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Applicants call for new gTLD objections appeals process

Kevin Murphy, November 6, 2013, 11:01:43 (UTC), Domain Policy

Twelve new gTLD applicants, representing many dozens of applications, have called on ICANN to create an appeals process for when Community Objections have debatable outcomes.

Writing to ICANN and the International Chamber of Commerce this week, the applicants focus on the recent decision in the .sport case, which they said proves that ICC panelists don’t fully understand the Community Objection policy as laid out in ICANN’s Applicant Guidebook.

The letter points to five “glaring errors” in the “fatally flawed” .sport decision, in which Olympics-backed applicant SportAccord prevailed over Famous Four Media’s competing application.

The signatories — which include Radix, United TLD, Donuts, Famous Four, TLDH and others — say that the ICC panelist simply assumed SportAccord represented the “sport” community and failed to pinpoint any “likelihood of material detriment” that would be caused by Famous Four’s .sport going ahead.

It seems to me that the latter arguments are much more well-founded.

While the letter tries to pick holes in the panelist’s finding that SportAccord represents enough of the “sport” community to be able to win the objection, the arguments are pretty tenuous.

The applicants use an definition of “community” found elsewhere in the Guidebook, for example, to attempt to show that the panelist failed to follow the guidelines for establishing a community in a Community Objection.

The panelist’s actual ruling uses the definition of “community” from the relevant part of the Guidebook and seems to follow it fairly closely. The applicants make a poor job of questioning his logic.

However, on “detriment”, the letter seems to be on much firmer ground.

It argues that the panelist deliberately lowered the bar from “likelihood of material detriment” to “possibility of material detriment” in order to hand SportAccord a victory.

The letter states:

If the Expert’s current logic is followed, every application, including the Objector’s own application, creates “possible” damage. In this case, an allegation of material detriment against any application would be upheld because there is future “possible” damage.

It also makes reference to the fact that the panelist appears to in many cases have been weighing the Famous Four application against SportAccord’s, which was not his job.

It reads in part: “The Expert did not identify a single objectionable or lacking aspect in the application that creates a likelihood of material detriment.”

The applicants call on ICANN to immediately create an appeals mechanism for Community Objections, and to ensure that ICC panelists are given training before making any more decisions.

Here’s the full list of signatories: Radix, United TLD, DotClub Domains, Top Level Design, Donuts, Top Level Domain Holdings, Priver Nivel, Fegistry, Employ Media, Famous Four Media, Merchant Law Group, DotStrategy.

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Comments (1)

  1. Kevin,

    The arguments made in the letter spearheaded by Donuts, TLDH and Famous Four are inconsistent. Their actions and responses in actual community objections illustrate their inconsistencies and their disingenuous nature.

    According to the arguments made by TLDH, Directi, Famous Four and Donuts (at least for music-themed extensions) no-one has standing to object to ANY string. Period. This is not just the .SPORT community objector but every single objector presented that does not agree with their “wild wild west” concept of commoditizing new extensions without accountability or safeguards or one disagreeing with them that having an exclusive access/sole registrar monopoly does not serve the public interest or the community affected. Of course they will spin the argument to serve their story. I was quite amazed Directi’s recent letter was quoting DOmainNameWire’s .sport parody story as evidence when we all know that DomainNameWire does have a business affiliation with Directi and would doubt DomainNameWire would ever criticize Directi’s business objectives or goals.

    I am glad you picked up on a lot of the false rhetoric they are alleging. Personally I am surprised these generic open applicants are so anti-community and any opinion – whether it is GAC, or an ICANN NGPC safeguard resolution or a Community Objector – is deemed irrelevant.

    We have sent numerous letters to the ICC and GAC over the last few months about the issue of ICANN and GAC agreeing on safeguards and the resolutions pertaining to category 1 and 2 advice. That just is enough evidence that the ICC Panelist decisions (.POLO, .ARCHITECT, .SPORT) were the right decisions.

    The response that Directi, TLDH, Famous Four and Donuts have written to the ICC Panelists which people in the ICANN community have not seen is that GAC advice on safeguards or exclusionary policies was “irrelevant” pertaining to community objections. I would like them to say that GAC advice or new ICANN NGPC resolutions are irrelevant in public but you know they would not ever do that.

