December 2019 - Gnso-newgtld-wg

Proposed agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 16 December 2019 at 20:00 UTC
by Julie Hedlund Dec. 12, 2019

Dec. 12, 2019

Dear all, Please find below the proposed agenda for the call on Thursday, 16 December 2019 at 20:00 UTC for 90 minutes: 1. Review Agenda/Statements of Interest 2. Predictability Framework: https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecG… 3. String Contention Mechanisms of Last Resort (time permitting): https://docs.google.com/document/d/16qDoiK6vydQp6a0v9tMvU2l5fcypJY24hCzTIVT… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> 4. AOB If you need a dial out or would like to submit an apology, please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org>. Kind regards, Julie Julie Hedlund, Policy Director

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Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 12 December 2019
by Julie Hedlund Dec. 12, 2019

Dec. 12, 2019

Dear Working Group members, Please see below the notes from the meeting on 12 December 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-12-12+New+gTLD+Subsequent+Pr…. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: ACTION ITEM 1: Page 3 Re: 1(c), New ICANN Organization Internal Process footnote 3: “Changes here are expected to be procedural in nature. To the extent that a change is envisioned to the scope or nature of a process (e.g., changes to the standing requirements or dispute resolution principles for objections), the issue is more appropriately considered under section (c) below.” Make sure the footnote is still relevant. ACTION ITEM 2: Create a flow chart for the SPIRT. Notes: 1. Updates to Statements of Interest (SOI): -- Kristine Dorrain has a change to her SOI. She now is on the 2020 NomCom. 2. Predictability Framework: -- Question re: Limited Appeals Mechanism: When will we finalize the chart? Might get more input from IPC. Answer: We haven’t set a deadline, but the sooner the better. -- Same document from before Montreal but updated from discussions at ICANN66. Policy Goals: -- Keep these in mind. -- As issues arise after the application acceptance window commences, the issues must be resolved in a predictable, transparent, and fair manner. [sentence needs to be cleaned up] -- Community should rely on a Predictability Framework specific to the new gTLD program. -- In the event significant issues arise that require resolution via the Predictability Framework, applicants should be afforded the opportunity to withdraw their application from the process and receive an appropriate refund. -- The Predictability Model intends to complement the existing GNSO processes and procedures and is not intended to be a substitute or replacement for those, nor should the Model be seen as supplanting the GNSO Council’s decision-making authority. In fact, the GNSO processes and procedures are incorporated into the Predictability Framework explicitly. In the event of a conflict, existing GNSO processes and procedures, including GNSO Input Process, GNSO Guidance Process, and EPDP as contained in the Annexes to the GNSO Operating Procedures take precedent. What are we proposing: -- Type/scope /content of a change will guide the process for change/modification. -- WG recommends a SPIRT be formed after publication of the AGB. -- GNSO Council will be responsible for oversight of the SPIRT. -- Categories of Changes to the New gTLD Program after Publication of the Applicant Guidebook: 1. Changes to ICANN Organization Internal Processes a. Implemented by ICANN Org without consultation: change in internal process workflow for contracting or pre-delegation testing, changing backend accounting systems, selecting or changing subcontractor, rolling out an organization wide change with no material impact. b. Non-minor changes [or revisions] to ICANN Org’s internal processes must be communicated to all impacted: change in ICANN Org’s internal Service Level Agreements, changes made to workflow for handling change requests. c. [should indicate go through the SPIRT process below] Not a change to an Internal Process, but new Internal Process: new public comment platform/tool, new process/platform to submit objection, new procedural mechanism to determine order of applications are evaluated, [question about where something like a substantial change in the evaluation timeline or fees would apply] Discussion: -- What would be considered “substantial” as to a change? We’ll need to consider this after we get back to the topic of application processing. -- A change that isn’t substantive but still have a material adverse impact would be requiring that Legal Rights Objections be filed through a proprietary platform instead of email. Affect substantive LRO (elements, standing, etc.) but there may be some potential objections that, for one reason or another, can’t use that platform. ACTION ITEM: Make sure footnote 3 is still necessary, makes sense. 2. Possible Policy Level Changes: -- May materially differ from the original intent of the policy – SPIRT Team options. -- First bullet: Add a footnote that it is recommendations from the IRT and add “and ensuing policy implementation”. -- Recommend additional consideration by the community. -- Extraordinary circumstances: recommend that the New gTLD Program could be halted – provide rationale and trigger point to get the program restarted. Discussion: -- Question: Is there anywhere else in the document where we say there is a bias against change to the program after applications are in? Answer: We will make a note to check, but think it is in other overarching sections. -- Note conflict of SPIRT being formed after final AGB – we need to make sure that there is no conflict and decide when the predictability model would kick in. If using the GNSO procedures as a guideline – policy is effective when implementation ends. This SPIRT should deal with any issues that arise after publication of the final AGB, as opposed to what it says in the Policy Goals. So, after the IRT, which ends officially at the effective date of the policy, which would be the day when the final AGB is released. -- Question: For SPIRT to go to the community for policy changes, is this exclusive of going to the Board? Where does the stuff come from that goes into the SPIRT? Answer: The hope is that this would provide the mechanism for the Board to kick it back to the community – funnel requests through the SPIRT process. This is to give the community more input into the process and discourage everyone from bringing everything to the Board. -- Question: So, any questions from the community the SPIRT will address them? Answer: It is not intended to be this mechanism for people to ask for any changes, but hard to say that it is exclusively for staff. We are trying to create a community mechanism for input into how changes are made. The SPIRT doesn’t decide whether changes are made, but the process for how to deal with a request. So, to the Council because it is a policy level change, or minor and staff can just implement. -- If changes are coming directly from staff that would be better, rather than anyone who wants a change after the fact. We need to answer the question of where does the SPIRT get its input. -- If we think back to the 2012 round the changes came from a bunch of different sources, not just staff. Example is name collision – raised by the security community. Ultimately the staff took it on. But if you look at the changes to the agreement, that came strictly from ICANN staff. Changes to the TMCH: some from the registries. We are not intending to set up a fourth place for these requests to come into – they come from existing channels but changes shouldn’t be made to the program until the requests are considered by the SPIRT. -- Question: Why would we want to create something for people to go to ask for changes, in addition to the Board or the Council? Answer: The SPIRT cannot on its own take in a request from the community, it needs to be referred to by the staff or the Board. -- Think the referrals should come from staff and the Board, no one else. -- SPIRT is not the instigator of changes or that the community can go to with requests. It is a body that helps determine the process that is used depending on the type of change. -- Important to remember the reasons for having this and why it is a “standing” IRT. In 2012 issues arose after the applications were in – such as GAC advice. That would go to the Board and then the Board would assign it to the SPIRT. This is a readiness tool. -- We could say that all requests have to come in from staff, Board, or GNSO Council, but we want to avoid the situation where the SSAC goes to the Board and the Board just does something. No matter where the legitimate request comes from we want to ensure the community considers it. -- We could put in a “bias against changes” statement where we really hope the Board won’t take unilateral actions. -- One challenge with GAC and SSAC advice is that the Board has a process to follow. The Board is the only one who could reject GAC advice. Not confident that we could require the advice comes back to the SPIRT. -- Question: Could the Board or GNSO Council withhold an issue from the SPIRT? -- Don’t see that it is a conflict to have a process for Board consideration of GAC or SSAC advice, we are saying this is the mechanism that must be followed for policy changes. The Board will still need to get input from the GNSO on any of these issues and this is the process. -- We could probably end up with a compromise that requests to the SPIRT should come from the staff or GNSO Council. A request from the Board could go to the Council and the Council could decide if it should go to the SPIRT. -- Not sure something would have to go through Council before going to the SPIRT. That would cause delays. But the Council could be one source of input. -- What would be helpful is if the SPIRT is related to implementation issues only, then it doesn’t really matter where the request comes from. -- It is limited to implementation issues, but is also supposed to be tool that staff could use to determine if something is implementation or policy. If a change is policy then the SPIRT refers it to the GNSO for the usual policy process. -- If staff or Board or Council believes something is definitely policy then it would not go through the SPIRT, only to the Council. -- ICANN Org shouldn’t be the one making the policy versus implementation determination, that’s the benefit of SPIRT. -- The point of the SPIRT is to speed up the process. -- If we are going to make implementation versus policy as the gate-keeping function, then we should make it clear what we are willing to do 180s on and not. -- Maybe the Council needs to do a first pass to determine if the issue is policy versus implementation. If it is implementation it goes to SPIRT and if policy then the Council deals with it. ACTION ITEM: Create a flow chart for the SPIRT.

