All

During a call a couple of weeks ago, when we were discussing application prioritisation, I volunteered to circulate for consideration a proposal to prohibit allowing applications in a later application window where the string has previously been applied for and not yet been delegated.  Although it had originally been proposed that this might extend to confusingly similar strings, having reflected on the discussion during the call I accept that this would probably be unrealistic, since confusing similarity needs to be determined as part of the TLD evaluation process.  I have therefore limited this proposal to exact match strings, as follows:

• This proposal assumes that we will have at least one further application round/open window for submission of applications, and possibly that there may be a number of such future open windows during which applications may be submitted, followed by some closed period when applications are not received, before the next application window opens (I will use the phrase “application submission period”).
• Where one or more applicants for a particular TLD string have applied for that string in a prior  application submission period (including the 2012 application submission period); and
• The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to:
• One or more of the applications has not yet completed evaluation;
• One or more of the applications is still the subject of an objection process
• The contention set has not yet been resolved;
• There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application;
• Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running;
• The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied:
• If the TLD string is delegated to one of the earlier applicants, then that string will remain unavailable for later applicants;
• If all of the earlier applications are finally rejected, then (provided that a decision has not been made by the Board to permanently refuse that string) the TLD string will once again become available for application: 
• from the next application submission period, provided that this allows a minimum of 3 months notice before the application submission period opens; or, 
• If the next application submission period opens in less than 3 months, then the subsequent application submission period.

Rationale

We know that, many years after the 2012 application submission period closed, there are still a handful of applications for TLD strings which remain unresolved, generally due to delays caused by recourse to ICANNs accountability mechanisms.  

Whilst we all hope that in subsequent procedures we will have fewer of the challenges that we saw in the 2012 round, it is reasonable to assume that some will still occur.

In any event, if subsequent procedures take the form of a series of discrete application submission periods, with known, finite, periods between them, then it is conceivable that applications from one application submission period may still be being processed when then next application submission period opens.  

If the period between application submission periods is reasonably short (12 months has been discussed, for example) we could conceivably see the added complication of applications for the same string being queued up across multiple windows.  

Whilst a later applicant who applied unsuccessfully for a TLD, which was eventually allocated to an applicant from a prior application submission period, could expect to recover their application fee, there is a cost to putting together an application in excess of the ICANN fee, and this would not be recoverable.  The later applicant could also have their application fee tied up for months or even years, pending the outcome of the earlier application(s).  

Some have argued that this is the choice of the later applicant, that they can check whether there are prior “live” applications and decide accordingly whether they still want to apply.  I believe this does a disservice to potential applicants, particularly those who are not so familiar with all of the history of prior applications and who may not appreciate that in many cases they would have no realistic prospect of being allocated the TLD string that ICANN has allowed them to apply for.  Blocking the TLD from application, until such time as the previous applications are resolved, seems a much fairer approach.  

Susan Payne