French comments on the concept of an Expression of Interest process

[Bertrand de La Chapelle <bdelachapelle@xxxxxxxxx>]

The following comments are provided as an early contribution in the
exploration of the impact of a call for Expression of Interest (EOI)
requested by the Seoul Board resolution. France is looking forward to
participating in further community discussions regarding the possible
modalities of an EOI.

*A good idea that could go wrong
*
A well-conceived EOI mechanism can bring many potential benefits, even
beyond those extensively described by many commenters on this online forum.
France believes that the idea deserves serious consideration as it opens up
interesting avenues to address nagging outstanding issues. It is also an
opportunity to foster the cross-community discussion needed to move forward
in the new gTLD program.

However, a serious note of caution is necessary at that stage : a
hastily-built process, driven by specific interests or perceived as biased
in their favour, that would be prematurely endorsed by the Board without
sufficient evaluation and buy-in by the larger ICANN community could have
very detrimental effects on the whole new TLDs process and the credibility
of ICANN itself to manage such a complex endeavour in the public interest.

France has noted with interest the swiftness demonstrated by the Board in
Seoul in adopting a resolution requesting staff to examine an idea just
floated during that very meeting by a segment of the community. However,
depending upon how this issue will be treated from now on, the Board will be
applauded for reactivity and leadership or could be blamed for bias and
partiality. If the list of questions posted is a good start, one element
needs to be highlighted right away.
*
A major issue is fair treatment
*
Indeed, one particular provision in the initial proposal raises serious
concerns in terms of fair treatment of potential applicants. Reserving the
right to apply in the first gTLD round to applicants in the EOI is of course
in the interest of the already well-prepared potential applicants who, for
the most part, are at the origin of the EOI proposal and their main
supporters on the current (and very time-limited) public comment forum. And
it is fair to say that many of them are suffering from the constant
postponement of the timeline and deserve some predictability in the process.


However, integrating such a mandatory provision without modification in an
EOI process would clearly make it biased in favor of ICANN insiders who have
had the opportunity to follow ICANN’s work during the last years – and
already to influence the whole gTLD process significantly. This bias may
barely affect geographic, brand or community-related TLDs. But it would be
of major importance for what could be called “high-value common names”, that
is : relatively short names (no more thean 6-7 characters) with high
semantic meaning (frequently used dictionary common names in different
languages, but particularly in english).

No EOI should actually result in enabling ICANN insiders to potentially
pre-empt the most valuable resources before the rest of the world even
becomes aware of the existence of the gTLD program. Fairness of treatment
and non-discrimination are two fundamental principles to be respected in
this endeavour and the lessons of the last gTLD round show the potential
danger of not abiding by them enough.

*On the nature of the EOI*

The combination in the initial proposal of : 1) a short window for
application to the EOI, 2) a significant financial deposit, and 3) a
restriction of the first round to EOI applicants would structurally
transform the nature of the exercise. Instead of a tool to measure the level
of interest in the new TLD program, that could help refine the typology or
geographic distribution of applications, in order to finalize the DNS
expansion plan, the EOI would become a mere filter to identify the
“ready-to-apply” TLD applicants and their corresponding strings. In other
words, a pre-selection first phase that would enable and even encourage key
players to “lock-in” their application rights and – maybe unvoluntarily –
exclude other potential applicants until a second round whose timeline is
even mor uncertain.

Is there a possible way out to reintroduce fairness of treatment ? The GAC
Principles on New gTLDs (dated march 2007) established a clear distinction
between three phases : 1) the evaluation of the string, 2) the delegation of
the registry function to a specific operator and 3) the operation of the
registry (ie the rules under which it will function or that it will adopt
post-delegation). We believe this useful and operational distinction should
be kept in mind in designing the EOI process.

*An EOI focused on the strings ?*

The Expression of Interest phase should be less about the applicants and
much more about the strings. It could function as follows :

- During the Expression of Interest (duration to be determined), potential
applicants would submit their intended string(s).
- After the closure of the Expression of Interest, the list of strings would
be published and only those strings would be considered in the first round
of new TLDs.
- Capacity to apply for the delegation of the management of each of these
TLDs would however remain open to other candidates during this first round
(longer duration period).

The last point is critical to maintain fairness and represents the main
difference from the presently proposed modalities for an expression of
interest.

Such an approach would have several advantages :
- it would naturally set the size of the first round, as the maximum number
of strings treated would be the number of strings in the Expression of
Interest
- it would force “ready applicants” to come forward and register their
intention – otherwise they would not be sure that the string they are
interested in will be in the first round
- it would avoid any preemption of the most valuable strings by insiders by
opening up a fair and longer window for candidatures to delegation
- it would foster a transparent competition for high-value common names
which deserve a significant attention, without eliminating the de facto
advantage that very engaged applicants have accumulated through their
preparatory contacts in the past years

Focusing the Expression of Interest on the strings rather than the applicant
would additionally allow to devote attention to the likely scale and
structure of the demand which is the most missing data. It would allow in
particular to identify not only the number of applications but their type :
do they have a geographic dimension ? a relation to a brand or IP right ? do
they relate to a community ? do they raise morality and public order
concerns ? All these criteria, currently contained in the DAG, have little
to do with the applicant and could perfectly be documented as a result of
the Expression of Interest phase even before the delegation proper.

*Next steps*
**
The introduction of the concept of EOI has a potentially high impact on the
whole gTLD process and may represent the most interesting effot to date
to move from the conceptual level to the realities of opening up the Domain
Name Space in an ordely and timely manner. Following the positive precedent
of the IDN ccTLD working group (although the two situations are not entirely
comparable), the staff should not design an EOI on its own without a
sufficient cross-community discussion. Mere consultation of the community in
the traditional ICANN manner will not be suffcient and real community-wide
interaction is necessary to find the right balance.

The swift reaction of the Board in Seoul and the manifest interest raised by
this proposal provides a window of opportunity : following the preliminary
report by the staff, the Board in its session of 9 December could ask the
community, including the gNSO, ccNSO, GAC, and ALAC, to work collaboratively
and produce - by a fixed date before the Nairobi meeting - a formal
consensus proposal for an EOI. Such a proposal, would be examined, refined
if necessary and hopefully endorsed by the various SOs and ACs in Nairobi.

True cross-community interaction on this topic is an opportunity not to be
missed to bring back all stakeholders together on a topic - the new TLD
program - that has led to fruitless divisions among them in the two last
years.

Best regards

Bertrand de La Chapelle
-- 
____________________
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
Exupéry
("there is no greater mission for humans than uniting humans")