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Predictability Framework
by Aikman-Scalese, Anne Dec. 12, 2019

Dec. 12, 2019

Hi all, I think Donna's suggestion to run through GNSO Council if request comes from Board or from Councilor FIRST to determine whether an issue is policy or is implementation and should be addressed by SPIRT makes perfect sense. (Jeff may disagree with this.) If issue is raised by staff, it should be reviewed by SPIRT and SPIRT should make a recommendation to GNSO Council as to whether it is policy or implementation. (Any Council member could challenge and invoke a process that is in the Annexes. This is true even if SPIRT treats the issue as implementation but someone on Council believes it is policy.) I still believe it may be prudent to limit requests to the SPIRT team on which it commences work to those coming from either (a) staff or from (b) GNSO Council. Community members can still give input to the Board, the GNSO Council, and/or staff. It's just chatter until a written request comes (a) From the Board to the GNSO Council and from GNSO Council to the SPIRT OR (b) from staff to the SPIRT with a recommendation from SPIRT to the GNSO Council. That would be my view of a possible compromise - not sure Jeff would agree. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image002.png@01D5B0F9.E09B5840] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [cid:image003.jpg@01D5B0F9.E09B5840] Because what matters to you, matters to us.(tm) ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. ?2510-2521.

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Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 02 December 2019
by Julie Hedlund Dec. 12, 2019

