Applicants will have some considerable work to do over the next several months as the Evaluation Panels consider application comments and pose clarifying questions, the Governmental Advisory Committee (GAC) concludes its review for Early Warnings, and Objections are filed.
In addition, Applicants have an opportunity to help ICANN with their timelines by settling string contention as soon as practical.
The Applicant Guidebook (AGB) indicates that an Evaluation Panel can ask a clarifying question (CQ) and the applicant will have an opportunity to clarify or supplement an existing answer. The evaluation panels will generally ask a CQ if an answer in the application does not sufficiently address the scoring criteria. For example, the financial and technical panels may require clarification for an individual question to provide the minimum passing score of 1 or a score of 2 points, where extra points are available. There are several key points to know about CQ's:
• It is imperative that applicants answer CQ's in a clear, concise, and expeditious manner. Not addressing the CQ properly might result in a failed application. As stated in the AGB "It is the applicant's responsibility to ensure that the questions have been fully answered and the required documentation is attached. Evaluators are entitled, but not obliged, to request further information or evidence from an applicant, and are not obliged to take into account any information or evidence that is not made available in the application and submitted by the due date, unless explicitly requested by the evaluators." If the applicant has not provided sufficient information, perhaps including a set of assumptions about their clarifying answer, then the evaluation panel may fail the application without further follow up.
• Applicants' responses must generally clarify or supplement information already submitted with the application. This may require additional guidance from ICANN and will certainly require some skill on the applicant's part to provide a conforming answer. It is imperative to understand the "New gTLD Application Change Request Process and Criteria" to help shape your answers.
• Portfolio applicants and back-end providers – As every application is meant to "stand on its own" applicants may encounter several of the same CQ's across a number of their applications over a short period of time. Portfolio applicants and back-end providers will need to ensure they have a plan to address their CQs timely, which includes having adequate resources in place to meet ICANN's CQ timelines.
• Potential early indication of a flawed application – It is important for Applicants to note that it may be evident from the number and content of the CQs received whether their application may have issues during Initial Evaluation (IE).
Application comments – There are several thousand application comments in the queue for the relevant evaluation panels to consider. Not all comments will be relevant to the evaluation panels; in fact, a significant portion does not seem to have much impact to evaluating applications. However, where comments may decide the outcome of the evaluation panel's analysis, they will generally be followed up with applicants via a CQ. Applicants should be carefully reviewing all application comments associated with their application(s) and be prepared to answer any CQs should they be sent one by an evaluation panel.
Finally, an application not passing Initial Evaluation (IE) can elect Extended Evaluation (EE) after IE results are posted. However, this only provides one more opportunity to provide clarifying or supplemental information and an application going into EE will take much longer to be completed and could result in the delegation beginning several months later than anticipated. Keep this in mind as you address CQ's and progress forward through the program, it could impact any "exit" strategy you may be planning.
GAC Early Warnings
As the GAC moves forward with considering applications, a number of applicants should already have some sense whether or not they will receive an Early Warning (EW). Several applications/strings have already been in the news or have received significant negative application comments. These are by no means the only ones that might receive an EW but the respective applicants should be preparing their EW response. To receive an 80% refund applicants will only have 21 days to review the EW, discuss remediation, if any, and submit a response with their decision (i.e., either move forward or withdraw).
Early Warnings must be taken very seriously; however, the applicant should also be aware that an EW does not necessarily guarantee subsequent GAC Advice or, further, rejection by ICANN or its Board. As a single country or group of countries can provide an EW, the EW may not necessarily have consensus amongst all GAC countries. Certainly the easiest approach is to address the GAC's concerns directly but applicants should also conduct a cost-benefit analysis to determine the best approach to move forward successfully.
Although there do not appear to be any Objections filed to date, this is expected to change as the Objection filing period draws to a close. In fact, with ICANN covering the cost of a single objection by any government, we may see objections filed by governments not in the GAC or where an applicant essentially ignored an EW. Accordingly, applicants with potentially controversial applications should at least have a plan to address objections. The faster the objection process can be concluded, the earlier the applicant will be able to plan their next steps (i.e., delegation planning or withdrawal).
Settling String Contention as quickly as possible
Setting aside negotiating tactics, gaming, and so on there are ways that the applicant pool can help to speed up the processing of applications. Currently, there are over 700 applications applying for just over 200 strings and these numbers will most likely increase once the String Similarity panel results are in. ICANN has indicated that it will take 12 to 13 months to complete Initial Evaluation (IE) for all 1,900+ applications. Applicants may be able to shorten this time period by moving quickly to settle contending applications.
An auction process for string contention sets is described in Section 4.3 (Module 4) of the AGB. This auction process, which commences some time after IE is completed, is a "mechanism of last resort" to settle conflicting applications with the auction proceeds going to ICANN.
However, applicants do not have to wait until the commencement of String Contention procedures to settle string contention. Applicants can (and should) be working to resolve conflicting strings/applications now, even considering their own auction or buy-out strategies. There are some clear benefits to applicants in commencing this process as soon as practical:
1) It could ensure that the proceeds from an applicant-managed solution go to the losing applicants instead of ICANN. These proceeds could make the losing applicants whole.
2) It might reduce the total number of applications to be processed during IE and subsequently shorten IE — assuming some percentage of these applicants withdraw their applications once the conflicts are settled.
For example, instead of processing 1,900+ applications, the application pool could be reduced by some percentage of applications, which might impact the IE time period by some equivalent reduction. For example, if say 500 applications can be withdrawn as a result of an earlier settlement process then it is possible that IE could be completed in 9 to 10 months versus the estimated 12 to 13 months. Thus pushing the earliest delegation up by a few months.
3) Applicants should also keep in mind that all applications remaining in a contention set at the conclusion of IE must be eligible to move forward before String Contention procedures can begin. For example, if one application has failed IE but elects EE then String Contention procedures for the entire contention set cannot proceed until the application completes EE. The same holds true for an application defending itself against an Objection. The Objection process must be completed before the contention set can move forward.
Applicant To-Do List
Apart from ongoing operational issues, applicants will certainly have a lot to manage over the next several months as timelines are communicated by ICANN and tasks are required of applicants. These items should be on every applicant's to-do list:
– Be prepared to respond to CQs quickly, effectively, and in consideration of application comments where relevant. This should include reviewing and understanding the "New gTLD Application Change Request Process and Criteria" to help shape your response. Consider reaching out to an applicant, back-end provider or consultant that participated in the CQ Pilot program for further advice.
– Perform a risk analysis of your application considering CQ's, potential for an Early Warning and/or an Objection. This will help shape your strategy as you move forward in the process.
– Consider now whether your application may receive a GAC Early Warning. Your timely response to EWs impacts the refund amount.
– Have an objection response plan and be expeditious to minimize timing impact to your application delegation.
– Where feasible, work with applicants whose strings are in contention with yours to resolve contention in advance of the AGB processes. You may save yourself time and money.
Once the evaluation process is complete eligible applicants will then be workings towards settling their registry agreement and going through pre-delegation testing before they are eligible for delegation. Although these tasks are a few months out, applicants should start planning for these steps as soon as practical. These areas may warrant further discussion in few months.
Lastly, ICANN continues to work incredibly hard on the gTLD program. Take advantage of the Program Feedback mechanism to provide thoughtful, insightful, implementable improvements to the program. Suggestions from applicants, those living the process, are invaluable. ICANN will need to start thinking about changes for the next round before we know it and I think will welcome constructive feedback.
By Michael Salazar, CFO, Minds + Machines
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Minds + Machines