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ICANN Close to Final DAG for Top-Level Domains: Will Policy Concerns by New Applicants Be Resolved?

Constantine Roussos

ICANN's plan to increase competition and bring innovation in the domain space by launching top-level domains (TLD) seems to be in full swing following the resolutions at the last ICANN Board retreat in Norway. However one area that seems unclear is who will take responsibility in determining the TLD winners.

After years of continuous additions, retractions and amendments, the Draft Applicant Guidebook (DAG) is not yet finalized. However, the word in the ICANN community is that the TLD program launch will be in effect immediately after the ICANN San Francisco meeting held in March 2011.

It seems ICANN has decided to not assume any responsibility of selecting the TLD applicant winners and has decided to outsource the job to 3rd party evaluators. While ICANN might not have the resources to process 500 or more applications, it does seem paradox that the responsibility of selection is given to inexperienced 3rd party evaluators. This way ICANN conveniently transfers its liability to the evaluators and will not hold itself accountable for the final selection. Is the decision to bring in 3rd parties, which lack the expertise and experience of the ICANN Board, a sound move?

While the Board is responsible for determining the fate of the DAG and vertical integration, it also chooses to eliminate itself from the most important component of them all: the selection process. By eliminating ICANN from the final decision-making, consistency is undermined. The question that most applicants will have is whether the 3rd party evaluators are both competent and experienced enough to undertake this important task. The learning curve is high for 3rd parties who will be hired to undertake this task and the chances are they will not be qualified to effectively process the applications. If ICANN decides to hire 3rd parties with knowledge of the space, then there might be a heightened chance of bias coming to play. Whatever the case, it will be a complex situation.

Per Kurt Pritz statements at the Brussels ICANN meeting, the $185k price tag is justified to protect ICANN from liability. If so, why is ICANN transferring that liability risk to 3rd parties so it holds no responsibility or accountability in the final winner decision making? How is it that ICANN can justify a $185k price tag for every additional translated TLD application or synonym under the same community umbrella (i.e translated/synonymous TLDs or IDN TLDs)?

Same TLD-translations and synonyms are subject to extreme confusion by users. VeriSign is certainly trying to address this issue with China and their .COM equivalent. Who owns .COM in China? Is it VeriSign or the Chinese government? Most would think it would be VeriSign but it is not. ICANN's complex experience with IDN variance is another indication why equivalent translations and synonyms under the same community TLD umbrella should be addressed with efficient policy making and the appropriate savings to reflect real ICANN expenses. The numbers must add up. Especially when there is a clause in the DAG where applicants agree that they can not hold ICANN liable for anything during the application processing.

The fear of many applicants is that ICANN will employ 3rd party evaluators that do not hold the expertise or capable of making judgment calls on new TLDs. For example, are 3rd party evaluators capable of determining the scoring allocation system under the community section of the guidebook? More importantly are 3rd party evaluators to be trusted and be void of personal biases?

PriceWaterHouse Coopers was hired a few years ago to process the sunrise period for the .eu top-level domain trademark applications on behalf of Eurid. They were given exact instructions but unfortunately they were gamed. Shell registrar companies and fake trademark applications under classes that included "coconut oil" ensured that the process was gamed. PriceWaterHouse Coopers just followed instructions. They were like computer robots processing applications based on a set of rules without any power to use reason to doubt some obvious violations. New TLDs will suffer the same fate if ICANN does not address important issues such as TLD string applications with two or more applicants.

My recommendation is that ICANN should be responsible in processing applications where there are two or more applicants going for the same string. While ICANN does not have the resources to process 500 or more applications, they do have the resources to scale the ones that have two or more applicants going after the same TLD string. The Board could ultimately make the final decision on these matters as opposed to relying on 3rd parties or self-serving auctions.

One fact is for certain: ICANN needs to be clear in its policy-making process. The first obstacle will be addressing the vertical integration issue. We at .music certainly hope that the ICANN Board votes with consistency, taking into serious consideration the reasons behind launching new TLDs: competition and innovation. The liability of decision-making has left the hands of the VI Working Group. The result was no consensus, given the influence of the status quo players despite the free trade proposal for new entrants claiming the most votes.

Another area of concern for new applicants is the propensity of some registrars to begin pre-registrations as soon as the new TLD launch date is announced. We certainly want to avoid the circus of some registrars launching questionable pre-registrations of new TLDs, without the expressed consent of the applicant registries that will be running the TLDs or ICANN itself. This is another reason why ICANN should vote in full vertical integration for new entrants: only selected business partners can launch marketing campaigns. Branding is of great concern for many applicants and they would not want registrars launching premature pre-registrations of domains in order to profit at the expense of the branding efforts of new applicants, who might have entirely different marketing plans altogether.

We all hope that ICANN learns from its past mistakes and does not rely on objections and lawsuits to resolve issues. ICANN needs to be clear in its policy-making and not leave things to the imagination or relying on auctions or objections as solutions. While it might seem like it reduces ICANN's liability, unclear policy-making does not. It is about time all the inconsistent policy issues that applicants are wary of be addressed with transparency and accountability.

By Constantine Roussos, Founder of DotMusic
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