[NA-Discuss] Opinions requested from the At-Large community on objection comments received on new gTLD applications.

[Eric Brunner-Williams]

On 1/28/13 3:20 PM, Thomas Lowenhaupt wrote:
> "it is hard to imagine an objection that could avoid forcing ICANN to
> get involved in ..."

Tom,

The imagination of your correspondent, whom you quoted above, is more
creative than necessary. The issue before the Corporation is whether
the proposed contracting party accepts the terms and conditions of the
tendered contract.

Had the offer been for "tibet", made by the executive branch of
government in Beijing, to be operated by a for-profit corporation
located in Hong Kong, with an intentionally fictive promise to involve
the Tibetan people through their legislative and non-governmental
bodies in some central aspect of the financing, operation, and policy
development of the ".tibet" registry, it would be a difference without
distinction from an offer for "city", made by a municipal executive
alone, to be operated by a for-profit corporation located elsewhere,
with the effectively fictive promise to involve the residents of the
municipality through their legislative and non-governmental bodies in
some central aspect of the financing, operation, and policy
development of the ".city" registry.

The Corporation doesn't need to "get involved in" the politics of
anything. It must decide whether or not to take notice of material
misrepresentation by applicants, and in the larger scope, accept or
decline the liability to the Corporation to any party if it elects to
ignore material misrepresentations by applicants as a matter of policy.

The Corporation also must decide whether or not the protections for
subordinate political and non-political geographical identifiers,
extended from the protections offered for the Capital cities of
countries and territories associated with iso3166-1 delegated code
points makes the applicants for these subordinate political and
non-political geographical identifiers sovereigns, with the same
unilateral powers (in effect, vacating all contractual obligations but
allowing "memoranda of understanding") as the current GAC member states.

I appreciate that your interest may be for a particular outcome of a
particular application. I think the issue is vastly larger than one
application, creating both arbitrary government power where none
currently exists, and making contracting with any public entity
exercising this extended protection for national capitals vastly more
difficult than anyone, in the GAC or the GNSO, ever intended at any
time in the past five years of new gTLD policy development.

I remain of the view that if the advice responsibilities created in
the Corporation bylaws relative to an At Large body and the public
interest are to be observed, that the advice must be offered to the
Board through the available means, here the objection process.

Eric