Comments on the EOI procedure
Thank you for the opportunity to comment on the Expressions of Interest proposed procedure. As a participant in the Expressions of Interest Working Group, whose findings will be submitted to this forum in due course, I welcome the willingness of the ICANN Board to consider ways of moving the new gTLD process along more expeditiously, as I welcome the chance to make my comments here. I should emphasize that my comments below are personal and do not necessarily reflect the consensus of the Expressions of Interest Working Group. > How do we ensure that participation in the EOI accurately represents the > level of interest? A prior question would be, "Who among potential registrants does not yet know about new TLDs?" The new TLD process has dragged on for years now. It has been the subject of articles in most major newspapers, innumerable magazines and other newspapers, and hundreds if not thousands of blogs in all major languages. The new TLD process is being studied actively by most major world cities; by many cultural and geographical groupings, by many companies, and by journalists and bloggers in the Internet space. The issue with coverage and awareness to date is that it has been about how this is happening "some day." I have personally been told by dozens of journalists that they will write about this as soon as there's something substantive to write about -- they need a "hook." With a date, they will have one. Therefore, I would say that the EOI process, by providing a date for the window for submissions, will in itself provoke a great deal of press and awareness. A related question, not asked by ICANN, is: "Will the EOI process be more or less effective in bringing qualified applicants to the new TLD process?" I strongly believe the answer is "More effective." For brandholders particularly, an EOI process provides the ability to get a "place in line" without committing to the millions of dollars they would spend in completing an actual application. As pointed out by members of the EOI Working Group, a general counsel at a major brand is going to be far more comfortable authorizing $50,000 to secure the right to apply than in authorizing $1 million to $2 million to actually fill out an application -- the amount it is estimated it will cost a brand. Then, at a comfortable pace, the brandholder can decide whether it actually wishes to proceed. > > Should only those who participate in the EOI be eligible to participate in > the first round when the program officially launches? Yes. The process would be useless and filled with disinformation unless EOI participation were a prerequisite to applying. The major benefit of the EOI process will be to provide to ICANN information about its set of applications: number, type, contention sets, trademark implications, public morality implications, root scaling, etc. If participation in the EOI is mandatory for those who wish to later apply, and if there is a substantial deposit required, ICANN will know, at a minimum, the upper limit of its application set, with major beneficial results for the application process and for solving several bedeviling issues that have slowed it down until now. > > Should a deposit be required for participation in the EOI? Yes. Not requiring a substantial fee to be paid along with the Expression of Interest would invite bogus submissions, rendering the process pointless. In my view $55,000 is a minimum requirement. Anything less will invite gaming by deep-pocketed applicants. Furthermore, the $55,000 figure reflects the amount at risk in the application process as set out in DAG 3. In that document, section 1.5.1, $130,000 of $185,000 would be returned to an applicant who, prior to evaluation, decided not to continue. Therefore a $55,000 fee is exactly the amount that would be put at risk in the full-scale application process, and is the right amount here as well. > > If there is a fee, under what circumstances should there be refund? A refund should be at ICANN's option only. It is important, in my view, that potential applicants participating in the EOI process understand that their fee is entirely at risk. Promising a refund will invite all kinds of gaming and open ICANN up to legal entanglements. ICANN should, however, retain the right (but not the obligation) to refund the fee. That said, the EOI fee should be applied to the eventual application fee. In my view, ICANN would be wise to arrange that the fee be put into escrow for ICANN's eventual use for new gTLD applications in order to avoid any appearance of impropriety. > > What information should be collected from EOI participants? The EOI should be as simple as possible and should avoid any questions that have substantive policy implications, lest the process become a microcosm of the same issues that have so delayed the application process. The inputs should be, simply: name, contact information, and string(s) to be applied for. For each string, $55,000 should be paid. > 5.1 What subset of applicant questions found in the Applicant Guidebook at > http://www.icann.org/en/topics/new-gtlds/draft-evaluation-criteria-clean-04oct09-en.pdf > should be answered? Name, contact information, and string to be applied for. > > 5.2 Including applied-for strings? Yes > > 5.3 Should information be made public? Yes. Making the information public provides major benefits to the community. It provides potential applicants and potential objectors with information about how to proceed. 1. Potential Applicants in obvious (exact-match) contention sets will know whom they should contact in order to work out a deal, if possible. 2. Potential Applicants whose string is unique will have some comfort that they can proceed with their business plan, though of course they remain subject to objection and may even be put in a contention set if their string is too similar to another one. 3. Trademark holders will be able to quickly understand if any of the strings are infringing and plan accordingly. 4. Guardians of morality (whether elected or self-appointed) will know if any string is worthy of objection Finally, the publication of the strings will generate substantial interest from the press and will serve ICANN's stated purpose of alerting the world to the process. > Must the responder commit to go live within a certain time of delegation? No. This is a policy matter that should be addressed by the DAG. > > What are the implications for potential changes to the Applicant Guidebook > after the EOI participation period closes? Depending on the number of expressions of interest received, it may impact the estimated timelines for evaluation, for communication, and for delegation. Obviously it will impact the fee schedule. It may affect the amount of time/detail that ICANN spends on certain sections of the DAG. The information received by ICANN should introduce clarity, brevity, and certainty into the DAG. > > What are the potential risks associated with the EOI? If (and in my opinion, only if) ICANN tries to address substantive policy issues in the EOI process, there is a risk of delaying the process. ICANN must limit objections to any eventual applications to the procedures outlined by the DAG. It should not allow attempts to disqualify applications at the EOI stage.