    It is noted that the community objections were filed BEFORE the GAC Beijing Advice. ICANN itself has admitted and agreed that no contracting should be made for applicants that have exclusive access/sole registrar policies (e.g Amazon or Far Further) because it does not serve the global public interest. That means Amazon or Far Further should naturally lose its community objections against objectors with standing.

    Also ICANN agreed with resolutions that safeguards asked by GAC are needed and will be implemented. That said, why are these portfolio applicants complaining about the ICC Panel decisions on .ARCHITECT (safeguards), .POLO (exclusive access/discrimination) or .SPORT (accountability)?

    Portfolio applicants expect to get an appeal process to argue AGAINST GAC Advice and new ICANN resolutions pertaining to open strings which require enhanced safeguards and accountability? Or would some want to appeal objections against their “original” applicantions’ exclusionary policies pertaining to exclusive access or being the sole registrar AFTER they made a material change to remove exclusive access in their response to GAC advice?

    If Donuts and co. want their uncontested TLDs launched they will obviously have to agree to GAC advice and ICANN resolutions which means they can not argue against any issues presented by Objectors to protect the lack of safeguards/accountability or exclusionary policies. By them agreeing to contracting to uncontested strings it is obvious that any claims they have against community objections which are highly associated awith GAC advice or ICANN new resolutions on safeguards for sensitive strings will not bear well with both ICANN or GAC or the communities affected.

    Furthermore, both Amazon and Far Further have now change their community objection exclusive access/sole registrar argument despite what they argued in their community objection responses. In the community objection they argue that “exclusive” and “sole registrar” is fine but with ICANN they click on the checkbox saying they are switching their opinion not be exclusive or a sole registrar? If Community Applicants lose they should be the ones appealing based on a process which is inconsistent with ICANN resolutions and GAC advice.

    What I want to know is why ICANN – who knew their responses months ago – did not release Applicants’ GAC exclusive access advice responses (which are pertinent to community objections and are new material change statements)? The timing of the release would be decisive since it would reveal that objectors were right all along and could prove that exclusionary applicants were against the public interest. Objected-to applicants have agreed in public that they made a mistake on exclusive access and have changed their opinion. You do not think an ICC panelist would want to know that objected-to applicants are switching their “story” all of a sudden in the middle of a proceeding? Guilty as charged.

    This is exactly what is going on in this process and if there should be parties who should be complaining it should be the community applicants because the ICANN resolutions on safeguards/exclusive access and GAC advice have vindicated their arguments to the ICC.

    I am surprised no-one is reporting the inconsistencies and the fact that it is obvious that the portfolio applicants will lose these community objections because the decisions run parellel and are consistent with GAC advice and ICANN NGPC resolutions made AFTER the objections were filed (in other words objectors would not have known the GAC Beijing advice or ICANN NGPC resolutions before the filed objections).

    These letters are an act of desperation by the portfolio applicants because they are realizing that they will lose on a few TLDs and not be able to monetize every single one of them through private auctions.

    Claiming that SportAccord backed members do not have standing to object or that there is no community is unacceptable and downright disingenuous. The argument where an objected to applicant discredits relevant community members’ opinion relating to the string they want to launch ais clear evidence that these objected-to applicants are not out to protect those respective communities but out for the quick buck.

    How can one side with these companies and make an argument that these companies would do a better job running the registry on behalf of a community when they bash the standing of those respective relevant community members? The Famous Four governance councils are an example of the hypocrisy. On one hand they bash the community’s standing for .sport but on the other hand they invite them to join their Governance Council where they invite these kind of community members? How is that consistent?

    With under 35 community applicants going through CPE out of 1900 applications, there should be a push by the ICANN community to support diversity, accountability to fulfill ICANN’s goals on participation and multi-stakeholder community-based TLDs which were created to serve communities not investors.

    I expect the portfolio applicants to lose all their Community Objections relating to sensitive strings if the resolutions are consistent with GAC advice and new ICANN NGPC resolutions. If there are inconsistencies between GAC Advice/ICANN NGPC resolutions then obviously there would be an appeal but not from the portfolio applicants.

    Consistency is key and we can all agreed to that.

    My dollar, not just my 2 cents 🙂

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