I a resolution that can be only regarded as confusing, the ICANN Board seemed to vote to enter into an registry agreement with the ICM extension to run the .XXX registry pending final approval and after consultation with the GAC to work out some unidentified issues.

Here is the resolution that was passed today:

“””WHEREAS ON 24 AUGUST 2010, ICANN POSTED FOR PUBLIC COMMENT A REVISED PROPOSED REGISTRY AGREEMENT SUBMITTED BY ICM REGISTRY FOLLOWING NEGOTIATIONS WITH ICANN STAFF, ALONG WITH DUE DILIGENCE DOCUMENTATION SUBMITTED BY ICM REGISTRY.

WHEREAS ON 28 OCTOBER 2010, THE BOARD RECEIVED THE SUMMARY AND ANALYSIS OF THE PUBLIC COMMENT AND NOTED THAT ENTERING INTO THE PROPOSED REGISTRY AGREEMENT WITH ICM MAY NOT BE CONSISTENT WITH SOME OF THE BROADER-REACHING COMMUNICATIONS FROM THE GAC, AND THE GAC AND THE BOARD COULD BENEFIT FROM CONSULTATION.

WHEREAS, THE BOARD PASSED THE FOLLOWING RESOLUTION ON 28 OCTOBER 2010: RESOLVED, THE BOARD CHAIR SHALL ENGAGE THE GAC CHAIR ON DEVELOPING A PROCESS FOR CONSULTATION WITH THE GAC ON ITS ADVICE ABOUT THE ICM APPLICATION. THIS IS FROM THE 28th OCTOBER.

WHEREAS, DURING THE ICANN MEETING IN CARTAGENA, THE BOARD CHAIR AND GAC CHAIR MET TWICE, AND THERE WAS AN ADDITIONAL MEETING BETWEEN MEMBERS OF THE BOARD AND GAC TO DISCUSS POTENTIAL PROCESS STEPS, CREATION OF A PROCESS CONSISTENT WITH THE ICANN BYLAWS, AND OTHER MATTERS RELATE TO GO ISSUES OF POTENTIAL CONFLICT.

RESOLVED, ICANN BOARD HEREBY DETERMINES THAT IT INTENDS TO ENTER INTO A REGISTRY AGREEMENT WITH ICM REGISTRY FOR THE DOT XXX SPONSORED TLD SUBJECT TO GAC CONSULTATION AND ADVICE, AND HEREBY INVOKES THE CONSULTATION AS PROVIDED FOR IN ICANN BYLAWS, SECTION ARTICLE XI, SECTION 2, PARAGRAPH 1.
RESOLVED, STAFF IS DIRECTED TO PREPARE WITHIN FIVE WORKING DAYS A DRAFT PROCESS FOR CONSULTING WITH THE GAC WHEN NECESSARY PURSUANT TO ICANN BYLAWS SECTION ARTICLE XI, SECTION 2

THE PROCESS IS TO BE PROVIDED TO THE BOARD FOR COMMENT AND THE BOARD EXECUTIVE COMMITTEE SHALL APPROVE AS SOON AS PRACTICABLE.

ONCE APPROVED, THE PROCESS WILL BE FORWARDED TO THE GAC IN ORDER TO HAVE AN AGREED PROCESS FOR USE IN CONSULTATIONS WITH THE GAC IN FEBRUARY 2011.
RESOLVED, IN RESPONSE TO THE REFERENCE IN THE GAC’S CARTAGENA COMMUNIQUÉ REGARDING THE BOARD’S RATIONALE FOR SELECTING THE ITEMS THAT ICANN DETERMINED MIGHT BE IN CONFLICT WITH POTENTIAL GAC ADVICE, THE BOARD INDICATES THAT IT AGREES WITH THE STAFF’S ASSESSMENT OF THE CONFLICTS WITH POTENTIAL GAC ADVICE RELATE TO GO THE ICM APPLICATION, AND DIRECTS STAFF TO COMMUNICATE THE BOARD’S DETERMINATION TO THE GAC.

RESOLVED, THE BOARD DIRECTS STAFF TO COMMUNICATE WITH THE GAC ON ADDITIONAL INFORMATION THAT MIGHT BE SUPPLIED TO THE GAC AS INDICATED IN THE GAC’S CARTAGENA COMMUNIQUÉ

“”I THINK THE INTENTION IS FAIRLY CLEAR. THE BOARD WOULD LIKE TO TRIGGER THE BYLAW PROCESS, BUT KNOWS THAT IT NEEDS TO HAVE A CONSULTATION WITH THE GAC. SO THIS SEEMS TO BE THE APPROPRIATE MECHANISM FOR ACHIEVING ALL THOSE THINGS.””

“”HOPEFULLY, WE CAN HAVE THAT — DEVELOP A PROCESS, HAVE THE CONSULTATION, PROVIDE THE INFORMATION REQUESTED BY THE GAC, AND THEN HAVE A USEFUL ATTEMPT TO RESOLVE THE APPARENT CONFLICT.””

So it appears ICANN is ready to enter into a contract with the ICM registry.

The wording of the resolution, that it INTENDS to enter into a contract as opposed to it WILL enter into a contract seems to give ICANN wiggle room based on the GAC findings.

However it now looks like it won’t be until after the ICANN board meets with the GAC in February 2011, until approve is granted however it could be until ICANN San Fransisco in March until ICANN formerly approves the extension and enters into the contract.

Earlier this week ICM laid out its plan for domain allocation including 3 Sunrise periods next year.

The first period would allow owners of porn-related trademarks to claim their .xxx domain name.

The second period would be for trademark holder that don’t want their brands associated with porn to to basically “turn off” their trademarks in .xxx domains, paying a one-time, fee so Google might want there to not ever be a Google.xxx and they can make application to permanent block that domain from resolving or being registered and not to ever have to pay renewal fees.

The third proposed sunrise period would allow owners of non-trademarked porn domains in other TLDs, such as .com, to get their equivalent .xxx.

If multiple domain owners apply for a the same name, the .xxx domain would go to a closed auction among those who had a matching domain.

The ICM registry has also received close to 200,000 pre-reservations for a .XXX domain name.

Regardless on your feeling about this extension, you have to admire the tenacious fight the ICM is putting on and the amount has invested into getting the extension.

When the initial application was submitted with ICANN, the stated fee was under $100K and they wound up spending in excess of $12 Million to get to today’s approval.