DNS Policy Notes for Sept. 16, 2014

Collected news and opinion about the Internet Corporation for Assigned Names and Numbers, the domain name business, Internet governance, and miscellaneous other cyberlaw topics for September 16, 2014.

The .music Community

The European Broadcasting Union's bid for the .radio TLD prevailed in Community Priority Evaluation Sept. 10, knocking out generic-string applications from Donuts, Afilias, and BRS Media. Under ICANN rules, a top-level domain application fairly representing a well-delineated "community" moves to the head of the line, and need not participate in an auction with other non-community applicants for the same string.

Until recently, community applications were believed to be longshots, as evidenced by CPE losses by applicants for .taxi, .art, .tennis, .inc, .immo, and others. However, victories by community applicants for .hotel and .radio might have breathed new life into some community applications -- particularly the community application for .music filed by Far Further/.music llc on behalf of the sound recording industry establishment.

If the global recording industry gets past CPE, it will not need to compete in an auction against other well-financed applicants such as Donuts, Google, and Amazon.

"Music" is an awfully fuzzy community. However, in order to prevail in a CPE proceeding, Far Further doesn't have to conclusively prove the existence of a clearly delineated music community. Close enough could be good enough. In order to prevail in a CPE proceeding, it is necessary for the applicant to receive a score of 14 out of 16 available points. The CPE panel decision involving .radio awarded the EBU 3 out of a possible 4 points for whether a clearly established radio community existed, and 3 out of 4 possible points for whether there was a nexus between the radio community and the applied-for string. The CPE panel gave the EBU a perfect score on the rest of the scorecard, including 2 out of a possible 2 points for lack of opposition. There was opposition, but the panel discounted it as irrelevant.

This is an opening that Far Further's application could squeeze through.

CPE panel decisions are something of a black box. Decisions are rendered, unsigned, by the Economist Intelligence Unit, and there is no way for the parties (let alone the public) to know who decided the dispute and on what evidence. The system is wide open for ex parte, back-door lobbying. Which is good, I guess, until you lose. Donuts and other applicants for the .hotel TLD tried to persuade ICANN's Board Governance Committee to shed some light on CPE decisionmaking processes but they have so bar been rebuffed.

Community Priority Evaluations

Outcomes of ICANN Community Priority Evaluation proceedings, as of Sept. 10, 2014.
.immo Starting Dot Ltd. Failed
.taxi Taxi Pay GmbH Failed
.osaka Interlink Co. Ltd. Prevailed [pdf]
.tennis Tennis Australia Ltd. Failed
.mls Canadian Real Estate Assoc. Failed
.gmbh TLDDOT GmbH Failed
.llc Dot Registry LLC Failed
.inc Dot Registry LLC Failed
.llp Dot Registry LLC Failed
.radio European Broadcasting Union (EBU) Prevailed [pdf]
.hotel HOTEL Top-Level-Domain S.a.r.l. Prevailed [pdf]
.art EFLUX.ART, LLC Failed
.art Dadotart Inc. Failed
.eco Big Room Inc. Pending
.kids DotKids Foundation Limited Change Request Pending
.gay dotgay LLC Pending
.music .music LLC Pending


ICANN's proposal to amend its bylaws to require a two-thirds board majority in order to override advice from its Governmental Advisory Committee continues to play to overwhelmingly negative reviews.

Comments submitted by Google -- a company with large interests in both the DNS and in global government relations -- made a couple points that are widely shared within the ICANN community. First, strengthening the GAC's hand might impede ongoing efforts to improve the GAC's ability to participate constructively in ICANN policymaking:

By making it more difficult for the Board to reject GAC advice, the proposed bylaws change would further cement the current arrangement between the GAC and the other stakeholder groups, wherein the community develops policy largely without direct governmental stakeholder participation and the GAC weighs in at the end. This proposed change disincentivizes governments from contributing to policy development via the Policy Development Process by strengthening their ability to veto the end result of that process. Rather, the community should be encouraging a working relationship between the GAC, the Board, and the other stakeholder groups within ICANN.

Second, the ICANN community should be protected against future revisions of GAC operating procedures that might produce GAC advice based on less than consensus:

Commitment to consensus is a fundamental element of the ICANN multistakeholder model. Google believes that the bylaws change should only be adopted if its application is limited to GAC advice that is adopted with the full consensus of its members. To the extent that the GAC were to issue non­consensus advice, such advice would have limited weight and the Board should not be subject to a higher threshold in rejecting it.

Comments filed by the Internet Society did not take a position on the GAC super-majority proposal, instead inquiring diplomatically whether ICANN ought to give additional attention to a number of questions before proceeding further down this path:

  • How was the new requirement of a 2/3 of voting members of the Board selected?
  • Do the proposed Bylaws revisions give the GAC a preferential position in comparison to other AC/SOs?
  • Are there any safeguards in place to ensure that the GAC does not lower the bar internally for reaching consensus?
  • How will the proposed Bylaws alter the current stakeholder balance and ICANN’s multistakeholder, bottom-up policymaking model? Would this proposed change have the effect giving the GAC a policy development role within ICANN rather than an advisory role?

Many of ICANN's constituency groups have yet to be heard from. They have until Oct. 6, the conclusion of the reply period, to file comments.

DNS Safe Until November 12

Here is a quick list of federal legislative measures addressing the prospect that the National Telecommunications & Information Administration will transfer its stewardship role over ICANN's performance of the IANA functions.

  • H.R. 4342 (DOTCOM Act). Would prohibit NTIA from relinquishing stewardship role over ICANN's handling of IANA functions pending Government Accountability Office investigation. Passed House May 22 as part of FY2015 National Defense Authorization Act.
  • S. 2410 (Senate FY2015 National Defense Authorization). Sense of Congress that NTIA relinquishment of IANA stewardship should protect national interests in .mil top-level domain.
  • H.R. 4660 (House FY2015 Commerce, Justice, Science Appropriation). Appropriated funds may not be used for NTIA relinquishment of IANA functions stewardship. Passed House May 30.
  • S. 2437 (Senate FY2015 Commerce, Justice, Science Appropriation). No language in Senate bill pertaining to IANA.
  • H.R. 4367. Would prohibit NTIA relinquishment of IANA functions stewardship unless explicitly authorized by statute.
  • H.R. 4398 Would prohibit NTIA relinquishment of IANA functions stewardship.

Today, the plan for Congress is to go home to their districts on Sept. 18 and campaign for reelection, then return Nov. 12 for the lame-duck session.

What's in a Name?



I will never understand how domain names are valued. So cabs.com is worth $50,000. I wonder how much the founders of the Uber alt-taxi service (recently valued at over $18 billion) paid for uber.com. And I wonder whether Yahoo! got $5.7 billion in value from broadcast.com, which feebly redirects to yahoo.com, existing only as an entry in a root zone file. The value is in the business. Is the taxicab business a good one to be in right now?

Horse and Buggy


Thomas O’Toole is managing editor of Bloomberg BNA’s Electronic Commerce & Law Report and a contributor to Bloomberg BNA’s Internet Law Resource Center.