Dec. 12, 2019

Dear Working Group members, Please see below the notes from the meeting on 02 December 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-12-02+New+gTLD+Subsequent+Pr…. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: ACTION ITEM 1: Add a third alternative. ACTION ITEM 2: Add another goal (#7): “Increase efficiencies in application evaluation by way of understanding the contention set?” ACTION ITEM 3: Create a flow chart with a fictional string to show how alternative 1 would work. ACTION ITEM 4: Update the list of goals. Notes: 1. Review Agenda/Statements of Interest: Susan Payne was reappointed IPC Secretary for another year. 2. String Contention Mechanisms of Last Resort: https://docs.google.com/document/d/16qDoiK6vydQp6a0v9tMvU2l5fcypJY24hCzTIVT… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> What is the issue we are trying to address: -- The Working Group has discussed a number of potential issues with the mechanisms of last resort used in the 2012 New gTLD Round. These issues are captured in the Supplemental Initial Report. -- Although the Working Group ultimately believes that when there is string contention, an auction process should be used to select the Registry Operator invited to enter into a Registry Agreement with ICANN, the Working Group is still discussing what forms of private resolution should be allowed (if any), the specific type of auction to be used, and the timing of such an auction. Policy Goals / What the WG is Seeking to Accomplish: -- The WG is largely supportive of existing Implementation Guideline F: Implementation Guideline F: If there is contention for strings, applicants may: i) resolve contention between them within a pre-established timeframe ii) if there is no mutual agreement, a claim to support a community by one party will be a reason to award priority to that application. If there is no such claim, and no mutual agreement a process will be put in place to enable efficient resolution of contention and; iii) the ICANN Board may be used to make a final decision, using advice from staff and expert panels. Other goals include: 1. Reduce the risk of “bidding wars” in which the winner ultimately overpays for the TLD. a. Tentative, related goal for discussion: encourage applicants to bid their true value for a TLD. 1. Reduce collusion, profiteering, and/or speculation, especially as it relates to financial transactions external to the program (Note, while this is not an explicit goal for the mechanisms of last resort, it has been discussed as a motivation for altering the auction mechanism). 2. Increase transparency. 3. Resolve contention more quickly. 4. Increase predictability. 5. Encourage new entrants into the field. . Which could include, making it easier to implement “multipliers” for certain types of applicants, such as those eligible for Applicant Support. -- Note that some of the terminology may need to be further defined if the above goals are adopted. In order to ensure that recommendations align with goals, it is important for the Working Group to agree on specific objectives. Discussion: -- Do we still need iii)? An alternative may be, "The ICANN Board may use expert panels to make Community Priority Evaluation determinations." This may also be dependent on recommendations on the new appeals mechanism. -- ICANN Board says it does not make policy. Its decision would be subject to RFR and IRP - very messy so it may be better to stick with what we developed earlier. -- This isn’t about the Board making policy, but making it clear that it’s an auction process rather than the Board making a decision. -- There should be a reference instead to Auction of last resort. -- Agree they are good goals so suggest removing possible description What are we Proposing? -- The Working Group is leaning towards recommending a sealed-bid auction as the ultimate form of auction used as a mechanism to resolve string contention. When a sealed-bid auction is held where bids are submitted without knowing the bid of others in the auction (e.g., prior to evaluating any of the applications) it is also called a Vickrey Auction. A sealed-bid auction can also be used as a mechanism of last resort and at the end of the process. -- With a sealed-bid auction, each applicant submits a sealed bid, stating the amount that they are willing to pay for the TLD. The ultimate “winner” pays the amount submitted by the second-highest bidder.. -- Regardless of when the sealed bid auction is held, if there are one or more Community-based Applications, that/those application(s) would need to be processed first through Community Priority Evaluation before looking at the auction bids. Alternative 1 - Vickrey Auction (No Private Resolution) -- Addresses goals 1, 2, 4, and 6. -- The principle pro here is the seemingly near elimination of private resolution. However, the principle con is the substantial complications this approach introduces (see Additional Considerations, Mostly For Alternative 1 below). Other cons are that other forms of private resolution might be impacted (e.g., joint ventures, string change, etc.) in seeking to eliminate private resolution for financial benefit and that bids are submitted with no contextual information. Alternative 2 - Sealed-Bid Auction allowing Private Resolution -- It seems to be supportive of, or at least not impede, 1, 2, and 6, but in a less pronounced manner as it relates to Alternative 1; the maker of this Alternative has acknowledged that it does not fully address concerns around potential collusion and profiteering on application withdrawals. -- However, some benefits are likely derived by obtaining sealed bids (which can reduce the incentive for all parties to agree to private resolution, if an applicant already knows they have the highest bid). The other main pro here is simplicity - most other processes remain unaffected. Discussion: -- Re: Alternative 2: First bullet point and third bullet point seem incompatible. Third bullet point: “Applicants would still have an opportunity to resolve the contention set through other means such as private auction, a joint venture arrangement or to choose another string as was suggested for ‘brands’ of the same name.” -- Assuming you stayed in only those applicants who stayed in would be revealed on reveal day. So you could still have private resolution. -- For clarity, the third bullet could be swapped with the fourth bullet and add “post reveal day”. In third bullet point, after "opportunity", you would need to insert "after reveal day" or something to clarify that parties become known. -- Question: Wasn’t one of the proposals to outlaw private auctions? So not sure why we are still allowing private resolution. Answer: If we went with alternative 1 we would eliminate private resolution, but not for alternative 2. So that is one of the drawbacks with alternative 2. -- Thought alternative 2 was to allow participants to know how many contention sets there are. Add as a third alternative: Alternative three could remove some of the elements about private resolution. -- They may not resolve privately and should only have a limited period to resolve. If not resolved in a limited period, it should proceed to the sealed bid winner. I am not seeing the time limit in alternative 2 though. Is it there? -- Question: How would the timing work with a string contention objection process? -- How could private auctions be prevented? -- Objections should not be triggered until a winner (or a private resolution winner) is identified. -- Re: Alternative 2 there should be a limited time for private resolution. -- Helpful to put these alternatives out for public comment and indicate whether the WG has a preference. -- Re: Alternative 2 -- Question: For string confusion objections those would have to be heard right away. Additional Considerations: Public Comment: Comments from the public are solicited on all applications regardless of where they are placed in the queue. To do it otherwise would mean opening up separate public comment periods depending on whether there is a need to go to the second bidder, and that would be impossible to monitor. Discussion: -- Strongly support 1 public comment period, for the exact same length of time for all. -- Impractical to have multiple public comments. String Similarity Evaluation: Discussion: -- Don’t see how this fits with the notion of closed bids and timing. You have a scenario where you have some who know who they are bidding against and everyone else doesn’t. -- In the scenario where the result of a string similarity evaluation is that some would have insight into who is in the set -- this is an unfair result. -- Which is why getting every applicant to submit a bid at the point of application is something to consider, even though it may be cumbersome for many. -- What if this fact situation should default to sealed bid only? -- Why would they not be all announced at the same time? -- So we are proposing to treat some applicants differently from others? That does not seem to be in line with the Bylaws. -- Wouldn’t alternative 1 solve this issue? -- What about plurals? -- There was only one case in 2012 that was found to be similar (unicorn/unicom). -- Why string similarity evaluation after reveal day? Why not make it before reveal day? That is a possibility. -- is string similarity not subject to accountability mechanisms and appeals? would that not “reveal” it in some manner? -- Agree with that suggestion re string similarity evaluation occurring first and before reveal day. bids would have to be in before appeal. Objections: Objections on the highest bidder’s application must be filed within the objection period. With respect to objections to the other applications, ICANN would create a system for the filing of “an intent to file an objection.” Discussion: -- Question: What happens when someone indicates that they are filing a community objection and they are filing it against all of the applicants for a string. Answer: All applicants should have a chance to respond. Add text to relay your comment on "can indicate that an objection will apply to all applications for same string"?  -- Objections should not come into full proceedings unless and until there is a winner - it's a huge waste of time and money if it does proceed but private parties need to know what the value of the string may be. -- Some concern about not having to submit the objections on a standard timeline, although support not engaging fees or panels until the objection is necessary, based on bidder ordering . -- “time” may benefit some as they build their case. Or could the “intent to file” require some key points that will be included in the objection filing? -- Question: We are agreeing on the principle that the intent to object is a good idea, but when would that happen? Would one party have to state the type of objection and the grounds? Could it just be a party filing very general intent to objection concerning a risk associated with that application. Would there be a panel for an intent to object process? Answer: Proposal was that the objection would be “bare bones”. There would be no panel if it was just an intent to object to one application, but if for all applications (to the string) then one could request a panel. You file your objection against the applicant first in the queue and an intent to file against the others in the queue. Or, you could say I have the same objection to all of the applicants/string. -- Important for private parties in resolution to know that there is an intent to object (but that doesn’t pertain to alternative 1 as there is no private resolution). -- The objection should be submitted within a certain time period. -- The nature of the applicant is important. It's not just the existence of the string. It depends on who is operating it and what the purpose of the tld as stated in the application in Question 18 answers and services to be provided in answer to Question 23. There should be an intent to object process prior to determining the order of the queue with no panel convened. Other complications: Objections if there is more than one Community Application String Confusion Objection Results in the Creation of a New Contention Set or Adds to an Existing Contention Set Appeals/Accountability Mechanisms Applicant Support Program Discussion: -- Seems that these are all related to the attempt to gain efficiencies to know the order of the contention sets. If you don’t need to know the order then you could leave the program untouched. If you go back to the goals knowing the order of the contention sets goes to goals 3, 4, and 5. -- Add a goal: “Increase efficiencies in application evaluation by way of understanding the contention set?” -- Note that alternative 1 would eliminate the goal to allow contention resolution. “If there is contention for strings, applicants may: i) resolve contention between them within a pre-established timeframe”

