[council] RE: Letter from ICANN Board to GAC on Enforcing new gTLD applicant commitments

[Bruce Tonkin <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Fixing links below:

-----Original Message-----
From: owner-council@xxxxxxxxxxxxxx [mailto:owner-council@xxxxxxxxxxxxxx] On 
Behalf Of Bruce Tonkin
Sent: Wednesday, 13 February 2013 11:12 AM
To: council@xxxxxxxxxxxxxx
Subject: [council] Letter from ICANN Board to GAC on Enforcing new gTLD 
applicant commitments

Hello All,

Please see attached letter from the chair of the ICANN Board to the GAC chair 
regarding Enforcing Applicant Commitments.

Below is a plain text summary.

Regards,
Bruce Tonkin


Dear Heather,

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.

Background

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 2013.

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.

( 
http://www.icann.org/en/groups/board/documents/resolutions-new-gtld-01feb13-en.htm
 )


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/public-comment/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.


Enforcement

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.


Timeframe

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.

Best regards,
Stephen D. Crocker,
Chair, ICANN Board