RE: [gtld-council] Recommendation 20

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

Thanks Mawaki.  I will try to incorporate your suggestions in some
revised wording.

Chuck Gomes
 
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> -----Original Message-----
> From: Mawaki Chango [mailto:ki_chango@xxxxxxxxx] 
> Sent: Tuesday, July 17, 2007 1:10 AM
> To: Gomes, Chuck; gtld-council@xxxxxxxxxxxxxx
> Cc: Becky Burr
> Subject: Re: [gtld-council] Recommendation 20 
> 
> 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
> >  
> > "This message is intended for the use of the individual or
> > entity to
> > which it is addressed, and may contain information that is
> > privileged,
> > confidential and exempt from disclosure under applicable law.
> > Any
> > unauthorized use, distribution, or disclosure is strictly
> > prohibited. If
> > you have received this message in error, please notify sender
> > immediately and destroy/delete the original transmission." 
> >  
> > 
> 
>