Jothan Frakes' Constructive Comments and Support of the EoI

[Jothan Frakes <jothan@xxxxxxxxxxxxxxxxxxxx>]

I support the Expressions of Interest.

It seems a means to help quantify many of the theoretical aspects of the
coming new TLD process.

The compulsory aspects deliver the strongest overall benefit
It must be a mandatory process or most of the practical benefits are lost
because many will not risk exposing their TLD until the latest possible
opportunity.  A voluntary process cannot provide full benefit to ICANN and
risks disrupting the other benefits like earlier dispute resolution for
trademark interests or string collisions.

Transparency and Accountability
Anyone like myself who had the opportunity to be in the room when the first
round of TLDs were chosen in 2001 saw a process that would be best not
repeated.  The decisions and selection process were, from the public
perception, deeply subjective and random.  This is likely the case where
those in the audience did not have the benefit of a transparent process to
have seen if there were indeed sound logic and reason applied to the
selection process that preceded the public meeting.

Accountability and Transparency will help deliver stronger institutional
confidence in the outcome of this decade of important work.

Once the window to submit closes, all of the strings and applicants should
be published so that there is transparency and accountability.

If there is a period prior to the publication of strings and applicants
where parties who were in contention can attempt to resolve that contention
prior to the publication, it should be brief.

There are some who would request some anonymity to conceal their business
concept or idea.  Should this be permitted, others with identical strings
should have the party disclosed to them which they might be in contention
with.  This would help preserve the benefit of addressing contention
proactively, and it would also benefit brands and trademark rights by
providing them the opportunity to not have a potential infringement at the
top level shielded behind the veil of anonymity.

In all cases, this process should ensure as much transparency as possible.

If a business plan or TLD concept cannot stand in the light at this point,
it seems that there is only mild delay of the public's ability to respond.
 If the round is mandatory and final (where another party cannot later join
in on interest in a string), any concerns of exposure are purely timing.
 Better to let people respond and address this.

Finality to the EoI
The round should have finality. Someone who missed the EoI window cannot
later join on to increase contention on a string lest there be predatory
behavior introduced, such as rights infringement, predatory or malicious
business practice (join those which appear to have some promise of going to
auction and get bought off).

If there is an additional round of submissions, strings that were designated
in the first EoI should be unavailable to those in the second round.  These
should be final also.  First round EoI should receive preferential
processing order, so that there is still a perceived benefit to EoI
participation, lest there be dilution of interest and the many benefits that
an EoI bring.

Costs to the EoI
The EoI must have a cost.  $55k (USD) per string seems good, why question
the judgment of the GNSO's initial at-risk amount?  Just high enough to
disincentive disruptive practices, but low enough to be accessible to most
parties.

There are comments that there should be a lower price to the EoI to avoid
disadvantaging some parties who may have financial challenges in
participation, from emerging nations, underrepresented cultures.  It makes
more sense to have a special circumstances checkbox in the EoI where an
applicant can identify that they are requesting a lowered fee and provide
reasonable justification.  Lowering the 55k level to solve this seems like
it introduces more harm than good.  It is also important to note that
concrete dates and timelines will be more beneficial to these applicants, as
many of them can raise donations, grants, or other funding once the TLD
process is again perceived as real within their stakeholder groups,
communities and organizations.

Contents of an EoI
Fields 1-14 should be collected.

There should be One string per EoI.  One fee per EoI.  Also, IDN variant
strings count as an individual EoI, per variant.  It would be good to
identify the ASCII TLD that the string is a variant of, if it is being
requested in a group.

Timing
The EoI must not introduce delay to the new TLD process overall.

It can be a process that happens in tandem with addressing the important
overarching issues without disruption to any progress in those areas.

Communication
With respect to having a communication period, this is certainly important
so that the process can be as inclusive as possible.  The EoI communication
period would replace the application communication period.  The EoI should
be identified clearly as a component phase of the overall process of the new
TLD program, along with dates of completion for the Applicant Guidebook -
Finalized and the launch dates for applications.  Identifying concrete dates
as part of the communication process for the overall new TLD program will be
as powerful if not more powerful - conversely communicating without dates
may undermine the outreach effort.

Response to other comments
Responding to some of the commentary in this comment period, I've carefully
read the comments and thoroughly followed the EoI process as one of its
initiators.  I believe if I offer some background on the concept of the
Expressions of Interest, it might help illustrate that some opponents may
not be operating with accuracy in their statements.

First, please take note, to those that read the actual comments, that
negative comments tend to parrot the same points without offering any
constructive recommendations of remedy.  They complain about numerous
aspects of the process overall but  fail to offer any constructive
suggestions other than suggesting delay to the new TLD program or halting it
seem to fall into simple primary categories:  Incumbent registry operators
and a small number of intellectual property interests and their paid expert
groups or consultants.  All of who seem focused on disrupting the productive
focus of new TLDs.

Some of the arguments against EoI and my response:
"Secondary market for slots" can be easily addressed by making them
non-transferrable from the listed responsible individual in the EoI unless
for purpose of resolution of collisions.   This seems like a thin or
non-issue.

Involving the GAC
Yes, the GAC input is very important.  Having them comment in Nairobi is
worthwhile.  Not only because of the AoC compelling this, but this is a
global internet.   What I do not want to see happen is those who benefit
from delays leverage the time between now and Nairobi’s meeting to invent or
hypothesize new overarching issues or architect  further delays, using the
opportunity for the GAC to provide input as tool towards their ends.
Suggesting the GAC was not consulted seems like a way to hit the beehive and
start a swarm to introduce delay.  Gratefully it is a brief delay.   The
concept of GAC consultation in a public forum is worth some thought.  The
EoI originated from the GAC recommendations at the Lisbon ICANN meeting in
2008.  I felt it more respectful to the GAC to not question their wisdom,
but they should be consulted.  Additionally, the GAC in whole or in
individual capacity also have opportunity to comment in the comment period.
 I definitely think the GAC having opportunity to socialize the EoI is
worthwhile.  The GAC should have input but they are not mandated nor is it
necessarily appropriate for them to micro-manage this.

I thank you, the reader, for your time and your consideration of the points
that I raise in my expression of support for ICANN, the EoI, and the new TLD
program which will shortly begin.

Respectfully,

-Jothan

Jothan Frakes, COO
Minds + Machines
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jothan at mindsandmachines.com