November 2020 - Gnso-newgtld-wg

Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Tuesday, 17 November 03:00 UTC
by Julie Hedlund Nov. 12, 2020

Nov. 12, 2020

Dear WG Members, Please find below the proposed agenda for the regular WG meeting on Tuesday, 17 November 2020 at 03:00 UTC for 90 minutes. Note: For the schedule of the upcoming meeting topics, please see the Work Plan at: https://docs.google.com/spreadsheets/d/1ftMpOLkeLaJAHrUZ6dy1vTR6Ja_VGTKQ5Kn…. WG members are requested to review scheduled topics and comments prior to the meetings. Proposed Agenda: 1. Review Agenda/Updates to Statements of Interest 2. Review draft Final Report Public Comments – to prepare see the links to the Public Comment Review Tool on the wiki at: <https://docs.google.com/spreadsheets/d/1x9vbkFUNEAb55oEPCFRsdrDlowh06zIUBiU…> https://community.icann.org/display/NGSPP/h.+Published+Draft+reports and review the following topics and comments: Topic 41: Contractual Compliance<https://docs.google.com/spreadsheets/d/1PglquKDd8amHiqI6Wfko0Plb80RPpbEjTMS…> Topic 37: Registrar Non-Discrimination / Registry/Registrar Standardization<https://docs.google.com/spreadsheets/d/1mkfwWZtyGAOdIbN3LsgNtDnVs6ehPmgrONz…> Topic 38: Registrar Support for New TLDs<https://docs.google.com/spreadsheets/d/1mkfwWZtyGAOdIbN3LsgNtDnVs6ehPmgrONz…> Topic 25: IDNs<https://docs.google.com/spreadsheets/d/1YJJDm9mdmSssXav1P08Uhw6Ofyp0KtfTX8Q…> 1. 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>. Best, Julie Julie Hedlund, Policy Director

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Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 12 November 20:00 UTC
by Julie Hedlund Nov. 12, 2020

