[NA-Discuss] IMPORTANT: US Senate hearings on new gTLDs

gbruen at knujon.com gbruen at knujon.com
Fri Dec 9 21:01:19 UTC 2011

So if not a new statement, perhaps a reminder(strongly) of what ALAC has already said for the new audience at these hearings.

Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: Evan Leibovitch <evan at telly.org>
Sender: na-discuss-bounces at atlarge-lists.icann.org
Date: Fri, 9 Dec 2011 15:39:55 
To: Avri Doria<avri at ella.com>
Cc: NARALO Discussion List<na-discuss at atlarge-lists.icann.org>
Subject: Re: [NA-Discuss] IMPORTANT: US Senate hearings on new gTLDs

On 9 December 2011 11:38, Avri Doria <avri at ella.com> wrote:

> I disagree that Kurt was conveying a meaning of Complete Consensus when he
> referred to ICANN Consensus.   He was quite specific about the rough and
> tumble of ICANN consensus and even made reference to the NCUC, whose
> members were the only ones that did not support the policy recommendation
> at the time it was approved.  I note that although they did not prevail in
> the consensus and were part of the losing voice, they have since supported
> the ICANN consensus decision made against their vote.

So the NCUC was opposed. ALAC was opposed (see below). The GAC was opposed.
The IPC was opposed, and clearly not appeased by the IRT and STI efforts.
And the CADNA/ANA opposition indicates that either ICANN's business
community was opposed, or that it is unrepresentative of the broader
business community (perhaps because it is an umbrella that equally includes
both domainers and Internet content providers.)

So the "consensus" essentially is a power decision dominated by contracted
parties who benefit financially from the program going forward. I believe
that point came out clearly during the hearings, and Garth extracted one
particularly interesting observation (stated earlier in this thread) that
helps confirm the perception.

I agree that the ALAC deserves a real response to its advice, and when ALAC
> says something is unacceptable, there should be a process, I beleive one
> that is similar to that accorded GAC advice, to discuss and close the issue.

I don't think the GAC would agree that they are satisfied with their
treatment within ICANN wrt the gTLD process, so even the mere formality of
a bylaw-mandated response is not IMO sufficient for either the GAC or ALAC.

The brinksmanship that characterized the emergency Brussels GAC/Staff
meeting hardly qualifies as a process I want repeated as a matter of course.

> And I find it problematic that the Board has never discussed these issues
> with the ALAC (I am assuming they haven't since I don't really know - did
> they?  Was it ever part of the BOARD-ALAC regular face to face discussions?
> Did we formally request further dialogue on the At-Large issues? GAC did
> not get it negotiations automatically as far as I know).

Previously, most scheduled ALAC/Board events have been bridge building
affairs, shared meals (complete with seating assignments!) in which
big-picture topics have been raised as table talk -- no mandated outcomes.
That is changing, for the better. The two big milestones in the Board/ALAC
relationship are to me:

   - The election of Sebastien (though the Board never gave the community a
   suitable response of why it rejected its own BGC recommendation for two
   At-Large reps.)

   - The gTLD "workshop" in Nairobi in which Kurt talked about a broad
   consensus, inclusive of end-users, and I put an end to that myth. In
   response, there was a hastily called meeting between some Board and ALAC
   members the next day that -- if my memory serves me correctly -- led to the
   creation of the JAS working group, the first ever in which both the ALAC
   and GNSO shared chartering roles.

These are both relatively recent events. We have certainly evolved from
being ignored to being acknowledged and increasingly respected. The current
challenge is going from acknowledgement and respect to being heeded.

As for the new gTLDs themselves.  I personally support them going forward
> now, warts and all, and would not support a letter from this RALO or from
> ALAC stating that At-Large opposes new gTLDs.  I think the task now is to
> make sure they happen fairly and live up to all the promises.  And to fix
> what we can along the way and for the next round.

As I have mentioned before, the still-current ALAC position -- stated
originally at the Mexico City Summit and never since recanted or modified
-- indicates that At-Large considers the gTLD program to be "unacceptable".
As you know, a scorecard I recently did for the At-Large gTLD Working Group
indicates that -- from the At-Large point of view -- most of our objections
have not been addressed and in one case the situation has indeed worsened.

So no letter is required from NARALO to (re)state the existing position
that the program in its current form is unacceptable, since that stance is
the status quo. I would similarly oppose any letter from NARALO changing
this stance -- endorsing the program and/or encouraging it to proceed
as-is. We can acknowledge that the program will happen regardless of our
objections -- and that it will be helpful in some specific cases, notably
IDNs -- but that doesn't mean we have to be cheerleaders for it.

It is my personal view that At-Large members' participation in gTLD-related
community activities (notably the Rec6 and JAS working groups) have been
acts of mitigating the damage we envisioned the program would cause -- and
I note that in both cases, the ultimate policy outcomes are not what those
committees asked for and only partially address At-Large objections. Such
participation IMO in no way mitigates the core opposition that still exists
on the record.

One take way I had from the meeting was that those who were objecting to
> the new gTLD program were missing the fact that many of the protections
> that exist in the new gTLD process that do not exist in the incumbent gTLDs
> (would that they did!).

There was, however a view expressed that ICANN has been remiss in policing
the looser regulations of the existing TLDs, so its ability to ramp-up a
competent compliance effort based on past performance was legitimately
called into question. This is a case of good theory, unstable execution.
And there's no way to test ICANN's capabilities on a small sample of TLDs
because there are no provisions for staggering or future rounds.

>  I think Senators and those who testify should be better educated about
> their subject manner.  For example I found it amazing that those seeking
> defense from new gTLD in their name, did not admit to the existence of the
> Independent Objector, who could take their issue forward if someone was
> applying for their name fraudulently.

The IO does not have any authority on second level domains IIRC, which was
the main focal point of the senators' complaints. And, in any case, the IO
will still need to pay appropriate fees to object and IIRC will have a
fixed budget... so at a certain point there may be a hidden limit to how
many objections may be filed that way.

> I hope ICANN releases and sends to the Committee a point by point
> refutation of the negative points made in testimony - showing the
> mechanisms that have been created to address the particular concerns (e.g.
> application question 18c in response to defensive second level registration
> issues).  Kurt needs to have a much more complete set of talking points;
> the process is complex and it is difficult to remember the remedy that was
> created for each of the hundreds of criticisms that have ben made.  And if
> this were on line, it would be great for them to have a placard showing the
> url and a QR.  Could even be updated real time by the ICANN boiler room in
> the background.

For every talking point you could think of for Kurt, I could come up with
more for Esther and Angela. And there are plenty of objections that have no
legitimate existing response, such as "why isn't the fee reduced for non
profits in poor countries, let alone rich ones"? The convoluted "fund"
proposal that was pre-determined before the JAS group made its
recommendations does not indicate the result of either a consensus or
bottom up process.

At least to me ... the more time passes and the more I am learn about its
environment, the worse the gTLD program looks.

- Evan
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