Hi John I appreciate that there is a need to strike a delicate balance here, since the basis on which the three chairs agreed to draw the work of the discussion group to a close was as set out in the Chairs letter to that group. The difficulty is that, as Advisory Committees, the GAC and ALAC can make such a request to the Board, the GNSO Council cannot since, as Kurt says, we do not develop the policy. Do you think the ALAC and GAC could accept a revision to that numbered paragraph 2 which better reflects the different statuses and remits of the three groups, and therefore which doesn't relegate this to a footnote? Something along the lines of: 1. unless and until there is community-developed consensus policy in the future on the topic, the GAC and ALAC request that the Board maintain the position that any applications in the next and future rounds of new gTLDs seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed. The GNSO Council understands the positions of its Advisory Committee colleagues but does not have the remit to join in that request. As you know, the GNSO makes policy for gTLDs through a consensus-based bottom-up multistakeholder policy development process, the result of which was the suite of recommendations in the SubPro Final Report. On the issue of "closed generics" SubPro was unable to reach consensus, both on a policy position for future Rounds and on what constitutes the status quo position. Council does not have the authority to unilaterally set that aside by making a policy recommendation of this nature, outside the processes under its Operating Procedures. If not, I think perhaps the GNSO does need to send its own letter. If a form of this letter is sent by the GNSO (whether joint or our own), could I ask that paragraph 5 be revised please. It currently refers to restricted TLDs continuing to be permissible where the string is not generic, but this conflates two issues (restricted TLDs and closed generics). There are many examples of restricted TLDs, with registrant eligibility requirements, for terms which would likely be considered "generic" as defined. A number are arguably even required to operate in this manner in order to meet GAC Category 1 Safeguards Advice relating to sensitive and highly regulated strings. These are not closed generics. This has been misunderstood by some participants throughout the debate on this topic and should not be carried over into the letter to the Board. My proposed amendment would be: For clarity, as noted in our letter to the dialogue participants, our intention is not to prevent or restrict applications for gTLDs that applicants intend to operate in a restricted manner, i.e. where third party registrants are limited to those who meet specific eligibility qualifications, irrespective of whether where the string in question is not a "generic" one as currently defined in the Registry Agreement. An alternative would be to use the wording on this aspect from the Chairs letter to the Discussion Group, since this does not purport to limit restricted-eligibility TLDs to those which are not generic terms. Thanks so much. Susan Susan Payne Head of Legal Policy Com Laude T +44 (0) 20 7421 8250 Ext 255 [cid:image001.png@01D9F2FD.27FE1170]<https://comlaude.com/> Follow us on Linkedin<https://t-uk.xink.io/Tracking/Index/pRkAAGVfAADw_RQA0> and YouTube<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADw_RQA0> From: council <council-bounces@gnso.icann.org> On Behalf Of kurt kjpritz.com via council Sent: Wednesday, September 27, 2023 1:10 AM To: John McElwaine <john.mcelwaine@nelsonmullins.com> Cc: GNSO Council <council@gnso.icann.org> Subject: Re: [council] Revised ALAC-GAC-GNSO Chair's Joint Letter Thanks John, Given the tight time frame and the need for a discussion, this email will come across as more of a "blurt" rather than a carefully thought-through letter. Current situation / recent developments: 1. The SubPro WG discussed this issue over several years. There were three possible areas of consensus: to allow unrestricted delegation to closed generics, to allow restricted delegation of close generics, to ban delegation of closed generics. The WG final report indicates that no consensus was reached, that there could not be a return to the status quo because there was no consensus regarding that, and that the Board was to decide the issue. 2. The Board kicked the issue back to the GNSO and GAC with the guidance that a solution framework must only consider restricted of closed generics. The effort failed to produce a result. 3. The draft letter being considered indicates that closed generics should be banned. Recommendation: The GNSO Council should not sign this letter. It should either: 1. Send its own letter, similar to that already drafted by us but adding a paragraph explaining that the GAC-ALAC letter overturns the results of the multi-stakeholder process, or 2. Revise the proposed jointly issued letter to state that the GAC-GNSO discussion failed to develop a framework, and that this issue should not delay the next round, with no other comment. Rationale: 1. The GAC-ALAC letter alters the SubPro Final Report that made no recommendation and stating that there was no agreement on status quo. The letter does this without using any of the approved methodologies for amending policy recommendations. 