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Proposed agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 12 December 2019 at 20:00 UTC
by Julie Hedlund Dec. 12, 2019

Dec. 12, 2019

Dear all, Please find below the proposed agenda for the call on Thursday, 12 December 2019 at 20:00 UTC for 90 minutes: 1. Review Agenda/Statements of Interest 2. Predictability Framework: https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecG… 3. String Contention Mechanisms of Last Resort (time permitting): https://docs.google.com/document/d/16qDoiK6vydQp6a0v9tMvU2l5fcypJY24hCzTIVT… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> 4. AOB If you need a dial out or would like to submit an apology, please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org>. Kind regards, Julie Julie Hedlund, Policy Director

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Updated Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 10 December 2019
by Julie Hedlund Dec. 11, 2019

Dec. 11, 2019

Dear Working Group members, Please see below the updated notes with clarifications from Justine Chew as highlighted in yellow below in the section on Background Screening. These also have been posted on the wiki. Kind regards, Julie Notes and Action Items: Actions: Limited Appeals Mechanism: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8f… Evaluation Procedures: Geographic Names: ACTION ITEM 1: Send to the list whether there was a standard amount of time for the applicant to get the required documentation. Background Screening: ACTION ITEM 2: Put the question in brackets [consider: loser pays?] with a question mark (done). WG should consider whether loser pays model if no issues were found in the background screening (text in red). Objections: Limited Public Interest Objection and Community Objection -- Independent Objector: ACTION ITEM 3: Work on a formula to limit ALAC appeals without getting ICANN or the Ombudsman involved in making a determination. Send the links to the ALAC’s objection and appeals process. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Limited Appeals Mechanism: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8f… Evaluation Procedures: -- Changed title of column B to “Outcome that Might Warrant Challenge” from “Outcome that Might Warrant Appeal” -- Also replaced “Appeal” with “Challenge” in columns E and F: “Arbiter of Challenge” and “Likely Results of Successful Challenge”. Geographic Names: -- Filled in details from the Work Track 5 Final Report. -- The three types of outcomes that we can foresee challenges would be the first instance would be if a term is designated as a geographic name, this may be something that the applicants may not have wanted. First type of challenge: -- The arbiter of such a challenge like the others would although this topic still under discussion, and I think we will still need to complete that as to whether it's okay for the existing evaluator as a as a company or organization can review that challenge or whether we would need to mandate a separate complete entity to look at these types of challenges. -- So that is still an issue. But regardless of the arbiter of the challenge, if there's a successful challenge then that would mean that the decision of the Geographic Names panel would be reversed and the cost would be borne by the applicant for this challenge, and there's still a question that will need to discuss overall as to whether a successful challenge should result in a partial refund. -- Well, a couple different things right in the objections that we'll talk about appeals for objections, we have a loser pays model for them and we'll go through that and but for evaluations because evaluators come at a significant cost to ICANN, and ultimately are paid by through the application fees if there is a successful appeal there technically is no loser because it's not one party challenging another party. And so the ability to provide full refunds or even partial refunds are hindered a bit because it would be tough in theory, to find an evaluator that would be willing to take on this role, only to then have to either do the appeal for free or willing to refund money as a result. -- So, though, that's still not off the table. And in fact, a number of evaluators when there were a few challenges that were ordered by ICANN. There weren't that many. But were there were some challenges that was funded by either ICANN or the evaluators themselves. So the applicant was not forced to pay a fee. But again, that was really rare that there was a reevaluation and really only came about because of a reconsideration request or something or an accountability mechanism that order. Second type of challenge: -- By the applicant where they wanted it to be designated a geographic name or you could have a challenge by perhaps a government or public authority, where they had expected it to be designated as a geographic name same arbiter issues that we were talking about before. -- And if there were a successful appeal by either one success successful challenge by either of those two parties, then the name the decision that the outcome would be to designated as a geographic string and then the question is, who would bear the cost and like the previous one. The cost would be borne by the applicant if it was the one that challenged or the government or public authority if they were the ones that challenged and we start the question of partial refund. Third type of challenge: -- Would be a definition of relevant governments are disputed or there's some other deficiency in documentation. So this is, again, if a name is doesn't need as a geographic name and it requires either consent or non-objection from the relevant government then a letter is required. According to the guidebook and this is the case where the evaluation panel finds that the either the consent or not objection was deficient or that there was consent or not objection from a non-relevant government. So the two potential parties that are affected would be the applicant again and same as the last one relevant government of public authority and they would be parties, the parties would standing the likely result if a challenge is successful, would be to either approve of the letter of consent or non-objection, which was initially not proved or to revise the finding that it did not receive a letter of consent or not objection. -- The cost will be borne by the challenging party and we would still have to see whether it be possible to do a partial refund. If the party that bears the cost succeeds. Discussion: -- Question: So what in a case like that, where the applicant didn't think it was a geographic name and the geographic panel in the first instance agrees with them and then a government entity or relevant government or public authority files a an appeal because it's presented a challenge and say the government then prevails on that. Will the applicant be given a chance to amend their application and get whatever they need to get to have the application move forward because that sounds to me like