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Regulatory Rumblings

The “New ICANN of 2015” – What will it look like?

Posted: Dec 10, 2014 12:00am ET

By Clark W. Lackert, Reed Smith LLP

The ICANN 51 meeting just concluded in Los Angeles displayed many of the growing fissures in ICANN. As “IANA Transition” (“IANA” stands for the Internet Assigned Numbers Authority) looms in 2015, there is wide disagreement about how the “New ICANN” will look, or if it will be ICANN guiding former IANA technical functions at all. Right now the Department of Commerce oversees these technical functions through a contract with ICANN. How the domain name technical functions are transferred is a critical issue for brand owners, advertisers, and consumers since if the transition is not done properly, the safety of the domain name system itself will be threatened. While new gTLD strings continue to be delegated (approximately 430 thus far), a transition of control over the (IANA) is underway.  The ICANN “Cross Community Working Group (CWG) on Naming Related Functions Draft Transition Proposal” issued its first report on December 1, 2014. The CWG essentially offered two options: (1) a small, external multistakeholder group to operate and supervise this function, or (2) increased internal ICANN safeguards. Whether either option is viable remains to be seen.

The U.S. government has maintained the constant position that control will not be assumed by another government or a multi-governmental entity, but rather must be supervised by a multi-stakeholder entity.  These issues were being debated at the UN’s International Telecommunication Union’s Plenipotentiary Conference, just concluded in Busan, South Korea.  As ITU Resolutions 101, 102, and 180 (Busan, 2014) indicate, the ITU (and representative governments) intend to take a much more active role in the ICANN debate, despite the official U.S. government position.

Coupled with the major theme of IANA Transition was the theme of “Accountability”, which was extensively discussed in meetings, hallways, and dinners. What kind of “accountability” – for the IANA Transition, for ICANN as a whole, for ICANN new gTLD decisions, to GAC governments? ICANN is now in danger of becoming a Tower of Babel, with different constituencies all speaking different trade languages and all with different agendas. ICANN has its work cut out for it for 2015 in order to move ICANN forward and to control the gale force winds trying to tear it apart. This second issue is also of great importance to brand owners, advertisers, and consumers since many view ICANN’s actions as without proper oversight today particularly in policy directions, finances, and the new gTLD decision making processes, let alone when parts of the ICANN management portfolio leave U.S. supervision.

Perhaps the other major story of ICANN 51 is the new assertiveness of the GAC concerning issues from protection of the Red Cross and Red Crescent names to geographical names to IANA Transition. GAC governments clearly want a larger voice in ICANN affairs, and some have openly questioned whether ICANN is truly the correct entity to address internet naming conventions at all (for example, the French government’s strong criticism of ICANN’s handling of the “.wine”/”.vin” applications), or to create new international law when it is not authorized to do so. Another major GAC initiative at the moment is the so-called “geo names proposal” which will significantly expand GAC control over any trademarks which may even remotely connote a geographical location. ANA is filing comments on this proposal, the deadline for comments for any interested party being December 31, 2014.

Surrounding this dialogue is increased uncertainty as to what 2015 will bring; topics include a so-called “remedial” round to review geographic names, community application requirements, and concerns of underserved communities and countries, particularly those in South America and Africa (call it “New gTLD Round 1 ½”).  In view of these controversies, many believe that the second round of gTLD filings will not occur until 2017. The newly elected Republican dominated Congress in the United States may also contribute to further uncertainty given predicted attempts to block or stall the IANA transition due to concerns about non-U.S. government control, management, and censorship of the Internet. Despite a number of current cross-community working groups (CWGs) working within ICANN to address these controversial issues, there is no guarantee that what results from these discussions will be approved in whole or in part.

The ICANN 51 meeting with some 2,500 attendees demonstrated the diversity of the ICANN ecosystem but also the aftermath of the withdrawal of the U.S. as the guiding force of the organization. It still remains to be seen whether ICANN morphs into a global, multistakeholder community apart from U.S. oversight, a subdivision of the ITU or another intergovernmental agency with the inevitable higher levels of governmental control and bureaucracy, a group of competitors with administrators of other new “internets” of Russia and China when the global system fractures, or a newly born Swiss corporation. These issues and more will be on the overloaded agenda for ICANN 52 in Singapore in February 2015.

Reed Smith LLP is the ANA’s General Counsel.

