[At-Large] Reference: ICC Ruling on Objections filed by the ALAC

Dr. Alejandro Pisanty Baruch apisan at unam.mx
Thu Jan 23 04:37:36 UTC 2014


what is the action that you conclude should follow? 

Can you explain the Jacob/Esau reference please? 


Alejandro Pisanty

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     Dr. Alejandro Pisanty
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Desde: at-large-bounces at atlarge-lists.icann.org [at-large-bounces at atlarge-lists.icann.org] en nombre de Carlton Samuels [carlton.samuels at gmail.com]
Enviado el: miércoles, 22 de enero de 2014 21:04
Hasta: At-Large Worldwide; At-Large Worldwide
Asunto: [At-Large] Reference: ICC Ruling on Objections filed by the ALAC

Colleagues may recall that this writer was part of the original At-Large
panel constituted to evaluate and determine whether the ALAC would exercise
standing and file community objections to a gTLD application.

You will also recall that after some time engaging and several evaluations,
I withdrew from the process, principally because I was challenged to
reconcile my disquiet regarding the bases used to identify the offended
community in context and the expandable and sometimes indeterminate
attributes available for defining a community with standing to raise an

So now, the evaluator hired by the ICC to evaluate the objections filed has
issued his ruling.  See it here:
Here's the key understanding, as he sees it, of what obtains..

"*The formal objection process was created to allow a f**ull and fair
consideration of objections based on certain l**imited grounds outside
ICANN’s evaluation of applications on t**heir merits*"  - Para 54, Page 29

He, too, has his troubles settling on a meaning of the term 'community' in
context. His take...

"*......**The word “community” refers not to a place, but to an
abstraction: the convergence of a sense of involvement with common
interests....Communities of persons united by their interests in how they
earn their living may be especially strong, whether they form permanent
organisations (like professional associations) or not (like the entire
segment of retirees).*"  Para 49, Page 27 inter alia

He continues, bemoaning his inability to cleanly define a community with
standing.....and in the process, pimp slaps the prevailing or predominant
At-Large tenet of community....

"*.....Communities do not necessarily create institutions. They do not
necessarily function as a polity, in the sense of identifying officials
formally authorized to act in **their name, represent their interests, or
formulate their policies. They may exist without structures of
self-governance, such as membership committees which admit **or exclude
individuals by reference to more or less well-articulated standards
of qualification or conduct**........It follows that communities may
include individuals who are more or less **concerned with the welfare of
the group as a whole; it may contain cynics as well as *
*idealists, speculators as well as altruists. Naturally it may include
subgroups or even **individuals whose opinions and preferences are sharply
at odds with those of the **majority of the community. Unless the community
has in some constitutional sense **defined itself as excluding undesirable
individuals, or at least limited their capacity to **make claims to speak
as members of the group, someone looking at a community **from the outside,
and armed only with this broad understanding of what a **“community” may
be, has no rules-based criteria for evaluating who does or does not **belong
to the community. *" Paras 50 & 51, Page 26-27, inter alia

Here's where he ends up....

"*....The determination I am now charged with effecting deals.... – with
“global Internet communities”. That expression has not, however, been given
further specific definition. One must therefore proceed on the basis of (i)
discerning what the relevant rules do not say about “communities” and (ii)
being attentive to implied constraints derived from principles developed by
ICANN.*" Para 52, Page 28, inter alia

He elides a lot of stuff from the foregoing to the six (6) principles upon
which the new GTLD program is predicated in Para 55 then delivered this
[considered] opinion....

"*To the extent that abstract or aspirational principles are defined, they
are those of a free market (“competition”, “consumer choice”,
“differentiation” and “diversity”) and freedom of expression, rather than
regulatory constraints arising from a protective (or authoritarian) desire
to filter “wrong” or “unsound” views, or otherwise restrict access s**o as
to reserve it to those who are vetted by some type of official bodies...I
see no reflection here of* *ALAC’s undisguised bias **against “commercial
applicants” who “cannot be trusted to self-police the .health domain space
and are “more than likely” to place “commercial interests before
public **welfare
interests”*.......*The Objector’s animadversions against the Applicant miss
the target;* *profit-seekers **may apply; the public interest is evidently
intended to be protected by protocols imposed by ICANN in a manner akin to
that of regulators whose supervision constrains the conduct of for-profit
providers of public services generally...*" Paras 56 & 57, Page 31 inter

Reasonable men and women may well agree to disagree, agreeably or not. I
willingly acknowledge the arguments posited by this evaluator are indeed
cogent. All in all, this was a bravura performance, worthy of
acknowledgement. For in one fell swoop, this gentleman tells the ALAC to
piss off - politely, in an 'Englishy' kind of way -, gives a left-handed
thumbs up to the regulatory role of ICANN, fingers the PICs as I have
always intimated they were .......and comes up roses.

He hears the voice of Jacob. But smart fella knows it is the hand of Esau
he feels.


Carlton A Samuels
Mobile: 876-818-1799
*Strategy, Planning, Governance, Assessment & Turnaround*
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