if the applicant doesn't think it is and the geographic panel, at least in the first instance, doesn't think it is that it's a close call or they just screwed. -- Answer: It would seem that the applicants who did not think that it was a geographic name should have a period of time to then get that letter of non-objection or consent. -- The way that the Geographic Names evaluation took place in the 2012 round: Every single name or every single string that was applied for was evaluated to determine whether or not it was geographic name or not. And so in the instance where the applicant did not designated as a geographic name, but the panel did determine if it is a geographic name. The applicant would get some time to get the required documentation. -- If somebody applies for something that's on a clear list of words that people aren't allowed to use and they don't designate it and they don't submit the proper papers from the appropriate government then the geographic panel bounces it out. ACTION: Send to the list whether there was a standard amount of time for the applicant to get the required documentation. Row 18: RSP Pre-Approval: -- Added since the last WG meeting. -- So this is where the registry service provider is in the is applying in the for pre-approval in the pre-approval process. If it somehow fails the evaluation and therefore would be unable to much other words, it says, unable to participate in the program. I think if it fails pre approval. It's unable to get pre approval, but it still could participate in the regular evaluation process. -- We'll have to think that through because I think the current recommendation is to do a pre-approval process prior to the beginning of each round and so because you are pre-approved for that particular round but not necessarily pre-approved for future rounds. And so I think that that makes sense. But when we review the pre-approval program will have to just make sure that we keep this in mind. Background Screening: -- Question: In context of the background screening, whether that covered the criteria for applicant eligibility, which is stated in the AGB s.1.2.1. So the first question was does background screening cover eligibility checks? And assuming that it does, which to my understanding of the AGB, the answer would be yes, then that's where third parties would come in. Going back to the ALAC feedback that was given to through our response in terms of setting higher standards for applicants where we brought to light again two incidences of background screening failures. For example, one of the applicants clearly failed on account of the UDRP decision element, but the applicant didn't fail the background screening, despite having more than three UDRP decisions against that applicant. So in that situation would that provide grounds for third party to raise a challenge on the background screening outcome? -- Answer: It makes sense to allow third-party challenges for cybersquatting and UDRP. -- Question: In follow through, the second question, in that case, who bears the costs? -- Answer: On the one hand, it was something that the background evaluator should have found, and then to make a third party pay for that kind of challenges. It seems to be difficult, but perhaps that's kind of a loser pays model because it is one party against another party, in a sense, like the objections. Let’s think about whether it makes sense that that will could be a loser pays kind of model -- give it some more thought. -- So that's a way to deal with both frivolous challenges and frivolous defenses and not put the evaluators in the line of fire. ACTION: Put this question in brackets [consider: loser pays?] with a question mark (done). WG should consider whether loser pays model if no issues were found in the background screening (text in red). Objections: String Confusion: -- Time period: Suggesting 15 days to file (noted in red text). Don’t know if that’s the right amount of time. Helpful to get comments on the email list. -- Another option: 15 days to signal your intent to appeal and then giving another 15 days or something like that to pay file to the appeal. That’s also another possibility to have a certain time period to give your Notice of Intent to appeal and then an additional time period to actually file that appeal that is certainly a feasible option as well. Limited Public Interest Objection and Community Objection: Independent Objector: -- Added “Loser Pays (The IO must have adequate budget to pay an unsuccessful appeal)”. Must be filed within 15 days. -- Same for Community Objection. -- Considering whether ICANN should fund appeals to the objections – essentially paying twice for the objection. So, if ALAC loses an objection and then appeals, ICANN would fund in both cases. -- A compromise could be that if ALAC could convince ICANN that it would likely win on appeal then ICANN would fund the appeal. But that would put ICANN in the position of picking winners and losers, rather than an appeals panel. -- Alternatively we could consider a limit on the number of appeals ALAC could file, to try to make it predictable and limited. -- LPIO and CO, the ALAC has made it clear that "Loser Pays (No ICANN Reimbursement)" is NOT FEASIBLE where the ALAC loses the appeal. That would effectively restrict the ALAC from considering filing any appeal. I think the same applies to IO. -- I think we are trying to find a way for ALAC to have what it needs. Doesn't sound like ALAC went wild last time (unlike arguably the IO - sorry, I know that is settled but the track record wasn't fabulous) -- For 2012, the ALAC had a stringent process for determining which strings it thought should be objected to. -- The ALAC objections/appeals have to be adequately funded. Let's work on a formula to get there, but try to avoid seeking ICANN, IO, or Ombs second guessing -- From the 2012 AGB: Guidebook 3.3.2: Funding from ICANN for objection filing fees, as well as for advance payment of costs (see subsection 3.4.7 below) is available to the At-Large Advisory Committee (ALAC). Funding for ALAC objection filing and dispute resolution fees is contingent on publication by ALAC of its approved process for considering and making objections. At a minimum, the process for objecting to a gTLD application will require: bottom-up development of potential objections, discussion and approval of objections at the Regional At-Large Organization (RALO) level, and a process for consideration and approval of the objection by the At-Large Advisory Committee. -- There's definitely a resource or could be a resource constraint. So we do need to think of some balance between those. And whether that's some sort of formula or other type of mechanism. -- Third party could not pick up ALAC’s option to appeal. ACTION: Work on a formula to limit ALAC appeals without getting ICANN or the Ombudsman involved in making a determination. Send the links to the ALAC’s objection and appeals process. For the next WG meeting: Predictability Framework: https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecG…

