ICANN as Regulator

This paper tells the story leading to ICANN's selection of seven new Internet top level domains in November 2000. In implementing proposals to expand the name space, ICANN adopted an approach far different from Jon Postel's lightweight proposals. ICANN staff, in setting the ground rules for considering new gTLDs, emphasized that only a few applicants would be allowed in, and imposed strict threshold requirements. Staff determined that the Board should pick TLDs by looking at all relevant aspects of every proposal, and deciding which ones presented the best overall combination of a variety of incommensurable factors. Aspects of the resulting process were predictable: Anyone familiar with the FCC comparative hearing process for broadcast licenses can attest that this sort of ad hoc comparison is necessarily subjective, lending itself to arbitrariness and biased application. Yet the process had advantages that appealed to ICANN decision-makers. The Board members would be free to take their best shots, in a situationally sensitive manner, at advancing the policies they thought important. The approach allowed ICANN to maintain the greatest degree of control. The end result, though, was a process stunning in its arbitrariness, a bad parody of fact-bound, situationally sensitive (rather than rules-based) decision-making.
Comment: v.3; only slightly revised from v.2; originally presented at 29th TPRC Conference, 2001