[Newgtld-input] Equitable Delegation

[Jody Swann]

Just as ICANN must group strings for evaluation based on string contention,
so must it group strings for delegation based on similar competitive
interests.  An equitable process requires that applicants have the
opportunity to declare competitive threats from other strings.  As string
contentions are resolved according to established rules, there will be a
single .green and a single .eco (for example).  It is possible that these
two applicants will have strongly competing interests.  Delegation can only
proceed with equity if both are delegated on the same day.  This
competitive circumstance will undoubtedly exist for many other pairs, as
well as groups, of strings.


The *relative* timing for disclosing application results and subsequent
delegation is more important than *absolute* timing.  While plans and
business interests may be frustrated by delay, they could be devastated by
arbitrary delegation whereby a competing string gets a head start.


Many of the other comments submitted are self-promoting, or promote only a
single interest.  ICANN must promote the interests of the community by
making choices among competing applicants.  To be equitable, there must be
a non-arbitrary basis for these choices.  There currently exist logical
divisions for grouping strings to achieve consistency of application
results disclosure, and equitable delegation.  The following four Tiers
represent an ordered system based on community interests, practicality and
relative equity among applicants.


Application results may be publically disclosed sequentially by Tier.  This
would allow for more resources to focus on quality of results on a Tier by
Tier basis.  Alternatively, all application results could be disclosed at
once.  However, consideration should be given to the resource cost of
evaluating later Tier applications early.  That is to say, actual
delegation may begin sooner if resources are concentrated by Tier.

*
*

*Tier 1*:  Allocate all necessary resources to act on what may be
considered “common good” strings and move these strings to delegation as
soon as possible.  The delegation process is a dependent line of events.
It is important that the line starts moving as soon as possible.  Get the
water boiling or dinner will be late.

Three types of strings are likely to meet the “common good,” absent
negative public comments:

1. Community strings

2. Geographic strings (sponsored by sovereign bodies)

Note:  Should later Tier applicants be allowed to identify community and
geographic strings as competitive threats?  Is this even likely?

3. IDN’s, In spite of the presence of commercial interests here, the case
for IDN’s as an important and overdue addition to the world appears to have
been made.  However, if an IDN represents a direct competitive threat to a
later Tier string, then delegation of the IDN in Tier 1 may be
inequitable.

For Tier 1 strings with contention issues, objections or GAC warnings,
these resolution processes should begin as soon as possible.

*
*

*Tier 2*:  Any string that:

1. Has not been identified by another applicant as a competitive threat

2. Has not receive significant (or possibly not any) negative public
comments

3. Has not been implicated by GAC

For Tier 2 strings with contention issues or that are the target of
objections, these resolution processes should begin as soon as possible,
but secondary to Tier 1 resolutions from a resource standpoint.

*
*

*Tier 3*:  All strings in this Tier will be one of a pair or group that
have been mutually or unilaterally identified as competitive threats of one
another.  This Tier represents the greatest challenge for avoiding
arbitrary delegation.  Meaningful factors must be discovered, disclosed and
evaluated for ordering delegation.  Some of the factors that were to be
considered in the original batching plan may still be meaningful.
Potential criteria for ordering delegation may include the following:

   - First Ready, First Delegated – there has been frequent speculation
   that the administrative processes of application review, dispute resolution
   and pre-delegation requirements will proceed at different speeds for
   different applicants and thus smooth itself.  In fact this may be the only
   practical way to order delegation.  There will be a two-step process here.
   First, each string group must clear application review, string contention
   and possible dispute resolution.  These processes are largely beyond the
   applicant’s control.  Second, successful applications must complete
   pre-delegation requirements.  Once both strings in a pair, or all strings
   in a group, are cleared for pre-delegation, time requirements may need to
   be implemented to prevent strategic delay by a particular applicant.   Once
   the first applicant of a string pair or group completes requirements, the
   others must follow within a reasonable time or risk being left behind.

Note a difficulty with the following criteria: all strings within a pair or
group must meet the conditions.  This is necessary, for otherwise there is
a risk that applicants would identify favorable strings as competitive
threats in order to achieve priority for themselves.

   - Global distribution – give priority to underrepresented regions.
   - Open v. closed registries - there may be a policy consideration
   consistent with ICANN’s mission to prioritize those competitive string sets
   that allow for unrestricted public domain registration.
   - Quasi community purpose – does a set of competing strings serve a
   community, social, humanitarian or similar altruistic interest.

Keep in mind that pairs and groups of strings that have been declared as
competitive threats must still be delegated on the same day regardless of
the above factors.

*
*

*Tier 4*:  Any strings of applicants that voluntarily agree to be delegated
last.


Finally, with respect to the identification of competitive threats, ICANN
should establish a  process to evaluate the legitimacy of unilaterally
declared threats.


My name is Jerre Swann, Jr.   I am a trademark lawyer in Atlanta, Georgia.