Internet Corporation for Assigned Names and Numbers
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Rejection of Proposed sTLD Agreement with .XXX
30 March 2006
Whereas, on 15 December 2003, ICANN solicited proposals from potential sponsors to create new sponsored top-level domain (sTLD) registries, seeking applications that would "address the needs and interests of a clearly defined community (the Sponsored TLD Community), which can benefit from the establishment of a TLD operating in a policy formulation environment in which the community would participate."
Whereas, on 19 March 2004, ICM Registry, LLC (ICM) submitted an application for the delegation of a .XXX sponsored TLD ("sTLD") (the "ICM Application") which was evaluated according to ICANN's designated sTLD processes.
Whereas, on 1 June 2005, the ICANN Board voted 6-3 with two abstentions to authorize the President and General Counsel to enter into negotiations with ICM relating to proposed commercial and technical terms for the .XXX sTLD.
Whereas, on 9 August 2005, ICANN posted a draft proposed .XXX sTLD registry agreement on the ICANN website.
Whereas, on 15 September 2005, the Board voted 11-0 with 3 abstentions expressing concerns regarding issues relating to compliance with the proposed .XXX sponsored TLD registry agreement (including possible proposals for codes of conduct and ongoing obligations regarding potential changes in ownership) and, noting that the Board had received extensive public comments, directed the ICANN President and General Counsel to discuss possible additional contractual provisions or modifications for inclusion in the .XXX registry agreement so as to ensure that there were effective provisions requiring development and implementation of policies consistent with the principles in the ICM application.
Whereas, on 18 April 2006, a revised draft proposed .XXX sTLD registry agreement was posted by ICANN on its site, and ICANN requested and received extensive public comment on this agreement.
Whereas, on 10 May 2006, at the specific request of the applicant the Board reviewed the revised draft proposed .XXX sTLD registry agreement and the motion to adopt the proposed agreement failed by a vote of 9 to 5.
Whereas, on 19 May 2006, the applicant submitted a request for reconsideration <http://www.icann.org/committees/reconsideration/icm-06-4/petition-20may06.pdf>. On 29 October 2006, ICM withdrew its reconsideration request and resumed negotiations in an attempt to agree to a new version of the proposed agreement for Board consideration.
Whereas, on 5 January 2007, ICM negotiated a further revised draft.XXX sTLD registry agreement ("Revised Agreement"), which was posted by ICANN and received extensive public comment on the Revised Agreement.
Whereas, the Board has received and analyzed unprecedented public comment, as well as advice from the GAC via communiqués issued in Wellington and in Lisbon, relating to ICM’s Application and the Revised Agreement.
Therefore, the Board has determined that:
- ICM’s Application and the Revised Agreement fail to meet, among other things, the Sponsored Community criteria of the RFP specification.
- Based on the the extensive public comment and from the GAC's communiqués that this agreement raises public policy issues.
- Approval of the ICM Application and Revised Agreement is not appropriate as they do not resolve the issues raised in the GAC Communiqués, and ICM’s response does not address the GAC’s concern for offensive content, and similarly avoids the GAC’s concern for the protection of vulnerable members of the community. The Board does not believe these public policy concerns can be credibly resolved with the mechanisms proposed by the applicant.
- The ICM Application raises significant law enforcement compliance issues because of countries' varying laws relating to content and practices that define the nature of the application, therefore obligating ICANN to acquire a responsibility related to content and conduct.
- The Board agrees with the reference in the GAC communiqué from Lisbon, that under the Revised Agreement, there are credible scenarios that lead to circumstances in which ICANN would be forced to assume an ongoing management and oversight role regarding Internet content, which is inconsistent with its technical mandate.
Accordingly, it is resolved (07.__) that the Proposed Agreement with ICM concerning the .XXX sTLD is rejected and the application request for a delegation of the .XXX sTLD is hereby denied.