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Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 10 December 2019
by Julie Hedlund Dec. 10, 2019

Dec. 10, 2019

Dear Working Group members, Please see below the notes from the meeting on 10 December 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-12-10+New+gTLD+Subsequent+Pr…. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: Limited Appeals Mechanism: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8f… Evaluation Procedures: Geographic Names: ACTION ITEM 1: Send to the list whether there was a standard amount of time for the applicant to get the required documentation. Background Screening: ACTION ITEM 2: Put the question in brackets [consider: loser pays?] with a question mark (done). WG should consider whether loser pays model if no issues were found in the background screening (text in red). Objections: Limited Public Interest Objection and Community Objection -- Independent Objector: ACTION ITEM 3: Work on a formula to limit ALAC appeals without getting ICANN or the Ombudsman involved in making a determination. Send the links to the ALAC’s objection and appeals process. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Limited Appeals Mechanism: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8f… Evaluation Procedures: -- Changed title of column B to “Outcome that Might Warrant Challenge” from “Outcome that Might Warrant Appeal” -- Also replaced “Appeal” with “Challenge” in columns E and F: “Arbiter of Challenge” and “Likely Results of Successful Challenge”. Geographic Names: -- Filled in details from the Work Track 5 Final Report. -- The three types of outcomes that we can foresee challenges would be the first instance would be if a term is designated as a geographic name, this may be something that the applicants may not have wanted. First type of challenge: -- The arbiter of such a challenge like the others would although this topic still under discussion, and I think we will still need to complete that as to whether it's okay for the existing evaluator as a as a company or organization can review that challenge or whether we would need to mandate a separate complete entity to look at these types of challenges. -- So that is still an issue. But regardless of the arbiter of the challenge, if there's a successful challenge then that would mean that the decision of the Geographic Names panel would be reversed and the cost would be borne by the applicant for this challenge, and there's still a question that will need to discuss overall as to whether a successful challenge should result in a partial refund. -- Well, a couple different things right in the objections that we'll talk about appeals for objections, we have a loser pays model for them and we'll go through that and but for evaluations because evaluators come at a significant cost to ICANN, and ultimately are paid by through the application fees if there is a successful appeal there technically is no loser because it's not one party challenging another party. And so the ability to provide full refunds or even partial refunds are hindered a bit because it would be tough in theory, to find an evaluator that would be willing to take on this role, only to then have to either do the appeal for free or willing to refund money as a result. -- So, though, that's still not off the table. And in fact, a number of evaluators when there were a few challenges that were ordered by ICANN. There weren't that many. But were there were some challenges that was funded by either ICANN or the evaluators themselves. So the applicant was not forced to pay a fee. But again, that was really rare that there was a reevaluation and really only came about because of a reconsideration request or something or an accountability mechanism that order. Second type of challenge: -- By the applicant where they wanted it to be designated a geographic name or you could have a challenge by perhaps a government or public authority, where they had expected it to be designated as a geographic name same arbiter issues that we were talking about before. -- And if there were a successful appeal by either one success successful challenge by either of those two parties, then the name the decision that the outcome would be to designated as a geographic string and then the question is, who would bear the cost and like the previous one. The cost would be borne by the applicant if it was the one that challenged or the government or public authority if they were the ones that challenged and we start the question of partial refund. Third type of challenge: -- Would be a definition of relevant governments are disputed or there's some other deficiency in documentation. So this is, again, if a name is doesn't need as a geographic name and it requires either consent or non-objection from the relevant government then a letter is required. According to the guidebook and this is the case where the evaluation panel finds that the either the consent or not objection was deficient or that there was consent or not objection from a non-relevant government. So the two potential parties that are affected would be the applicant again and same as the last one relevant government of public authority and they would be parties, the parties would standing the likely result if a challenge is successful, would be to either approve of the letter of consent or non-objection, which was initially not proved or to revise the finding that it did not receive a letter of consent or not objection. -- The cost will be borne by the challenging party and we would still have to see whether it be possible to do a partial refund. If the party that bears the cost succeeds. Discussion: -- Question: So what in a case like that, where the applicant didn't think it was a geographic name and the geographic panel in the first instance agrees with them and then a government entity or relevant government or public authority files a an appeal because it's presented a challenge and say the government then prevails on that. Will the applicant be given a chance to amend their application and get whatever they need to get to have the application move forward because that sounds to me like if the applicant doesn't think it is and the geographic panel, at least in the first instance, doesn't think it is that it's a close call or they just screwed. -- Answer: It would seem that the applicants who did not think that it was a geographic name should have a period of time to then get that letter of non-objection or consent. -- The way that the Geographic Names evaluation took place in the 2012 round: Every single name or every single string that was applied for was evaluated to determine whether or not it was geographic name or not. And so in the instance where the applicant did not designated as a geographic name, but the panel did determine if it is a geographic name. The applicant would get some time to get the required documentation. -- If somebody applies for something that's on a clear list of words that people aren't allowed to use and they don't designate it and they don't submit the proper papers from the appropriate government then the geographic panel bounces it out. ACTION: Send to the list whether there was a standard amount of time for the applicant to get the required documentation. Row 18: RSP Pre-Approval: -- Added since the last WG meeting. -- So this is where the registry service provider is in the is applying in the for pre-approval in the pre-approval process. If it somehow fails the evaluation and therefore would be unable to much other words, it says, unable to participate in the program. I think if it fails pre approval. It's unable to get pre approval, but it still could participate in the regular evaluation process. -- We'll have to think that through because I think the current recommendation is to do a pre-approval process prior to the beginning of each round and so because you are pre-approved for that particular round but not necessarily pre-approved for future rounds. And so I think that that makes sense. But when we review the pre-approval program will have to just make sure that we keep this in mind. Background Screening: -- Question: In context of the background screening, whether that covered the criteria and the eligibility, which is stated in the HTTP section 1.2 point one. So the first question was does background screening cover eligibility checks? And assuming that it does, which my understanding of the gap is the answer would be yes, then that's where that that parties would come in and going back again to feedback that was given to through our response in terms of setting highest standards for applicants where we brought to light again two incidences of background screening failures. For example, one of the applicants clearly failed UDRP decisions, but the applicant didn't fail the background screening, despite having more than three rights protection decisions against that applicant. So in that situation would that provide grounds for third party to raise a challenge on the background screening outcome? -- Answer: It makes sense to allow third-party challenges for cybersquatting and UDRP. -- Question: In that case, who bears the costs? -- Answer: On the one hand, it was something that the background evaluator should have found, and then to make a third party pay for that kind of challenges. It seems to be difficult, but perhaps that's kind of a loser pays model because it is one party against another party, in a sense, like the objections. Let’s think about whether it makes sense that that will could be a loser pays kind of model -- give it some more thought. -- So that's a way to deal with both frivolous challenges and frivolous defenses and not put the evaluators in the line of fire. ACTION: Put this question in brackets [consider: loser pays?] with a question mark (done). WG should consider whether loser pays model if no issues were found in the background screening (text in red). Objections: String Confusion: -- Time period: Suggesting 15 days to file (noted in red text). Don’t know if that’s the right amount of time. Helpful to get comments on the email list. -- Another option: 15 days to signal your intent to appeal and then giving another 15 days or something like that to pay file to the appeal. That’s also another possibility to have a certain time period to give your Notice of Intent to appeal and then an additional time period to actually file that appeal that is certainly a feasible option as well. Limited Public Interest Objection and Community Objection: Independent Objector: -- Added “Loser Pays (The IO must have adequate budget to pay an unsuccessful appeal)”. Must be filed within 15 days. -- Same for Community Objection. -- Considering whether ICANN should fund appeals to the objections – essentially paying twice for the objection. So, if ALAC loses an objection and then appeals, ICANN would fund in both cases. -- A compromise could be that if ALAC could convince ICANN that it would likely win on appeal then ICANN would fund the appeal. But that would put ICANN in the position of picking winners and losers, rather than an appeals panel. -- Alternatively we could consider a limit on the number of appeals ALAC could file, to try to make it predictable and limited. -- LPIO and CO, the ALAC has made it clear that "Loser Pays (No ICANN Reimbursement)" is NOT FEASIBLE where the ALAC loses the appeal. That would effectively restrict the ALAC from considering filing any appeal. I think the same applies to IO. -- I think we are trying to find a way for ALAC to have what it needs. Doesn't sound like ALAC went wild last time (unlike arguably the IO - sorry, I know that is settled but the track record wasn't fabulous) -- For 2012, the ALAC had a stringent process for determining which strings it thought should be objected to. -- The ALAC objections/appeals have to be adequately funded. Let's work on a formula to get there, but try to avoid seeking ICANN, IO, or Ombs second guessing -- From the 2012 AGB: Guidebook 3.3.2: Funding from ICANN for objection filing fees, as well as for advance payment of costs (see subsection 3.4.7 below) is available to the At-Large Advisory Committee (ALAC). Funding for ALAC objection filing and dispute resolution fees is contingent on publication by ALAC of its approved process for considering and making objections. At a minimum, the process for objecting to a gTLD application will require: bottom-up development of potential objections, discussion and approval of objections at the Regional At-Large Organization (RALO) level, and a process for consideration and approval of the objection by the At-Large Advisory Committee. -- There's definitely a resource or could be a resource constraint. So we do need to think of some balance between those. And whether that's some sort of formula or other type of mechanism. -- Third party could not pick up ALAC’s option to appeal. ACTION: Work on a formula to limit ALAC appeals without getting ICANN or the Ombudsman involved in making a determination. Send the links to the ALAC’s objection and appeals process. For the next WG meeting: Predictability Framework: https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecG…

