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Reconsideration Request 01-3 |
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Reconsideration Request 01-3 |
Reconsideration Committee
Internet Corporation for Assigned Names and Numbers (ICANN)
4676 Admiralty Way, Suite 330
Marina del Rey, CA 90292May 1, 2001
Re: Reconsideration of Monsoon Assets Limited (B.V.I.) dba dotYP, Inc. application for a single new global Top Level Domain (gTLD) variously described as .yp,.ypa,.ypi or .find.
Dear Reconsideration Committee:
Monsoon Assets Limited hereby formally requests a full consideration of the denial of the application for a single TLD variously described as .yp, .ypa .ypi or .find.[1] Note, Monsoon is asking for a full and complete consideration, not simply a reconsideration. This is not a subtle point as will be presented below. ICANN’s published procedures make it difficult to know how to respond in this matter to a body other than the Reconsideration Committee.
As set forth in more detail below, Monsoon respectfully submits that the ICANN gTLD application review process of the Monsoon application was hopelessly flawed by:
- Arriving at conclusions not supported by the facts of the Monsoon application,
- Misrepresenting the substance of the proposed Monsoon technology,
- Misrepresenting the facts of the proposed Monsoon technology
- Misrepresenting the facts of the proposed Monsoon business model
- Making hasty generalizations of the impact the proposed Monsoon technology,
- Being unnecessarily vague in revealing the logic behind the staff evaluation process so as to obstruct revelation of an inadequate and incomplete evaluation,
- Misrepresenting the actual process applied to gTLD applications as objective when facts and public statements to Congress demonstrate the decision making was subjective
- Misrepresenting the actual criteria for assessing TLD proposals distinct from that posted on the ICANN website http://www.icann.org/tlds/tld-criteria-15aug00.htm
- Relying upon faulty analogies in restricting the number of gTLDs to be issued,
- Relying upon a faulty classification of the Monsoon application,
- Misusing the authority of the evaluation staff to justify hasty conclusions not supported by the facts,
thereby excluding the Monsoon application from full and complete consideration which was contracted through the application process and submission of $50,000 fee.
[1] According to the Reconsideration Policy adopted pursuant to ICANN Bylaws, Art. III, Sec. 4(a), "A request for review or reconsideration must be filed within 30 days after (a) the affected party or its affiliate receives notice of the action, or (b) ICANN posts notice of the action on its web site, whichever is sooner."
In defense of ICANN, Monsoon generously suggests that the unusually large number of applications, compressed review period, and unnecessarily restricted number of TLDs to be issued in the selection process contributed to numerous factual errors and a failure to afford ICANN evaluation staff and Board an opportunity to thoroughly comprehend the Monsoon application, as well as provide Monsoon an adequate opportunity to respond to ICANN evaluation staff and Board concerns.
However the conclusions were reached, Monsoon seeks the opportunity for a full and complete consideration, or, barring such a complete consideration and evidence to support it, the refund of a significant majority of our $50,000 application fee.
Based upon the treatment afforded the Monsoon application, as well as the recent public statements made by Vinton Cerf, Chairman of ICANN, Monsoon also can demonstrate irrefutable evidence that other applicants were similarly mistreated in a manner inconsistent with the stated procedures. Pursuant to the Reconsideration Policy requirements, Monsoon submits the following information:
ATTACHMENT A
ADMINISTRATIVE INFORMATION
1. Name, Address and Contact Information
Monsoon Assets Limited (BVI) dba dotYP, Inc.
2292 Paradise Drive
Tiburon, California 94920 USA
Tel: +1-415-435-5700
http://www.dotyp.com
Contacts:
Frank Corsini
Email: frankcorsini@dotyp.com
Telephone: +1-415435-4700
2. Action of ICANN for which Review and Reconsideration is Sought
Monsoon Assets Limited (d.b.a. dotYP) requests that ICANN provide a full and complete consideration of the application by Monsoon, and reconsider its decision not to approve the application presented by Monsoon to ICANN for a new top-level domain, ". find". The initial application of Monsoon can be found at http://www.icann.org/tlds/find1/
3. Date of the Action
The incompleteness of the gTLD Evaluation of Monsoon is an ongoing action. The public statements of Chairman Vinton Cerf before the House Commerce Subcommittee on Telecommunications on February 8, 2001; and Senate Commerce Subcommittee on Telecommunications on February 14, 2001 constitute a public action that reveals the decisions ICANN published on November 16, 2000 regarding Monsoon’s application for a new top level domain (TLD) were not based upon factual representations made publicly in compliance with ICANN’s public procedures. In fact, February 8, 2001 was the first date by which the true actions of the ICANN evaluation staff and resulting Board decision were fully revealed in public.
4. Manner in which the Requesting Party will be Affected by the Action
ICANN committed a breach of contract and effectively claimed the full $50,000 fee submitted by Monsoon Assets Limited without providing the full and complete evaluation promoted as a term of contract by ICANN in exchange for submitting to the ICANN TLD application process. ICANN has taken what does not rightfully belong to ICANN. Monsoon seeks refund of all or part of our $50,000 fee without prejudice to future applications.
