The proposed wording by GAC regarding this type of advice appears to leave open the option for future remediation methods to be added to Guidebook during the pendency of the application process. However, the proposed alternative text which the GAC has provided removes the apparent limitation on material amendments and the requirement that applicants re-apply in the second round. The current guidebook appears to limit remediation to methods specified in the guidebook, and state the fact that material amendments to applications are generally prohibited, and that if no remediation method is available the application will not go forward and the applicant can re-apply in the second round. The third type of advice that the GAC can provide is in connection with applications that require remediation. The ability for this type of GAC advice to potentially block a new gTLD application becomes much clearer within the context of the IANA RFP language. However, baskets two and three are where things get far more interesting as GAC advice on its face does not appear explicitly constrained to just consensus advice.įor this basket, the GAC has removed the text from the current Applicant Guidebook which states that this advice will not “create the presumption that the application should be denied” nor “require the Board to undertake the process for attempting to find a mutually acceptable solution with the GAC should the application be approved.” Instead, the alternative language requires the ICANN Board “to enter into dialog with the GAC to understand the scope of concerns.” This broader remit on its face is absent of any limitation of how such advice should be submitted by the GAC or received by the Board. If a new gTLD application falls into this basket, it is checkmate/game over for that applicant. When the GAC provides consensus advice that an application should not proceed, there is a strong presumption that the ICANN Board will not approve that application.
The first basket is incredibly straightforward. This comparison identifies the three classifications (“baskets”) of advice the GAC is proposing to provide in connection with new gTLD applications, each of which is discussed in detail below.įor those readers with an institutional knowledge of ICANN’s new gTLD program, particularly the 2000 proof-of-concept round, the use of the word “basket” is an intended pun on the ICANN Board’s shopping basket reference during the 2000 selection process. However, when reading the recently revised IANA RFP language in light of the Government Advisory Committee (GAC) Dakar Communiqué, a rather compelling legal case can be made that when the IANA contract is awarded in March 2012 the net result will be a GAC veto power over gTLD delegations and re-delegations requests which, significantly, cannot be overridden under the ICANN bylaws.īefore dissecting the IANA RFP language, one needs to begin with a side by side comparison of GAC’s advice provisions contained in the Dakar Communiqué versus those provisions currently contained in the Applicant Guidebook.
In connection with the recent publication of the IANA RFP, there have been some commenters that have proclaimed that removing the requirement of the Contractor to document the consensus of relevant stakeholders in connection with the delegation of new gTLDs from the original draft Statement of Work as a win for ICANN.