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

[Eric Brunner-Williams]

-------- Original Message --------
Subject: Re: [NA-Discuss] Opinions requested from the At-Large
community on objection comments received on new gTLD applications.
Date: Sat, 26 Jan 2013 11:40:24 -0800
From: Eric Brunner-Williams <ebw at abenaki.wabanaki.net>
Reply-To: ebw at abenaki.wabanaki.net
Organization: wampumpeag
To: Dev Anand Teelucksingh <admin at ttcsweb.org>
CC: ebw at abenaki.wabananki.net

dev,

it is my considered view that each of the four strings: {amazon,
patagonia, nyc, and health} should be allocated only if applicants can
be found which meet objective, and feasible criteria.

both amazon and patagonia are identifiers which pre-existed the 19th
century, and have been incorporated by national governments as
regional identifiers, though at present no iso3166-1 allocated entity
employs either as an iso3166-3 identifier.

it was the plain sense of the gac members who spoke to the regional
identifier issue at the cartagena meeting, the last meeting in which i
personally participated as a member of "at large", that identifiers
the gac members sought to extend the protection afforded "capitals" of
iso3166-1 allocated entities to regional identifiers not restricted to
iso3166-3 (political subdivisions).

therefore, if applicant(s) for {amazon, patagonia} exist which have,
as the de minimus, proof of non-opposition by the governments which
share jurisdiction over the amazonian watershed, or the governments of
Chile and Argentia, then a review of the qualifications of the
applicant(s) is consistent with the corporation's policies for the
allocation of geographic identifiers.

the intent of an extension of protection afforded "capitals", metioned
above, clearly encompassed non-capital urban aggregations, and thus
the de minimus predicate condition mentioned above also applies.

the ccnso has held for many years that the principle of subsidiarity
applies to the iso3166-1 allocations. from my view, this is a cum hoc
ergo propter hoc fallacy, which overlooks the chronological ordering
of events, as capture of cctld delegations, e.g., those to some small
pacific island states by commercial operators, preceded the formation
of the corporation and the drafting of its bylaws. if not a fallacy,
it posits a pre-existing, and enduring policy, necessarily
inconsistent with the obvious meaning of the "public trust" provisions
of rfc1591.

a fundamental question arises in the gnso policied context if a
applicant for an identifier to which gac-identified protection is
associated, proposes, if awarded an identifier protected from any use
which lacks the de minimus predicate condition, to operate arbitrarily.

to put it simply, if a government proposes the exploitation of an
identifier obtained through the exploitation of its right (as
articulated in the several applicant guide drafts) to an otherwise
unqualified party -- the capture by commercial operators problem,
supra, does the "principal of subsidiarity" apply, allowing this
arbitrary conduct by the delegee, or is it barred by gnso policy?

having supervised the response of a vendor to the initial and
subsequent requests for information and request for proposal (rfp)
published by an agency of government of the city of new york, i'm
cognizant of the specific issues.

it was explicit in the rfp that the agency was evaluating both a
"community type" and an unrestricted or "generic" type, and responding
vendors were required to provide policy and business model data for
both "community type" and "generic" types of applications.

for reasons known only to the agency of government and possibly the
selected vendor, the application submitted was not the "community
based" type.

here finally the issue lies: may an inferior political jurisdiciton,
ineligible to join the ccnso, yet extended the protection afforded
iso3166 political jurisdictions to a dispositive right to a string,
determine the conditions of that string's delegation in the iana root
zone? may it construct the meaning of the "public trust" provisions of
rfc1591 arbitrarily?

the language of the .nyc application references "community" and
contains implicit, and explicit reference to an advisory body formed
external to both the agency of government and the agency selected
vendor. at some point the applicant must take reasonable steps to
implement the promises made in its offer, and if that point is after
the closure of the window for limited public interest objection, then
the promise which touches on the public interest is necessarily false.

as the applicant has not formed the community advisory board it
promised, its application should be deferred until that promise has
been substantially kept. if deferral, both of the application and the
limited public interest objection capability, is not possible, then
the application should be opposed.

finally the applications submitted in the 2012 round for "health" (in
latin and han script) are superceded by the application submitted by
the world health organization in the 2000 round. i am unconvinced that
the corporation may unilaterally alter the terms and conditions of its
offer to the 2000 round applicants, and in the present, grant the 2000
round applicant a "credit" of some $45,000 to some future application,
and grant the 2000 round applicant's string to a third party.

if the corporation could unilaterally alter the terms and conditions
of its offer to the 2000 round applicants, it could do so to its 2004
and 2012 round applicants, with adverse consequences in the courts and
the market.

an additional basis for the limited public interest objection is the
fundamental public interest in timely and correct information relating
to public health. this is the purpose of the w.h.o., and its record
supports its representation that it carries out its purpose as
intended by its founders, the public health agencies of governments,
and subsequently, treaty organizations. the non-governmental
applicants have no similar history of interest, or competency, in this
fundamental public interest.

-e