Policy Development Process for New gTLD Subsequent Procedures

Policy Development Process for New gTLD Subsequent Procedures
Status:	Active
Issue Areas:	New gTLDs
Date Established:	January 2016
Charter:	WG Charter
Workspace:	Community Wiki

In 2012, the new Generic Top-Level Domains (TLDs) Program opened to applicants interested in being part of the unprecedented increase in the number of new gTLDs. During this round, 1930 applications were received and 1239 new gTLDs have been delegated as of March 2021.

The process leading up to this expansion of the DNS Root Zone was no easy task. It began back in ICANN’s infancy. In 1999, ICANN instructed the DNSO to form a Working Group (Working Group C) to examine if new generic top-level domains should be introduced. Prior to this, there were only 7 gTLDs and one special TLD (.arpa), plus a long-list of ccTLDs. After deliberation, the WG concluded that ICANN should add new gTLDs to the root zone, with a preliminary round of 6-10 new TLDs, followed by an evaluation period. The WG’s findings were accepted and ICANN carried out the first round of introducing new gTLDs in 2000, followed by an evaluation period. This was then followed by another round of gTLD expansion in 2003 and 2004, increasing the number of gTLDs to 22.

In 2005, Following the successful implementation of these two trial expansion rounds, the GNSO developed an Issues Report to determine whether or not to continue introducing new gTLDs and recommended Policy Development Process (PDP). With community input, including the “GAC Principles Regarding New gTLDs,, the GNSO released its Final Report on the Introduction of New Generic Top-Level Domains in 2007. The recommendations in the Final Report were adopted by the ICANN board in 2008. After further policy development work, the Applicant Guidebook (AGB) and the new gTLD Program were approved by the ICANN Board in 2011. The New gTLD Program launched in January 2012.

ICANN stated the intention to introduce new application rounds of gTLDs on an ongoing basis after the first round. The AGB explains that the timing of future application rounds would be based on the “experience gained and changes required” after the completion of the first round. After the application period closed, the GNSO created a Discussion Group (DG) to evaluate the first round of applications and use experiences to identify potential areas for policy development for subsequent rounds. The DG submitted its Final Issue Report in December 2015 After review, the GNSO Council initiated the New gTLD Subsequent Procedures Policy Development Process Working Group in January 2016.

Foundational Documents

The Working Group's Final Report on New gTLD Subsequent Procedures makes extensive reference to the following documents:

• The GNSO's 2007 Report on the Introduction of New gTLDs;
• The Program Implementation Review Report (PDF), last revised in January 2016;
• The Applicant Guidebook;
• ICANN's Bylaws; and
• ICANN's Registry Agreement

Deference to other ACs, SOs, and PDPs

The scope of the Working Group was substantial and had the potential to cross into territory being separately investigated by other PDP working groups. For example, the SubPro Working Group declined to engage with intellectual property issues, to avoid duplication of effort with the Policy Development Process to Review All Rights Protection Mechanisms in All gTLDs. The Working Group also identified possible overlaps in scope with the Cross Community Working Group on Enhancing ICANN Accountability and endeavored to ensure that they were not overstepping their charter in such areas. The Working Group also deferred to the decision making of the Universal Acceptance Steering Group on the topic of internationalized domain names.

Working Group Tracks and Output

The WG for the New gTLD Subsequent Procedures PDP was tasked with determining what, if any, changes to policy were required from those adopted pursuant to the GNSO’s 2007 report and recommendations. The Final Issue report identified a broad range of topics and issues for discussion. Initially, four work tracks (WTs) were established to divide the issues into subject areas. In 2018, a fifth work track was initiated to examine the issue of geographic names at the top level.

• WT1 - Overall Process, Support, and Outreach
• WT2 - Legal/Regulatory/Contractual Obligations
• WT3 - String Contention/Objections and Disputes
• WT4 - Internationalized Domain Names, Technical/Operational Issues
• WT5 - Geographic Names at the Top Level

WT1: Overall Process, Support & Outreach

Work Track 1 focused on applicant support, outreach, and process concerns. Key topics included applicant support, clarity of application process, application fees, and equity issues.

WT2: Legal, Regulatory, & Contractual Obligations

Work Track 2 focused on reserved names, the base registry agreement, a refined policy for implementation of registrant safeguards, and conceptualizing how the global public interest might be represented, defended, or addressed in policy-making around new gTLDs.

