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Community panel hands .radio to EBU because nobody objected

Kevin Murphy, September 11, 2014, 10:24:45 (UTC), Domain Registries

The European Broadcasting Union is likely to win the right to the .radio new gTLD, beating three portfolio applicants, after a favorable Community Priority Evaluation.

The main reason the EBU managed to score a passing 14 out of 16 points in the CPE is that there was no significant objection to the EBU’s bid on the public record.

The EBU managed to win, under ICANN’s complex scoring system, despite the fact that the CPE panel ruled that no one entity, not even the EBU, can claim to represent the “radio” community.

The win means that Donuts, Afilias and BRS Media, which all applied for open .radio gTLDs, will likely have to withdraw their bids and leave .radio in the hands of the EBU’s more restrictive policies.

The EBU’s bid envisages a post-registration enforcement regime, in which registrants’ web sites and Whois records are vetted to ensure they have a community “nexus” and are using their domains in the spirit of the community.

Registrants would have to provide a statement of their usage intent at the point of registration.

Domain investors are explicitly not welcome in the TLD, judging by the EBU’s application.

The EBU, as mentioned, scored 14 out of 16 points in the CPE. The threshold to pass is 14.

As I’ve been saying for years, passing a CPE should be very difficult because applicants can immediately lose two points if there’s any decent opposition to their applications.

The other three applicants for .radio could have easily beaten back the EBU had they managed to effectively organize just a single significant member of the radio community against the EBU’s bid.

However, they failed to do so.

The EBU scored the maximum of two points under the “Opposition” part of the CPE, because, in the words of the panel:

To receive the maximum score for Opposition, the application must not have received any opposition of relevance. To receive a partial score for Opposition, the application must have received opposition from, at most, one group of non-negligible size.

The application received letters of opposition, which were determined not to be relevant, as they were (1) from individuals or groups of negligible size, or (2) were not from communities either explicitly mentioned in the application nor from those with an implicit association to such communities.

Donuts, Afilias and BRS Media all submitted comments in opposition to the EBU application. As competing applicants, these submissions were (probably correctly) disregarded by the panel.

There were a small number of other objecting comments on the record that the CPE panel (again probably correctly) chose to disregard as coming from organizations of negligible size.

The was one comment, in Polish, from a Polish law firm. Another comment came from a something dodgy-looking calling itself the International Radio Emergency Support Coalition.

A third comment came from the Webcaster Alliance, a group that made a bit of a name for itself a decade ago but which today has a one-page web site that doesn’t even list its members (assuming it has any).

Attempts by BRS Media, which already runs .am and .fm, to orchestrate a campaign of opposition seem to have failed miserably.

In short, the panel’s decision that there was no relevant, on-the-record opposition seems to be on pretty safe ground.

What’s slightly disturbing about the CPE is that the panel seems to have decided that the EBU does not actually represent the radio community as described in its application.

It dropped one point on the “Community Establishment” criteria, and another on the “Nexus between Proposed String and Community” criteria.

Specifically, it lost a point because, as the panel stated:

Based on information provided in the application materials and the Panel’s research, there is no such entity that organizes the community defined in the application. Therefore, as there is no entity that is mainly dedicated to the community as defined in the .RADIO application, as the Panel has determined, there cannot be documented evidence of community activities.

In other words, there may be a “radio community”, but nobody, not even the EBU, is responsible for organizing it.

It also lost a point because while the string “radio” does “identify” the community, it does not “match” it.

The panel explained:

To receive the maximum score for Nexus, the applied-for string must “match” the name of the community or be a well-known short-form or abbreviation of the community name. To receive a partial score for Nexus, the applied-for string must “identify” the community. “Identify” means that the applied-for string should closely describe the community or the community members, without over-reaching substantially beyond the community.

Failing to get full marks on community and nexus would usually, in my view, indicate that an application would not succeed in its CPE bid.

However, the lack of any outcry from significant members of the community (either because there was no such opposition or the three rival applicants failed to muster it) seems set to allow .radio to be managed by the applicant with the most restrictive policies.

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Comments (1)

  1. An important part of the “Opposition” discussion is in the CPE Guidelines (http://newgtlds.icann.org/en/applicants/cpe/guidelines-27sep13-en.pdf):

    “To be taken into account as relevant opposition, such objections or comments must be of a reasoned nature. Sources of opposition that are clearly spurious, unsubstantiated, made for a purpose incompatible with competition objectives, or filed for the purpose of obstruction will not be considered relevant.”

    This is why Donuts and others’ opposition was disregarded. For example, Donuts as an organization that is irrelevant to the radio community and its opposition was clearly spurious filed to obstruct the proceedings.

    Any opposition must also be of reasoned nature compatible with competition objectives and must come from a relevant community associated with the string. Please refer to the .INC decision (http://www.icann.org/sites/default/files/tlds/inc/inc-cpe-1-880-35979-en.pdf ): The community applicant lost a point because according to the EIU: “opposition was from a community that was not identified in the application but which has an association to the applied-for string. Opposition was on the grounds that limiting registration to US registered corporations only would unfairly exclude non-US businesses.”

    It seems that according to the EIU, anti-competitive policies of excluding legitimate constituents that would normally and naturally have a high interest in registering a domain (if they are associated with the string) is the a powerful reason for opposition.

    For example and on a similar note, DotMusic and over a dozen other non-negligible, relevant music associations and organizations, associated to the .music string, opposed Far Further’s community application, namely their Eligibility policy that excludes music community members that belong to music organizations formed after 2007 (which was also the basis of a Community Objection against them). Their Eligibility rules only allow members belonging to pre-2007 music organizations to register which is anti-competitive. Such opposition is of reasoned nature. According to the CPE rules, Registration Policy restrictions should be aligned with the community-based purpose and serve the community that would be immediately associated with the string.

    It has been showcased in the CPE examples of .TENNIS and .MLS that if you exclude a significant portion of your string’s community from Eligibility you will also get a zero in Nexus because you are overreaching in your definition of your Community since the string is also associated with a significant portion of the community that is not eligible.

    What is not mentioned in your reporting is the ongoing, persistent strategy of Donuts and some portfolio applicants to oppose every community applicant entering CPE. It is a clear attempt to game the CPE rules and anti-competitive.

    We are thankful that this “bullying” strategy has been tackled efficiently by ICANN and the EIU and disregarded. Panelists have determined in EVERY case that such opposition was “clearly spurious, unsubstantiated, made for a purpose incompatible with competition objectives, filed for the purpose of obstruction” and hence is irrelevant.

    Constantine Roussos
    DotMusic

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