[alac] Suggested response to sTLD RFP
Title: Suggested response to sTLD RFP
is attached (RTF) and below. This is meant to reflect ALAC
conversations and discussions on our conference calls and on-list.
Thoughts?
Thanks.
--Wendy
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"
<http://www.icann.org/tlds/new-stld-rfp/new-stld-rfp-24jun03.htm>).
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 objective.
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"
then:
? 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.
<http://www.icann.org/tlds/tld-criteria-15aug00.htm>
? 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.
<http://www.icann.org/tlds/report/>
? 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 proposals.
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
mission.
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
<http://www.icann.org/committees/ntepptf/stld-compliance-report-25feb03.htm>, 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
http://cyber.law.harvard.edu/seltzer.html
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