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New TLDs, Swiftly: This Is No Beauty Contest!

In response to ICANN’s request for proposal (RFP) for the selection of new sponsored Top-Level Domains, Wendy Seltzer for the At-Large Advisory Committee (ALAC) urges ICANN to move quickly beyond “testing” to more open addition of a full range of new gTLDs in the near future and offers some general principles to guide that expansion.

It is time for ICANN to regularize the process of examination and approval of new TLD proposals. Testbeds are fine, but after 5 years of operation, ICANN needs to move beyond evaluations to permit those proposing new TLDs to put their plans into effect.

Approving a few new sponsored TLDs chosen from a list of applicants that was narrowed arbitrarily cannot replace the creation of a quick, effective and uncontroversial process for the creation of any kind and number of new TLDs. ICANN must focus and act swiftly with respect to this issue, which can be called the holy grail of ICANN’s mission.

Further, ICANN must make more meaningful evaluations when it does conduct reviews. In presentations heard at the Report on Compliance by Sponsored gTLDs with the Registration Requirements of Their Charters - on existing sponsored TLDs, both err in focusing primarily on exclusion: Do the sponsored gTLDs represent a limited community and adhere to their charters by permitting registrants only from within that community? The question more important to the public’s communicative goals, however, is the flip side: Are there people or organizations who are left without logical places to register domain names, or who are denied registration in a sponsored TLD whose charter they fit? That is, are communities of prospective registrants most effectively served by a single TLD, operated by a sponsor that purports to represent them, or by multiple commercial players that perceive them as a market for registrations in a number of competing top level domains?

It is easy to make the error rate arbitrarily low by asking questions that examine only one kind of error—gTLDs could block all cybersquatters simply by refusing any registrations, but that would hardly serve the point of adding new gTLDs.

Suggested Principles for Addition of New TLDs:

- Competition. Prospective registrants of a domain name in a gTLD should have a choice—between competing TLD strings, between competing policies, between competing business models. ICANN should foster, not impede competition among different registries that access identical or overlapping market segments. Mutual substitutability of different gTLDs fosters competition.

- Fairness and objectivity. The processes used by ICANN in allocating new gTLDs to registries must be well-documented at the outset, fair, and predictable. Criteria must be applied in an objective and non-arbitrary fashion, and without undue influence from policy-making bodies or advocacy groups on any side of the issues.

- Market operation. An open, competitive market, not a beauty contest, should determine what names get into the root. The only standard applied to new Top Level Domains should be a simple no-harm evaluation which avoids confusingly similar TLD strings, according to some well-defined standard such as that of consumer confusion in trademark law.

- Rapid resolution of conflicts among applicants. When multiple parties propose the same domain string, ICANN needs a mechanical way of resolving conflicts.

- Technical evaluation / accreditation. ICANN’s past practice of substantive and technical evaluation is both costly and inefficient. Even after passing these a priori evaluations, the .pro TLD has yet to become operational. ICANN should consider paring this requirement down to a minimum “competence,” perhaps leaving open the possibility of terminating gTLD contracts with registries that failed to achieve minimum performance standards within a reasonable time.

- Business continuity. Once a contract is approved, ICANN should ask for data escrow and/or business continuity insurance to reduce the risk of registry failure, but should not try to guarantee that a registry or TLD string will live forever. Customers can include risk evaluation in their choice of TLDs to use; ICANN need not make this a criterion of approving an application.

- Geographical and linguistic diversity. As an international organization, ICANN should ultimately work to allow applications in major non-English languages, and should encourage a wider geographical distribution of TLD registries.

Public Comment:

ALAC invited public comment on this document and received several substantive comments (available online here and here).

A few comments commended the analysis; two suggested postponing introduction of any new gTLDs, either for a period of time or until consideration of WHOIS data management was resolved. Finally, one commenter (Michael Froomkin) suggested that the only reason we don’t have an in-hand ‘evaluation’ of the existing ‘experiment’ of new gTLDs is that ICANN has refused to define criteria for ‘success’ or ‘failure’ ex ante, and has failed to analyze the data itself. He concluded that failure should not stop the process to the detriment of new gTLDs, the applicants, or the public.

By Wendy Seltzer, Law professor

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