New ICANN gTLDs – What’s Next?

Posted: Nov 24, 2014 12:00am ET

By Clark W. Lackert, Reed Smith LLP

The ICANN 51 meeting just concluded in Los Angeles displayed many of the critical issues faced by advertisers and brand owners in the new “gTLD” (generic Top Level Domain) ecosystem.  The first round of gTLD applications is complete, and over 430 strings have already been delegated to date.  Delegated strings include strings which are restricted to members of specific communities such as .bank, strings which are geographic such as .nyc, and overlapping strings such as those for .car, .cars, and .auto.  While there are mechanisms in place for safeguarding or securing trademarks in the new gTLDs, there have been complaints about the low acceptance rate of so-called Legal Rights Objections (“LROs”), around 14%, and glitches in the Trademark Clearinghouse (“TMCH”) such as lack of searchability and acceptance of certain generic terms if incorporated with other words. The so-called Uniform Rapid Suspension (“URS”) system has been helpful to some, but others fault its lack of ability to transfer infringing domain names and its applicability to mostly non-resolving domain names.

Although we are just beginning to see the impact of the auction process, some auctions are now being won for $5 million and higher. High fees for registries are raising eyebrows not only on the level of fees (over $23 million collected from registrars and registries to date) but on how these fees will be used by ICANN.  The most recent figures indicate that ICANN’s surplus revenue from the new gTLD program is in the area of $87 million, and that this will be supplemented by over $20 million in auction fees – amounting to a staggering $100 million in profit!  Many advertisers and brand owners may have heard of a Second Round slated to arrive in late 2016 or early 2017, but probably not a Remedial Round. This balloon has been floated at ICANN 51 to determine interest in having an intermediate “corrective” round to address complaints of geographical name owners, community domain name owners who are of the opinion that the point system standards are too high, and so-called underserved countries and communities who do not file many of the new gTLD applications. This Remedial Round, call it “Round 1½”, could seriously affect advertisers and brand owners since they will once again be called up to defend their intellectual property.  Further, it is not clear whether new instances of objection to already designated gTLDs in the Remedial Round (such as rejections by local governments, for example) would result in such gTLDs being retracted or re-evaluated by ICANN.

The final major development in new gTLDs in Los Angeles was the continued rise of the Governmental Advisory Committee (“GAC”).  This GAC, which now will be more aggressive in asserting its governmental power, seems even more interested in policy making and new gTLD acceptance or veto.  There are indications that the GAC is seeking to circumvent existing ICANN policies based upon its representation of government and organizational interests.  For example, a recent attempt by GAC to oversee local name reservations for “red cross” and “red crescent” domain names (e.g., “denverredcross”) outside of ICANN policy was met with strong resistance from ICANN.   ANA is commenting on the new GAC proposal concerning all geographical names but ANA members are also encouraged to comment on this proposal (before December 31, 2014) as well as other ICANN proposals which are in comment periods.

A Second Look at the Pew Public Perceptions of Privacy Study

Posted: Nov 19, 2014 12:00am ET

Pew’s recent study, “Public Perceptions of Privacy and Security in the Post-Snowden Era,” shined a light on the fact that “the majority of adults [in the U.S.] feel that their privacy is being challenged along such core dimensions as the security of their personal information and their ability to retain confidentiality.”  Their concerns not only cover core communication channels, like landline and cell phones, but also include the Internet.  Of course, the word “privacy” itself has different meanings to different people, but the majority of respondents equated privacy and security in their responses.  This alludes to an individual’s private information being stolen through malicious hacking or through government surveillance.  The definition of privacy also means, for many, the ability to keep their personal data and online habits away from the eyes of the government and advertisers.  

While most of the media coverage of the Pew report has focused on the growing unease of Americans in regard to personal privacy since the Edward Snowden revelations, very important insights into consumers’ true feelings about the use of their data on the Internet also contained in the study were provided little attention.  Many respondents in the study acknowledged the extremely important things that are being done when information is readily available to advertisers.  Most respondents – roughly 55 percent – stated that they are willing to share some personal data in exchange for access to free online services.  These Internet users appeared well aware that the Internet has been able to flourish and become the great information and commercial resource only because of the enormous funding of the system provided by advertisers.  