ICANN has unfairly kept a majority of $50,000 from Monsoon without completing the terms of a contract into which both parties entered. To be very clear, Monsoon is not claiming that our $50,000 assured delivery of a gTLD. However, both parties agreed that the $50,000 would provide a full and complete evaluation.
For ICANN to justify claim to the $50,000 as a non-refundable fee would require public evidence to support a full and complete evaluation by ICANN of the Monsoon application. To date, such evaluations have not been made public and efforts to obtain such full and complete evaluations from ICANN evaluation staff, General Counsel and Board have met with avoidance, misrepresentations of fact, unsupported appeals to emotion and misuse of authority.
Furthermore, by misrepresenting as facts what in numerous ways can be demonstrated to be an incomplete and inaccurate evaluation of the Monsoon proposal and technology, ICANN damages the reputation of Monsoon in the Internet community, Monsoon’s ability to develop our technology. and the ability of Monsoon to operate as a business.
The public revelations to Congress by Mr. Cerf revealed the ICANN TLD submission process as a subjective "beauty contest", to use Mr. Cerf’s words in discussion with Representative Tauzin.
At no point in the application process were the applicants informed the decisions would be as subjective as "beauty contests". This suggests the ICANN board sought to defraud the applicants by representing the application process as one based on technical competence, business opportunity, utility and social value.
To clarify our support for a fair process, unlike some applicants Monsoon does not believe an applicant is justified in automatically being issued a TLD, whereby any denial represents an abridgement of that right. However, as a matter of contract, Monsoon can demonstrate that by accepting our application and $50,000, ICANN is required to provide Monsoon, our shareholders, and the Internet community, a full, complete and accurate evaluation by qualified persons, regardless of time pressure or external influences.
In short, Monsoon expects the majority of our $50,000 to be returned immediately.
5. Whether a Temporary Stay of the Action is Requested
A temporary stay of the November 16, 2000, action is not requested.
However, Monsoon’s technology, as detailed in the application as well as in the Supporting Document attached to this request, demonstrates the intentional scarcity of TLDs is completely artificial and based upon a broad set of fallacious interpretations of fact as well as use of faulty analogies. There is no compelling reason such a limited number of new TLDs should be issued.
6. What Specific Steps the Requesting Party Asks ICANN to Take
a) Monsoon requests that ICANN complete the evaluation of the Monsoon application for the .find TLD; give full and proper evaluation to the technology and business advances represented by the facts in the Monsoon application, provide a full and complete threshold decision, publicly present that full and complete evaluation, and allow the Monsoon application for the .find TLD to proceed for reconsideration by the Board without prejudice.
b) Barring a full and complete examination by persons sufficiently skilled in the art to evaluate the Monsoon technology and business application, Monsoon requests that the Reconsideration Committee submit directives to the ICANN Board to refund the majority of Monsoon’s $50,000 fee without prejudice to future applications.
c) By declining to evaluate or to refund ICANN has breached its contract with Monsoon and is liable for damages.
7. Grounds on which the action should be reversed, cancelled or modified
Monsoon wishes to make clear that our Request for Reconsideration is in support of the publicly promoted ICANN charter and procedures. Monsoon wishes to demonstrate strong support for an ICANN TLD application process that is fair, open and based upon the facts. Monsoon seeks to implement a technology that supports global standards for secure and reliable DNS. Further, Monsoon believes our technology will strengthen global support for ICANN by offering a new capability which provides equal opportunity for nations in which Internet capabilities can be classified as developed, developing or undeveloped.
The grounds on which Monsoon requests that ICANN review and reverse its prior decision are stated in detail in the Supporting Document that is attached to this Request for Reconsideration.
Monsoon acknowledges that this response is not within the 30 day period of the Reconsideration Policy from November 16. We respond to this on two points. First, we are requesting a full and complete consideration for the first time, as evidence shows. Second, Mr. Cerf’s statements to Congress were the first public statements that revealed the process was not as advertised in the application contract. Hearing him acknowledge our views in statements before Congress took us by surprise, especially for a team which had been thoroughly discouraged by the blatant misrepresentations of fact by evaluation staff. Reviewing the pertinent facts necessary for a response takes some time.
Monsoon also acknowledges that the TLD Application Process referred to the $50,000 fee as "non-refundable". If the contractual responsibilities of ICANN, specifically, a full and complete evaluation, had been fulfilled, Monsoon would feel we had little basis for appeal. We had no doubt, and our representative stated during our public comments on November 16, 2000 that the evaluation which so thoroughly misrepresented the facts in our application was terribly flawed.
When the public statements of Mr. Cerf gave credence to our conclusion that the evaluation was a "beauty contest" not based on the facts, we could finally comprehend the failure of our application to receive a full evaluation was no accident.
