Community based applicants in contention sets with "open" applications

[Eric Brunner-Williams <ebw@xxxxxxxxxxxxxxxxxxxx>]

Olaf,

This is the written argument for a change in the text relating to 
contention sets which include one or more community-based applications, 
which we discussed during the Sunday GNSO Council new gTLD session, and 
which you and I discussed at length later during the Cairo meeting, and 
suggested replacement text.
First, the scenario: There exists a contention set formed by 
applications from the Cherokee Nation of Oklahoma (CNO), the United 
Keetoowah Band (UKB), the Eastern Cherokee Nation (ECN), and Chrysler 
LLC, for the string "CHEROKEE". The first three applications are 
identified as "community based", the fourth application is not
If more than one applicant scores 11 or more, the
evaluators will consider what portion of the community is
represented by the application. If one applicant represents
a much larger share of the relevant community than
another, that will be a basis for awarding priority.

In the fact situation I've described, each of the CNO, UKB and ECN 
applications represents all of the relevant community, as there are 
three distinct communities, one defined by Dawes Rolls lineal descent, 
one defined by that as well, but qualified by a 1/4th "Keetoowah blood 
quantum" requirement, and one defined by Baker Rolls lineal descent. 
Were the evaluators to look past the citizenship requirements for each 
of these polities and attempt to use the size of each applicant's 
population base, the CNO is the largest, but the percentage of its 
enrolled citizenship that vote, and can be presumed to be represented by 
the current CNO government, is on the order of ten percent. The UKB is 
smaller in size, a logical consequence of a BQ requirement which 
eliminates "nosebleeds", and its citizenship is vastly more engaged in, 
and can be presumed to be represented by the current UKB government. To 
take a similar comparative evaluation problem, is 1% of Indians 
(indigenous to Asia) "more than" 100% of Indians (indigenous to the 
Americas) for the purposes of representation of the relevant community, 
where both communities have applied for "INDIAN"?
In the 1st public draft GFA text, this set always goes to auction if two 
or more of community-based applications score 11 points or more in the 
comparative evaluation, and the relative evaluation fails to determine a 
"clear winner". Suppose that all three community-based applications each 
score 11 points in the comparative evaluation, and the evaluators are 
unable to arrive at a basis for awarding priority between them.
Therefore, Chrysler LLC, with a capitalization that may be negative 
today, but historically has had better access to capital than any Tribal 
Government ever, is allowed to bid as a brand manager (JEEP CHEROKEE) 
against three rather poor (and corrupt for two out of the three) Tribes 
and their respective community-based applicants. This is not the outcome 
we should be designing for.
Now suppose that there is a fifth application for CHEROKEE made by the 
Cherokee National Party (CNP), a pan-tribal political reform movement, 
also identified as a "community based" application, but because of its 
openness towards the means of determining membership for the purposes of 
proposed registration policy restrictiveness (the "choice of rolls" 
problem) scores only 10 points. As with the Chrysler LLC example, the 
lack of a clear winner and the evaluators being unable to arrive at a 
basis for awarding priority between the 11 or 12 point scoring 
community-based applications which have elected to pay International 
Chamber of Commerce, means that the CNP, essentially an organization 
committed to the overthrow of corrupt regimes, starting with the CNO, is 
allowed to bid at auction as a less qualified applicant against better 
qualified applicants. Again, while my sympathies are for the CNP as one 
of the better applicants, this is also not the outcome we should be 
designing for.
The process should always select a qualified community-based 
application, and unlike contention sets formed for generic strings, 
communities can not change their names to accommodate the uniqueness of 
labels requirement of the DNS, there is no "commercially reasonable" 
private settlement possible for communities, unlike commercial plays for 
generic strings.
Additionally, we should be designing a process which does not reward a 
applicant attempting to appropriate a community identifier with a lower 
cost than the community must pay to obtain the same identifier. The cost 
to Chrysler LLC is $185k, the cost to any Cherokee community-based 
application is what Chrysler pays plus whatever the International 
Chamber of Commerce wants, whether the International Chamber of Commerce 
finds that any Cherokee community-based application is sufficiently 
qualified to score 11 points or more, or not, and if so, is able to form 
a basis for priority among those which do score 11 or more points.
The filing of an "open" application for a community name, or for a 
generic word or string which is reasonably likely to become part of a 
contention set is an assertion by the applicant that it will prevail 
over all other applicants in the contention set via auction. The 
"option" to "elect" comparative evaluation when noticed of the formation 
of a contention set, at cost to the community-based application(s) in 
the contention set, does not create a right or advantage for the 
community-based applicant(s), it is an additional fee the 
community-based applicant(s) must pay to prevent ICANN from resolving 
the contention in favor of the "open" application. It is a mandatory 
additional fee to allow the community-based application not to be 
disqualified on the basis of relative risk capital at hand.
It should be very clear that paying a fee to obtain access to an 
evaluated outcome rather than a auction outcome is an additional barrier 
to community-based applications who may be in a contention set, and 
failure to pay this fee will, in the simple case of a community-based 
applicant and a "open" application, resolve the outcome as an auction in 
which the bidders are comprised of one auction-preferred bidder, and one 
auction-adverse bidder, with the obvious general outcome.
Again, this is not the outcome we should be designing for. The 
evaluation fee should be paid by the party forcing the evaluation, which 
is the "open" application which intentionally formed a contention set by 
applying for a community identifier, and has not withdrawn its 
application upon notice that a community-based application for that 
community identifier has been filed. Where there are no applicants 
within a contention set predisposed to an auction outcome, the 
evaluation fee should be paid by ICANN, which at its sole discretion 
selected the rather expensive International Chamber of Commerce rather 
than any other means to evaluate community-based applications, and which 
has, so far, rejected any contention outcomes other than "last man 
standing".
Finally, for the case where "no clear winner" is determined by the 
evaluation panel, and two or more applications exist in the contention 
set which have scores of 11 or greater, it is not generally in the best 
interests of the communities upon which both applications are based to 
resort to a zero-sum outcome mechanism. Again, we should not be 
designing outcomes based upon conflicts only. The GFA is very weak on 
solving for contention between N applicants by any means other than N-1 
destructions of application values. The "last man standing" rule works 
for Major League Baseball but the "White Paper" did not direct the "New 
Entity" to adopt that mechanism for the cooperative management of 
internet identifiers.
Eric Brunner-Williams
CTO, CORE