Comments on the EOI procedure

[Antony Van Couvering <avc@xxxxxxxxxxxxxxxxxxxx>]

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.