WT3: String Contention, Objections, & Disputes

Work Track 3 focused on a review of the processes and engagement with string contention and objections to applications. It also addressed issues related to PICDRP and RRDRP, the two established dispute resolution procedures from the New gTLD Program that do not involve intellectual property.

WT4: Internationalized Domain Names, Technical & Operational Issues

Work Track 4 addressed internationalized domain names and engaged in a review of applicant requirements related to technical, financial, and operational concerns.

WT5: Geographic Names at the Top Level

WT5 utilized a shared leadership model, with co-leaders from ALAC, GAC, ccNSO, and GNSO. The subject of geographic names was a topic of much discussion at ICANN 59, with two cross-community sessions. The Working Group submitted this work track's final report as an annex to their final report, without amendment. Although the Work Track examined a variety of issues related to inconsistencies between the AGB and the GNSO's 2007 Report guidance, it was unable to reach consensus on any changes to the policies outlined in the Applicant Guidebook. The Final Report of the Work Track concluded in part:

After extensive discussion, the Work Track was unable to agree to recommendations that depart from the 2012 implementation, which it has considered the baseline throughout deliberations. Therefore, it recommends updating the GNSO policy to be consistent with the 2012 Applicant Guidebook and largely maintaining the Applicant Guidebook provisions for subsequent procedures. This brings GNSO policy in line with implementation, which the Work Track considers a significant achievement given the diversity of perspectives on this issue and the challenges in finding a compromise acceptable to all parties.

Final Report and Recommendations

The Working Group's Final Report was submitted to the GNSO Council on January 20, 2021. The Council approved the Final Report and submitted its "Final Outputs for ICANN Board Consideration" to the ICANN Board on Febrary 2, 2021.

Central Recommendations and Themes

Predictability Framework and SPIRT

The report emphasizes the need for consistent, predictable outcomes for application and dispute procedures. The Working Group recommended the adoption of a Predictability Framework (contained in Annex E of the Final Report), as well as the creation of a Standing Predictability Implementation Review Team (SPIRT, pronounced "spirit) to monitor, assess, and propose resolutions to situations that might impact the operation of the New gTLD Program. The Predictability Framework identifies a limited number of such situations, including changes in ICANN's operations, changes to policies related to or affecting the New gTLD Program, and new policy proposals that may affect the program. Under the guidance, emergency decisions that may impact the program should be "narrowly tailored to address the emergency situation." The Working Group recommended the maintenance of a change log, so that the GNSO and applicants may be kept apprised of changes to the program. In addition, the WG proposed an amendment to the refund procedure so that applicants who are adversely affected by policy changes may withdraw and receive a refund of fees. In its rationale for these proposals, the WG noted:

Applicants and other parties interested in the New gTLD Program, however, believed that there were a number of changes that were made after the commencement of the 2012 program which hindered the program’s predictability. Therefore, the Working Charter asked the Working Group to consider the question, “How can changes to the program introduced after launch (e.g., digital archery/prioritization issues, name collision, registry agreement changes, public interest commitments (PICs), etc.) be avoided?” In addition, the ICANN Board commented that “The Board is concerned about unanticipated issues that might arise and what mechanism should be used in such cases.”
The Predictability Framework intends to address the concerns raised in the Charter and by the ICANN Board by creating an efficient, independent mechanism to analyze and manage issues that arise in the New gTLD Program after the Applicant Guidebook is approved which may result in changes to the program and its supporting processes. The recommendations from this Working Group are intended and expected to lessen the likelihood of unaccounted for issues in the future, but this framework is a recognition that despite best efforts, some issues may be missed and circumstances may simply change over time.

Publicized and Predictable Timeframes for New Rounds

Many of the recommendations address the substantial length of time between the first application round and the present. The Working Group recommends not waiting for all outstanding applications to resolve before launching a new application round, and provides guidelines for new applications for strings that were involved in a previous round, but not delegated. The report also recommends that any policy alterations for an upcoming round should not be retroactive to prior rounds if the application period for that prior round has passed.

Registry Service Provider Pre-Evaluation

Acknowledging that some applicants applied for hundreds of strings, and were obligated to pass separate evaluations for each string, the Working Group recommended an option pre-evaluation process for Registry Service Providers. This evaluation would be the same as the evaluation that would normally take place during the application process.

