The ICANN Board Should Disregard the Evaluation Committee's
Negative Recommendation on IATA's Proposal for ".travel"The ICANN Board should
accord no weight whatsoever to the recommendation of the ICANN Evaluation Committee
("Committee") in its November 10, 2000 Report ("Report") against selection of the
proposal by the International Air Transport Association ("IATA") for the creation
of a ".travel" TLD. In making its negative recommendation, the Committee, among
other things:
Ø Completely defied the Committee's own statement that it would not
make recommendations whether to accept or reject specific proposals.
Ø Disregarded
other language in the Report that favored the adoption of the IATA proposal.
Ø
Gave no credit whatsoever to the strong recommendation for IATA's proposal by the
Berkman Center for Internet & Society at Harvard Law School and others.
Ø Based
its negative recommendation on a "criterion" -- "representativeness" - that 1) was
not included in the nine criteria that ICANN announced on August 15, 2000 it would
apply in selecting the new TLDs, 2) is inherently vague and ambiguous, and 3) was
applied by the Committee in a discriminatory manner.
Ø Ignored overwhelming
evidence that IATA is the most "representative" and best positioned entity for the
global travel community.
Ø Erroneously concluded that there is no need for the
".travel" TLD proposed by IATA.
1. The Committee completely ignored its statement
that it would not make recommendations for or against specific proposals. In
the "Preface" to the Report, the Committee declared that the "[R]eport does not set
forth specific recommendations specifying which new TLD proposals should, in the
opinion of the ICANN staff, be selected by the ICANN Board of Directors."
(Emphasis added.) However, the Committee completely defied this statement
in its treatment of the IATA ".travel" proposal. In a section of the Report
entitled "Recommendation," the Committee recommended against the IATA proposal based
solely on the Committee's belief that IATA was not a "sufficiently representative
sponsor[] to merit selection" of its proposed ".travel" TLD. This was clearly
a "specific recommendation" which, by being included in the Committee's Report, placed
it in a position of contradicting its own stated policy. (The Committee inexplicably
violated its own rule repeatedly with respect to many of the proposals, making negative
recommendations to the ICANN Board with respect to some proposals, and positive recommendations
with respect to others.) Accordingly, the recommendation against IATA's proposal
should be stricken from the Report and ignored by the ICANN Board.
2. The Committee
disregarded other language in the Report that favored the adoption of the IATA proposal.
The Committee's recommendation against the IATA proposal for ".travel" is contrary
to other language in the Report, in which the Committee stated: "Overall, this
application could lead to a successful new TLD given its limited scope and focus."
(Emphasis added.) Given this positive and encouraging language in favor of
the IATA proposal for ".travel," it was arbitrary and capricious for the Committee
to nevertheless specifically recommend against selection of IATA's proposal.
3. The Committee gave no credit whatsoever to the strong recommendation for IATA's
proposal by the Berkman Center for Internet & Society at Harvard Law School ("Harvard
Study") and others. The Harvard Study placed IATA's proposal in a tie
with one other applicant for first place. IATA received 26 out of 27 possible
points in its numerical ranking. The Harvard Study went on to select IATA as
one of only six applicants that it recommended be picked to launch a new TLD.
The Harvard study described the IATA proposal as "an interesting, focused proposal
in an extremely thorough application package, that would offer an innovative combination
of commercial and informational public services." In recommending that the
Board not adopt IATA's proposal, the Committee improperly and inexplicably ignored
the strong recommendation and favorable findings of the Harvard Study. Similarly,
one of the most highly-respected independent voices in the travel and tourism community,
the World Tourism Organisation (WTO), came out in strong support of the IATA ".travel"
proposal.
4. The Committee based its negative recommendation solely on a
"criterion" -- "representativeness" - that 1) was not included among the nine criteria
that ICANN announced on August 15, 2000 it would apply in selecting the new TLDs,
2) is inherently vague and ambiguous, and 3) was applied in a discriminatory manner.
In recommending that ICANN not proceed with IATA's proposal for ".travel," the Committee
concluded that IATA's proposal was not sufficiently "representative" of the global
the travel community. To provide a basis for this conclusion, the Report (in
several places) declares that "representativeness" is one of the specific criteria
adopted by ICANN on August 15, 2000 for selecting the new TLDs. This is simply
wrong. The nine criteria listed by ICANN on August 15, 2000 (www.icann.org/tld-criteria-15aug.00htm)
are as follows: 1) "The need to maintain the Internet's stability"; 2) "The extent
to which selection of the proposal would lead to an effective 'proof of concept'
concerning the introduction of top-level domains in the future"; 3) "The enhancement
of competition for registration services"; 4) "The enhancement of the utility of
the DNS"; 5) "The extent to which the proposal would meet previously unmet types
of needs"; 6) "The extent to which the proposal would enhance the diversity of the
DNS and the registration services generally"; 7) "The evaluation of delegation of
policy-formulation functions for special-purpose TLDs to appropriate organizations";
8) "Appropriate protections of rights of others in connection with the operation
of the TLD"; and 9) "The completeness of the proposals submitted and the extent to
which they demonstrate realistic business, financial, technical, and operational
plans and sound analysis of market needs." There is no stated requirement of
"representativeness." The Report appears to confirm this because it repeatedly
lists the nine criteria in tables, and there is of course no reference to "representativeness."