Furthermore, the respondents who accessed the Internet via mobile devices, such as a smartphone or tablet, were the most willing to trade some of their personal data for free services, with 62% of mobile Internet users responding positively.  Also, social media users were particularly likely to “agree” or “strongly agree” that they are willing to exchange some of their personal data for free online services.

Another vital takeaway from this study is that over a third of adults “agree” or “strongly agree” with the statement, “I appreciate that online services are more efficient because of the increased access they have to my personal data.”  Younger adults were somewhat more likely to value the increased efficiency of online services compared with those aged 50-64.  Again, those who accessed the internet on a mobile device were more likely to agree that they appreciate the efficiency delivered due to personal data collection.

The Pew data provides many interesting insights, but even more telling is actual behavior of consumers on the Internet.  These consumers overwhelmingly have shown that they understand the value of interest-based ads.  

To address privacy concerns about interest-based advertising, the marketing community has built one of the most rapidly-growing and successful self-regulatory programs in history – the Digital Advertising Alliance (DAA).  ANA and four other industry groups were founding members of the DAA, which features an icon alerting consumers to the fact that they have been served an ad based on interest-based advertising.  When a consumer clicks on this icon, they can access detailed information about interest-based ads and learn how to exercise choice and opt-out of targeted ads if they wish to do so.

Since its launch in 2010, the DAA has rapidly brought enhanced notice and choice to consumers.  The AdChoices icon is now served more than a trillion times each month.  Thirty-seven million unique visitors have accessed our two program sites, www.aboutads.info and www.youradchoices.com.  Also, 5.2 million unique users have exercised an opt-out choice on our Consumer Choice page.  These are compelling numbers which show that consumers realize that, thanks to their control over whether these ads will be placed, their privacy concerns in this area are being effectively met.  Clearly, the American public is full of increasingly savvy consumers who acknowledge the mutual benefit of receiving relevant advertising rather than being bombarded by random advertising.

What the Midterm Results Mean for Advertisers

Posted: Nov 6, 2014 12:00am ET

The 2014 midterm elections have been surprising and record-setting in more ways than one – most notably in the billions of dollars spent on the 1.5 million political ads that just ran in this midterm election and the high number of Democratic incumbents unseated.  There are also a few races that still cannot be decided and are dragging the elections on even longer.  

However, even before these elections, we knew a major shakeup in the Congress was inevitable due to the retirements of key Senate Chairs – including Sen. Jay Rockefeller (D-WV) of the Commerce Committee and Sen. Tom Harkin (D-IA) of the Health, Education, Labor, and Pensions (HELP) Committee – and a self-imposed extensive mandated reshuffling of House Committees.  In particular, the House Ways and Means Committee is losing Chairman Dave Camp (R-MI) to retirement.  This has resulted in a race for the open Chair spot between Rep. Paul Ryan (R-WI) and Rep. Kevin Brady (R-TX).  A number of political pundits have predicted that Rep. Ryan will get the Chairmanship, although Rep. Brady is well-liked and outranks Ryan in seniority on the Committee.  If Ryan wins the Chairmanship, he will work with the new Republican Senate majority to move to a dynamic scoring approach, as opposed to the current method of static scoring, to forecast tax impacts.  

In meetings with Congressman Ryan, he said that because there had been years of work put into developing the Camp tax reform proposal, he would start with that as the baseline moving forward.  The Camp tax plan includes a proposal to amortize advertising costs, which we have been very vocal against as it has the potential to cost advertisers $169 billion according to IHS Global Insight, a noted economic think tank.  

Tax reform is slated to be an important issue in the near future, as Speaker of the House John Boehner has listed tax reform as his number one legislative priority for the next Congress and soon to be Senate Majority Leader Mitch McConnell is also open to working on this issue.  Furthermore, President Obama highlighted tax reform in his post-election speech, stating that tax reform that closes loopholes is the top area where Democrats and Republicans could work together to create more jobs and strengthen the economy.

Now that we know the Republican Party has taken control of the Senate, it is predicted that the following Senators will lead committees of importance to the advertising community.  For the Senate Commerce Committee, Sen. John Thune (R-SD) is expected to be the Chair.  Thune usually advocates for limited regulation.  In the Senate Finance Committee, Sen. Orrin Hatch (R-UT), who is known to be receptive to business interests but has also worked with Democrats on initiatives over the years, will become the Chair.  Finally, in the Senate Judiciary Committee, the new Chair will be Sen. Chuck Grassley (R-IA).

