ALAC Advice to the ICANN Board on Subsequent Procedures
AL-ALAC-ST-0421-02-01-EN was submitted to the ICANN Board on 16 April 2021. For complete historical information on the development of this Advice, visit the At-Large workspace: ALAC Advice to the ICANN Board on Subsequent Procedures and the At-Large website: https://atlarge.icann.org/advice_statements/13823.
| Recommendation | Description | Phase |
|---|---|---|
| Recommendation 01-A | Any expansion of the New gTLD Program must be beneficial to all stakeholders. | Phase 2 | Understand |
| Recommendation 01-B | Program Objectives must be sufficiently reviewed and particularized to enable formulation of suitable metrics for effective evaluation beyond just general consumer choice, and Domain Name System (DNS) marketplace competition aspects. | Phase 2 | Understand |
| Recommendation 01-C | Any expansion of the domain namespace must not compromise the stability, security and resiliency of the DNS. | Phase 2 | Understand |
| Recommendation 02-A | The Competition, Consumer Trust, and Consumer Choice Review Team (CCTRT) Report of 2018 focused on two things: intention (goals, objectives) and data, therefore the relevant recommendations represent important inputs. | Phase 2 | Understand |
| Recommendation 02-B | Our concerns remain over the actions (or lack thereof) by the SubPro WG with respect to CCTRT Recommendations #14, #15, #16 (to do with DNS Security Abuse) and #29, #31 and #32 (to do with the Applicant Support Program), resulting in deficiencies which we hope the ICANN Board will shepherd the community and ICANN Org in addressing. | Phase 2 | Understand |
| Recommendation 02-C | Our concerns also remain over the seemingly lack of policy direction in respect of CCTRT Recommendation #12(1) (to do with user expectation regarding the relationship of content of a gTLD to its name), an omission which we hope the ICANN Board will consider addressing. | Phase 2 | Understand |
| Recommendation 02-D | While noting ICANN Board’s action on the CCTRT recommendations through its resolutions of 1 March 20203 and 22 October 20204, we strongly advise the ICANN Board to ensure that all prerequisite and high priority CCTRT recommendations are implemented, at the latest, prior to the launch of the next round. | Phase 2 | Understand |
| Recommendation 03-A | The ALAC deems the SubPro WG’s approach of Recommendation 9.15 (which is to defer the issue of DNS Abuse mitigation solely to a wider ICANN community effort or “holistic approach”) as foregoing a valuable opportunity to modernize existing contracts with Registries and Registrars in order to contractually compel more immediate, increased efforts to stem ‘abuse’ (as defined by the contracted parties themselves). | Phase 2 | Understand |
| Recommendation 03-B | The ALAC opines that a new application round represents a carrot and a more immediate avenue to draw contracted parties to negotiate improvements to their own DNS Abuse mitigation efforts; absent this incentive, such improvements are likely perceived as merely expensive new regulation. | Phase 2 | Understand |
| Recommendation 03-C | Notwithstanding, the ALAC believes that the landscape of DNS Abuse continues to evolve and that anti-abuse measures must be continuously updated, if not widened, to also recognize and address new forms of harm being perpetrated by bad actors. | Phase 2 | Understand |
| Recommendation 03-D | Therefore, if the ICANN Board sought to agree with the suggested “holistic approach”, then the ALAC strongly urges the Board to also ensure that not only must those community discussions take place promptly, but that they be completed with outcomes put in place prior to the launch of the next round of applications for New gTLDs. To this end, we believe it is imperative for the ICANN Board consider the following inputs: o Prior ALAC Advice on DNS Abuse; o The SSR2 Final Report recommendations touching on contracts, compliance, and transparency around DNS Abuse; o The SSAC’s proposition in SAC114 Recommendation 3 regarding best practices for mitigation of the domain name abuse; o The SSAC’s proposal in SAC115 for a Common Abuse Response Facilitator to streamline abuse reporting and minimizing of abuse victimization, as well as the call to ensure a much wider community participation in broadening the definition of DNS Abuse to one that is not merely confined to the perspectives of contracted parties; and o An expected proposal for concrete action on DNS Abuse Mitigation arising from the work being undertaken by the GAC Public Safety Working Group (PSWG). | Phase 2 | Understand |
| Recommendation 04-A | We noted the ICANN Board’s expressed concern that ICANN may end up enforcing contract provisions that lie outside its remit. However, the ALAC opines that any need to minimize ICANN regulation that falls outside its remit must not displace the exigency for all provisions in contract with ICANN to be enforceable and to be enforced by ICANN Contractual Compliance. | Phase 2 | Understand |
| Recommendation 04-B | Any provision that ICANN does not intend to enforce should not appear in contracts with Registries and/or Registrars. | Phase 2 | Understand |
| Recommendation 04-C | Should a jurisdictionally competent dispute resolution procedure determination or ruling of unenforceability (on whatever grounds) be served on ICANN, the ICANN Board must take action to remedy such unenforceability, by preserving, where feasible, the original intention of the affected PIC or RVC through negotiation with all impacted contracted parties or other actions. Such actions could, if necessary, include Bylaw amendments. | Phase 2 | Understand |
