ALAC concerns re: [gtld-com] Draft Final report gTLD committee

[Wendy Seltzer <wendy@seltzer.com>]

The ALAC supports the latest draft's conclusion that "expansion of 
the gTLD namespace should be a bottom-up approach with names proposed 
by the interested parties to ICANN"; that "there should be no 
pre-determined list of new names that putative registries would bid 
for"; and that "expansion should be demand-driven".

Beyond that basic conclusion, however, the ALAC finds that the 
specification of objectives or criteria has moved in the wrong 
direction since the last draft.  The expansion in scope concerns us 
on both procedural and substantive levels.  Procedurally, the lack of 
public comment is troubling, particularly as public input might have 
prompted reconsideration of some of the concrete issues we raise 
below.

We continue to believe that ICANN should simply oversee development 
of a genuine competitive market for domain name services.  Basing 
market entry on a minimal and objective no-harm evaluation is key to 
achieving this goal.  While we understand the Council's desire to 
give more than a one-word answer, parts of the current expanded 
answer lean toward regulating this nascent market more than seems 
desirable.

The latest draft appears to conflate "substitutability" with 
"confusing similarity," and thus would endorse anti-competitive 
prohibitions on similarity in the name of preventing confusion. 
Instead, these restrictive criteria would deny Internet users the 
widest range of options for name registration and deny market 
participants the chance to compete fully with incumbents.  We have 
trust in the ability of Internet users to differentiate among names 
serving similar markets.


In this light, we offer the following comments on the substance of 
some of the criteria:

* Criterion 4, "An easily understood relationship must exist between 
a new gTLD and its stated purpose": The notion of "easily understood" 
is a function of the entity trying to understand the relationship. 
When used in an evaluation, this criterion would invite subjective 
judgment.  It seems more appropriate to leave this question for the 
market to answer -- *after* a TLD has been introduced. Further, we 
would emphasize that a TLD's "stated purpose" could also mean the 
generic "open to any use."

* Criterion 6, "Future names should add-value to the domain name 
system." As a key objective of the entire process, addition of future 
names should not diminish the value of the domain name system. 
Individual prospective names, however, should not be scrutinized for 
their added value.  Once more, subjective judgment would be involved 
on a question which is more appropriately left for the market to 
answer.

* Criterion 8 seems to suggest that incumbent TLD operators should 
have the ability to veto competitors addressing a segment of the same 
or a similar market, or to at least dictate competitors' policies, if 
these competitors use "translations or transliterations" of the 
incumbent's TLD string.  We fail to see the benefit of this criterion 
to the public at large.  To the contrary, it seems to unduly 
strengthen the position of incumbent operators over new market 
participants, damaging competition.

* Criterion 11 seems to suggest that incumbent sponsors should have 
privileged access to market segments that would complement to the 
markets they are serving now.  This criterion would, in the case of 
sponsored TLDs, strengthen the role of incumbents even beyond what is 
suggested in point 8, and so the same concerns as above apply.

* Criterion 12 seems to suggest that new TLD proposals should be 
designed to address markets which, if possible, do not overlap with 
those served by incumbent TLD operators.  This criterion too appears 
anti-competitive, rather than to the benefit of the public at large.

* Concerning the draft's additional considerations on business 
continuity, we recommend that continuity planning be seen as an 
opportunity to permit easier entry (because it would alleviate 
problems attendant to registry failure), not to further restrict new 
entrants.

Thank you,

--Wendy Seltzer
Interim At-Large Advisory Committee, gTLDs Committee Liaison

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