The ICANN 80 Policy Forum took place between 10 and 13 June in Kigali, Rwanda. The meeting was preceded by a High-Level Government Forum (HLGM) on 9 June. Ordinarily, government engagement in ICANN is performed by civil servants, but the HLGM is an opportunity for government ministers and senior officials from around the world to meet, learn more about what the GAC do, and discuss issues of importance in the digital sphere.
The new ICANN CEO was announced as Kurt Erik “Kurtis” Lindqvist during the Policy Forum. Lindqvist will start at ICANN on 5 December 2024, and be based out of Geneva, Switzerland. However, it is also expected that Lindqvist will spend significant time in Los Angeles where ICANN is headquartered.
You can listen to the Com Laude ICANN 80 Podcast here.
Next Round gTLD Application Fee
One of the biggest unknowns for the next round of new gTLDs has been how much ICANN will charge for an application, but discussion of the fee finally began at the ICANN 80 meeting and ICANN began by providing an indication of what the fee is likely to be.
A key principle of the fee is that it should be based on cost recovery. In other words, the amount ICANN receives from application fees should cover the cost of running the new gTLD program. Therefore, ICANN has estimated how much it thinks the program will cost, based on a series of assumptions. The significant unknown is how many applications there will be, which together must cover these costs. ICANN have therefore considered 4 scenarios: receiving 500 applications, 1000, applications, 1500, and 2000 applications. The estimated cost range across those 4 scenarios is $208,000 – $293,000 per application.
However, ICANN pointed out there are still some next round policies being developed that will have a cost associated with them to implement. An example would be the framework to be used to mitigate any name collisions. Until those policies have been finalised ICANN will not know what their cost will be, so those amounts will need to be factored in later. As a result, the final application fee is likely to be a little higher than the $208,000-293,000 range presented so far.
Because ICANN doesn’t know how many applications it will receive, and thus what the optimal fee will be to cover the cost of the program, they suggested they may set a fee towards the higher end of their range. If the actual number of applications is higher than anticipated, they would then credit an amount back to applicants to account for the lower marginal cost of each application.
Update on RDRS
The RDRS has been running now since November, with ICANN producing monthly status reports. The June report, which is the most recent, covers the month of May 2024. While it is too early to draw firm conclusions, it does appear that the number of submitted requests has dropped off, going from a high point in January of 291 down to just 156 in May. It is possible that this reflects that requestors are learning which requests are appropriate for submission via the system, but it may also reflect frustration at using a system described by both requestors and registrars as “clunky” when there is no guarantee of disclosure of the data as an outcome.
During ICANN 80 both the CSG and the RrSG held feedback sessions, with the RrSG session being in a workshop format where small groups considered real-life anonymised examples and discussed what decision on disclosure they would have expected. Based on the feedback from the small groups at the wrap up, for many of the cases there seems to have been quite good alignment on the disclosure decision. This was not the case on every scenario, however, and unfortunately the session did not allow time to really explore these latter cases. This would certainly be a valuable exercise for the future.
Policy Recommendations
Although the majority of policy recommendations have been approved, there are a few which remain outstanding, including on some of the trickier issues. At ICANN 80 we saw further movement on some of these, including on Registry Voluntary Commitments (RVCs) and contention resolution.
The term RVC is used to refer to a voluntary contractual restriction that a registry operator might be willing to adopt and commit to in its Registry Agreement (RA) with ICANN, either proactively in order to demonstrate their intent to be a good actor, or in order to meet concerns or objections raised by another entity or group, such as a company concerned that a TLD might infringe their brand, or a government with public interest concerns.
In the 2012 Round we saw such commitments (then referred to as voluntary Public Interest Commitments, or PICs) adopted into the RAs for some TLDs, but since then the ICANN Bylaws have been updated as a result of the work intended to maintain ICANN’s accountability, after the IANA transition removed the oversight of the US Government. The Bylaws now emphasise ICANN’s role as a technical organisation and expressly state that “ICANN shall not regulate services that use the Internet’s unique identifiers or the content that such services carry or provide, outside the express scope of its Mission”. Although this is not an outright prohibition, since it is qualified by the reference to ICANN’s Mission, the ICANN Board has been grappling with the extent to which RVCs which seek to control the use that a registrant makes of their domain are permissible and could be enforced. The ICANN Board has now resolved not to permit “any RVCs and other comparable registry commitments that restrict content in gTLDs”.
This means that although RVCs will be permitted, those that are likely to be allowed will need to be focussed on matters such as the eligibility of who can be a registrant, rather than on what use such registrants may make of the domain and any associated website.
A registry operator could still impose the latter type of restriction directly on a registrant via its own registry policies, including as part of a settlement with a third-party objector, but this would not be something they commit to in their RA and ICANN will not hold them to it.
There has been significant criticism of these processes, including from governments, with ICANN’s GAC issuing advice more than once. One aspect of this advice was that ICANN should “avoid the use of auctions of last resort in contentions between commercial and non-commercial applications” and look instead at alternative means of resolution.
The recommendations from SubPro, on the other hand, supported the use of ICANN auctions of last resort, which therefore gives rise to a conflict.
The Board has now formally notified the GAC that it intends not to follow its advice. Whilst it is disappointing that it has taken the ICANN Board a year to make this decision, this does now initiate a required formal consultation process between the GAC and the Board, before the Board can move forward as it intends.
It should be noted, however, that there is still GAC advice outstanding “to ban or strongly disincentivize private monetary means of resolution of contention sets, including private auctions”. The ICANN Board is more in favour of following this aspect of the GAC advice but is still considering how to make this work in practice. It has engaged external consultants, NERA, to assist, and published their report on private resolution just before the ICANN 80 meeting. NERA considered the joint aims of allowing good faith joint ventures as a means to resolve contention (another of the SubPro recommendations), while disincentivising private monetary resolution, concludes that these two aims are inherently in conflict, and proposes some possible approaches that would favour one or other of the aims but not both. The Board’s final approach is not yet known, but it seems likely that applicants who find themselves in contention for a string will be strongly pushed towards the use of the ICANN auction process.