Minimal Changes to Registry Voluntary Commitments ("Voluntary PICs")

The enforcement of Registry Voluntary Commitments was a subject of much discussion at ICANN 70. The SubPro Working Group's guidance on the subject largely maintains the status quo regarding the use of RVCs by applicants. The WG did recommend expanding the jurisdiction of the PICDRP to expressly incorporate Registry Voluntary Commitments. On page 49, in response to the ICANN Board's follow-up query regarding ICANN's Bylaws (which have changed since the 2012 round); the WG provided this explanation:

To the extent that some registries will want to make voluntary commitments in response to public comments, Government Early Warnings, GAC Advice, etc., it is understood by the Working Group that having these commitments reflected in Registry Agreements even if they fall outside of ICANN’s core mission is consistent with the Bylaws where neither ICANN itself nor any third party under ICANN’s control is required to pass judgment on ‘content’. In such cases, it is understood that using an independent third party as an arbiter to determine whether there has been a violation of the commitment would be consistent with ICANN’s mission even if ICANN were ultimately required to rely on that third party decision to enforce a pre-arranged contractual remedy, which could include sanctions and/or termination of the Registry Agreement.

Failure to Achieve Consensus - Resolution of Contention Sets

Notable among the outputs of the final report was a failure to achieve consensus on two issues within Topic 35 - Auctions: Mechanisms of Last Resort / Private Resolution of Contention Sets. Recommendations 35.2 and 35.4 received "Strong Support but Significant Opposition" designations. As a result, the Council approved the other recommendations but declined to submit the two contested recommendations to the board.

• Recommendation 35.2 would have subjected all private resolutions of contention sets (including private auctions) to the "Contention Resolution Transparency Requirements" contained in Recommendation 35.5. The requirements would obligate all parties of interest participating in a private resolution process to report their interest to ICANN within 72 hours of the resolution of the contention set.
• Recommendation 35.4 would have mandated that ICANN auctions of last resort "must be conducted using the second-price auction method," and proposes additional procedures (including a period of time for competing applicants to resolve the contention set privately) for ICANN auctions.

Those opposed to the adoption of the recommendations in Topic 35 were opposed to the use of private auctions as a mechanism of resolving contention sets. They stated that ICANN should prohibit private auctions and that the protections proposed by the working group under Topic 35 were insufficient to prevent another round of "profiteering" off of failed applications for gTLD strings.

Public Comment

The public comment period for the GNSO's report was closed on June 1, 2021. The report received 14 comments during the comment period. Several overarching themes were identified in the staff report on the public comment proceeding:

• Many commenters found the final outputs to be a triumph of the Multistakeholder Model, and a large subset of those commenters also encouraged the board to approve the final outputs as-is, out of deference to community consensus and the bottom-up approach of the entire PDP;
• Several comments emphasized the need to quickly implement subsequent procedures (and by extension to launch the second round of new gTLD applications), whether because of public perception of ICANN's capacity to perform its role, or because of perceived pent-up demand for a new application round; and
• Some commenters, while broadly supportive of the recommendations in the report, had reservations about particular topic areas or foresaw other dependencies to be resolved before a new application round could commence.

Board Actions

• The board placed the final report on the agenda for its regular meeting on June 21, 2021. At ICANN 71, when conversation touched upon SUBPRO, there was a general expectation that the board would launch an Operational Design Phase regarding the recommendations in the Final Outputs document.
• On September 12, 2021, the Board directed the ICANN CEO to organize the resources required to begin work on the ODP for SubPro and advise the Board when the work of the ODP begins. The Board requested regular updates on the progress and the delivery of an Operational Design Assessment (ODA) (the output of the ODP), within ten months of the date of initiation. The Board also authorized Goran Marby up to US$9 million to fund the ODP, and its requisite community engagement, formation and delivery of an ODA to the Board, and any additional work required to support the ICANN Board's consideration of the SubPro final report.

Operational Design Phase

ICANN Org's work on the SUBPRO ODP is ongoing. ICANN has established a dashboard for announcements, documents, and events related to the ODP.

Top-Level Domain

Generic Names Supporting Organization. Develops and recommends to the Board substantive policies relating to generic top-level domains and other responsibilities set forth in the Bylaws (ICANN Bylaws).

Policy Development Process

At-Large Advisory Committee. Considers and provides advice on the activities of ICANN related to the interests of individual Internet users (ICANN Bylaws). Not to be confused with the Non-Commercial Stakeholder Group.

Governmental Advisory Committee. Considers and provides advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN's policies and various laws and international agreements or where they may affect public policy issues (ICANN Bylaws).

Country Code Names Supporting Organization. Develops and recommends to the Board global policies relating to country-code top-level domains (ICANN Bylaws).