[gtld-council] Recommendation 20

["Gomes, Chuck" <cgomes@xxxxxxxxxxxx>]

Warning:  This is a long message.
 
Recommendation 20 Comments for New gTLD Process

 

As promised, here are my thoughts regarding Recommendation 20.

 

Let me start by reporting that I have only received feedback from a
couple of registry reps and both of them are not comfortable with the
current wording of recommendation 20.  I will continue to work this
within the RyC.  The comments that follow are a combination of my own
personal thinking and some thoughts shared by three or four people
communicated on the RyC list.

 

Let me now focus on the wording of the recommendation.  For clarity I
repeat the current wording here: "An application will be rejected if it
is determined, based on public comments or otherwise, that there is
substantial opposition to it from among significant established
institutions of the economic sector, or cultural or language community,
to which it is targeted or which it is intended to support."

 

I understand Philip's logic regarding the use of the words "will be
rejected" instead of "may be rejected" as changed by most members of the
subgroup and it seems logical to me, so I don't see this as an issue.
What we were trying to do in the subgroup was to avoid the implication
that a string would automatically be rejected if there was opposition,
but I think, as Philip argued, that the conditional clause covers this.

 

I still have problems with the phrase 'based on public comments or
otherwise'.  Do we really expect an expert panel to consider public
comments?  I recognize that that is mostly an implementation issue, but
if we state it in the recommendation, it will set certain expectations
that could be very difficult to fulfill.  I do believe that staff needs
to decide how public comments will be used in the overall process but I
think that is an issue that should be handled separately from our
discussion of recommendation 20.  If we do expect the panel to consider
public comments, then the implementation definition of 'substantial
opposition' will need to be expanded to include public comments and not
just established institutions.  Would the panel only look at public
comments from members of established institutions and, if so, how would
they determine whether those submitting the comments are from
established institutions in the targeted community?  It is challenging
enough to evaluate complaints from established institutions in an
objective and measurable way; I think it is much more difficult to do
that with public comments.

 

My next concern has to do with the qualifier of established
institutions: "of the economic sector, or cultural or language
community".  I have asked some of the following questions before but
don't believe anyone has ever answered them.  Would complaints only be
accepted from institutions in the economic sector, cultural community or
language community?  What is the definition of each of these terms?
Does 'economic sector' simply mean 'commercial organizations'?  If so,
what about not-for-profit organizations?  Are they part of the economic
sector?  'Cultural community' seems at least intuitively easy to
understand although I am not sure it can be objectively identified in
all cases.  How would a 'language community' be defined?  I don't think
that is very easy because languages are used across borders.   Who is
the official representative of a language?  In some cases it is easier
than others.  Would a complaint be refused from an organization that
cannot readily be classified as being part of the economic sector or of
a cultural community or a language community even if the organization
represents a significant portion of the targeted community?  Most of us
on the subgroup thought that it was unnecessary to imply that complaints
could only come from the economic sector, a cultural community or a
language community so we recommended leaving those qualifiers out.   If
a community is targeted and may experience harm, does it really matter
what type a community it is?  On the other hand, if the intent is to
simply share examples of types of communities that might have concerns,
that is easy to deal with; we could simply say, "for example, . . ."

 

My last issue of the recommendation wording has to do with how it would
be determined whether a community was targeted.  I think several people
have commented on this; I specifically remember Ray raising questions in
this regard.  Would a community be considered a targeted community only
if the applicant for a string specifically said they were targeting that
community or could it be assumed from the string chosen even if the
applicant didn't state that they were targeted a community.  For
example, if an application for the string .maori was received and the
applicant did not state that it was targeting the Maori community, would
a complaint from the Maori people be accepted? This is an implementation
issue that will need to be handled.  If we rely solely on the statements
in the application with regard to targeted community, it would be very
easy to game, and I am sure we do not want that to happen, to the extent
that we can avoid it.

 

Last of all, I think that Becky Burr shared some very important points
that relate to implementation.  Note that she starts off referring to
the two alternative versions, the one I repeated above and the one
proposed by most members of the subgroup.  I pasted her message here:

 

"Doesn't the current proposed language - either version - just kick the
can on the hard questions?  Are"self-defined" communities (as in .tel,
.mobi, .cat, .asia) permitted or not?  If the answer is yes, are those
applications subject to a veto by some portion of the larger economic,
social, or cultural group.  If the answer to that is yes, how do you
measure significance?   Should the answer always be yes, or should it
depend on the nature of the objection (e.g., should an objection about
consumer harm carry more weight than an objection based on a desire to
avoid competition)?

 

At the very least, I would put the burden of proof with respect to
significance on the objector.  In other words:

 

An application that is designed to serve a specific community may be
rejected if:

 

1) ICANN receives a timely objection from an established institution
within that community or a closely related community; and 

 

2) the objector demonstrates, based on objective and verifiable
evidence, that:

 

                    (a) it represents a significant portion of the
community or closely related community;

                    (b) it is authorized to object on behalf of the
community or closely related community; and 

                    (c) the legitimate rights or interests of the
objecting community or closely related community will be materially
harmed or       prejudiced by introduction of the proposed gTLD."

 

I think we have already covered item 1) of her suggestions.  And I
strongly support what she is suggesting in item 2).  This approach
combined with Avri's proposed definitions of key terms seems very useful
regarding implementation.  It could even impact how we might word the
final recommendation, although I will give that some more thought
tomorrow.

 

The approach of putting the burden of proof on the objector seems to be
consistent with the recommendations made by the RN-WG for geographical
and controversial names and would also seem to provide a means for the
GAC to challenge a string if they chose to.

 
Chuck Gomes
 
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