[ALAC] Fwd: Letter from ICANN Board to GAC on Enforcing new gTLD applicant commitments
alan.greenberg at mcgill.ca
Wed Feb 13 03:11:14 UTC 2013
>On behalf of the Board, I write to follow up on
>our commitment in our letter of 16 January 2013, to provide
>a report on our efforts to address one item of
>advice contained in the GAC Toronto Communiqué.
>In its Toronto Communiqué, the GAC requested a
>written briefing from the ICANN Board on "how
>ICANN will ensure that any commitments made by
>[New gTLD] applicants, in their applications or as a
>result of any subsequent changes, will be
>overseen and enforced by ICANN." The GAC advised the Board
>that, "it is necessary for all of these
>statements of commitment and objectives to be transformed into
>binding contractual commitments, subject to compliance oversight by ICANN."
>In our letter of 16 January 2013, we indicated
>that there was no existing mechanism in the New gTLD
>program to address the GAC's concerns. To
>respond to the GAC's advice and the concerns raised by
>others in the community, staff was asked to
>develop possible mechanisms to transform applicant
>commitments (either as set forth within their
>applications or arising from early warning discussions
>between applicants and governments) into
>contractually binding and enforceable obligations. The Board
>considered the staff proposals at the Board
>Workshop in Los Angeles on 31 January 2013 - 2 February
>I am happy to report that ICANN has undertaken
>specific steps to address this item of GAC advice. On 1
>February 2013, the New gTLD Program Committee
>adopted a resolution directing ICANN's President and
>CEO to seek public comment on a proposed "Public
>Interest Commitments" specification ("PIC Spec") to
>be added to each new gTLD registry agreement.
>On 5 February 2013, ICANN opened a public
>comment forum seeking comment on a revised draft of the
>New gTLD Registry Agreement that includes the new PIC Spec.
> (http://www.icann.org/en/news/publiccomment/base-agreement-05feb13-en.htm )
>"Public Interest Commitments"
>The proposed PIC Spec is a mechanism by which
>applicants may incorporate additional commitments into
>their Registry Agreements. As proposed, the PIC
>Spec has one mandatory provision and two optional
>provisions. It would require the Registry
>Operator to use only those registrars that sign onto the 2013
>Registrar Accreditation Agreement. It would
>also allow the Registry Operator to contractually agree to
>follow the commitments made in certain sections
>of its application for the gTLD (the specific sections to be
>selected by the Registry Operator). Finally, it
>would allow the Registry Operator to identify specific
>additional commitments - which could be even
>broader than those undertaken in the application - that it
>will follow in the operation of the registry.
>Each PIC Spec completed by an applicant would be
>posted for public review in advance of the Beijing
>meeting. Once finalized, the relevant PIC Spec
>would be attached to the relevant Registry Agreement. The
>Registry Agreement would not be signed until the PIC Spec is completed.
>The commitment to use only Registrars that have
>signed the new RAA will be enforceable through the
>regular contractual compliance process within
>ICANN. The additional commitments would primarily be
>enforceable by third parties through a revised
>Post-Delegation Dispute Resolution Process.
>Once the Registry Agreement is in operation,
>third parties who suffer actual harm as a result of the Registry
>Operator's alleged noncompliance with the
>additional commitments or restrictions contained in the PIC
>Spec would have standing to proceed to dispute
>resolution. This dispute resolution procedure would be
>made part of the existing Registry Restriction
>Post Delegation Dispute Resolution Procedure (PDDRP) and
>Trademark PDDRP http://newgtlds.icann.org/en/applicants/agb .
>First, there would be a mandatory conciliation
>phase during which the third party and the Registry Operator
>are expected to try to informally resolve the
>issue. If the issue cannot be resolved, the third party
>complainant will then proceed to a Public
>Interest Commitment Dispute Resolution Procedure (PIC-DRP)
>operated by a dispute resolution provider.
>If the provider issues findings and
>recommendations that the Registry Operator is violating the PIC Spec,
>the matter would then proceed to ICANN's
>Contractual Compliance for enforcement.
>As noted above, the PIC Spec and other proposed
>revisions to the Registry Agreement were posted for
>public comment on 5 February 2013. Applicants
>were also invited to optionally designate which parts of
>their application and which additional promises
>they will agree to have included in their registry agreement.
>Applicants' PICs are due on 5 March 2013, and
>will be publicly posted for public and GAC review.
>I hope that you find the above responsive to the
>GAC's request for a written briefing on enforcing applicant
>commitments and that it addresses the GAC's advice on this subject.
>Stephen D. Crocker,
>Chair, ICANN Board
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