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[alac] Suggested response to sTLD RFP

  • To: Interim ALAC <alac@xxxxxxxxx>
  • Subject: [alac] Suggested response to sTLD RFP
  • From: Wendy Seltzer <wendy@xxxxxxxxxxx>
  • Date: Sun, 24 Aug 2003 10:35:02 -0700

is attached (RTF) and below.  This is meant to reflect ALAC
conversations and discussions on our conference calls and on-list.


ALAC Responses to the Proposed sTLD RFP and Suggested Principles for New TLD Processes

The At Large Advisory Committee welcomes the opportunity to provide
comments on ICANN's proposed "Establishment of new sTLDs: Request for
Proposals" ("sTLD RFP"

As we have previously indicated,
<http://alac.icann.org/gtld/comments-06may03.htm>, ALAC supports an
expansion of the gTLD namespace that allows both sponsored and
unsponsored names.  We understand that the current proposed RFP
limited to sponsored TLDs, is suggested as a continuation of the
"Proof of Concept" testbed.  First, therefore, we offer suggestions
for making this limited expansion more equitable.  We further urge
ICANN to move quickly beyond "testing" to more open addition of a
full range of new gTLDs in the near future, and offer some general
principles to guide that expansion.

Concerns regarding the sTLD RFP:

The proposed sTLD RFP is not an equitable way to address even its
limited goals.  It errs in unduly restricting the class of potential
applicants and in imposing substantial fees for re-submission.

Anyone Should Be Eligible to Apply for a New TLD in the Upcoming Round.

The proposed sTLD RFP calls for "revised applications" only from
unsuccessful applicants for sponsored TLDs from the Fall 2000 round.
This limitation of the applicant pool is unfair -- both to those who
might wish to submit new proposals and even to those who participated
in the ICANN process in 2000 by submitting applications for
unsponsored TLDs.  Moreover, limitation of the applicant pool to a
narrow class of prior applicants is unrelated to any reasonable

Restricting eligible new TLD proposals to year 2000 applicants submitting proposals closely following their old applications mandates ignorance. ICANN would be ignoring the economic development of the past three years, and would be forcing applicants to ignore the collective experience of the Internet community in the past three years, willfully blind to ignore today's market environment. TLD proposals that may have looked promising during the dot-com boom may look uninteresting now; while new ideas for TLD proposals may have arisen since then. ICANN's restrictive proposed RFP would deprive the community of the opportunity to hear new, innovative, and viable sTLD proposals suitable for the post-.com Internet. It would be little surprise if this outdated "test" failed.

Instead, several characteristics of the new TLD program in 2000 make
it appropriate to expand current consideration beyond the
applications (and a mere subset of those) for the "proof-of-concept"

? Although Fall 2000 new TLD applicants were asked to classify their
proposals as "sponsored" or "unsponsored," and to submit additional
materials if choosing "sponsored,"  the distinction did not carry
nearly so much weight then as it is now being made to bear.
Sponsorship was merely one of several characteristics among which
applicants could choose.  Clearly applicants could not have known
that they were foreclosing themselves from later consideration by
choosing "unsponsored" in 2000.

? Nothing in the criteria announced in August 2000, prior to
submission of applications, indicated that sponsored TLDs would be
given any special priority, such that applicants would be encouraged
to choose sponsored over unsponsored where either type of operation
would fit their needs.  "The evaluation of delegation of
policy-formulation functions for special-purpose TLDs to appropriate
organizations" was only the seventh of nine criteria for evaluation.

? Further, ICANN's evaluation of the 2000 new TLD proposals did not
distinguish between sponsored and unsponsored as a major category in
its report, instead looking at general/specific purpose,
restricted/unrestricted use, and new services.  The report suggests
that even after reviewing all applications submitted in 2000, the
evaluators did not believe the distinction was significant.

? Finally, nothing in the lead-up to the 2003 process has ever
indicated that preference would be given to past applicants for
sponsored TLDs.  This decision frustrates those who expected to be
able to apply for future TLDs even if they had not previously applied
or planned to change the nature of a previous application based on
interim experience.

? A likely effect of limiting the pool of possible applicants in the
proposed RFP would be to create a secondary market for failed sTLD
applications, without improving the quality of those in this round.

ICANN is presumably continuing the "proof-of-concept" because it
believes it is learning something from the testbed process, yet
limiting applications to a narrow selection of those unsuccessful
three years ago deprives the Internet community of a meaningful
chance to use the experience of those years.   Moreover, at the slow
pace of ICANN's new TLD roll-out, missing the opportunity to apply in
the continuing "proof-of-concept" phase imposes a significant
hardship on would-be sponsors.  If ICANN is committed to making the
testbed a representative evaluation of new TLD policies, it must open
the application process to all who fit its substantive criteria.

High Application Fees Discourage Non-Profit and Less-Established Applicants.

