All,
I've been following this thread and I've gone back to look at the Beijing Communique and the Board Resolution and Rationale and think this through. I apologize for the length of this post, but at least it's my first in this thread.
I think the Board was attempting to take a nuanced position. The Board did not exactly adopt the GAC Advice, but neither did they reject it. To some extent, they kicked the can down the road, and here we are.
We can start with the GAC advice, which was disarmingly simple: "For strings representing generic terms, exclusive registry access should serve a public interest goal."
The GAC advice did not ban closed generics. The GAC advice could have allowed a closed generic to proceed in the prior round -- if the TLD met the safeguard of "serving a public interest goal." It appears that the Board looked into making this happen; unfortunately, there was no existing capability to make a "public interest goal" determination. The Rationale shows that the Board asked the GNSO to provide policy guidance on this point, perhaps hoping to fill this gap. The GNSO demurred, based on timing concerns and the Council's limited remit (and perhaps to avoid de facto "negotiations" with the GAC).
The Board was thus left with no way forward to implement closed generics in the last round, unless they (a) rejected GAC advice (which the Board has generally sought to avoid) or (b) allowed Org to create a public interest test under the guise of "implementation" (which would have opened several Pandora's boxes). Thus, the Board couldn't truly adopt the GAC advice in the prior round.
The Board resolution did not ban closed generics either. A ban would have been at odds with the GAC advice, which expressly offered guardrails for closed generics. In this spirit, the Board created three options. None of these provided the result the GAC advice envisioned, but neither did they reject the GAC advice. Most importantly, a path forward for closed generic applications is among the options. None of the three options -- switch, withdraw or wait until the next round -- allowed a closed generic application to proceed in the prior round, but the "wait" option preserved closed generic applications for consideration in the next round (i.e., this round). So, not a ban. But permission with a major caveat -- GNSO policy was needed to make this wrork
But where does that leave us?
Can we say the Board accepted the GAC advice? The Board did not expressly say so, and the Resolution does not clearly characterize its relationship to the GAC advice. The "Resolved" clause follows the spirit of the GAC advice, recognizing it could not be put in place for that round: the Board "requests that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program." The Board falls short on clarity; it does not require the PDP outcome to include the "public interest goal" criterion. Perhaps the Board didn't want to be seen as dictating a policy outcome to the GNSO. But it's clear what the Board wanted.
The last paragraph of the Rationale supports this, saying that "The adoption of the GAC advice will have a positive impact on the community because it will assist with resolving the GAC advice concerning the New gTLD Program." If this is meant to say that the Board adopted the GAC advice, it's awfully vague, and of course, the GAC advice can't be adopted in practice without a PDP-created "public interest goals" test and method for applying for and reviewing closed generic applications.
Taking all this into account, it seems apparent that the goal of both the GAC and the Board was to allow closed generics to proceed if, and only if, there was a public interest goal requirement. And it was the Board's expectation that we would make this happen.
In the end, this tells us what we should have done -- or more optimistically what we could still do. But it does not tell us what the status quo would be if we failed.
The GNSO Council is quoted in the Board's Rationale with what could be their version of the status quo: "The GNSO Council stated that, "although the GNSO did not explicitly consider the issue of 'closed generic' TLDs as part of the new gTLD PDP, we recall that the issue of restricting new gTLDs was, in general, considered and discussed. At that time, it was the view within the GNSO that it should not be the responsibility of ICANN to restrict the use of gTLDs in any manner, but instead to let new gTLD applicants propose various models; open or closed, generic or not.'" That is certainly the status quo of 2007 and 2012, but it is not the status quo of 2015.
The Board Resolution is not a prohibition, but it is also not a self-evaporating decision (which I once thought it was). If our general rule is that the status quo is the AGB as implemented and with all Board decisions included, then I think we stick with that rule here.
I think that means that the status quo is this: Closed generic TLDs may be applied for in this round, in the hope that a public interest goals requirement could still be put in place for the round. If not, those applications can opt to switch to open, withdraw, or wait for the next round. This could be simplified to say that the status quo is that closed generic TLDs will be allowed with a public interest goals requirement, but that this requirement must be defined in this PDP or a subsequent one.
In that case, we have failed the status quo. Such failure should be rewarded neither with a "ban" or an "open season." Instead, we have an "incomplete." If you agree, then we must create a policy that allows generic strings serving a public interest goal, with sufficient guidance so that this policy can be implemented with predictability. I think anything less goes back to the GNSO Council to resolve. We can't make this go away by inaction; it will wander among us as an unfulfilled policy objective, haunting us until we bring it peace.
Greg