Comments on Dot XXX Process Options

["Tom Hymes" <tomhymes@xxxxxxx>]

I am writing to encourage the ICANN Board of Directors to follow option #3 and 
reject the ICM Registry application once and for all. If that scenario is 
unacceptable to the Board for one reason or another, I would then encourage it 
to explore a gTLD option for ICM. The other options remain very problematic in 
substance for both ICANN and ICM. 
 

I would first like to address ICM's assertion that process option #1 allows for 
the "expedited approval of dot-xxx." The following excerpt from the March 26, 
2010 draft options report clearly contradicts that claim. 

 

"The Decision Process described herein does not include an option for the ICANN 
Board to allow ICM and ICANN to go directly to contract negotiations or enter 
into the agreement that was posted for public comment in 2007 that was 
eventually voted down on 30 March 2007 in Lisbon. A key issue in this regard is 
that ICM first submitted its .XXX sTLD Application more than six years ago. A 
process for evaluating ICM's Application is necessary to obtain assurances that 
ICM is able to fulfill the obligations and commitments set forth in its 
Application.

 

"In addition, in the event that the ICANN Board does decide to move forward 
with ICM's Application, the ICANN Board would still need to evaluate whether 
entering into a registry agreement with ICM is against GAC advice, and if so, 
'try in good faith and in a timely and efficient manner, to find a mutually 
acceptable solution' with the GAC." ICANN Bylaws, Article XI, § 2.1(j)."

 

In other words, there appear to be only two ways the application can move 
forward in the Decision Process phase. It can either 1) undergo a re-evaluation 
of the 2004 round criteria and then reach an accommodation with new or old GAC 
concerns, or 2) apply new gTLD criteria and then go through the same GAC 
process. 

 

Unfortunately, the routes through GAC also poses a significant problem for 
ICANN, especially if member countries continue to demand that contractual 
assurances be put in place that articulate who will be the final arbiter of 
policies developed by IFFOR for dot xxx sites. If the top cop turns out to be 
ICANN, which according to IRP testimony from ICM chairman Stuart Lawley is the 
most likely scenario, it is a role and function that will inevitably place 
ICANN in direct conflict with its core mission not to get involved in issues 
related to content. Indeed, the content issue remains a sound justification for 
denying ICM an sTLD. 

 

But the sTLD route poses another big problem for ICM and ICANN. In light of the 
fact that the process chart does not allow the application to advance as an 
sTLD without a re-evaluation that utilizes 2004 round criteria, the Board must 
take into consideration the now obvious fact that ICM does not have sufficient 
support within the industry for either dot xxx or IFFOR, both of which are 
required under the criteria. 

 

ICM is well aware of this, of course, which is why its sole argument since 2007 
has been that the Board's June 1, 2005 resolution decided the sponsorship issue 
once and for all. (Note also the almost compete lack of discussion in the IRP 
testimony or final report about industry support for IFFOR, as opposed to dot 
xxx as a general concept. That niggling detail may have been overlooked in the 
past, but it should not, and will not, be ignored going forward.) 

 

There are other significant problems associated with awarding ICM dot xxx, but 
the above observations will suffice for now. And while I continue to have major 
issues with the IRP process itself, including significant holes in the record 
that could have been easily filled, all of that is water under the bridge and 
it is now time to move on. 

 

To its credit, the Board is striving to solve the dot xxx imbroglio by dangling 
a gTLD in front of ICM, a solution ICM thus far has refused to consider. But 
that sort of suspicious recalcitrance can no longer be tolerated. Instead of 
threatening to bring a costly lawsuit against ICANN in order to secure control 
of a policy making regime for which it does not have the required support, ICM 
should cut its losses, save everyone a lot of money and take the gTLD while it 
has the opportunity.  

 

Short of that, and in light of the certainty that ICM can neither satisfy the 
requirements of the 2004 criteria nor sufficiently meet the concerns of GAC, it 
will be up to the Board to bite the bullet and expedite what we can only hope 
will be the application's final demise. 

The opinions expressed here are my own. As a member of the Board of Directors 
of the Free Speech Coalition, as well as a longtime member of the adult online 
community, I remain committed to working with ICANN and anyone else to help 
find workable solutions to issues related to adult-related domains. 

Tom Hymes