Comments on Draft 2 by Andrew Allemann DomainNameWire.com

[Andrew Allemann <editor@xxxxxxxxxxxxxxxxxx>]

Below are my comments on the Draft Application Guidebook v2.

In general, I am very concerned that this process will open up ICANN
to a wave of lawsuits, frivolous or not, that may undermine the
organization.  From a risk management perspective, this could put the
entire internet at risk.  I recommend taking a slower, phased approach
rather than opening up to unlimited applications.

Regards,
Andrew Allemann
DNW.com

Module 1

1.2.2 Community-based designations

Community based designations and the rights therein should be
eliminated from the process for several reasons.  We've already seen
bickering from groups about religious domains.  This begs the
question, "who within a community can provide authority on behalf of
that community?"  Bias should not be given to official government or
bureaucracy compared to the private sector.  In the case of a private
party working with the government, this scenario is open to bribery,
lobbying, etc.  TLDs should be allocated based on ability to perform
functions (or auction), not political influence.

Any "open" TLD should be allowed to place restrictions on the use of
its domain as it wishes.

1.2.3 Required documents

ICANN needs to add specific minimum requirements.

How will the financial statements be used, and what constitutes a
viable applicant?  For example, many companies will be created
specifically to apply for new TLDs.  Although the latest draft of the
application guidebook allows these organizations to provide a pro
forma balance sheet, it is unclear if this will provide any
distinction between a “viable” and “unviable” applicant.  Is a balance
sheet with $1 M satisfactory?  More or less?  What if the $1 M is in
the form of a note payable (loan)?  One of the options is to provide
documentation of outside funding commitments.  Will precedence be
given to applicants with cash in hand as opposed to just commitments
from outside parties?  There’s a difference in scaling for a limited
TLD vs. a generally available TLD, but some sort of baseline needs to
be provided.
The guidebook states “documentary evidence of ability to fund ongoing
basic registry operations for registrants for a period of three to
five years in the event of a registry failure or default until a
successor operator can be designated.”  It seems that a registry will
have to prove it can operate the TLD for a certain period of time AND
have enough cash on hand to operate it for 3-5 additional years if it
fails.  By definition, a company or registry fails when it runs out of
money.  This seems like an implausible requirement.  Furthermore, the
exact amount of money required should be defined

People can get line of credit, but going defunct would likely void
line of credit.

1.2.3 Notice Concerning Technical Acceptance Issues with New TLDs

Has ICANN communicated with any of the larger software providers, such
as Microsoft, Mozilla, and major e-mails services, to ensure they
support the addition of new TLDs?  If they are not willing to support
these in a timely manner, it renders the entire new TLD process
useless.  This could be detrimental to the longer term stability and
operation of the internet.  Imagine if, thanks to 500 new TLDs coming
online, software companies baulk at adding them to their systems.
They make each one apply, much like providers of text message response
systems must apply with each mobile phone carrier for their “short
codes” to operate on their network.  ICANN must enter into dialogue
with these organizations and create standards for adding new TLDs to
software and other programs prior to such a massive expansion of new
TLDs.

Module 2

Because there are no concrete examples of what might exhibit string
confusion, a full refund should be granted if an application doesn’t
pass string contention; unless someone submits a substantial amount of
applications to game the system (e.g. typo strings to see if any make
it through).

2.1.1.4 Geographical Names

No consideration should be given to the interests of governments or
public authorities in country or territory names.

1.      A geographical community as defined by the process may not be the
best organization to launch a particular TLD.  For example, a city may
wish to launch .city, but a private group may do a better job of
launching .city.  Bias should not be given to official government
compared to the private sector.  In the case of a private party
working with the government, this scenario is open to bribery,
lobbying, etc.  TLDs should be allocated based on ability to perform
functions (or auction), not political influence.
2.      The loose definitions of who within that community can provide
authority on behalf of the community will lead to confusion.
3.      In the event of two communities using the same name, it seems that
bias may be given to the larger of the communities (e.g. Paris, France
as opposed to Paris, Texas).

Furthermore, there is a loophole in this section:

"An Application for a city name, where the applicant declares that it
intends to use the gTLD for purposes associated with the city name"

Couldn't I just not "declare"?

Module 3

3.11    Grounds for Objection
Morality and Public Order objection should not exist or be limited to
items in 3.3
Also, community objection should be removed along with the entire
concept of community

3.1.5 – Strike this.  Objections should not be made on grounds of
Morality or Public Order.


Registry Agreement

Use of Registrars section 2.8 tries to create separation between
registry and registrar by creating an arbitrary 100k limit on
registrars affiliated with the registry.  Problems:
•       Limiting at arbitrary # doesn’t make much sense
•       “Affiliates” can find ways to legally separate themselves from
registry, i.e. loopholes.
•       Non-discriminatory access is good
•       “Uniform agreement” can be biased in registry’s registrar favor,
e.g. lower pricing if sell certain number of domains which would
benefit big players such as eNom and GoDaddy.

Section 2.9 of registry agreement

This section is still worrisome.  In addition to the 10 year renewal
option and 6 month’s notice, their should be a cap on renewal price
increases.
•       Requires 6 month notice of price increases
•       Allows for registrations up to 10 years to lock in prices.  This
should prevent registries from jacking up prices because would have 10
years to negotiate settlement

Article 4 – 4.2 renewal – presumptive renewal should be struck in
favor of RFP, competitive bidding including agreements to provide
better services and/or lower prices.