Nov. 12, 2020

Dear Working Group members, Please see below the notes from the working sessions on 12 November at 20:00 UTC. 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/2020-11-12+New+gTLD+Subsequent+Pr…. Kind regards, Julie == Notes and Action Items: Action Items: Topic 34: Community Applications<https://docs.google.com/spreadsheets/d/1kmZRLAsW6wlTyQ8LA3KhOQzU1UABL9zCPWw…> ACTION ITEM: WG members are requested to review the notes from the three sessions on the CPE Guidelines: https://community.icann.org/display/NGSPP/2020-09-17+New+gTLD+Subsequent+Pr…, https://community.icann.org/display/NGSPP/2020-09-24+New+gTLD+Subsequent+Pr…, https://community.icann.org/display/NGSPP/2020-10-01+New+gTLD+Subsequent+Pr…. Row 18 – ALAC re: (1) A need for greater community participation in ICANN’s engagement of a CPE service provider/panellists, namely in 4 aspects: (i) the development of criteria by which ICANN Org is to evaluate and select candidates; (ii) the shortlisting of identified candidates; (iii) the final selection process; and (iv) the terms for inclusion into the contract between ICANN Org and the selected candidate. ACTION ITEM: Take the ALAC 1(ii-iv) comments to the list for discussion. Notes: 1. Updates to Statements of Interest: -- Javier Rua has made some updates to his SOI. He has moved from ALAC to the ccNSO. 2. Review draft Final Report Public Comments – to prepare see the links to the Public Comment Review Tool on the wiki at: https://community.icann.org/display/NGSPP/h.+Published+Draft+reports and review the following topics and comments: Topic 9: RVC/PICS<https://docs.google.com/spreadsheets/d/1bxEnuFrtI7996NnGPMR00JEwM6KK5m8Y_AG…> Concerns about exemptions/waivers (Spec 11 3(s) and 3(b)): Row 10 -- Thomas Barrett (Individual) re: Exemptions/waivers: Concerns about exemptions/waivers for single-registrant TLDs for Spec 11 3(a) and 3(b); Row 12 – NABP re: stronger enforcement needed; Row 15 – BC; Row 27 -- Dotzon GmbH; Row 31 – ICANN Org Discussion: -- The exemptions aren’t necessarily tied to a single registrant TLD. -- Discuss whether this matters. Does the same rationale exists for the .brand TLDs if they aren’t a single-registrant TLD? -- Seem to be a good grouping of those who accept the wording as is. -- Recommendation and rationale don’t mention Spec 13. Wording seems good as is. -- No WG action noted. Content enforcement/conflicts with Bylaws: Rows 11 and 23 – NCSG; Row 29 – Board Leadership Comments: This will be covered in the discussions with ICANN Board Liaisons to solution within the Working Group. -- Hold for discussion with Board Liaisons. Strong enforcement needed: Row 12 – NABP; Row 13 -- Swiss Government OFCOM; Row 21 – RrSG; Row 30 -- GAC Leadership Comments: This also relates to topic from last week on Base Agreement where provisions only require that provisions documented in RRA, not actually doing it. Do we want to revise the recommendation to also include compliance of the PICs?; Consider limiting waiver of PICs to only those true single entity Spec 13 and Spec 9 CoC exemptions. -- Could there be a simpler mechanism to bring a complaint, other than the PICDRP. -- Will come back to this discussion in relation to the PICs and Bylaws conflicts. DNS Abuse: Row 13 -- Swiss Government OFCOM; Row 14 – IPC; Row 14 – BC; Row 16 – INTA; Row 17 – GBOC; Row 20 – ALAC; Row 30 – GAC -- Reminder that SubPro filed a letter with the Council that this should be handled in a holistic manner and is beyond the scope of this PDP. -- Some groups did not like this decision (GAC, ALAC). -- Nothing for the WG to do on the DNS abuse comments at this point. Topic 34: Community Applications<https://docs.google.com/spreadsheets/d/1kmZRLAsW6wlTyQ8LA3KhOQzU1UABL9zCPWw…> Definition of Community: -- Noted those comments. -- Address by providing more flexibility in the Guidelines (see notes from sessions during public comment period: https://community.icann.org/display/NGSPP/2020-09-17+New+gTLD+Subsequent+Pr…, https://community.icann.org/display/NGSPP/2020-09-24+New+gTLD+Subsequent+Pr…, https://community.icann.org/display/NGSPP/2020-10-01+New+gTLD+Subsequent+Pr… Row 11 -- Swiss Government OFCOM; Row 14 -- InfoNetworks LLC; Row 16 -- fTLD Registry Services, LLC re: threshold too high in 2012. Row 11 -- Swiss Government OFCOM re: New idea: Provide support for non-profit community-based applications. Leadership Comments: This is a new proposal. -- No WG action noted. Row 16 -- fTLD Registry Services, LLC Leadership Comments: Discuss the role of application change requests and community based applications. We did not conclude the discussion on whether there are any sections in the Application which should not be allowed to have material changes. -- No WG action noted. Row 18 – ALAC re: (1) A need for greater community participation in ICANN’s engagement of a CPE service provider/panellists, namely in 4 aspects: (i) the development of criteria by which ICANN Org is to evaluate and select candidates; (ii) the shortlisting of identified candidates; (iii) the final selection process; and (iv) the terms for inclusion into the contract between ICANN Org and the selected candidate. Discussion: -- Why would we not want community involvement? -- There could be increased bureaucracy or bias. -- I don't know what "greater community participation" means. Isn't that what we are doing now and what the IRT will do? Haven't we already developed analogous mechanisms like the selectors for the IRP standing panel? ACTION ITEM: Take the ALAC 1(ii-iv) comments to the list. Row 19 – Board re: recommendations should be more detailed. Leadership Comments: Reflect larger discussion of ICANN Bylaws issues. This relates to discussions we had during Public Comment Period Row 21 – ICANN Org Leadership Comments: On changing the Principles: We accept that in 2012 ICANN staff decided to outsource the evaluation of CPE. Whether ICANN decides to outsource those evaluations or not is a decision for ICANN Org so long as the recommendations in the report are carried out. Re - Efficiency, transparency and predictability, we have made a number of recommendations including: - All rules published in advance, including those used by evaluators to assess criteria, - There must be a verification of those entities that support and oppose Community Status - We have added clarity to CPE Guidelines. - We have encouraged more dialogue - Evaluators must disclose all outside research and give applicant chance to comment - We have added a challenge process - We have synchronized the public comment periods Question: Can we limit the potential Accountability Mechanism challenges?