Another surprising development in these elections is that Rep. Lee Terry (R-Neb.), an incumbent who is the current Chairman of the House Commerce Trade Subcommittee, has lost his seat to his Democratic opponent, state Sen. Brad Ashford.  Terry has been a stalwart supporter of passing legislation to limit the threats of patent lawsuits and he has also supported our industry in the online privacy and data security areas.  

The overarching question is whether the elections are going to change a Congress that has been described as gridlocked, dysfunctional, catatonic, and paralyzed.  If both sides of the aisle take these elections as a sign that they must do more, we could see serious legislation being passed, particularly in top level issue areas for the advertising community.  One of the most important ways advertisers can impact members of Congress is through grassroots contacts with people who live, work and vote in their states and districts.  ANA will continue to enlist the help of our members to reach out to members of Congress on these important issues.

ANA Sends Letter to ICANN on Proposal Regarding Geographically Related Domain Names

Posted: Oct 21, 2014 12:00am ET

Today, ANA sent a letter to Thomas Schneider, the ICANN Governmental Advisory Committee (GAC) Chair, and Peter Nettlefold, ICANN CCWG on Country and Territory Names, asking them to extend the deadline for comments regarding a proposal to expand the GAC’s ability to veto geographically related domain names.  In our letter, we requested that the deadline for responding to the proposal be extended for all interested parties from October 31, 2014 to December 31, 2014.  This proposal raises significant issues not only for ANA members, but also for the Internet community at large because it would potentially prevent brands with trademarked names associated with geographic locations to successfully apply for their own top level domain name (TLD).  This proposal, which was put forth by GAC Vice Chair Olga Cavalli from Argentina, can be viewed here.

gTLD Update: Auctions for the New gTLDs; Whether to Trust Industry, Profession, and Geographic gTLDs

Posted: Sep 30, 2014 12:00am ET

By Brad R. Newberg, Reed Smith LLP

Auction Update

While many, myself included, have discussed the uninspiring registration numbers for most of the new gTLDs, there are certain numbers that have been eye-popping: the amounts that are being paid for many of the gTLDs in auction.  When two or more applicants are both deemed eligible for the same new gTLD string, the impasse is resolved in one of two ways.  Either the companies agree among themselves which one should get it—almost always involving one company paying off the other(s)—or, the companies enter into an auction.  These auctions can be run through ICANN, which was certainly counting on auctions as a major windfall well beyond the millions it received in gTLD application fees.  They can also be run privately through various companies, some of which have been started recently for this very purpose.

While many of the winning bids have been kept confidential (as have most of the payouts from one company to others to avoid auction), the ones that have been released have been astonishing.  For example (all numbers according to published reports or releases from companies), the winning bid for .TECH was $6.76 million by Dot Tech LLC; Amazon got .BUY for $4,588,888; Minds + Machines bought .VIP for just over $3 million; and, so on.  In sum, all estimates I have seen surmise that the average purchase price for the gTLDs to go to auction was at least $1.3 million, and probably more.  Of course, for the companies involved in multiple private auctions, some of this is pushing money back and forth between the same companies as the agreement in these private auctions is typically that the losers of the auctions get paid the lion’s share of the winning bid.

On the flip side of things, Domain Incite, an online news organization dedicated to reporting on domain name issues, has released a story that some number of the already launched or about to be launched gTLDs will be auctioned off in October.

Some of the new gTLDs have not been doing well at all, with average registrations totaling just a few thousand among all of the gTLDs, and many well below that.  In a previous post, I surmised that many of these gTLDs would have little choice but to go out of business if they could not increase registrations or if their existing registrations went away come renewal time.  It is possible that some of these struggling gTLDs will, instead, be bought by investors who think they can do a better job with the gTLD, or who believe that a particular string will be a valuable asset.  As stated by Domain Incite, it “could be the first example of ‘domaining’ with TLDs.”

We do not know yet which gTLDs are being auctioned off, so it is also possible that these are gTLDs that have not launched yet or that belong to companies that always planned on selling.  If not, however, the eventual reveal could give us a good indication regarding the health of the gTLD program.  Furthermore, if the gTLDs up for sale really are struggling top-level domains, which have not even been active for a year, ICANN might want to think hard before starting a second round of applications too early.