Nevertheless, in its treatment of IATA's proposal and a few others (.fin, .union,
.health), the Report makes the affirmative statement that "representativeness" is
one of the criteria listed by ICANN on August 15, 2000. It was highly arbitrary
and capricious for the Committee to recommend against the IATA proposal based on
a criterion that, in fact, was not among the nine factors to be evaluated by the
Committee.
Nor should there be a tenth criterion of "representativeness."
The term is too vague and ambiguous to provide an objective basis for determining
whether a proposed TLD has merit. The Committee appears to have construed this
criterion to mean that IATA should not be allowed to sponsor ".travel" unless it
has received unanimous support from every single entity in the travel community.
That is a ridiculous and absurd standard to apply. In a free world there are
always opportunities for dissention, just as there are opportunities for those who
dissent to take their business to other TLDs. IATA has repeatedly demonstrated
that its proposal to sponsor the ".travel" TLD has diverse and far-reaching support
among all sectors of the worldwide travel community. To exclude IATA as the
sponsor of a ".travel" TLD simply because some commenters have expressed disagreement,
without placing those comments in a proper perspective, nor examining whether there
is in fact any evidence to justify the stated concerns, exemplifies arbitrariness
and capriciousness.
A prime example is the situation involving the Association
of Retail Travel Agents ("ARTA"). ARTA is much smaller and lesser known than
its competitor, the American Society of Travel Agents ("ASTA"). To those familiar
with the travel industry, it is commonly known that ARTA and ASTA are rivals and,
in the past, political disputes have prevented ASTA and ARTA from presenting a united
front. The Committee makes much of the fact that travel agents or their representatives
made negative comments about IATA's proposal even after the overwhelming majority
of travel agents - through ASTA and other trade associations - disclosed their support
for IATA and its proposal. But the Committee failed to recognize that one of
the principal negative commenters was ARTA, which indeed submitted its negative comment
only after it learned that ASTA would have a place on the ".travel" Advisory Board.
(Of course, ARTA never asked to have a seat on the Board.) The point is that
it is fair to assume that ARTA would have been opposed to anything that ASTA favored.
The Committee nonetheless exploited this internecine strife among travel agent trade
associations by citing it as proof that IATA did not represent the entire global
travel community. This was at best naïve and imposes an impossible, unfair
and discriminatory burden on IATA. IATA and its proposal are fully representative
of the world travel community. Simply because there are some dissenting opinions
does not mean that the consumers and merchants of travel goods and services throughout
the world should be deprived of the benefits of a ".travel" TLD, particularly when
the dissenters have failed to produce any objective or substantive evidence in support
of their stated views.
Moreover, neither ARTA nor its members would be prejudiced
in any manner by the creation of the ".travel" TLD to be sponsored by IATA.
While they are free to join the TLD, and even to participate in its governance, they
will also retain the option of marketing and operating with .com names, or with any
of the new gTLDs ICANN is expected to authorize in this proceeding. IATA
seeks no monopoly with respect to operation of a TLD focused on the travel industry;
but only the ability to compete fairly and fully in this area by offering the market
a new alternative that it is confident will prove to be attractive.
The Committee
also has acted discriminatorily in applying this new criterion of "representativeness"
to support its negative recommendation on IATA's proposal. Other applicants
have proposed TLDs that would apply certain restrictions on domain name registration,
but have not demonstrated that all potential registrants support the registration.
The Committee gave strong recommendations for applications proposing .biz without
requiring the applicants to show that the entire business community of the world
supported the proposals and their applicants. Similarly the Report makes favorable
recommendations for .nom and .per without any evidence that these TLDs or their applicants
are supported by a substantial majority of the individuals who would qualify for
names under those TLDs.
While the Committee did reference this tenth criterion
of "representativeness" in connection with its consideration of .union and .health,
It applied a much more lenient standard than that applied to IATA. In finding
that each "demonstrated that it is broadly representative of the affected segments
of the relevant communities to be served by the TLD(s) it proposes," the Report glossed
over the fact that union members posted comments in opposition to .union, and health
professionals made comments against .health. These types of comments were deemed
fatal with regard to IATA's application, but insignificant in connection with the
applications for .union and .health. This is the very essence of discrimination.
The Report similarly makes favorable recommendations for .geo and .dir with no reference
to the negative comments posted against those proposals.
In short, the Committee
did not disqualify most applicants solely because their proposals lacked universal
support in the community that would be affected by the new TLD. Yet the Committee
applied this impossible standard to IATA. (To the extent the Committee treated
the proposal for ".fin" the same as that for ".travel," this merely compounds, and
does not excuse, the Committee's improper discriminatory treatment of the "representativeness"
criterion.) Given that essentially every proposed TLD has generated some critical
comments, if the Committee uniformly applied the tenth criterion of "representativeness"
without discrimination, every proposal would be disqualified.