2. The Final Report recommends that subsequent policy work, "should also involve experts in the areas of competition law, public policy, and economics ... [, and] be performed by those ... that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications." The GAC-ALAC letter creates this subsequent policy without following the requirement to consult with others. 3. The Board-Facilitated Process for a GAC - GNSO Council Dialogue on Closed Generics: A Framing Paper prepared by ICANN<https://gnso.icann.org/sites/default/files/policy/2022/correspondence/gnso-council-et-al-to-fouqaurt-08mar22-en.pdf> states on p.6: "Should the dialogue not result in a mutually agreed framework, it may be presumed that the Board will need to decide on what the most appropriate action is, within the Bylaws-defined roles and respective remits of the Board, GAC and GNSO." The GAC-ALAC letter ignores this and creates its own desired policy solution. 4. Relegating the GNSO position to a footnote demotes the identification and significance of this issue and effectively surrenders the result of several years of community volunteer time and policy discussion. A better result would be to relegate the entire issue to a footnote, i.e., remove there point from the body of the letter and add a footnote to the effect that the GNSO intention is to return the issue to the Board as stated in the SubPro Final Report and the charter for the facilitated discussion, while the GAC and ALAC prefers to alter the policy recommendation and continue the closed generics ban. Thanks for taking the time to read this. I'd be happy to engage in a dialogue. Regards to all, Kurt On 27 Sep 2023, at 8:21 am, Paul McGrady via council <council@gnso.icann.org<mailto:council@gnso.icann.org>> wrote: Thanks John. Sorry to be "that guy" but the footnote makes it sounds like we debated the substance of the issue at the Council meeting. I think a more precise footnote would be: "The chair of the GNSO Council must remain neutral on this request. This topic was discussed at the Council's August meeting and the Council noted that it could not support for this request since Policy is not made by the Council initially but rather through its PDP process." Best, Paul From: council <council-bounces@gnso.icann.org<mailto:council-bounces@gnso.icann.org>> On Behalf Of John McElwaine via council Sent: Tuesday, September 26, 2023 3:27 PM To: GNSO Council <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: [council] Revised ALAC-GAC-GNSO Chair's Joint Letter Dear Councilors, Sebastien, Nico Caballero and Jonathan Zuck had a call last week to discuss the joint ALAC-GAC-GNSO Chairs' letter to the Board regarding the Facilitated Dialogue. Both the ALAC and GAC wanted to state that the status quo should be requested in the second bullet point. That said, the ALAC and GAC understood that the GNSO chair needs to remain neutral on this topic. We have attached a version of the letter reflecting this in the footnote. Keep in mind that this is a joint letter and primarily meant to communicate that work on the Facilitate Dialogue has reached an end but should not in any way delay the next round of new gTLDs. As this letter has been with Council for some time, we would ask that we have your comments, if any, by Thursday (9/28) at 20:00 UTC. Thanks, John [http://www.nelsonmullins.com/img/ecard-logo.png] JOHN C. MCELWAINE PARTNER john.mcelwaine@nelsonmullins.com<mailto:john.mcelwaine@nelsonmullins.com> LIBERTY CENTER | SUITE 600 151 MEETING STREET | CHARLESTON, SC 29401 T 843.534.4302 F 843.722.8700 101 CONSTITUTION AVENUE, NW | SUITE 900 WASHINGTON, D.C., 20001 T 202.689.2939 F 202.689.2860 NELSONMULLINS.COM<http://www.nelsonmullins.com/> VCARD<http://www.nelsonmullins.com/people/john-mcelwaine/vcard> VIEW BIO<http://www.nelsonmullins.com/people/john-mcelwaine> Confidentiality Notice This message is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged, confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately either by phone (800-237-2000) or reply to this e-mail and delete all copies of this message. This email originated from outside the firm. Please use caution. _______________________________________________ council mailing list council@gnso.icann.org<mailto:council@gnso.icann.org> https://mm.icann.org/mailman/listinfo/council _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that Com Laude Group Limited (the "Com Laude Group") does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group is a limited company registered in England and Wales with company number 10689074 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 6181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176 and registered office at 15 William Street, South West Lane, Edinburgh, EH3 7LL Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, a corporation incorporated in the State of Washington and principal office address at Suite 332, Securities Building, 1904 Third Ave, Seattle, WA 98101; Com Laude (Japan) Corporation, a company registered in Japan with company number 0100-01-190853 and registered office at 1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan; Com Laude Domain ESP S.L.U., a company registered in Spain and registered office address at Calle Barcas 2, 2, Valencia, 46002, Spain. For further information see www.comlaude.com<https://comlaude.com/>