| Recommendation 04-D | The ALAC notes that the ICANN Bylaws Article 1, Section 1.1(c) reads “ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet's unique identifiers or the content that such services carry or provide, outside the express scope of Section 1.1(a)”. The parenthetical expression clearly says that ICANN cannot impose its own rules or restrictions in regard to content. There is therefore no restriction on ICANN enforcing commitments made by TLD operators in their contracts with ICANN that are in the pursuit of their own business interests. | Phase 2 | Understand |
| Recommendation 04-E | The ALAC believes that SubPro WG’s Affirmation 41.1 and Recommendation 41.2 are to apply equally to PICs and RVCs; and recommends that the ICANN Board direct that ICANN Contractual Compliance’s role in publishing more information on compliance action to encompass information on standards and thresholds for assessing registry practices, including guidelines on how each threshold is derived and applied to determine compliance or noncompliance of a PIC or an RVC for purposes of imposing sanctions and/or triggering/effecting Registry Agreement termination. | Phase 2 | Understand |
| Recommendation 04-F | At the time that PICs were first introduced, the ALAC was assured that they would be enforceable by Contractual Compliance and not solely through PIC Dispute Resolution Procedures (PICDRPs). PICDRPs require that the entity initiating the dispute must show measurable harm. It should not be necessary to show harm to have contracts enforced and the Board must ensure that the original commitment is honored. | Phase 2 | Understand |
| Recommendation 04-G | As such, the ALAC recommends that the Board instigate a review of the PICDRP to allow for complaints against any alleged registry violation of a PIC or RVC to be taken up and determined not only where the complainant is able to show evidence of significant harm suffered (as is currently required) but also on the grounds of foreseeable harm to themselves or even a third party. | Phase 2 | Understand |
| Recommendation 05-A | The ALAC remains convinced that any expansion of the new gTLD market must actively and effectively facilitate the inclusion of the next billion Internet end-users, i.e. those who depend on Internationalized Domain Names (IDNs) and IDN-emails and that Universal Acceptance (UA) is key in ensuring this outcome. | Phase 2 | Understand |
| Recommendation 05-B | Therefore, while the ALAC recommends that the ICANN Board lead the pursuit of greater action towards UA-adoption through specific measures such as, including a metric on UA adoption by third parties as a measure of success for the New gTLD Program, and encouraging increased promotion for UA-readiness by contracted parties and with new applicants. | Phase 2 | Understand |
| Recommendation 06-A | The ALAC supports the ICANN Board’s continued keen interest in the outcome of the SSAC’s Name Collision Analysis Project (NCAP) and its impact on Subsequent Procedures and the future rounds of the New gTLD Program. | Phase 2 | Understand |
| Recommendation 06-B | We join the SSAC in recommending that the ICANN Board, prior to authorizing the addition of new gTLDs to the root zone, receive and consider the results of the NCAP, pursuant to Board Resolution 2017.11.02.30. | Phase 2 | Understand |
| Recommendation 06-C | Further, we strongly advocate for the recommendations of SSAC resulting from the NCAP Studies 2 and 3 (as approved by the ICANN Board) to be implemented prior to the launch of the next round of applications for New gTLDs; or in the alternative, that delegation of any applied-for strings which pose a risk of name collisions be withheld until the NCAP studies are completed and recommendations are addressed in implementation, retrospectively for the next round. | Phase 2 | Understand |
| Recommendation 07 | In the present absence of consensus policy recommendations by SubPro WG with respect to Closed Generics, the ALAC advises the ICANN Board to direct ICANN Org to suspend any processing or acceptance of any applications for Closed Generics until such time consensus policy is adopted on how to address applications for Closed Generics which serve a global public interest. | Phase 2 | Understand |
| Recommendation 08-A | The ALAC finds the Applicant Support Program (ASP) to be another area for which a lack of concrete policy guidance and evaluation metrics. While the SubPro has made some recommendations to improve the ASP, the evident absence of specific goals hinders proper evaluation of program objectives and performance. | Phase 2 | Understand |
| Recommendation 08-B | We also question the wisdom of leaving many key aspects for development by a Dedicated Implementation Review Team (IRT) – such as addressing a risk of gaming, assessment of willful gaming and penalties to deter the gaming, and development of the Bid Credit for Applicant Support qualifiers – since these would conceivably involve questions of policy where the community’s input would prove crucial. Faced with this situation, we call for priority for ALAC membership in the Dedicated IRT. | Phase 2 | Understand |
| Recommendation 08-C | From an implementation standpoint, we strongly advise the ICANN Board to direct ICANN Org, firstly, to secure a larger fund to meaningfully support the ASP in the next round, and secondly, to take a more active coordinating role in the ASP pro-bono assistance mechanism. | Phase 2 | Understand |
| Recommendation 09-A | The ALAC continues to strongly oppose not only allowing private actions in subsequent procedures but also the use of a second-price, sealed bid auction instead of the Vickrey auction solution as the mechanism to resolve contention sets. | Phase 2 | Understand |