Monsoon notified ICANN through an email, as required in the ICANN process, on February 22, 2001, barely a week after Mr. Cerf’s public statements before the House and Senate Telecommunications Subcommittees, that we would be submitting at minimum a Request for Reconsideration. We did not receive any confirmation of receipt.
Therefore, we also left many telephone messages, which went unreturned, and through a fortuitous accident when the ICANN phone system was overloaded conducted a brief telephone call with Mr. Louis Touton, General Counsel of ICANN on February 26, informing him of our intention to file a Request to Reconsideration and inquiring about alternative means of resolution in place at ICANN.
If, after reviewing the Supporting Documentation, ICANN chooses not to reconsider the TLD application on its merits, ICANN cannot assert that its policy is to breach a contract for fulfilling the obligations of the original review. Monsoon asserts that the facts and public statements of ICANN show there was no complete review of the Monsoon proposal.
After reviewing the Supporting Documentation, if ICANN chooses to hide behind an artificial deadline, or worse, to claim in the face of so many facts to the contrary that ICANN did indeed fulfill the contractual commitments of the TLD application process, Monsoon will be left to seek other remedies.
We therefore request that ICANN complete the evaluation of our TLD application, correct public misstatements and misrepresentations in the original evaluation, accurately represent the facts of our application, and give complete and honest consideration to assign Monsoon a new global TLD.
Barring that, we request the refund of the majority of our $50,000.00 fee.
It is our desire to support ICANN and maintain the stability of the Internet. We sincerely hope that our continued trust is not misplaced.
Regards,
(signed)
Kirk Knight
CFO
Monsoon Assets Limited
8. Supporting Documentation
In addition, Monsoon, as well as our technical and business advisors, welcome the opportunity to discuss our application in more detail, in the same manner afforded other applicants as described by Mr. Cerf to Congress. Monsoon welcomes any suggestions or comments that ICANN may have about our application or this Request for Reconsideration.
This document supports our formal request for reconsideration of the Monsoon Assets Limited application for a new top-level domain, variously described as .find, .ypa or .ypi.
A. Foreword
We are deeply concerned about the lack of proper attention given by ICANN to the Monsoon .find gTLD application and respectfully request a re-evaluation and reconsideration. The ICANN postings summarily dismiss the application and evidence the lack of a fair and proper hearing based upon misunderstandings and misinterpretations of the proposal's technical sophistication and vision. We at Monsoon were never informed of any concerns or ever given an opportunity to address them openly and substantively. Our technical expertise is second to none, with an impressive amount of collective ingenuity, integrity and experience deriving from industry leaders from Apple Computer, Exodus Communications and IBM, among others.
In the public statements period, we were second to last, appearing for exactly three minutes and one second barely eleven minutes before the end of a tedious four hour session. The attention span and energy of the Board was spent from 44 prior presentations.
To be generous, we believe the haste demanded by so many applications and an inflexible schedule resulted in a rush to judgement on the merits of the Monsoon proposal, and likely that of other applications. We believe that given sufficient time and the ability for a dialogue to fully explore the issues the ICANN staff may have made fewer inaccurate statements in their report and the recommendations to the Board.
B. Errors in Evaluation Staff Report
The staff report errs in haste by basing the opposition on a set of assumptions and misrepresentations which do not follow from the facts. The facts provided in the Monsoon proposal repeatedly refute the evaluation staff points in depth.
Staff Report:
The Monsoon Assets Limited proposal requests a new TLD that will be used to support a lookup service for businesses in a manner similar to a yellow pages phone book. By issuing a name under this TLD, the search service would be invoked and would return an IP address to the desired service. For example, <plumbing.Hollywood.yp> would return plumbers listed in business directories covering Hollywood.
The first incorrect fact is that the Monsoon would be "issuing a name under this TLD". Monsoon is not "issuing" or registering any "names". For the staff review to state this falsehood in the second sentence is to immediately misrepresent the facts of the Monsoon application and prejudice the reader to reach an incorrect conclusion unsupported by facts.
The fact that Monsoon technology is clearly distinct from current registration and registrars because Monsoon does not propose to issue names is the pertinent fact and one skilled in the art would find remarkable and unique, but it is never mentioned by the staff report.
This further gives support to the Monsoon assertion, further supported by the comments by Vinton Cerf to both the House and Senate Commerce subcommittees, comments by many other applicants speaking before Congress as well as in statements on the ICANN comments pages, that the undue haste of the process was prejudiced to issue TLDs to registrars and registration systems most similar to the incumbent.
C. Errors in Threshold Review
Monsoon will detail the subjective views of ICANN evaluation staff and Board do not support the Monsoon facts related to being financially viable, professionally managed, well planned, technically competent, socially valuable, and protective of the core Internet root servers.
Threshold Review
The evaluation team did a threshold feasibility review of these applications to determine whether they were generally consistent with preservation of Internet stability and whether they demonstrated well-thought-out plans, with provisions for adequate resources, to accomplish their stated objectives. As a result, the evaluation team concluded that the Novell and SRI International proposals merited further review.