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Post call / New gTLD Subsequent Procedures Working Group call / Tuesday, 10 December 2019 at 03:00 UTC
by Julie Bisland Dec. 10, 2019

Dec. 10, 2019

Dear all, All recordings for the New gTLD Subsequent Procedures Working Group call held on Tuesday, 10 December 2019 at 03:00 UTC can be found on the agenda wiki page <https://community.icann.org/x/4ZYzBw> (attendance included) and the GNSO Master calendar <https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group…> . These include: * Attendance (please let me know if your name has been left off the attendance list) * Audio recording * Zoom chat archive * Zoom recording (including audio, visual, rough transcript) * Transcript As a reminder only members can join the call, observers can listen to the recordings and read the transcript afterwards. Please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org> if you would like to change your status from observer to member. For additional information, you may consult the mailing list archives <http://mm.icann.org/pipermail/gnso-newgtld-wg/> and the main wiki page<https://community.icann.org/x/RgV1Aw>. Thank you. Kind regards, Julie

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Re: [Gnso-newgtld-wg] Process Flow for Vickrey Auction Model
by Julie Hedlund Dec. 9, 2019

Dec. 9, 2019

Hi Jessica, Thanks very much for providing the flowchart. That’s really helpful. I’ve attached the document. Let’s see if this works. Kind regards, Julie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> on behalf of "Hooper, Jessica via Gnso-newgtld-wg" <gnso-newgtld-wg(a)icann.org> Reply-To: "Hooper, Jessica" <jhooper(a)verisign.com> Date: Thursday, December 5, 2019 at 5:13 PM To: "gnso-newgtld-wg(a)icann.org" <gnso-newgtld-wg(a)icann.org> Subject: Re: [Gnso-newgtld-wg] Process Flow for Vickrey Auction Model Looks like the file didn’t come through. I’ll work with Julie to get it posted to the group. Thanks, Jessica From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Hooper, Jessica via Gnso-newgtld-wg Sent: Thursday, December 5, 2019 5:06 PM To: gnso-newgtld-wg(a)icann.org Subject: [EXTERNAL] [Gnso-newgtld-wg] Process Flow for Vickrey Auction Model Team – During a recent plenary meeting pertaining to String Contention Resolution, there were calls from WG members to have ICANN Staff develop a workflow or diagram to show how Alternative 1 (Vickrey Auction Model) from the Summary Document<https://docs.google.com/document/d/16qDoiK6vydQp6a0v9tMvU2l5fcypJY24hCzTIVT…> would work and what that process would look like. Attached is a framework I put together when this idea first arose last year that illustrates the Vickrey Model and may address some of the outstanding questions around timing for objections… and it might save ICANN Staff from starting from scratch. Again, just a framework, a visual to help launch discussion. Thanks! Jessica Jessica Hooper | Senior Manager, Naming Operations | jhooper(a)verisign.com<mailto:jhooper@verisign.com> | O: 703-948-4553 |C: 1-571-230-2801 | verisign.com

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Post call / New gTLD Subsequent Procedures Working Group call / Thursday, 05 December 2019 at 20:00 UTC
by Julie Bisland Dec. 9, 2019

Dec. 9, 2019

Dear all, All recordings for the New gTLD Subsequent Procedures Working Group call held on Thursday, 05 December 2019 at 20:00 UTC can be found on the agenda wiki page (<https://community.icann.org/x/35YzBw>attendance included) and the GNSO Master calendar <https://urldefense.proofpoint.com/v2/url?u=http-3A__gnso.icann.org_en_group…> . These include: * Attendance (please let me know if your name has been left off the attendance list) * Audio recording * Zoom chat archive * Zoom recording (including audio, visual, rough transcript) * Transcript As a reminder only members can join the call, observers can listen to the recordings and read the transcript afterwards. Please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org> if you would like to change your status from observer to member. For additional information, you may consult the mailing list archives <http://mm.icann.org/pipermail/gnso-newgtld-wg/> and the main wiki page<https://community.icann.org/x/RgV1Aw>. Thank you. Kind regards, Julie

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