| Recommendation 09-B | We share the Board’s concerns towards an applicant’s ability to ‘shuffle funds between private auctions’. This ability for a loser to apply proceeds from one private auction to fund their other private auctions only really benefits incumbent multi-TLD registry operators or multiple-string applicants, and clearly disadvantages single-TLD/niche applicants. With ongoing and increasing consolidation of the domain name industry, allowing private auctions will likely exacerbate the advantage for merged contracted parties, leading to less competition among registries. | Phase 2 | Understand |
| Recommendation 09-C | Thus, we believe there should be a ban on private auctions. Also, by mandating ICANN only auctions, the proceeds of any such ICANN auctions can at least be directed for uses in pursuit of public interest, such as was determined through the CCWG on Auction Proceeds. | Phase 2 | Understand |
| Recommendation 09-D | We also believe that the use of a bona fide intent affirmation – whether for all applicants or otherwise – where factors for establishing a lack of bona fide intent are too subjective, and without deterrence through penalty, serves little purpose. | Phase 2 | Understand |
| Recommendation 09-E | As for the proposed Contention Resolution Transparency Requirements framework, we do not agree with the protections for disclosing applicants and advise the Board to ensure that all terms of every concluded private resolution be disclosed to ICANN Org (subject to a nondisclosure commitment by ICANN Org where necessary) as data to support and inform future policy work. | Phase 2 | Understand |
| Recommendation 10 | The ALAC applauds the SubPro WG’s inclusion of many of the At-Large suggestions to reform and improve the CPE process, evaluation criteria procedures and guidelines in the SubPro Final Report. However, the SubPro WG recommendations fell short on 2 counts for which we call on the ICANN Board to redress: o Implementation Guidance 34.4 fails to address an unreasonable impediment to proving both “awareness and recognition of the community members” for CPE Criterion 1- A; the allowance made only in respect of the “recognition of community members” aspect ignores the conjunctive “and” in Criterion 1-A, such that a worthy community applicant would still forfeit valuable points where “awareness of the community members” is also not measurable. o Implementation Guidance 34.12 fails to stipulate that the shortlisting and selection of CPE provider(s) by ICANN Org be subject to community input as a proactive measure for selecting the most suitable CPE Provider for subsequent procedures in order to avoid a repeat of the widespread criticisms resulting from the CPE evaluations for the 2012 round of applications. | Phase 2 | Understand |
| Recommendation 11-A | Despite the welcomed retention of much of the 2012 AGB implementation relating to Geographic Name at the Top Level (and their adoption as new consensus policy in place of the much less favourable ones in the GNSO 2007 Consensus Policy), the ALAC remains concerned over the insufficient support within the community for the need to respect and take into consideration the voice of stakeholders to future applications for strings matching many names with geographical meaning. | Phase 2 | Understand |
| Recommendation 11-B | We ask the ICANN Board to consider the public interest ramifications and serious potential consequences in allowing applications for Non-Capital City Name strings which do not clearly allude to and/or commit applicants to whether the TLD will be used primarily for purposes associated with that city name. We opine that stronger preventive protection for such strings is merited to prevent unintended consequences. Therefore, we reiterate our call for applications for strings which match the names of non-capital cities meeting specified criteria to be accompanied by letters of support/non-objection from relevant local governmental/public authorities irrespective of the applicant’s declared use of the TLD. | Phase 2 | Understand |
| Recommendation 11-C | The ALAC also asks that the ICANN Board consider directing ICANN Org to provide a Notification Tool exclusively to GAC Members who wish to be informed of any applications for strings matching any names with geographical meaning as submitted by participating GAC Members under any established conditions or criteria. | Phase 2 | Understand |
| Recommendation 11-D | Lastly, we are disappointed at the lack of community-wide support for an ICANN Org-provided opt-in update system for interested parties to automatically keep them informed on application(s) for specified string(s), a tool we see simply as a logical extension of SubPro WG’s Implementation Guidance 20.5. | Phase 2 | Understand |
| Recommendation 12-A | The 2012 AGB Sections 3.2.2 and 3.2.2.4 appear to suggest that the ALAC is required to prove 2 elements to qualify for standing for a community objection. | Phase 2 | Understand |
| Recommendation 12-B | It is incomprehensible that the ALAC, while on the one hand, funded by ICANN Org to file objections, should have any of its Community Objections, which would be derived through a bottom-up participative process, be dismissed on the ground of a ‘lack of standing’ to file such objections. | Phase 2 | Understand |
| Recommendation 12-C | Therefore, the ALAC strongly recommends that it be granted, under no uncertain terms, automatic standing to file Community Objections in Subsequent Procedures and in future rounds of the New gTLD Program. | Phase 2 | Understand |