5.
The Committee ignored overwhelming evidence that IATA is the most "representative"
entity for the global travel community. In order to have responsibly conducted
its evaluation, the relevant question before the Committee should not have been whether
there is any dissention at all towards IATA sponsoring a ".travel" TLD (an impossible
test for any candidate to meet), but whether IATA is the best suited candidate to
sponsor a TLD dedicated to the travel industry. The Committee failed to ask
(and failed to answer) the following question: Who is a better candidate to operate
the ".travel" TLD? Had the Committee asked this all-important question, the
only possible answer would have been that there is no one better suited than IATA.
IATA, a non-profit organization, has demonstrated to ICANN that it has critical
and diverse experience in all sectors of the travel industry, and is certainly not
limited to airline travel. Its extensive mandate and scope of responsibilities
extend well-beyond aviation. Moreover, IATA's proposal has the support of the
leading travel agency trade associations, including ASTA -- the world's largest association
of travel professionals representing over 26,000 travel agent members (primarily
in the US) -- and the Universal Federation of Travel Agents' Associations ("UFTAA")
-- the largest federation of travel agent associations worldwide representing over
48,000 travel agent members in 97 countries. Further, the comments supporting
IATA's proposal have come from a widespread cross section of the global travel community,
which demonstrates the universal appeal of the ".travel" TLD and the overwhelming
satisfaction of the global travel community with IATA as the TLD sponsor. More
than 75 supporting comments were filed by, among others, travel agents, travel agent
associations, airlines, airline associations, airline equipment manufacturers, airports
and airport authorities, e-commerce firms, hotels, railways (including Amtrak and
others), travel and tourism organizations, and individuals. The World Tourism
Organisation (WTO) one of the most highly-regarded independent voices in the world
tourism field said, in its comment: "IATA has served as a neutral, trusted
intermediary for decades, enabling the travel industry to efficiently meet the needs
of its customers." The Pacific Asia Travel Association, which represents nearly
2,000 government tourist offices, destination promotion boards, airlines, cruise
lines, hotels, tour operators, travel agencies and other travel-related businesses,
expressed its support for IATA's proposal to sponsor a ".travel" TLD, as did the
largest travel consumer organization in Europe, the Federation of Air Transport User
Representatives in Europe ("FATURE"). AccesRail told ICANN that "AccesRail,
a rail provider, can attest to IATA showing great initiative in the development of
rail services in the domain of the GDS," and that "[b]ased on this past interaction
and cooperation with IATA, AccesRail believes that IATA is well-position to sponsor
the '.travel' TLD." These are but a handful of examples of the broad support
for ".travel" that the Evaluation Committee simply ignored.
Finally, IATA has
clarified and confirmed its commitment to ensure that the critical policies governing
the administration of the ".travel" TLD will be made by an Advisory Board that reflects
the input and enfranchisement of all segments of the global travel industry.
Neither IATA nor the airlines will be able to control or dominate, or exercise veto
power over, the Board's decisions. Through the ".travel" Advisory Board, the
".travel" TLD and IATA's sponsorship of it will be de jure and de facto representative
of the entire world travel industry.
6. The Committee erroneously concluded
that there is no need for the ".travel" TLD proposed by IATA. The Report also makes
the illogical argument that because "the on-line travel sector has experienced [substantial]
growth over the past several years," there is no proven need for a ".travel" TLD.
That is akin to saying there is no need for any new generic TLD whatsoever, because
the demand for .com has been overwhelming. This logic is contrary to the very
purpose of the current application process, which is to expand the number of TLDs
to meet growing demand. The relevant question is not whether there is already
an interest in using the Internet to market and purchase travel-related goods and
services, but whether such transactions can be enhanced through the type of security
provisions connected with IATA's proposal. The TLD proposed by IATA will help
provide consumers with confidence that they are dealing with a legitimate vendor
of travel services, etc., and will enable an innovative concept to be proven which
may well have future applicability to other sectors of the economy. This can
only lead to even greater use of the Internet for travel transactions, and is clearly
an unmet need at this time. In particular, authorization by ICANN of the ".travel"
TLD will enhance the ability of smaller and new-entrant businesses to compete with
established names in the ".com" world, and set the stage for travel-related e-commerce
in the developing world to take hold.
Indeed, the comments lodged in the
ICANN Public Comment Forum reflect almost unanimous agreement on the need and utility
of the ".travel" TLD. Even most of those who questioned IATA's neutrality agreed
that ".travel" was an idea whose time has come, which would promote competition and
consumer confidence, and thus achieve significant public benefits, as did such neutral
and independent authorities as the World Tourism Organisation (WTO) and the World
Travel & Tourism Council (WTTC).
For all of the foregoing reasons, it is
clear the Committee Report is fundamentally flawed in its analysis and recommendation
regarding the IATA ".travel" proposal, and should be disregarded by the ICANN Board
in its decision-making.
Respectfully submitted,
The Dot-Travel Team
Geneva,
Switzerland