Statement on IFRC and IOC - Post Application Start Date changes to the AGB

[Avri Doria]

Re: http://www.icann.org/en/news/public-comment/ioc-rcrc-proposal-02mar12-en.htm

In this statement I want to address the topic of making large modifications to the Applicant Guide Book (AGB) to amend the special protections that ICANN Board granted to the International Federation of the Red Cross (IFRC) and to the International Olympic Committee (IOC). Since the motion's recommendations apply to both organizations and since the GNSO seems to have decided that the motion cannot be split between the two organizations, I will not differentiate between the two organizations in my comments.  In any case such discrimination would require further analysis on the basis for the merits of the special treatment they are being granted, something I will not cover in this comment.

- I will avoid, in this note at least, any discussion of the quality of the protection offered to the IFRC/IOC and whether the GNSO should add further protection to the IFRC/IOC

- I will avoid, in this note at least, the question of whether the IFRC/IOC deserve such protection.

- I will avoid, in this note at least, the question of whether the IFRC/IOC are the only organizations that deserve this protection.

- I will avoid, in this note at least, the question of whether the IFRC/IOC as a class of organization are unique regarding reasons for such protection.

- I will avoid, in this note at least, the question of whether the ICANN Board did the right thing in creating, without a proper GNSO PDP, a new class of modified reserved names.

- I will avoid, in this note at least, the question of whether it is appropriate for the GNSO council  to vote on a recommendation of a Drafting Team draft without a complete AOC/ATRT/Board determined comment period and without a call to the constituencies for comments.  I.e.this note will not address the appropriateness of the GNSO council circumventing the PDP and the precedence this might set for future emergency policy issues.

- I will avoid, in this note, the analysis necessary to differentiate between a policy issue and a 'mere' implementation issue.

The current Application guide book contains a section on the extraordinary protections the ICANN Board already gave the IFRC/IOC. A question facing the GNSO Council is whether it is appropriate to change the AGB in such a massive way after the start date of the application period without resetting that start date.

Prospective applicants have already made decisions on their applications based on the content of the AGB.  While it is true that there has been a constant stream of smaller changes, made in amendments to the AGB, there have not been any changes of this magnitude, i.e. modifications that change what can and can't be applied for.  While there are some robo-application writers who can crank out an application in a weekend, many applicants spend months worrying about the wording of their application - especially if they are working on a community or geographically based application.  If a large change were to made at any point after the start of the application window, it would disadvantage some applicants and perhaps advantage other applicants.  This would be fundamentally unfair and would thus be a liability for ICANN.

Several comments have noted that perhaps the protections offered to the IFRC/IOC should be undone.  I argue against this for the same reason I argue against adding all of the extra exemptions and privileges contained in the GNSO motion.  Removing this protection from the AGB at a date after the starting date of the application period would change the basis of the decision on which some possible applicants may have made their decisions.   Again, making such a change to the AGB at this point would put all of these possible applicants at a disadvantage. It would also harm the IFRC/IOC as it would remove a protection they had been able to count on.  While it may have been a multistakeholder transgression for the ICANN Board to have extended this extraordinary special modified reserved name process to the IFRC/IOC without a PDP to define the new class of reserved names, it was within their by-laws defined prerogative to do so and was thus a legitimate decision.   Had they not been extended such special protection, the IFRC/IOC would have had the ability to create a strategy and an application.  In this case the special protections have been extended, and we all need to live with that fact without modification, if we are unwilling to reset the date for the beginning of the application period - something I am not recommending.

Additionally, a fundamental principle of the GNSO recommendations for the new gTLD process was for a predictable process.  Any changes of this magnitude would be done at the expense of that predictability and should be avoided by the GNSO if it wishes to live up to its own principles on the new gTLD program.

For this reason I recommend that all GNSO council members vote against any massive change to the AGB that would disadvantage members of the ICANN community.  This motion should be defeated or at least amended to remove anything that would change the basis of applications for this round.

Avri Doria