As a final note on such sales, it certainly is strange that ICANN would make gTLD applicants go through an incredibly rigorous application process with dozens of questions geared toward the security of the Internet and the applicant’s financial commitment to the gTLD, only to allow the gTLD—once granted—to be sold off to a third-party.  One would hope that ICANN thoroughly vets any new owner of these recently approved strings.

Trusted gTLDs

Another issue of which brands should be aware concerns gTLDs associated with industries of heightened concern or a geographic region.  For example, on the industry and professional side, some of the new gTLDs include .DOCTOR, .HEALTH, .ATTORNEY, .LAWYER, .ACCOUNTANT(s) and various ones related to real estate and finance/banking.  Geographic gTLDs stretch from .NYC to .BERLIN to .TOKYO and so on.

As marketing for the new gTLDs has been minimal, no one knows for sure what the public will assume of these gTLDs.  Given the specificity of these gTLDs and the fact that there actually are some gTLDs (“community” and otherwise) with wide-ranging requirements, will they incorrectly assume that the registrant of a second-level domain name in one of these occupation-specific gTLDs must have shown that she holds the proper licenses and is free of any serious violations?  .NYC has certain requirements for its registrants, while many other city-based gTLDs do not.  Will the public, knowing of the .NYC requirements (which might or might not be easy to circumvent anyway), assume that any business with a .LONDON second-level domain name must actually have shown that it is located in London?

Certainly, some brands will want to participate by registering second-level domain names in these industry-/professional- or geographic-specific gTLDs, especially where their company is closely aligned with that industry or profession, or has operations in that city.  The concern, however, is whether there will be any backlash to all domain names within a gTLD when a consumer gets scammed by someone she assumed had a professional license he did not, or when a consumer believes he is getting an authentic piece of merchandise from a Tokyo business when the actual manufacturer or retailer is somewhere else.  Such fears might be overblown, but they are worth considering.  As always, brands should consult their internal marketing and legal teams or outside counsel, if necessary, to weigh risks and rewards.

ANA Calls on New York Delegation to Oppose Ad Tax Proposal that could Significantly Impact the State’s Economy

Posted: Sep 29, 2014 12:00am ET

In case you missed it, today Politico Morning Tax and New York Capital Playbook included the letter that ANA sent to all members of the New York Delegation marking the start of Advertising Week in New York. The letter urges opposition to draft tax reform proposals in Congress that would drastically cut the advertising deduction.

As thousands of marketing and communications professionals come together for Advertising Week to discuss best practices and the future of advertising, it is also a perfect time to recognize the important role that advertising plays in the state and city of New York. It is fitting that Advertising Week is held in New York as the city is the center of the advertising industry we know today. From the start of the industry until the present day, advertising continues to be one of the major driving forces in the New York economy, as it creates new jobs and generates sales.

According to a recent study commissioned by The Advertising Coalition and the ANA and conducted by IHS Global Insight, advertising accounts for $510.9 billion of economic output in New York – that is 19.7 percent of the $2.5 trillion total economic output in the state. These impressive figures unfortunately could be in serious jeopardy because of a proposed major change to the U.S. Tax Code that would severely impact the bottom lines of New York companies and place New York jobs and sales at risk.

New York businesses will face a significant financial burden as a result of the proposals in Congress. Companies that spend $1 million or more on advertising in a year would be allowed to deduct only 50% of their advertising costs. The remaining 50% would have to be amortized over ten years in the House draft and five years in the Senate draft.

Since 1913, when the federal income tax was first enacted, 100 percent of advertising expenditures have been deductible in the year in which they are expended—treated no differently than any other ordinary and necessary business expense, like salaries, rent, utilities and office supplies. A study by Nobel Laureates in Economics, George Stigler and Kenneth Arrow, found that there was no economic or tax basis for amortizing advertising.

True tax reform in this country should not focus on penalizing companies that advertise; rather, tax reform should focus on closing loopholes and special interest write-offs that limit the competitiveness of all businesses, whether in New York or nationwide.

ANA called on members of the New York Delegation to actively oppose any tax on advertising whether through a delayed deduction of these costs or other means because of its potential to seriously impact New York’s businesses’ bottom lines and jeopardize the state’s economy, jobs and sales. While New York clearly is one of the largest centers of advertising in this country, our economic analysis has demonstrated that every congressional district and state in the U.S. is profoundly positively impacted by advertising. IHS Global Insight’s research demonstrates that for the U.S. as a whole, advertising generated $5.8 trillion in economic activity and 21.7 million jobs in 2012.

