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

Salanieta T. Tamanikaiwaimaro salanieta.tamanikaiwaimaro at gmail.com
Thu Jan 23 04:35:49 UTC 2014

I will let Carlton explain the first question that Alejandro wrote.

With respect to the use of Jacob and Esau, it is an expression used when
describing deception. The story goes that Jacob and Esau were brothers and
sons of Isaac. In ancient times and in that particular culture, before a
father would die he would bestow his blessings to the firstborn as that was
his birthright. Whilst Jacob and Esau were twins, Esau was the older of the
two and so it was his birthright to succeed, However as Isaac reached old
age, his sight failed him so he could not see properly. In a successful
attempt by Jacob to get the blessings of the firstborn after striking a
deal with his brother over a bowl of soup, Jacob killed an animal and put
the skin around his hands so that he could appear hairy as his brother Esau
was hairy and in so doing deceived his father into blessing him. So the
expression to hear the voice of Jacob but it is the hand of Esau he feels
is used to refer to the use of "deception".

On Thu, Jan 23, 2014 at 4:37 PM, Dr. Alejandro Pisanty Baruch <
apisan at unam.mx> wrote:

> Carlton,
> what is the action that you conclude should follow?
> Can you explain the Jacob/Esau reference please?
> Yours,
> Alejandro Pisanty
> - - - - - - - - - - - - - - - - - - - - - - - - - - -
>      Dr. Alejandro Pisanty
> Facultad de Química UNAM
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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
> objection.
> So now, the evaluator hired by the ICC to evaluate the objections filed has
> issued his ruling.  See it here:
> http://newgtlds.icann.org/sites/default/files/drsp/17jan14/determination-1-1-1684-6394-en.pdf
> .
> 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
> **population
> 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
> alia
> 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
> ==============================
> Carlton A Samuels
> Mobile: 876-818-1799
> *Strategy, Planning, Governance, Assessment & Turnaround*
> =============================
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