Re: [gtld-council] Recommendation 20

[Mawaki Chango <ki_chango@xxxxxxxxx>]

Chuck,

N.B. This is me expressing opinion in my personal capacity, for
the sake of clarification/clarity before any discussion takes
place, and any position be expressed.

As worded, this version raises 2 questions:
- "closely related community" to what? to the initial (targeted)
community (so there are two communities), or to the
string/application? In the latter, the wording is not clear, and
I suggest mentioning "related community" once for all at the
outset.

- how does one determine the _authorization_ of an objector to
do so on behalf on the whole community? (you may want to remove
that phrase and replace it by something like "has a legitimate
standing" etc. but I leave it here in square brackets.

Considering those issues, I'd advide a slight editing as
follows.

Mawaki

***

An application that is designed to serve a specific community,
or is closely related to a community, may be rejected if:

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

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

                    (a) it represents a significant portion of
the community;

                    (b) it [is authorized, or] has legitimate
standing, to object on behalf of the community; and

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


--- "Gomes, Chuck" <cgomes@xxxxxxxxxxxx> wrote:

> 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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>