ANA Files Comments in Opposition to ICANN’s GAC Proposal

Posted: Sep 12, 2014 12:00am ET

In response to a new and worrisome proposal put forth by the Board of the Internet Corporation for Assigned Names and Numbers (ICANN), ANA today filed comments in opposition to this overbroad step by the Board.  The proposal plans to dramatically increase the influence of the Government Advisory Committee (GAC) within ICANN.  As it stands today, GAC is a very powerful committee made up of national governments and, usually as observers, UN agencies and other multi-national organizations.  There are currently 137 GAC members and 30 observers.

However, the troubling issue with the proposal is that it would amend the bylaws so that ICANN’s Board would be forced to adopt all GAC advice unless two-thirds of the non-conflicted board members vote to oppose the advice. This overbroad step would give GAC even more influence than it already has, and would significantly impact the multistakeholder model ICANN claims to be using.  In our comments, we point out that ICANN is too frequently influenced by discrete internal constituencies that attempt to advance their own interests and do not always represent the views and concerns of the majority of Internet users.  This problem would only be substantially increased by giving GAC more control than it has now.  

Our letter also acknowledges the fact that governments may at times, especially in the security area, have expertise that is especially useful and should be taken into special consideration.  However, this proposal goes too far in giving GAC an across-the-board preference.  The unintended consequences of this action could be very far-reaching and could adversely impact the future of ICANN.

We strongly urge all advertisers to consider filing comments in opposition to this proposal.  The challenges this change could pose to brands are severe and need to be protected against.  Ensuring that ICANN’s Board knows the impact their proposal would have on advertisers is the only way our interests can be adequately represented in this process.  ICANN is accepting the first round of public comments on this proposed change until September 14, 2014, and reply comments until October 6. Comments can be sent to comments-bylaws-amend-gac-advice-15aug14@icann.org.  Similar to previous proposals from ICANN, it is again vitally important that the advertising industry band together to stop the Internet from becoming a hostile place to advertise and do business.

ANA Helps Defeat “Local Choice” Threat to Broadcast Advertisers

Posted: Sep 10, 2014 12:00am ET

A recent proposal that would require an a la cart approach to broadcasting and that would have adversely impacted advertisers was successfully combatted this week.  On September 8th, ANA joined with the 4A’s and AAF to send a letter to Sen. Jay Rockefeller (D-WV), the Chairman of the Senate Commerce Committee, and the Ranking Minority Member of the committee, Sen. John Thune (R-SD).  The letter questioned their “Local Choice” proposal as part of the Satellite Television Access and Viewer Rights Act (STAVRA).  Local Choice is the popular name for the effort that would allow individuals to opt-out of paying for TV station signals, in effect creating an a la carte regime for broadcasting, but not for cable channels.

In our letter, we raised many concerns about the impact of this proposal on the longstanding local broadcast model, which ensures free over-the-air broadcast television for all Americans.  

Through the Communications Act of 1934, individuals receive free local news, weather, sports, and entertainment which are paid for by advertising revenues.  Getting rid of a universally free broadcast system would greatly threaten advertisers who participate in the “up fronts” and otherwise support broadcasting through advertising.  

Advertisers see the value in supporting broadcast programming and would likely be unfairly harmed if the Local Choice proposal eroded the economics of the current system.  

With the push provided by our letter and additional opposition from several other groups, the Senate Commerce Committee has called off plans to vote next week on the Local Choice proposal.  According to National Journal, a Commerce Committee aide explained that the proposal needs “more discussion and a full consideration” before it will be introduced again.  

The committee still plans to move forward with a reauthorization of the satellite TV legislation without the Local Choice provisions.  While we are very pleased with this recent turn of events, there is a possibility the proposal will also come up next year as Congress begins to rewrite the Communications Act.  If this attack resurfaces, we will again urge lawmakers to proceed with extreme caution and seek out the views of the advertising community to better understand how Local Choice would affect the financial support for programming.

gTLD Update: The GAC and the Future of the Internet

Posted: Sep 5, 2014 12:00am ET

By Brad R. Newberg, Reed Smith LLP

In shorthand, the Internet Corporation for Assigned Names and Numbers (“ICANN”) is the entity that controls the rules of the road when it comes to the Internet.  For the most part, it decides how registries and registrars must operate, what kind of disputes can be resolved and how, and – in the case of the new gTLD program – when and how to expand the domain name system.

