Following a recent post on Class 46 concerning the Public Comment period for ICANN's first batch of gTLDs, the question has been asked as to precisely how the public comments provision is to work and whether it is the best way to raise issues of concern.  In this context Class 46 would like to thank Jean-François Vanden Eynde (eBrand Services, Luxembourg) for kindly providing the information below:

ICANN has introduced comment forums as a mechanism for the public to bring relevant information and issues to the attention of those charged with handling new gTLD applications. In the applicant guidebook, a distinction is made between comments received within a 60-day period from the posting of the application materials and comments received after that 60 day-period.

To be considered by the Evaluators during the initial evaluation, comments must be received within the 60-day period and be associated with specific applications. A relevant comment could have an impact on the scoring of the application. In such a case  the evaluator would then seek clarification from the applicant. If a comment has indeed made an impact on the evaluation decision, it will be reflected in the evaluators’ summary reports, to be published at the end of the Extended Evaluation.

ICANN makes a clear distinction between application comments -- which may be relevant to ICANN’s task of determining whether applications meet the established criteria -- and formal objections that concern matters outside those evaluation criteria.  According to ICANN’s Applicant Guidebook, the established criteria are essentially the ability to demonstrate technical, operational, and financial capabilities. Third parties will not have the opportunity to comment on the financial capabilities of an applicant as this portion of the application is not publicly available.

As a consequence, it may be assumed that comments submitted by a third party would, in principle, only delay the evaluation and delegation process and potentially force the applicant to participate in an extended evaluation. It will certainly not stop the application as such.

Comments received after the 60-day period will be stored and made available for other considerations, such as the dispute resolution process. As a consequence, comments on matters associated with formal objections will not be considered by panels during Initial Evaluation, but will be available to and may be subsequently considered by an expert panel during a dispute resolution proceeding. Nonetheless, we can imagine that public comment for objection purposes will not have much impact since Dispute Resolution providers will have the possibility to consolidate objections to the same application based on the same ground. If objections are consolidated, we might presume that public comment will have a weak impact and would only unveil objections grounds and arguments to be used against a specific contending application.

Even, if one may consider public comments to be an inappropriate way for objection purposes, they could be useful in two specific situations, namely the review of a community-based application and the intervention of the Independent Objector.

Before explaining the impact of the public comment on a community-based application, it may be important to specify what is a community-based application. In its program, ICANN has designed two types of applications: Standard and Community-based applications. A community- based gTLD is a gTLD that is operated for the benefit of a clearly delineated community. To be eligible to a community-based gTLD, applicants must have selected this option during the application phase and will have to obtain a score of 14 out of 16 to the community-based questions. To evaluate the community-based applications, ICANN has defined 4 sets of criteria which are Community Establishment, Nexus between Proposed String and Community, Registration Policies and Community Endorsement.

The Community Endorsement section evaluates the community support and/or opposition to the application. When scoring “Opposition”, previous objections to the application as well as public comments during the same application round will be taken into account and assessed. As a result, public comments could influence the scoring of this specific criteria and serve as a mean to ensure that community-based applicants will not to obtain the sufficient threshold of 14 points and would not prevail on a standard application. However, it is not clear if and how such objections or comments would prevent a score of 2 or lead to any particular score for “Opposition.”

Public comments will also be fundamental for any third parties willing to see the Independent Objector lodging an opposition against a specific application.  It must be reminded that the Independent Objector does not act on behalf of any particular person or entity, but acts solely in the best interests of the public who use the global Internet He can only file objections on the grounds of Limited Public Interest and Community against “highly objectionable” gTLD applications to which no objection has been filed. The Independent Objector may consider public comment when making an independent assessment whether an objection is warranted and he will have access to application comments received during the comment period. ICANN has explicitly stated that the Independent Objector shall not object to an application unless at least one comment in opposition to the application is made in the public sphere. The question which remains open is whether the public sphere is limited to the public comment process or not.

On a more administrative note, public comments can be used to complain about violations of the Code of Conduct by a Panelist as General public can raise their concerns to the attention of ICANN via the public comment and applicant support mechanisms, throughout the evaluation period.

In conclusion, public comments will be little used by brand owners as this would only reveal their intentions and arguments to object against a specific application. Nonetheless, the public comment could be of strategic use for “standard” applicants which are in contention with a community-based application in order to hinder this community-based application to reach the threshold of 14 points and to avoid that this specific community-based application prevail over contending standard applications.  In very specific and well-advised cases, the public comment may serve to invite the Independent Objector to launch a dispute against a specific TLD, but this comment will need to be well crafted and timely posted against “highly objectionable” gTLD .