Its seems pretty clear that the New gTLD committee of ICANN doesn’t know what they should do about what is fast becoming one of the biggest issues of the new gTLD program, applications for closed generic strings.

The issue generic strings like .App and .Music which were applied for by  companies like Amazon, which would not allow any third party registrations, but rather keep the entire generic string for their own use.

The minutes of The Meeting of the New gTLD Program Committee of the ICANN Board of Directors which was held on 10 January 2013  were just published yesterday.

On the issue of Closed Generic Strings, the minutes reflect that the committee and ICANN is split on what exactly to do with what has become a big problem for the new gTLD program.

Of course the ICANN Board could have avoided the entire problem had it included in the Guidebook a prohibition against any company operating a closed “generic” string (as opposed to a .Brand String) but ICANN did not prohibit this type of application and now that the applications are in and the money has been paid by the applicants its going to be one of the larger issues facing ICANN.

Here are the minutes of the meeting on this issue:

Karen Lentz made a presentation to the Committee on the issue emerging on closed generic strings. Much of the discussion has focused on the Code of Conduct, which is part of the Registry Agreement that concerns nondiscriminatory access that registries are required to offer to registries regarding selling registrations in the TLDs. This is a separate issue from who is allowed to register a name in a TLD. There are certain applications identified where, because of the string applied for and what the applicant has said in the application about how they intend to use it, there’s a concern that the registration policy for domain names in the TLD is not appropriate. The Code of Conduct does not address eligibility requirements that a registry might have or who can register domain names. Under the current rules, there’s nothing that would prevent the use of closed generics, which is focused on the issue of who can register a name. There is the need for some clarity on this issue in the community. By way of background the policy recommendations that serve as the basis for the New gTLD Program did not address the question of who is allowed to register in a TLD. It would be difficult to try to create rules for or definition of a closed generic string at this time.

The Chair inquired about the role of exemptions to the Code of Conduct as it relates to the closed generic issue.

Karen clarified that the exemption provision is a separate from the issue of how generic strings are used. The exemption is for the purpose of identifying those who don’t plan to offer registrations externally, and only serves as an exemption from having to offer the TLD to all registrars. The exemption has nothing to do with an ICANN decision, for example, on whether an exempted registry may limit the actual registrations in the TLD.

Mike Silber noted that the global public interest also guides ICANN, and that has to be factored in. Many of the Board members will be uncomfortable approving TLDs that are seen as a land grab, as opposed to expansion of the DNS.

George Sadowsky agreed with the clarification of the two issues as presented by Karen, but noted that there should be consideration of whether registrants are allowed to look at qualifications for registering in TLDs. The global public interest has to be considered, and there has to be consideration of who decides how this is considered when faced with an application for an exemption. Some of the applicants have clearly already considered that they wish to seek an exemption, and some of these may go directly against the spirit of the creation of the exemption. We have to address this issue now.

Erika Mann commented that she approaches this issue differently. It’s important to clarify the definition of the public interest. This is a separate endeavor from understanding generic strings, which can be considered breaking apart those that are within a regulated sector and those which are not. It’s important to look for viable solutions, such as consideration of a misuse of dominance provision. The Committee would benefit from additional discussion on this topic at the workshop.

Olga Madruga-Forti thanked Karen for her paper and summary. Olga noted that there seems to be some consensus in the Committee that this is a problem that has to be dealt with, and noted that there may be some concerns of competition policy that should be incorporated into the consideration of the global public interest.

Gonzalo Navarro noted that this issue is not going to be resolved now and that the conversation deserves more time.

Heather Dryden contributed that some GAC members have identified concerns related to these issue. Further conversation is welcomed.

The Chair summarized that that Committee needs more time and clarity on this issue. A serious discussion is to follow in Los Angeles.

The COO noted that we have to be careful in how we address this situation, as the applications have been presented based on what is in the Guidebook, and we need to be aware of changes that could affect their applications. We have to give careful consideration to this issue.

For the record in addition to Committee Chairman Cherine Chalaby the following Directors participated in all or part of the meeting: Fadi Chehadé (President and CEO), Chris Disspain, Bill Graham, Olga Madruga-Forti, Erika Mann, Gonzalo Navarro, Ray Plzak, George Sadowsky, Mike Silber, Judith Vazquez and Kuo-Wei Wu.

Francisco da Silva, TLG Liaison, was in attendance as non-voting liaisons to the committee.

Heather Dryden, GAC Liaison, was in attendance as an invited observer.

John Jeffrey (General Counsel and Secretary), Akram Atallah (Chief Operating Officer), Megan Bishop, Michelle Bright, Samantha Eisner, Dan Halloran, Jamie Hedlund, Karen Lentz, Margie Milam, Cyrus Nemazi, Amy Stathos and Christine Willett were also in attendance.