In evaluating the substance of the ICANN evaluation staff report, as well as the comments by ICANN Chairman Vinton Cerf to both the House and Senate Commerce subcommittees, it appears the Monsoon proposal was handled with undue haste to complete the threshold review.
To be generous, we believe the haste prompted by so many applications and an inflexible schedule contributed to a rush to judgement on the merits of the Monsoon proposal. We believe that given sufficient time and the ability for a dialogue to understand the issues, the ICANN staff may have made fewer inaccurate statements in the report and the recommendations to the Board. Below are listed lines from the report and clarification of the inaccuracies .
After considerable threshold review, the technical team concluded that the Monsoon Assets Limited proposal was not a strong candidate, as presented, for inclusion in the initial, proof-of-concept phase.
D. Misrepresentation of Technical Facts
While the statement indicates the ICANN technical team may have given considerable threshold review, the facts shown above and below indicate either insufficient knowledge to evaluate the proposal or a jump to conclusions not based upon the facts.
Their new service would require substantial search capabilities, including the ability to handle misspellings and near matches, which would require technical approaches and provisioning not specified in the proposal.
The ICANN evaluation staff report is based upon insufficient knowledge of the technology distinctions and the existing infrastructure used in the yellow pages publishing industry, as well as search engines. The staff report also jumps to conclusions not supported by the facts.
This point is particularly confusing for those remotely skilled in the art of yellow pages searches. In fact, the technology which ICANN evaluation staff presumes does not exist or is not detailed has been in daily use over a decade every time a US resident dials "411" and requests a business listing. The information operators use a workstation which accesses a superset of the same database accessed by Monsoon technology. The incorrect use of the technical term "provisioning" suggests this is a major telecommunications challenge when the search technology is well known.
Technology to handle misspellings and near matches is also well known and commonly used by existing telephone systems, as well as search engines. In fact, it is available in the public domain in the form of powerful Linux services.
Indicative of the misrepresentation of facts, when this evaluation was posted on the ICANN review site Monsoon received numerous emails from vendors offering to sell Monsoon off-the-shelf software solutions of the perceived problem.
In the public statements to the Board by Mr. Dimitry Dukhovny on behalf of Monsoon "This point is tantamount to insisting that our application is technically incomplete because we didn't list the color of socks our programmers would be wearing when they update our code." Mr. Cerf saw the humor in the analogy and no one from ICANN disputed the fallacy in the claim.
E. Misrepresentation of Technical Facts
Further, the proposal did not answer many of the technical questions that were posed in the application.
This is a misrepresentation of the facts. Monsoon’s application said "not applicable" to many of the technical questions, because, literally, the questions do not apply to our technology. One skilled in the art of network technology would have read the Monsoon application and quickly recognized the clear distinction between not answering the question and the question not being applicable.
Monsoon admits, boldly and without equivocation, that our proposal did not address many of the technical questions that were posed in the application for a simple and obvious reason: These technical questions do not apply to our technology and proposed use of a TLD. In fact, the evaluation staff’s inability to discern this distinction, as noted above in the phrase "issuing a name under this TLD", or even to contact Monsoon to clarify why technical questions were not answered with "Not Applicable", demonstrates an alarming lack of intellectual curiosity and suggests a lack of technical competence adequate to the task of evaluating a TLD application.
This gives further credence to the Monsoon claim that the ICANN evaluation staff was prejudiced to find new registrars and registrants - not new uses for TLDs, as the request for proposals stated.
F. The Critical Distinction of TLD and Registry in the Request for Proposals
The request for proposal was for new TLDs, but the application required answers to both TLDs and Registries. The ICANN evaluation staff jumped to the incorrect conclusion that every use of a TLD requires an elaborate registry of names. This is an incorrect conclusion not supported by the facts, as demonstrated by the Monsoon filing.
To use a simplistic analogy, ICANN staff had a hammer and kept searching, without satisfaction, for the nail in the Monsoon application.
G. Monsoon’s Critical Distinction is Misrepresented by ICANN Evaluation Staff
The Monsoon name registry contains one name per root server and resolves to one IP address per root server. Period.
The Monsoon databases may contain billions of business listings in thousands of categories and thousands of geographic locations, but the registry will still contain only one name per root server.
This is radical departure from existing TLDs and registry systems, yet this simple distinction was lost on the ICANN evaluation staff.
Monsoon is not creating a new registry. There will be no zero-sum game, or race to register new .find domains before a competitor gets there. Since there is no registry in the sense of other TLD applications, there is no need for the numerous technical questions about how Monsoon will handle the land rush of registering names, etc.
However, Monsoon is creating a technology which is based upon use of a new TLD.
H. Monsoon’s Proposal Addressed the Technology Points
The Monsoon proposal addresses in detail how we will integrate our technology with a TLD. The Monsoon technology does not require the use of any registry. So our proposal accurately said "not applicable" to many of the registry questions because our technology eliminates the registration and name maintenance technology, pricing and business services which are part and parcel of other TLDs.
