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Standard for complete defense in Community-based opposition too low.
- To: 4gtld-procedures@xxxxxxxxx
- Subject: Standard for complete defense in Community-based opposition too low.
- From: Amadeu Abril i Abril <Amadeu@xxxxxxxxx>
- Date: Wed, 21 Jul 2010 21:24:29 +0200
As we have commented on many occasions, we are concerned about the following
language in Module 3:
“Defenses to a Community Objection – Satisfaction of the standing requirements
for filing a Community Objection (refer to subsection 3.1.2.4) by a
community-based applicant is a complete defense to an objection filed on
community grounds.”
Subsection 3.1.2.4 “standing requirement” is being an “established institutions
associated with clearly delineated communities”.
Indeed, any community might have a number of such “established institutions”.
The danger here is that there is no balancing of representativeness. If a
single ·establihed institution” even with marginal support, linkage and
representativity applies, it will have a complete defense against all other
“established institutions” together. Let me give you two (fake) examples of how
this could turn out. These are not real cases, just exaggerated examples to
make the point).
Let’s imagine that IANA was not a reserved term, and that each piece within the
ICANN frameworl has legal existence on its own. Now let’s imagine the TLG
applies for .iana. They could, as they are *one* established institution. Now
let’s imagine RSSAC, SSAC, GAC, ALAC, ASO; CCNSO; GNSO; NomCom, each GNSO
Stakeholders’ Group, the Board of Directors. the Ombudsman and the Scribes all
file an oppostion procedure. They would fail. Not because of the merits of the
complaint, or lack thereof. Simply because the complete defense insulates *any*
established institution against any combination of other established
institutions. Do we really believe that such an application should proceed?
Let’s imagine now the Arctic Football Federation and the Antartica Football
Association (or any combination of your favoirte minuscule federations really
existing) apply for .football. Again, all other 190+ national federations, six
continental confederations, the FIFA plus all “estalished institutions” for
that other sport called football in the USA oppose, because the .football
project is only aimed for betting purposes. Again, the opposition would fail
because of the “complete defense”.
We urge ICANN to qualify the complete efense (which in itself is perfectly
reasonable. with a “relative representativeness” requirement, by which, if the
complainants are clearly more representative of the intended community, than
the applicants, the complete defense should not play nd the complaint should be
examined on its merits.
Bear in mind that such a “relative representativeness” check is present in the
Community priority evaluation, albeit indirectly: in both cases described, the
ultra-minority applicants described would easily lose 2-3 points in the
“Community support” section. Therefore the incentive is being placed in
submitting “defensive community applications” even if the community as a group
does not see the need for a TLD, just in case some “rebel” or marginal groups
within it would apply. Which is not a good outcome in any sense.
Amadeu Abril i Abril
CORE Internet Council of Registrars
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