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Community-based objections: two problems (and a ahlf)

  • To: gtld-dispute@xxxxxxxxx
  • Subject: Community-based objections: two problems (and a ahlf)
  • From: Amadeu Abril i Abril <Amadeu@xxxxxxxxx>
  • Date: Tue, 16 Dec 2008 00:43:11 +0100

We acknowledge that the Objections procedure, along with the Contention evaluation, are the two most significant “new” pieces of the new gTLD RFP (or Guidebook). We udnerstand the enormous work devoted to these topics, and we believe that they are in the right direction. We would like pointing out to two areas where community- based objections are not yet satisfaovry.

On one hand, and this is obvious, cost. While “Rights of Others” objections might cost less than $12.000, probably much less, community- based objections might cost....$122.000 “or more”. We understand the costs involved in International Arbitration procedures, but both the difference and the absolute figures are a bit out of place. The very risk of facing such a fee (even when being nearlysure of prevailing) might deter some applicants due to the financial implications.

Now for “half the problem”: stating that failing to respond to the objection automatically carries losing the procedure (and therefore, stoping the application) might be seen as a bit of a stretch. We understand that the constraint is financial (as both parties have to put up the whole sum before hand, this would be the only way of getting reinbursed). But we see a number of cases in which the institutions behind an application would prefer being silent and not even responding to an obviously frivolous and provocative objection. Perhaps they still should make a deposit for the whole sum, in case they finally lose, but ICANN should not force the parties to “argue” and formally respond if they don’t feel inclined.

Finally, the other relevant flaw: the “absolute defense”. As it is stated now, if the Applicant is an established institution within the community and has ongloing relationships with said community, not challenge could prvail. We believe that the standing criteria (those just mentioned, estalbished in are necessarily of a lesser strengh of those required to prevail. Let’s put an example.

Let’s iamgine that the RSSAC applies for .ROOT. And that ICANN itself, ASO, ccNSO, GNSO; each individual constituency within GNSO, NRO, ALAC, GAC.. well, nearly everybody else files an objection (just an example, an scenario: the fact that the TLD string is reserved and that those bodies do not have legal personaility is irrelevant; the intent is getting you an idea of the “community landscape”). Under such scenario, the objection would fail. No matter how stupid the proposal would be for the rest of the community, how harmful. No matter tha fact that the vast, overwhelming majority would be against. It is clear that RSSAC is “an established insitution”. Just one, among many ,,mnay others. And it is clear that it has an ongoing relationhsip with it. One among many, many others. These criteria are well thought for defining standing, but will bring perverse effects if used as “absolute defense” and will only aggravate conflicts in a situation where the overhwelming majority would be against. This should be taken into account.

Amadeu Abril i Abril
CORE Internet Council of Registrars

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