The Monsoon technology uses a gTLD and DNS in an innovative and novel method which fully respects the need to protect Internet technology infrastructure and root servers. The ICANN technical staff jumped to many incorrect conclusions not based upon the facts. What is particularly frustrating is the misunderstanding or misrepresentation of key benefits of the Monsoon technology:
- a single entry in the routing table vs. literally millions for other TLDs
- lower impact on DNS routing than current or proposed TLDs
- no registry conflict issues
- no trademark or trade name infringement issues
- no theft-of-identity issues
- no barrier-to-entry issues for new directory (yellow pages) providers
- equal footing for traditional as well as future directory (yellow pages) providers
- no zero-sum equation land-rush to register new domain names
- no competitive issues with existing directory (yellow pages) print publishers or online services
- ability to support non-ASCII international languages and Unicode
- unlimited numbers of listings rather than a finite number of millions
I. Analogy for Why Evaluation Staff Missed the Monsoon Distinction
To use a more developed analogy, it was as if ICANN issued a request for new flying machines. ICANN evaluation staff expected to see proposals that looked like the current method: A fixed wing airplane with propellers.
Nearly all the new proposals looked like fixed wing airplanes, most with bigger propellers, a few with jet engines.
The Monsoon proposal is more like a helicopter. It flies by different technology than airplanes.
When ICANN evaluation staff evaluated our proposal looking for fixed wings and a propeller, the application said "not applicable".
Our flying machine does not have fixed wings and propellers, it has rotor blades. Yet the proposed Monsoon machine meets in detail the request for proposal criteria for new flying machines.
J. Misrepresentation of Business Fact s
For example, a key underlying assumption of the proposal is that other third party businesses (yellow page directory companies) would fundamentally change their businesses in the manner proposed by Monsoon.
There are two fundamental misrepresentations in this statement. First, the ICANN staff report asserts, incorrectly, that Monsoon made an assumption not based upon research or facts. This is patently false and not supported by the facts. Second, the ICANN staff report misrepresents the desire of existing businesses to increase their expenses with no benefit.
Implicit in the ICANN statement is an assumption that other third party businesses, the tens and millions of existing businesses which exist with a telephone but no URL, want to fundamentally change their businesses in the manner proposed by ICANN and existing Domain Name Registries.
It is the height of imperial arrogance for ICANN to require these existing businesses, most of which predate the existence of ICANN, to change their businesses to suit ICANN rules and policies by paying a registration fee to either register a URL, or to prevent another party from infringing on their right to a claim URL under trademark laws, for what has been solely to the benefit of a monopoly registrar.
Monsoon provided evidence in our application that third party businesses (yellow page directory companies) have already converted their systems and are prepared to adopt a technology such as that proposed Monsoon. The support of YPPA (the Yellow Pages Publishers Association, with 700 member firms representing the majority of yellow pages directories in the world), as well as discussions with the largest yellow pages publisher in the world, R.R. Donnelley (RRD), refute this point. RRD, among others, has long had systems which provide a single creation stage with the ability to "target" output for multiple print, web, WAP, PDA, PDF and emerging electronic technologies.
Monsoon addressed how our technology and model would favorably extend the business models of the numerous yellow pages publishers currently in operation, as well as open the market to new competitors. In fact, YPPA made several suggestions to adjust the Monsoon business model based upon the highly competitive nature of their membership.
Monsoon also addressed how our technology and model would support small businesses, undeveloped and emerging nations, as well as end users (typically consumers) who make use of existing print directory information, but have been frustrated by a lack of connection the web.
The staff report does not follow from the facts as stated nor as they exist and is a gross misrepresentation.
K. Prejudicial Assumptions Misrepresenting Business Facts
While the proposal did provide some support, it did not provide a reasonably clear strategy and rationale for convincing those other businesses to make this fundamental change.
The Evaluation Staff Report makes a grievous and material error by stepping beyond their demonstrated area of knowledge. If ICANN evaluation staff have evidence to support this assertion and their knowledge of the directory publishing business, it should be made public, otherwise this has caused material damage to the reputation of Monsoon. The evaluation staff Report’s statement is not supported by the facts as provided by Monsoon nor is it supported by facts supplied by the Staff Report. In essence, it is prejudicial and based on assumption, showing a lack of understanding of both Monsoon’s business and technology, as well as the existing directory publishing industry.
The clear strategy and rationale presented by Monsoon is that the market leaders represented by YPPA’s membership have been and are currently seeking methodologies to integrate the Internet with the yellow pages directory systems they current operate to the benefit of both businesses and consumers. There is no other organization which represents more yellow page directory publishers than YPPA. In turn, those directory publishers provide valuable services to tens of millions of businesses and distribute hundreds of millions of directories to over a billion end users. In point of fact, far more people have access to a yellow pages directory than can access the Internet.
