[Gnso-newgtld-wg] FW: Minority View - Against the Ban on New Applications for Identical Strings where prior string status is "Not Approved"

Tue Apr 21 15:17:57 UTC 2020

Jeff and Cheryl,
Regarding the rules relative to a ban on applying for applications for the same string which is still pending from a prior round and the action item we had on submitting a Minority View, I inserted draft Minority View language in the Google doc as shown below in black.

MINORITY VIEW: in recognition of the principle of Applicant Freedom of Expression, timely applications for any string previously applied for, but not yet delegated, should be permitted, but such applications should not be processed further unless and until the matching string from the previous round has been classified as "Will Not Proceed:".
Will probably want to add some rationale behind the Minority View language as shown in the next two paragraphs:

As mentioned, the problem with the current majority view is that if there are no "back-up" offers, then there is no pressure on "strings in process" to finalize an agreement with ICANN because they will have obtained this ability to block other applicants. This delivers too much bargaining power to the prior applicants. They should have first come, first served status, but should not be able to delay and block those who are willing to comply with ICANN Board requirements and/or any new legal and/or policy requirements that may be required to get ICANN  comfortable with delegating the string.  This logic is particularly sound where the status of the prior string is "Not approved" but "Not Withdrawn."

Take, for example, future applications for closed generics.  (Keep in mind that the WG has NOT come to a consensus and that no one can agree on the 2012 implementation fallback because you have pointed out that the Board resolution on Closed Generics, by its own terms,  does not apply to the next round.)

Let's say I'm a big player and I want to reapply in the next round for several Closed Generics in hopes that the policy will evolve at some point and I'll get my opportunity.  (Maybe I aim to resolve issues with certain PICS and get a Board vote in favor of my application.)   Even if I don't get that opportunity right away, I keep my "bet on the table" by not withdrawing my application.  My status may even end up being "Not approved" but I don't withdraw and I keep moving toward policy efforts (and more PICs)  to allow my closed generic.  Meanwhile, as long as I do not withdraw my application, no one else can apply for that string in the next window, even if they are applying to operate an open TLD.  The string is blocked and I hold the block.  For many big players, the application fee is chump change (especially since I can autofill most of it) and constitutes a long term investment in future profits.

>From the consumer's point of view, back-up applications should be allowed as long as applicants are advised of the risk that the prior string may move forward to delegation. Those back-up applications should not proceed unless and until the prior application is deemed "Will Not Proceed" by ICANN.
Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

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