5/5 Comments on 4.23 Community Priority Evaluation Criteria, and Vertical Integration

[Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>]

This comment is speculative in that it considers the interaction of 
implementation of the policy concerning Community-based applications 
in the DAG, and the possibility of policy concerning registrar 
function of registries arising from any exception to any policy 
concerning registry-registrar separation, currently under development 
by the GNSO Vertical Integration PDP Working Group.
Module 4: Repurposing the Community Priority Evaluation

The Vertical Integration Working Group (VI WG) is considering 
"Exceptions" (from Registry-Registrar separation requirements and/or 
Recommendation 19) for Community-based applications, and possibly 
other applications.
These considerations, contained in the VI PDP WG Initial Report [1], 
may be present in the Vertical Integration Policy Development Working 
Group's Final Report, and may be adopted as Consensus Policy by the 
GNSO, and presented to the ICANN Board for inclusion in the Applicant 
Guide Book.
In an effort to prevent abuse of an Exception for Community-based 
application, it is currently proposed that the Community Priority 
Evaluation, purposed for resolution of string set contention and the 
promotion of Community interests over speculative interests and 
accidental capture, be repurposed as an eligibility test for a form of 
registrar function occurring post-delegation.
There are at least two issues present in this good-faith effort by the 
VI WG to prevent a foreseeable abuse of a Community-based Exception 
(to cross-ownership limits or use of Registrars).
The first is the the optional versus mandatory nature of the Evaluation.

For the purposes of String Contention, it is optional, and applicants 
for strings may rationally choose not to indicate in their 
applications an election for Community Priority Evaluation.
For the purposes of any proposed "Vertical Integration Policy 
Exception for Community-based Registries", the same applicant may not 
rationally choose not to indicate in their applications an election 
for Community Priority Evaluation.
For Community-based applicants to reserve the right to exercise any 
post-delegation Exception, it must waive its right to waive Community 
Priority Evaluation, making this mandatory, rather than optional.
The second is the nature of the Evaluation it self.

The Evaluation is structured to produce a threshold, currently 14 of 
16 possible points, itself a subject of significant discussion since 
Evaluation was initially proposed by Staff.
The intent of the parties, Staff and the Stakeholders and public 
comments, has been to answer a Contention Set outcome question between 
two or more applicants, prior to any further evaluation, possible 
contract, and eventual delegation.
The intent of the VI WG participants proposing a Vertical Integration 
Policy Exception for Community-based registries is to benefit, or 
remove restrictions considered harmful, or merely lacking necessity, 
an applicant that has obtained, or will obtain, a delegation.
The standards and threshold each purpose seek to use to these two 
quite different purposes may not be identical.
If a higher standard or threshold result from a Community-based 
Exception to a general policy on Registry-Registrar Separation, for 
delegated Registry Operators, this should not change the standard and 
threshold for Community-based applications in contention sets with 
speculative and accidental applications for the same or similar strings.
In CORE's view Community-based applicants are better served by 
cooperation with each other to creatively address general Consensus 
Policy than by exceptions to Consensus Policy, but CORE does not 
propose enforce cooperation, as that could not be called "cooperation".
CORE suggests that if the VI WG process results in a second use of a 
Community Priority Evaluation, that Community-based applicants that 
did not elect it at the time of application, be allowed to elect it at 
the time of application for Exception, so it is not mandatory in fact 
at application time.
CORE also suggests that if the VI WG process results in a second use 
of a Community Priority Evaluation, with higher standard or threshold, 
that the application of this standard and threshold be limited to the 
Exception application, not String Contention outcome resolution.

Eric Brunner-Williams
CORE Internet Council of Registrars


[1] 
https://st.icann.org/vert-integration-pdp/index.cgi?initial_report_snapshots