It is not the role of ICANN or the staff to question if Monsoon can "convince businesses to make a fundamental change", when to one skilled in the art it is obvious ICANN staff has limited or incorrect knowledge of this industry. The concept of making a viable market is a business risk issue addressed in the plan as well as through evidence of support from YPPA and RRD, the global leaders in this industry.
L. Vague and Prejudicial Misrepresentation of Business Facts
Overall, it did not demonstrate a thorough analysis of what would likely be involved in implementing the proposal, a careful explanation of all relevant issues, or well-articulated assessments of the business, financial, technical, operational, and marketing requirements for implementing the proposal.
This vagueness of this paragraph is prejudicial in light of the above misrepresentations and is not supported by any fact. Further, Monsoon is unable to respond to vague statements such as "thorough", "likely", "careful" and "well-articulated". Which relevant issues? The statements above show repeatedly that what is relevant to ICANN staff reviewers was not relevant to the Monsoon application. Below we will detail the Criteria established by ICANN and identify how each of these was addressed.
The Monsoon technology is being submitted to the US Patent and Trademark Office, an indication that it is new and unique. How can ICANN evaluation staff, in their haste, know that relevant issues have not been addressed? If they do know, why don’t they specify these issues?
The founders of Monsoon have previously founded numerous technology-based startups, taken one company from concept to IPO to merger with another public company, been issued several patents, and know firsthand the issues with day-to-day operation of startup technology businesses. Many of the questions asked by the ICANN application bore no relationship to our experience in building successful technology companies in Silicon Valley.
For example, to give a set of 10%-50%-90% confidence numbers is a wonderful exercise for MBA students drawing decision trees. It’s also an excellent tool for comparing a set of known factors in evaluating brand extensions. It would probably work reasonably well in evaluating a new registry because the baseline experience is similar to the known registry experience. Assumptions can then be tested on this baseline. We know how to do this.
But generating revenue confidence figures is a fool’s exercise when describing a new search technology based upon a new TLD that does not use a registry — specifically the Monsoon technology. Even using the accumulated experience of our advisors in the directory and online industry, the assumptions are literally as elastic as dot-com stock valuations over the past 18 months. Is the revenue likely to be X, 275x, or .01x? These were the range of figures and each has the same confidence level as a "best guess", which is what Monsoon has relied upon to for our expense and income projections.
Where an experienced entrepreneur knows that confidence numbers are meaningless in new markets with new technologies, a novice entrepreneur presumes a startup can be quantified or managed to plan. Successful, experienced entrepreneurs have endured the painful lesson that a detailed confidence model decision tree for a new market is, sadly, often no better a tool than "gut instinct". The failure of many dot-com businesses whose plans were vetted by top venture capitalists and managed by highly trained executives should attest to the challenges of a startup. Experienced generals know that battle plans are thrown out the window moments after the enemy is engaged. The time it takes to learn and respond to changes is what enables startups to survive.
Monsoon openly questioned the ICANN staff’s prejudicial assumption that such "confidence figures" represent any useful indication of competence in the applicant’s evaluation.
The lack of intellectual curiosity exhibited by the ICANN evaluation staff indicates the Monsoon proposal was prejudicially penalized for creating a novel technology and business model for a new TLD.
To repeat our analogy, the ICANN staff review was prejudiced to require confidence figures for new fixed wing airplanes. Those figures bear no relationship to helicopters.
M. Incomplete Evaluation of Monsoon Proposal
Application of Criteria:
The evaluation team considered how each of the August 15 Criteria should be applied to the remaining two applications in this group (Novell and SRI International). The applicability of those criteria may be summarized as follows:
This statement clearly indicates the ICANN evaluation of Monsoon effectively stopped, in conflict with ICANN’s contract stating that all submissions would be evaluated fully in exchange for our $50,000.00 fee.
The Monsoon application was denied in the course of ICANN staff’s threshold review and not allowed to proceed to the second level of comparative review with other applications. Again, this was a breach of contract under the terms of the application.
To put it in plain English: Since ICANN didn’t do the job, Monsoon wants most of our money back.
ICANN evaluation team could have gone further and actually provided an evaluation of the Monsoon proposal. Borrowing from the evaluation table for other applicants, an evaluation of the Monsoon proposal might be summarized as follows:
Hypothetical Review Table
August 15 Criteria
Application to Monsoon
The need to maintain the Internet's stability
Applies particularly by approaching DNS with a new service that does not require competing registries, WHOIS etc. and reduces the domain lookup table to a single entry.
The extent to which selection of the proposal would lead to an effective "proof of concept" concerning the introduction of top-level domains in the future
Applies
The enhancement of competition for registration services
Applies particularly with respect to those new services TLDs with larger target markets
The enhancement of the utility of the DNS
Applies particularly by approaching DNS with a new utility to enhance DNS while simultaneously enhancing existing telephony systems. Literally a bridge between two worlds.
