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From Black and White to Shades of Blue - Comments by France

  • To: draft-eoi-model@xxxxxxxxx
  • Subject: From Black and White to Shades of Blue - Comments by France
  • From: Bertrand de La Chapelle <bdelachapelle@xxxxxxxxx>
  • Date: Thu, 28 Jan 2010 01:19:06 +0100

Please find below comments from France regarding the proposed EOI model.

 From Black and White to Shades of Blue

Comments by France on the proposed EOI model (January 25, 2010)

The second consultation on the proposed draft EOI has turned in great part
into a popularity contest pro or against the current EOI proposal as it is,
driven by the cheerleaders of each camp, with often little more than a black
and white alternative.

As a result, between those supporting the EOI just because they support new
TLDs in general and those opposing the EOI because they would like to see no
new TLDs at all, there is little room for the few moderates trying to
comment sincerely on both the positive aspects and the potential dangers of
the actual EOI proposal. Alas, no real debate has been able to take place in
the current format.

This is neither a bottom-up deliberation nor a consensus-building process,
and black and white opposition does not produce sound decision-making
conditions for the Board. Nothing could unfortunately illustrate more
clearly the limits of ICANN’s public consultation process and the need to
comprehensively reform it[1] <#_edn1>. But this is another story. The topic
today is the proposed EOI model.

Before going further, it is important to reaffirm that discussion on the EOI
is not about whether there should be new TLDs or not. This was decided in
2008 at the Paris meeting. Unless ICANN perpetuates its unpleasant habit of
constantly reopening its decisions, the question that must be addressed
today is much simpler : is the current EOI proposal useful and fair ?

At the end of this second consultation, and in the perspective of the
discussions that will hopefully take place in Nairobi, it is useful to try
and shift the debate away from this sterile black and white alternative and
show that it is possible to value and even support the idea of an EOI
without being forced to endorse all its currently proposed modalities.

In this perspective, we can frame the discussion around : 1) points of
significant agreement, 2) points that need to be further refined and 3)
issues of real contention that need to be resolved before any final
decision. Hopefully this will help discussion move a bit further and
comments are welcome.


Discussion of the EOI proposal should neither distract from addressing the
“overarching issues”, nor introduce further delays.

The number of strings in the first round is an important factor in terms of
root scaling. An EOI can be useful if it helps set this number with some
precision. It is its main intended benefit.

The number of applicants in a first round is not related to root scaling but
to ICANN’s administrative workload. Information about it gathered in an EOI
could inform ICANN’s operational preparation.

An EOI can illustrate the level of demand from potential applicants, which
is useful, but not the interest of registrants or the general users. It is
not a substitute for the economic studies envisaged as part of overarching

However, publication of the strings submitted in an EOI can help assess the
distribution of requests between different types of strings (geographic,
brand/vanity, linguistic/cultural, dictionary keywords, etc….) and therefore
the potential structure of the future TLD space. This is very important.

A significant promotional campaign is a necessity to develop awareness, and
4 months is generally considered appropriate (although some rare comments
would prefer a shorter time frame).

Even if various other types of information could be gathered in an EOI, a
broad agreement seem to support focusing it on the string and the identity
of the applicant. Likewise, a broad support seems to exist for making the
strings public (although a few actors would still prefer the EOI to produce
only statistical information, or request confidentiality in certain cases).

The minimal three-character requirement in IDNs impacts the strings that can
be proposed. This question must therefore be solved before an EOI can be

Registry-registrar separation impacts who can ultimately apply. It should
ideally be solved too before an EOI, but may be addressed later if the EOI
is focused only on the strings.


Some actors still support a complete absence of fee (“no need to pay for
just the right to stay in line”, or for reason of precedent), but many
consider it would lead to an excessive number of false submissions. On the
other hand, too high a fee would clearly penalize many actors, particularly
from developing countries and non-profit. The exact amount (in the range
between nominal and the 55.000 $ proposed) therefore needs to be discussed
further to find the right balance.

Some respondents propose in particular that different levels of fee be
established for non-profit and for-profit applications.

If there is a fee, it should be counted as a credit against the final
application fee and refunded at least if the new TLD program does not
effectively launch within a certain time period (to be determined).

Some components of the DAG (to be determined) must be finalized and agreed
upon (“yellowed”) before the launch of an EOI; otherwise the uncertainty for
applicants could justify complex refund rules or produce litigations. But
requiring finalization of the whole DAG before the EOI seems to suppress its
very purpose.

The current EOI does not allow applicants interested in the same string to
join forces and combine their proposals in the round proper. Modifying the
EOI to facilitate such efforts would probably serve the public interest and
this deserves some further thought.


