AGv5 contradicts GNSO Council Implementation Guideline H

[Avri Doria <avri@xxxxxxxx>]

First a reminder of what Implementation Guideline H from the GNSO 
Recommendations has to say, from 
<http://gnso.icann.org/issues/new-gtlds/pdp-dec05-fr-parta-08aug07.htm>:

---  Implementation guideline H (IG-H)

Where an applicant lays any claim that the TLD is intended to support a 
particular community such as a sponsored TLD, or any other TLD intended for a 
specified community, that claim will be taken on trust with the following 
exceptions:

(i) the claim relates to a string that is also subject to another application 
and the claim to support a community is being used to gain priority for the 
application; and

(ii) a formal objection process is initiated.

Under these exceptions, Staff Evaluators will devise criteria and procedures to 
investigate the claim.

Under exception (ii), an expert panel will apply the process, guidelines, and 
definitions set forth in IG P.

---

First it is important to note that the procedure as defined for AGv5 contains 
no element of trust for the community applicant.  The process is so motivated 
by the fear of gaming, that it may have now become almost impossible for a new 
gTLD to viably declare itself as a community gTLD.  This is very problematic 
when one of the primary strategic goals of ICANN is greater focus on the Global 
Public Interest, an interest which would be well served by community gTLDs.

In IG-H, in the case of objection or string contention, the various claims were 
to be investigated by an expert panel which would adjudicate; i.e. a dispute 
resolution service provider in the parlance of the application guidebook.

The procedures recommend by AGv5 bear no resemblance to IG-H as stated in the 
GNSO's recommendation.  Instead this plan has created a problematic set of 
conditions for many communities to meet. 

Two examples of the deviation of AGv5 and GNSO Recommendations IG-H: 

1. There is no balanced adjudication of  comparative claims by a DRSP as 
recommend in IG-H. Instead there is just a grading that would allow a 
preponderance of evidence of community support for one applicant to be 
overruled by two shills working for a competitor (Criterion 4B).  For example, 
an application could come in with 100's of letters of support from various 
respected institutions in the community, yet no matter how strong the support, 
2 groups in opposition, however real or serious, would cost the application 2 
points in the evaluation, putting that application 1 point away from being 
invalidated as a community gTLD.

2. IH G, said nothing about names, and did not indicate that a community might 
be less of a community because its name was not sufficiently distinctive 
(Criterion 2B).  Yet a succession of DAGs and now the AGv5 have removed a point 
for a name that had other meanings.  That means that any community whose name 
is also a common word, proper or otherwise, will lose 1 point.

These two conditions together are enough to exclude many communities from 
consideration, and yet these conditions say nothing about the validity of a 
community application and have nothing to do with criteria set in the GNSO 
Recommendation's IG-H.

With every version of the DAG, comments have been made about the problematic 
nature of the Community Contention procedures, yet by and large these have been 
ignored each and every time.  Communities have been treated with suspicion and 
not with the special care that was intended by the GNSO's recommendations.  We 
are now at the end of the process with a Community Contention process that goes 
against the intentions of the GNSO for Communities to be given special regard.  
It would be best if communities vying for the same name were subjected to 
comparative evaluation by a DRSP rather than being subject to a ridiculous test 
designed to make it so difficult that many viable communities may not be able 
to pass. Alternatively conditions 2B and 4B should be removed or at a minimum 
should be subject to greater refinement, removing the fundamental inequities of 
these criteria and bringing the AG closer to the words and intention of 
Implementation Guideline H.

Thank you

Avri Doria