The extent to which the proposal would meet previously unmet types of needs
Applies particularly to reaching out and including classes of businesses without Internet connectivity in developed as well as developing nations
The extent to which the proposal would enhance the diversity of the DNS and of registration services generally
Applies, see above
The evaluation of delegation of policy-formulation functions for special-purpose TLDs to appropriate organizations
Unrestricted TLD Strongly Supports in ways current TLDs cannot
Appropriate protections of rights of others in connection with the operation of the TLD
Applies in ways current TLDs cannot
The completeness of the proposals submitted and the extent to which they demonstrate realistic business, financial, technical, and operational plans and sound analysis of market needs.
Applies
The fact that the evaluation team did not take even the brief time to summarize the Monsoon application in such a table identical to all other applicants supports Monsoon’s assertion that ICANN staff’s haste and rush to a prejudged conclusion breached the terms of the stated contract.
N. Evidence of Lack of Full and Complete Evaluation of the Application
See Report on the TLD Applications: Methodology, <http://www.icann.org/tlds/report/report-ii-09nov00.htm>. "Where the technical team and the business/financial team each independently concluded that an application did not demonstrate soundness and feasibility or did not demonstrate these factors as persuasively as other proposals for the same or similar TLD string, that application did not proceed past initial threshold examination, except as specified in this report. All other applications proceeded to the second phase of evaluation, even if they were deemed lacking by one of these two teams.
According to ICANN’s own policies, all applications were to proceed past the threshold to the second phase of evaluation unless both the technical team and the business/financial team each independently concluded that an application was unsound or infeasible. ICANN’s compressed review period and elimination of published review procedures resulted in a factually inaccurate conclusion that the Monsoon application did not meet the threshold review criteria.
O. Unwillingness of ICANN to Correct Misrepresentations of Fact
To quote Mr. Cerf’s statements before the House Subcommittee, "Some disappointed applicants have also complained that ICANN staff refused to talk with them, or let them respond to concerns raised by their applications. This is not accurate; what ICANN staff refused to do is have private conversations with the applicants, and this derives from the very nature of ICANN as an entity ICANN is a consensus development body, not a regulatory agency; its decisions are intended to reflect consensus in the Internet community, not simply the policy preferences of those who happen to sit on its Board at any given moment."
Yet during this same session, Mr. Cerf revealed the process was overwhelmed by more applicants than anticipated and degenerated into a "beauty contest" not based on objectivity. The resulting decisions and subsequent actions of ICANN provide bold evidence that the decisions reached reflect the preferences of those who happened to sit on the ICANN board at that time.
Again, the evidence points to the unnecessary haste of the ICANN evaluation staff review contributed to this confusion and misrepresentation of the facts.
At no time was Monsoon contacted by ICANN evaluation staff to clarify or correct questions the staff obviously had about the application. ICANN staff evaluated our proposal in a vacuum of their own making.
Yet we learned officially for the first time from Vinton Cerf’s remarks to the House Commerce Subcommittee that numerous other applicants were contacted to clarify their proposals. What explanation can ICANN provide to justify why Monsoon was not contacted yet other applicants were contacted, apparently several times?
The misrepresentation of facts in the Evaluation Staff Report prejudiced the Board to believe that Monsoon’s lack of answers for many the technical questions was an indication of incompetence, avoidance, lack of capability or worse. Monsoon can refute the limited examples provided.
P. Artificial Limit to New TLDs Prompted Haste and Prejudicial Evaluations
The resulting evaluations were based on a prejudicial set of assumptions which were not revealed to the public or applicants, yet were privately held by the Board.
It is critical to understand the artificial limitation on new TLDs is based on a prejudiced set of false assumptions about the impact of new TLDs.
Monsoon can demonstrate that a faulty analogy has been used to support this limitation to new TLDs.
In fact, the Monsoon technology has but a single root server entry and registration table entry, thereby placing far less stress on the root servers than any of the existing or accepted TLDs. The Monsoon technology and proposal is evidence that the number of new TLDs is limited by factors which bear no relationship to technology, utility, public benefit or business practices. For ICANN to suggest that other factors determine the number of new TLDs is to beg the question of which factors and what priority is used for measurement?
The presumption by ICANN that the Monsoon technology, with single root server entry and registration table entry is the equivalent of a new .com TLD with millions of entries does not stand up to scrutiny.
This set of artificial assumptions must be challenged.
As revealed publicly for the first time by Chairman Vinton Cerf in his statements to Congress, the ICANN Board had privately decided to limit the number of new TLDs to a finite number between 6 and 10, regardless of the number of applications, or regardless of their actual impact on load of the root server system. Public statements had used the phrasing "a few", with no specific number. More importantly, there is no evidence of such specific limits in the public application materials
The distinction is critical, since there were previous goals, but not previous policy supporting this limitation. "Report (Part One) of Working Group C (stating that "most [Working Group C] members felt than an initial commitment to many more that 6-10 [new TLDs] would not be operationally sound."
A "feeling" is not the same as a policy decision made public.