Trademarks owners request that the overarching issues of trademark
protection and potential for malicious conduct be resolved before an EOI. A
main concern expressed is the fear of being obliged to file an EOI
defensively. Could a distinction between the rules applicable to the
top-level string itself and those applicable for second-level registration
be useful in that regard ? The former could be set before the EOI (in a
“yellowed” part of the DAG) and the latter being addressed in the final AG
(as a condition to the formal launch). In addition, wouldn’t the publication
of the strings via the EOI either alleviate concerns (most or all strings
being revealed as non contentious) or provide more time for preparing
objections ?

Making the EOI compulsory in the proposed manner (as de facto
pre-registration for the first round) raises a significant concern : this
could unduly favour some ICANN participants who have followed more closely
the preparation of the program and could pre-empt the most valuable strings
before the rest of the world is fully aware of the gTLD launch. A
communication campaign, while necessary, is not sufficient in itself to
alleviate this risk. Focusing the EOI on the strings rather than on the
applicants[2] <#_edn2> is a possible avenue that deserves being explored.
Key constituencies in the community – if not all yet - seem more and more
willing to do so, once presented with the idea.

Some paragraphs[3] <#_edn3> in the proposed EOI model hint at the possible
emergence of a speculative market for “application slots” obtained through
the EOI. It even justifies it with a cursory reference to a far from proven
“Coase Theorem”. Irrespective of the appropriateness of such market
transfers in the long term for delegated TLDs (France would certainly prefer
a more transparent re-delegation process), the creation of a speculative
market out of the EOI period is simply unacceptable and specific measures
must be put in place to ensure this does not happen.


The elements above in no way exhaust the range of topics to be addressed
regarding an EOI. But this hopefully illustrates that the only alternative
is not “the current EOI : take it or leave it”. Several elements can be
modified to retain the benefits of an EOI while avoiding the pitfalls or
even dangers. This is about shifting from a black and white alternative to
discussing “the appropriate shade of blue”.

At least, there are three distinct approaches to choose from :

   - a mostly data gathering exercise
   - a focus on identifying the strings to be part of the first round (and
   not the applicants)
   - a full pre-registration process (actually a first phase of application)

Actually, in many respects, an EOI along the second option has de facto
taken place during the last two years. Due to the continuous delays, a
significant number of potential applicants have revealed the strings they
intended to apply for (see an interesting list at :
http://www.newtlds.tv/?page_id=57). Among other things, this has allowed to

   - verify that there is interest, at least from applicants (and sometimes
   from potential registrants)
   - show there is at that stage a manageable number of ready applicants
   (and not hundreds or thousands)
   - illustrate that these proposals made public fall in four basic types of
   TLDs : geographic; linguistic/cultural; brand/vanity and dictionary keywords

   - alleviate concerns in the community about whether they raise morality
   and public order, trademark rights, string similarity or stability issues
   - roughly appreciate the credibility of the applicants, as they
   progressively detailed their project
   - generate potential competing applications for certain strings
   - verify that the main DAG criteria (once finalized) would provide a
   relatively coherent framework.

This clearly shows that not only is an EOI mechanism based on the strings
perfectly viable and useful, but it helps actors shape their projects and
make the process much more transparent. It should not be cursorily discarded
without proper discussion.

Finally, a recent panel during the ICANN Studienkreis in Barcelona also
confirmed that a constructive interaction can emerge when the different
actors are in the same room, which has not happened yet on this topic. The
next ICANN public meeting in Nairobi offers the venue for a true
cross-community interaction on this topic. France hopes that this
opportunity will not be missed and that no premature decision will be taken
by the Board in February.

Bertrand de LA CHAPELLE

Special Envoy for  the Information Society

French Foreign and European Affairs Ministry


[1] <#_ednref1> Such a community-driven reform has been recommended by ALAC
and the outgoing General Manager for Public Participation.

[2] <#_ednref2> This approach was proposed and detailed in the previous
French contribution on November 27, visible at

[3] <#_ednref3> “Possibility of transfers. There is a risk that entities
will buy and transfer application “slots” prior to the opening of the
application process, although this can be partially mitigated via the design
and drafting of the terms and conditions. The fact that gTLDs can be
“transferred” after delegation generates much the same result ‐‐ the EOI
process could shift these scenarios to an earlier stage. It

is possible that such transfers may be beneficial and in the public
interest. See for example discussion of the Coase theorem at
http://demonstrations.wolfram.com/TheCoaseTheorem/. The key task for ICANN
is to ensure that transfers are carried out in a way that does not harm
thesecurity or stability of the DNS.”

Bertrand de La Chapelle
Délégué Spécial pour la Société de l'Information / Special Envoy for the
Information Society
Ministère des Affaires Etrangères et Européennes/ French Ministry of Foreign
and European Affairs
Tel : +33 (0)6 11 88 33 32

"Le plus beau métier des hommes, c'est d'unir les hommes" Antoine de Saint
("there is no greater mission for humans than uniting humans")

Attachment: France - comments EOI 27 Jan 2010.doc
Description: MS-Word document

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