Public interest, contention/objection, portfolios, exclusive-use

[Werner Staub <nanocuac@xxxxxxxxx>]

Lotteries should never used if their effect is to exacerbate
unintended handicaps of some contenders or to hurt everyone.

The proposed Drawing Prioritization has both of these flaws.

Furthermore, the Drawing proposal is poorly integrated with other
aspects of the new gTLD plan, namely the objections and contention
processes. Objection and contention are already misaligned between
each other, in particular for cases where communities are affected.

The combined result is an unheard-of bias against the public
interest and against communities. The playing field is tilted in
favour of purely self-interested parties and in favour of portfolio
applicants.


1) Public Interest

The Drawing proposal fails to address the public interest (with the
exception of IDN). This is easy to correct. Processing priority
must go to applications for which public authorities or
pre-established community organizations take responsibility.

There are many reasons for this.

The entire Internet is better off if the first new gTLDs to be
launched are managed on the basis of proven community
accountability. In other words, the principle of subsidiarity
should also be applied to processing priority. In this way, more
securely governed TLDs are launched at the outset. It minimizes
negative externalities and avoids overloading ICANN.

Efficiency and orderly processing are another reason. In any
administrative process, chaos ensues if extremely dissimilar
categories are lumped together.

Finally, public interest priority is a matter of fairness. Public
authorities and established community institutions are less agile
than self-interested parties. They have existing governance rules,
elections, due diligence requirements, procurement policies,
conflict-of-interest, policy-based audits, etc. It would be unfair
and destructive to treat them on the same footing as
self-interested parties who are unencumbered by public
accountability and community governance.


2) Evaluation and Objection Timelines

Substantial extra costs are the result of the misaligned timelines
of evaluation, objection and contention. For instance, useless
evaluation work is done on hundreds of TLD applications which will
necessarily be rejected because of contention and objection. If
objection and contention process are allowed to proceed without
delay, ICANN can avoid the need for almost one third of the
evaluations and delegation time slots.

The following two egregious design bugs must be corrected:

2a) Objectors are forced to wait until the end of the objection
period because ICANN has announced that the none of the objections
will be heard before that point in time. This means that objections
need to be filed against all infringing applications. A
well-designed objection process gives objectors the option of
starting with landmark cases. Landmark cases would give useful
signals, to the advantage of all parties, including potential
respondents. Many borderline applications would be voluntarily
withdrawn. ICANN must correct those rules and allow the objections
to be processed immediately.

2b) ICANN should also allow objectors to request extensions of the
objection period on a per-TLD basis. The costs of objections are
substantial, even in the “loser-pays” scenario, because
documenting proof requires experts in a new and totally untested
type of proceeding. Allowing justified per-TLD extensions of the
objection period are also a way to avoid bottlenecks. Objection
period extensions are a smooth and constructive way of spreading
the roll-out of TLDs over time - especially in comparison to the
brutish entropy of a lottery.

2c) To avoid unacceptable process risks, community-based applicants
are compelled to file objections against each and every contending
applicant. This is because ICANN has scheduled Community Priority
Evaluations to take place after the end of the objection period.
This must be corrected. Community Priority Evaluations must be
allowed to be completed before the end of the (respective)
objection period(s).


3) Portfolio Applicants

The unnecessary randomness of the lottery is costly all, including
ICANN, and that additional cost disproportionally affects
communities. The lottery is kindest to portfolio applicants, but
even there it is pointlessly destructive. A portfolio applicant
would be better off if it were allowed to announce a preferred
order of processing of its applications. The indirect effect of
such option on all other applicants would still be positive because
the bulk of each portfolio can be shifted to the back of the
timeline and still be more advantageous to the portfolio applicant
than randomness. There no reason to use a lottery when when a
system involving self-declared preferences achieves a better result
for all.


4) Exclusive-Use TLDs

Many exclusive-use TLD applicants are forced to “play” in the
lottery despite their natural preference for a later roll-out date.
The reason is that the lottery plan does not allow them to express
their real preference, namely, the avoidance of time disadvantage
against same-industry competitors. This unwanted pressure exists
despite the uncertain utility of many TLDs applied for, and despite
the uncertain outcome of the lottery. All applicants would be
better served if applicants were allowed to express their timing
preferences. ICANN must immediately allow applicants to formally
declare exclusive use of the TLD, if that is their intention, along
with their timing preferences in relative or absolute
terms.


Conclusion: the lottery proposal must be corrected.

In summary, ICANN must

1) introduce public interest priority (IDN TLDs, community-based
   TLDs, public-authority-supported TLDs, geographic TLDs)

2) resolve the misalignment between the timelines of evaluation,
   objection and contention

3) allow self-declared ordering of portfolio applicants

4) allow formal declaration of exclusive use TLD along with
   timing preferences.

If these corrections are made, the remaining timing aspects can be
based on randomness.


Werner Staub