It would take far more detail than a blog post to go into how ICANN comes to its decisions and how the organization is structured, but suffice to say that ICANN operates in what is known as a “multi-stakeholder” system, where various interested parties such as registries, registrars, governments, intellectual property holders, and segments of the public each have a say.  As has been lamented in the past, interests are often aligned against intellectual property owners, who have a relatively small say in any issue, but that is not the topic of this post.

Recently, there have been questions about the future of ICANN, including whether the United States government will continue to have some oversight over ICANN (whose power currently stems, in part, as the result of a contract with the United States).  But a different government-related question is presently far more pressing, and that question has to do with the Governmental Advisory Committee within ICANN, also known as the “GAC.”

Already perhaps the most powerful segment of the ICANN community, the GAC has been seeking to make its influence known and increase its power of late.  The GAC is a committee of many national governments (more than 100), although it also has some observer members, which include UN agencies and other multi-national organizations.

The GAC typically meets face-to-face in closed meetings at ICANN’s own large public meetings, which happen three times a year, and any “advice” to ICANN that results from those meetings is released soon thereafter.  However, that advice usually takes the form of a short “Communiqué” that often does not state its rationale or any back-and-forth in positions or votes that resulted in the advice—in fact, GAC can list its advice as the “consensus” of GAC, even if only a couple of countries vote and the rest abstain (as might have happened with the .AMAZON issue described below).

The GAC is a powerful entity because its advice, under ICANN’s bylaws, must be taken into consideration, and where ICANN’s Board proposes actions inconsistent with GAC advice, it must give reasons for doing so and work with the GAC to reach a mutually acceptable solution.

Because of the political and private nature of the GAC, some advice is released with seemingly no rationale whatsoever.  For example, Amazon applied for dozens of gTLDs, but the cornerstone of all its applications was .AMAZON.  The .AMAZON application passed its initial evaluation and was ready to be accepted when Brazil and Peru were able to get GAC “consensus” advice that .AMAZON should not be allowed.  This was the case even though the river and its region are not even known as “Amazon” in those countries (but rather Amazonia), and neither country had applied for a community TLD for that string.  It is possible that few or even no other countries voted on the issue.  However, ICANN accepted the GAC advice to reject the .AMAZON application.

How far GAC members will go with this sort of advice is unknown.  It is possible that the GAC might want ICANN to go a step further and start reviewing and potentially eliminating second-level domain names, the identifier to the left of the dot in the overall domain name (e.g., the “ANA” in ANA.NET) in existing and future TLDs, where the second-level domain name has a string that could potentially be the same as a geographic region.

There is no question that there may be limited instances where governments have specific expertise and interest and, perhaps in those areas, the GAC should get extra credence: for instance, security issues.  But it does not appear that ICANN has done any analysis regarding when the GAC advice should outweigh the rest of the multi-stakeholder system, and, instead, seems willing to give GAC carte blanche on any issue the GAC wants to address.

In addition, while the GAC already wields significant power, ICANN has recently proposed an amendment to its bylaws that would force ICANN to adopt all GAC advice unless two-thirds of ICANN's non-conflicted board members vote to oppose the advice (and since many board members do have conflicts, some GAC advice would require a near-unanimous vote of the ICANN board to reject).  ICANN is accepting the first round of public comments on this proposed change until September 14, 2014, and reply comments until October 6.  Comments can be sent to comments-bylaws-amend-gac-advice-15aug14@icann.org.

ICANN appears to be moving very quickly on this issue, especially given its possible dramatic effect, with little time for opposing views or analysis.  This proposed change, if it were to be accepted, would be quite fundamental, so companies or their associations may wish to weigh in on this significant matter.  In addition, brands and others may wish to get educated on the changes going on within ICANN and how those changes could affect the future of the Internet.  As always, you should consult your internal experts and, if necessary, outside counsel, to come up with the right approach for your brand.


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About This Blog

Focuses on all federal and state government and legal initiatives that threaten national advertisers' freedom of commercial speech. The blog is penned by Dan Jaffe, the ANA's Group Executive Vice President, Government Relations, who also heads the trade association's Washington office.