This information was not made publicly available to the applicants as part of the application process. Over 140 organizations submitted application requests. Knowledge of these specific and finite numbers would have given an indication that ICANN’s review process was not prepared to handle 40-50 applications. This would also have indicated that the statistical likelihood of issuance of a gTLD would decline with more applicants.
Q. Monsoon Penalized by ICANN Evaluation Staff Haste
For ICANN to claim both the technical team and business/financial team separately reached their conclusions after a full review and understanding of the merits of the application is not supported by the evidence as repeatedly shown above.
This incorrect and prejudicial evaluation and set of misrepresentations was compounded by causing Monsoon to be ineligible for consideration by the full ICANN Board for TLD approvals. This directly penalizes Monsoon for ICANN’s failure to plan, depriving Monsoon from a fair evaluation.
This haste also penalizes the Internet community from the opportunity to consider a novel technology based upon consistent DNS and routing technology. Without a global TLD the Monsoon technology could result in incomplete or inconsistent performance which would damage the stability of the Internet.
R. Monsoon’s Professional Reputation Damaged by Misrepresentations of Fact
The hasty review by ICANN evaluation staff resulted in numerous factual inaccuracies and misrepresentations of Monsoon technology advances, market benefits and global civic contribution. The act of publishing and formally adopting these inaccuracies has the effect of damaging Monsoon’s reputation and ability to conduct business with or without a new TLD.
This incorrect evaluation and set of misrepresentations was compounded by causing Monsoon to be ineligible for consideration by the full ICANN Board for TLD approvals.
S. Monsoon’s Reputation Before the Board Damaged by Prejudicial Evaluation
This prejudicial evaluation and set of misrepresentations was compounded by causing Monsoon to be ineligible for consideration by the full ICANN Board for TLD approvals. This action directly affected Monsoon by damaging our proposal and standing with the ICANN Board, as well as potential business partners who look to ICANN for leadership.
By the time of the public presentation before the ICANN Board on November 16, the damage of the multiple prejudicial statements, misrepresentations of facts, assertions to the contrary of known business practices, and prejudicial actions of the evaluation staff, lack of public or private follow-up on the part of either the evaluation staff or Board to Monsoon’s clarifications and refutations of statements in the evaluation, left little doubt the Board would decide to decline the Monsoon application.
One need only watch the archived video of the Board to discover Board members served as "champions" of specific proposals while also revealing through body language and facial expressions such as smirks, clearly visible even on the low resolution video, that the three minute presentations were irrelevant to decision-making, since decisions had already been made.
Mr. Cerf informed Congress, "It is easy to understand this frustration, especially for those disappointed applicants who had not previously participated in the ICANN process and, as a result, did not understand what ICANN is and how it operates and thus were surprised at the transparency of the entire process."
On the contrary, members of our team and advisors who have worked with ICANN technical staff on activities as varied as implementing and supporting developing nations from Africa to Silicon Valley root level services were stunned at the opaqueness of the entire process in contrast to their prior experience. It was precisely because of their experience of ICANN that they felt comfortable supporting and contributing to the Monsoon application.
T. Monsoon Defrauded of Majority of $50,000 fee
Monsoon asserts that the facts and public statements of ICANN show there was no complete review of the Monsoon proposal.
ICANN is not justified in taking Monsoon’s $50,000 fee in exchange for a complete evaluation on the basis of wholly or partially inaccurate or incomplete reviews of our proposal. In fact, it is a breach of contract for ICANN to keep all of the Monsoon $50,000 fee when, by the evaluation staff’s own admission and published statements, the Monsoon application did not proceed beyond the threshold review stage.
If ICANN chooses not to reconsider the TLD application on its merits, ICANN cannot assert that its policy is to breach a contract for fulfilling the obligations of the original review.
U. Breach of Contract and Damages Resulting from Unnecessary Haste by Evaluation Staff
It is unconscionable for ICANN to represent that the applicant’s $50,000 fee assures the applicant a complete evaluation, then to demonstrate wholly or partially inaccurate or incomplete evaluation of the applicant’s proposal.
It is a breach of contract for ICANN to keep all of the Monsoon $50,000 fee when, by the evaluation staff’s own admission, the Monsoon application did not proceed beyond the threshold review stage.
The Monsoon application was denied in the course of ICANN staff’s threshold review and not allowed to proceed to the second level of comparative review with other applications. This was a breach of contract under the terms of the application underwhich all were to proceed.
This incorrect evaluation and set of misrepresentations was compounded by causing Monsoon to be ineligible for consideration by the full ICANN Board for TLD approvals. This action directly affected Monsoon by damaging our reputation and standing with the ICANN Board, as well as potential business partners who look to ICANN for leadership.
Monsoon stipulates the limit of damages we can seek is our $50,000 fee. Monsoon will stipulate that some fraction of the threshold evaluation was conducted. If ICANN will not complete the evaluation, clarify misrepresentations of technology and business facts, and cause the proposal to be evaluated by the Board, Monsoon demands the majority of our money to be returned since it has not been earned by ICANN’s contract with applicants.