed Final Applicant Guidebook.

Resolved (2011.01.25.25), the Board hereby determines to take actions on the Topics listed above that, at present, are not consistent with GAC advice.”¹²

The board also noted that “the CEO shall continue to ensure that staff takes into account public comment on New gTLD Economic Study Phase II, as well as the advice of the GAC on the call for economic studies, and make revisions as appropriate to the Final Applicant Guidebook.”¹³

In part 2, I analyze where the conflicts lie and what might be done to resolve them.

¹ Accountability and Transparency Review Team, Final Recommendations, at 37 (Dec. 31, 2010), available at http://www.icann.org/en/reviews/affirmation/atrt-final-recommendations-31dec10-en.pdf.

² GAC Communiqué—Cartagena, at 3 (Dec. 9, 2010), available at http://gac.icann.org/system/files/Cartagena_ Communique.pdf.

3 Id. at 3

4 Id. at 3-4.

5 Id. at 4.

6 NTIA, USG Submission to the GAC Scorecard re New gTLDs, available at http://blog.internetgovernance.org/pdf/USGmonstrosity.pdf (emphasis added).

7 Id.

8 Letter from Meredith A. Baker, Acting Assistant Secretary for Communications and Information, NTIA, to Peter Dengate-Thrush, Chairman of the Board, ICANN, at 1 (Dec. 18, 2008).

9 Id. (emphasis added).

10 Letter from Lawrence E. Strickling, NTIA, to Rod Beckstrom, President and CEO, ICANN, at 1 (Dec. 2, 2010).

11 Id.

12 ICANN, Adopted Board Resolutions (Jan. 25, 2011).

13 Id.