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Public Comment on ICANN Registry Agreement by Google Inc.

  • To: comments-base-agreement-05feb13@xxxxxxxxx
  • Subject: Public Comment on ICANN Registry Agreement by Google Inc.
  • From: Leigha Weinberg <lweinberg@xxxxxxxxxx>
  • Date: Tue, 26 Feb 2013 15:07:23 -0800

Re: Public Comment on ICANN Registry Agreement by Google Inc.

Google Inc. respectfully provides the following comments in response to the
Revised New Registry Agreement (“Revised Agreement”) proposed by ICANN on
February 5, 2013.

Google applauds ICANN’s efforts to keep the new gTLD program on schedule
and understands that the Revised Agreement is at least in part a response
to a Government Advisory Committee (GAC) inquiry about the enforceability
of representations made in new gTLD applications.  However, as explained in
greater detail below, we believe all of the proposed changes should be

The Timing of the Proposed Changes is Unreasonable

Google has applied for a number of new gTLDs through its subsidiary
Charleston Road Registry Inc.  As a new gTLD applicant, we relied on the
Applicant Guidebook (AGB) as aRe:  roadmap to the application and
delegation process.  It, therefore, concerns us that ICANN now seeks to
unilaterally revise the agreement set forth in the January 2012 AGB almost
a year after the deadline for submitting new gTLD applications and mere
months before the anticipated date of ICANN’s first delegation
recommendations on April 23, 2013.

ICANN’s eleventh-hour changes to the registry agreement violate the spirit
of ICANN’s multi-stakeholder process and threaten to erode ICANN’s
credibility with applicants who are making good faith efforts to work in
partnership with ICANN to ensure the success of the new gTLD program.  As
aptly pointed out in comments from the Registry Stakeholder Group (RySG),
New TLD Applicants Group (NTAG), and Verisign, the Revised Agreement is
untimely in that it seeks to make substantial changes to the registry
agreement that disrupt a balance calibrated through years of negotiation.

We further note that the timing of ICANN’s proposal prevents applicants
from making an informed decision about whether to participate in the public
interest commitments (PIC) program outlined in Specification 11 of the
Revised Agreement.  ICANN has set a March 5, 2013, deadline for opting into
the program.  As a result, applicants must decide whether to participate
weeks before ICANN’s deadline for responding to public comments on the
Revised Agreement and without knowing the parameters of the Public Interest
Commitment Dispute Resolution Process (PICDRP) to which they will be
subject.  The deadline also falls well before many applicants will receive
final GAC advice on their applications, thereby limiting applicants’
ability to address GAC advice through the program.

The Revised Agreement is Unnecessary and Unrealistic

In addition to being untimely, the Revised Agreement also is unnecessary,
as many of the proposed changes address issues that are already covered in
the AGB and the existing registry agreement.  For example, Section 2.17 and
Specification 11 of the Revised Agreement seek to bind applicants to the
“commitments,” “statements of intent,” and “statements of business plans,”
in their applications.  We agree that applicants should be bound to the
material representations in their applications.  However, it is neither
necessary nor sensible for ICANN to use an ambiguously worded last-minute
change as its basis for enforcement.

Instead we believe the AGB and registry agreement already appropriately
bind applicants to the material statements provided in their applications.
 Relevant portions of the AGB include Section 1.3(a) of the registry
agreement, which requires that applicants represent and warrant that
material information and statements in the application were true at the
time made and remain true in all material respects as of the effective date
of the agreement.  Similarly, Module 6 of the AGB requires applicants to
notify ICANN in writing of any change in circumstances that would render
any information provided in the application false or misleading, while
Module 2 of the AGB lays out the criteria for awarding points to
applications and explains that material changes to the application may
result in re-evaluation.

We further believe that the PIC program in Specification 11 adds
unnecessary complication and ambiguity while unreasonably asking applicants
to make a commitment to the program before understanding how it will work.
 A simpler solution is to clarify that applicants can amend their
applications to make any public interest commitments through the
application change request process.

Other proposed changes in the Revised Agreement simply are not realistic
for many applicants, such as the proposed changes to Section 7.6(c).  The
revisions to Section 7.6(c) give ICANN the unilateral right to amend the
agreement through special amendments that are not subject to registry
approval.  Although we understand ICANN’s desire for flexibility,
applicants are making significant investments in the new gTLD program and
could be profoundly impacted by unilateral changes to the agreement by
ICANN.  Our calculation for participating in the new gTLD program was based
on the assumption that we would be afforded the checks and balances
contained in the January 2012 agreement, which provides an agreed-upon
process for changing the agreement.

Thus, in order to maintain the momentum and credibility of the new gTLD
program, we strongly encourage ICANN to roll back the most recent changes
to the registry agreement.  Although we appreciate ICANN’s efforts to avoid
slippage of its timeline for delegating new gTLDs, the date on which ICANN
recommends gTLDs for delegation effectively is meaningless if all or most
applicants are unable to sign the registry agreement.

That said, we also believe there is an important dialog to be had between
ICANN and applicants regarding certain provisions in the January 2012
registry agreement.  We believe the agreement exposes registries to more
liability than is reasonable and could use clarification and cleanup in
certain key areas.  Among other issues, there are a number of places in the
agreement where links to the relevant policies or portions of the AGB have
not been inserted, including Section 2.13 of the agreement, which asks
registries to submit to a Registry Transition Process without defining the
process.  We also note that numerous provisions in the agreement do not
apply to closed TLDs, including the non-discrimination provision in Section
2.9(a), Section 2.10 on domain pricing, Section 2.14 addressing the
Registry Operator Code of Conduct, and various sections of the
specifications.  We would appreciate ICANN’s prompt focus on these and
other concerns raised during this comment period so that applicants are in
a position to move swiftly when the new gTLDs are delegated.


In summary, we believe the Revised Agreement raises enough concerns that it
should be withdrawn in its entirety.  Instead we encourage ICANN to engage
in a dialogue focusing on addressing applicants’ reasonable concerns with
the existing agreement so that the new gTLD program can move forward as
expeditiously as possible.  To the extent ICANN believes any changes to the
agreement are necessary, they should be included as part of this dialogue
rather than imposed on applicants with no explanation or opportunity for

Halimah DeLaine Prado
Director, Legal
Google Inc.

Attachment: Google Public Comment on ICANN Registry Agreement - Google Drive.pdf
Description: Adobe PDF document

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