On pre-Reveal Day deals doesn’t settle debate — ICANN’s answer
ICANN’s response leaves room for competing interpretations of the Applicant Guidebook.
Yes? No? Grey area?
On Sunday, following getting conflicting thoughts from sources, I reached out to ICANN to ask whether applicants for the same string are allowed to strike deals ahead of Reveal Day.
The issue is that the guidebook states you can’t use private auctions or joint ventures to settle contention sets. But the guidebook also states it “does not prohibit applicants from communicating directly or indirectly any information related to applications or application strategies… occurring outside of the defined periods when communication is prohibited.”
ICANN responded to my inquiry today with this statement:
ICANN cannot provide advice or interpretation for specific situations or requests. The Applicant Guidebook prohibits private resolution of contention sets. Accordingly, private auctions, joint ventures, and any resolution methods designed to resolve contention privately are strictly prohibited.
That’s not exactly a yes-or-no response.
Technically, strings aren’t in contention until ICANN states they are in contention, which is sometime following Reveal Day.
Also, people creating joint ventures are not necessarily settling a contention set (even if they by now exist) since there could be more applicants.
ICANN’s response is similar to what you get from the IRS if you ask a specific tax question regarding how to account for something, such as domain sales. Their answer is along the lines of “We’re not going to tell you, and we might come following you later.”
I can see how some people would read ICANN’s response as meaning any resolution is prohibited, while others might read it as OK as long as it’s ahead of the names are technically in contention.
By declining to give a yes-or-no answer, ICANN is pushing a problem down the road. I can by now envision drawn-out challenges based on activity that takes place ahead of Reveal Day.
Applicants are surely willing to follow ICANN’s rules, but only if it spells them out clearly.