The proposed sTLD RFP would require applicants to pay $25,000 along
with their revised applications, on top of the $50,000 they paid for
consideration in the first round.  While we understand that it may be
costly to review application proposals, a lower fee would suffice to
discourage frivolous applications, while the high one also deters
bottom-up and low-cost organization of legitimate non-commercial

In the current plan, accepting only revisions to existing
applications, the high fee seems particularly disproportionate to the
likely additional review needed.  Yet even if ICANN opens up the
process to all applicants, as we recommend, it should ask only fees
sufficient to compensate for evaluation of the proposal, an easier
task if the application conditions themselves are minimal.  ICANN can
streamline and reduce the cost of its approval process by approving
applications conditionally, provided they continue to meet
implementation benchmarks (e.g., you must go live by one year from
now, and before going live you need to show us an escrow contract, a
technical architecture plan, etc.) as their operators move forward.
Incidentally, a conditional approval reduces the front-loading of
costs for the applicant as well, enabling smaller businesses to
participate more easily.

We reiterate our recommendation to ask lower fees from non-profits,
and to consider taking a portion of the fee only from the winning
applicant, rather than making all applicants subsidize the later
negotiation and implementation costs of the eventual winner.

Moving Forward:

It is time for ICANN to regularize the process of examination and
approval of new TLD proposals.  Testbeds are fine, but after 5 years
of operation, ICANN needs to move beyond evaluations to permit those
proposing new TLDs to put their plans into effect.
Approving a few new sponsored TLDs chosen from a list of applicants
that was narrowed arbitrarily cannot replace the creation of a quick,
effective and uncontroversial process for the creation of any kind
and number of new TLDs.  ICANN must focus and act swiftly with
respect to this issue, which can be called the holy grail of ICANN's

Further, ICANN must make more meaningful evaluations when it does
conduct reviews.  In presentations heard at the Rio di Janiero
meeting, ICANN Paper
<http://www.icann.org/riodejaneiro/stld-rfp-topic.htm>, and Report on
Compliance by Sponsored gTLDs with the Registration Requirements of
Their Charters
on existing sponsored TLDs, both err in focusing primarily on
exclusion: Do the sponsored gTLDs represent a limited community and
adhere to their charters by permitting registrants only from within
that community? The question more important to the public's
communicative goals, however, is the flip side: Are there people or
organizations who are left without logical places to register domain
names, or who are denied registration in a sponsored TLD whose
charter they fit? That is, are communities of prospective registrants
most effectively served by a single TLD, operated by a sponsor that
purports to represent them, or by multiple commercial players that
perceive them as a market for registrations in a number of competing
top level domains?

It is easy to make the error rate arbitrarily low by asking questions
that examine only one kind of error -- gTLDs could block all
cybersquatters simply by refusing any registrations, but that would
hardly serve the point of adding new gTLDs.

Suggested Principles for Addition of New TLDs:

? Competition. Prospective registrants of a domain name in a gTLD
should have a choice -- between competing TLD strings, between
competing policies, between competing business models.  ICANN should
foster, not impede competition among different registries that access
identical or overlapping market segments. Mutual substitutability of
different gTLDs fosters competition.

? Fairness and objectivity. The processes used by ICANN in allocating
new gTLDs to registries must be well-documented at the outset, fair,
and predictable.  Criteria must be applied in an objective and
non-arbitrary fashion, and without undue influence from policy-making
bodies or advocacy groups on any side of the issues.

? Market operation. An open, competitive market, not a beauty
contest, should determine what names get into the root.  The only
standard applied to new Top Level Domains should be a simple no-harm
evaluation which avoids confusingly similar TLD strings, according to
some well-defined standard such as that of  consumer confusion in
trademark law.

? Rapid resolution of conflicts among applicants. When multiple
parties propose the same domain string, ICANN needs a mechanical way
of resolving conflicts.

? Technical evaluation / accreditation. ICANN's past practice of
substantive and technical evaluation is both costly and inefficient.
Even after passing these a priori evaluations, the .pro TLD has yet
to become operational.  ICANN should consider paring this requirement
down to a minimum "competence," perhaps leaving open the possibility
of terminating gTLD contracts with registries that failed to achieve
minimum performance standards within a reasonable time.

? Business continuity.  Once a contract is approved, ICANN should ask
for data escrow and/or business continuity insurance to reduce the
risk of registry failure, but should not try to guarantee that a
registry or TLD string will live forever.  Customers can include risk
evaluation in their choice of TLDs to use; ICANN need not make this a
criterion of approving an application.

? Geographical and linguistic diversity:  As an international
organization, ICANN should ultimately work to allow applications in
major non-English languages, and should encourage a wider
geographical distribution of TLD registries."

Wendy Seltzer -- wendy@xxxxxxxxxxx || wendy@xxxxxxx
Staff Attorney, Electronic Frontier Foundation
Fellow, Berkman Center for Internet & Society at Harvard Law School

Attachment: alac-gtld.rtf
Description: RTF file

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