[bc-gnso] Closed Generic TLDs: a straw poll of BC member views

Mon Feb 18 04:50:11 UTC 2013

BC Members:

ICANN just opened a public comment period (link<http://www.icann.org/en/news/public-comment/closed-generic-05feb13-en.htm>) asking whether to classify certain TLD applications as "closed generic", and to deter me "circumstances under which a particular TLD operator should be permitted to adopt open or closed registration policies."

As written, this comment solicitation steers away from the question of whether a registry can own all the domain names in a TLD.  Instead, ICANN is asking whether we need new policies regarding who may register a domain, as is apparent from this "background" statement under the public comment:

"it should be clarified that the Code of Conduct refers to registry-registrar interactions, rather than eligibility for registering names in the TLD. Rather than the Code of Conduct, the true issue of concern being expressed appears to be that in certain applications, the proposed registration policies are deemed inappropriate by some parties."

That points us to the Registry Code of Conduct (attached), which was created partly in response to BC concerns about allowing vertical integration of registries and registrars.  Here's the section most relevant to this discussion:

1. In connection with the operation of the registry for the TLD, Registry Operator will not, and will not allow any parent, subsidiary, Affiliate, subcontractor or other related entity, to the extent such party is engaged in the provision of Registry Services with respect to the TLD to:

b. register domain names in its own right, except for names registered through an ICANN accredited registrar that are reasonably necessary for the management, operations and purpose of the TLD

Reasonable people interpret 1b differently.  Does 1b prohibit a registry from owning names in its own TLD, except for limited circumstances?   Or does 1b allow a registry to own any and all names that suit the purpose of their TLD?

ICANN legal may further clarify its interpretation of 1b, but I believe they see 1b as permitting  a "closed generic" TLD to own all its own names.

Whatever the thoughts of ICANN legal, we have an opportunity to comment on what should be the interpretation and implications for closed generic TLDs.

As we discussed last Tuesday, the BC may not arrive at a consensus or majority view, in which case we could submit just background information.

My goal with this email is to to conduct a "straw" poll of BC members to assess convergence around a desired policy outcome that would form the basis of a BC Comment on closed generics.

First, I compiled a 3-page history on the BC's support for closed TLDs, starting in 2007 with sponsored TLDs and then for dot-brand TLDs starting in 2009. (See attached)   BC members with long memories may want to improve on that history, but its only here for background so let's not get too wrapped-up in that.

So, here are the 3 potential outcomes we proposed on the BC call last week.  Please reply with your views and preferences by 21-Feb-2013 and we'll see whether there's enough support to do a BC position on this before ICANN's deadline of 7-March.

Outcome #1:  Anything Goes.   The registry Code of Conduct clearly allows a TLD operator to have control over who registers domains in their TLD, and the operator can own all the domains if they wish.   Under this outcome, a registry could own all the domains in their TLD without having to ask ICANN for an exemption from the Code of Conduct.

Outcome #2:  Exemption Required. The registry Code of Conduct prohibits a TLD operator from registering names in its own TLD, except for names reasonably necessary for operating the TLD.   Under this outcome, the 1b "except for" does not swallow the rule and thereby allow control of all domains in the TLD.   A registry that wants to own all the domains in its TLD can still do so, however, if it obtains an exemption from the Code of Conduct, as provided in Para 6 of the Code:

6. Registry Operator may request an exemption to this Code of Conduct, and such exemption may be granted by ICANN in ICANN’s reasonable discretion, if Registry Operator demonstrates to ICANN’s reasonable satisfaction that (i) all domain name registrations in the TLD are registered to, and maintained by, Registry Operator for its own exclusive use, (ii) Registry Operator does not sell, distribute or transfer control or use of any registrations in the TLD to any third party that is not an Affiliate of Registry Operator, and (iii) application of this Code of Conduct to the TLD is not necessary to protect the public interest.

All that remains is for ICANN to develop & publish the process and criteria they will use to determine whether giving an applicant this exemption is "in the public interest" as required by para 6.    Presumably, the public interest would include considerations of consumer protect, freedom of expression, competition, innovation, and relevant pledges made by ICANN in the 2009 Affirmation of Commitments.

Outcome #3. Only dot-brands may get an exemption.  Only dot-Brands should get the Code of Conduct Exemption. That would allow .Hilton, .Apple, .Google to pursue the exemption, and they should have no trouble getting it.  But Goodyear would not be eligible for an exemption that allow it to own all names in .tires TLD, for example.

If this straw poll reveals no significant support for any of the above, the BC would not draft a position on this public comment period.  Instead, the BC might submit just background information and analysis, and perhaps a Reply comment later on.
--
Steve DelBianco
Executive Director
NetChoice
http://www.NetChoice.org and http://blog.netchoice.org
+1.202.420.7482

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/bc-gnso/attachments/20130218/0a597f96/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Guidebook Ry Code of Conduct.pdf
Type: application/pdf
Size: 94518 bytes
Desc: Guidebook Ry Code of Conduct.pdf
URL: <http://mm.icann.org/pipermail/bc-gnso/attachments/20130218/0a597f96/GuidebookRyCodeofConduct.pdf>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: Prior BC work on closed TLDs.docx
Type: application/vnd.openxmlformats-officedocument.wordprocessingml.document
Size: 133716 bytes
Desc: Prior BC work on closed TLDs.docx
URL: <http://mm.icann.org/pipermail/bc-gnso/attachments/20130218/0a597f96/PriorBCworkonclosedTLDs.docx>