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Post Call | New gTLD Subsequent Procedures Working Group | Thursday, 12 November 2020 at 20:00 UTC
by Andrea Glandon Nov. 12, 2020

Nov. 12, 2020

Dear all, All recordings for the New gTLD Subsequent Procedures Working Group call held on Thursday, 12 November 2020 at 20:00 UTC can be found on the agenda wiki page <https://community.icann.org/x/4oXzC> (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 Andrea

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Proposed Agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 12 November 20:00 UTC
by Julie Hedlund Nov. 9, 2020

Nov. 9, 2020

Dear WG Members, Please find below the proposed agenda for the regular WG meeting on Thursday, 12 November 2020 at 20:00 UTC for 90 minutes. Note: For the schedule of the upcoming meeting topics, please see the Work Plan at: https://docs.google.com/spreadsheets/d/1ftMpOLkeLaJAHrUZ6dy1vTR6Ja_VGTKQ5Kn…. WG members are requested to review scheduled topics and comments prior to the meetings. Proposed Agenda: 1. Review Agenda/Updates to Statements of Interest 2. Review draft Final Report Public Comments – to prepare see the links to the Public Comment Review Tool on the wiki at: <https://docs.google.com/spreadsheets/d/1x9vbkFUNEAb55oEPCFRsdrDlowh06zIUBiU…> https://community.icann.org/display/NGSPP/h.+Published+Draft+reports and review the following topics and comments: Topic 9: RVC/PICS<https://docs.google.com/spreadsheets/d/1bxEnuFrtI7996NnGPMR00JEwM6KK5m8Y_AG…> Topic 34: Community Applications<https://docs.google.com/spreadsheets/d/1kmZRLAsW6wlTyQ8LA3KhOQzU1UABL9zCPWw…> 1. 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>. Best, Julie Julie Hedlund, Policy Director

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Post Call | New gTLD Subsequent Procedure Working Group call | Monday, 09 November 2020 at 15:00 UTC
by Michelle DeSmyter Nov. 9, 2020

Nov. 9, 2020

Dear all, All recordings for the New gTLD Subsequent Procedures Working Group call held on Monday, 09 November 2020 at 15:00 UTC can be found on the agenda wiki page <https://community.icann.org/display/NGSPP/2020-11-09+New+gTLD+Subsequent+Pr…> (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 Michelle

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Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 09 November 15:00 UTC
by Julie Hedlund Nov. 9, 2020

Nov. 9, 2020

Dear Working Group members, Please see below the notes from the working sessions on 09 November at 15:00 UTC. 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/2020-11-09+New+gTLD+Subsequent+Pr…. Kind regards, Julie == Notes and Action Items: Action Items: Topic 31: Objections<https://docs.google.com/spreadsheets/d/1Pk3SadfiropKdD387FrgELdulfZuTbUCivf…> Row 21 – ICANN Org re: Questions about "arbitration forum". ACTION ITEM: Check the language to make sure it is clear. Switch the terminology to make it clear -- use "panel" not "arbitration forum" or "arbitration" or be consistent. Topic 30: GAC Early Warning/GAC Consensus Advice<https://docs.google.com/spreadsheets/d/1Pk3SadfiropKdD387FrgELdulfZuTbUCivf…> Row 13 – Swiss Government OFCOM and Row 14 – GAC France re: Concerns about removal of "strong presumption" Reiterates GAC concerns listed under "new information" and Row 20 – GAC re: WG shouldn't make recommendations on limiting GAC activities under Bylaws; amend Recommendation 30.6 to allow applicants to address issues raised in GAC Early Warning. ACTION ITEM: Take the discussion to the list on the three options with respect to Recommendation 30.3 and GAC Consensus Advice. Options: 1) don’t change the language of the recommendation; 2) clarify the recommendation as suggested by IPC; 3) revise the recommendation to use the language it as in 12.3 of the Bylaws. Row 21 – ICANN Org re: Clarification on whether amendments permitted in response to "non-consensus advice"; need clear process and deadlines to change an application. ACTION ITEM: Clarify with Leadership the terminology to use be consistent re: “GAC Advice” and “GAC Consensus Advice”. ACTION ITEM: Send the question to the WG list: “is the WG recommending particular actions in the event that the GAC issued non-consensus advice?” Topic 28: Role of Application Comment<https://docs.google.com/spreadsheets/d/1YJJDm9mdmSssXav1P08Uhw6Ofyp0KtfTX8Q…> Row 10 – Jamie Baxter re: Same application comment period for Standard and Community applications, for a predetermined period. ACTION ITEM: Add a recommendation along the lines suggested by Jamie Baxter/ALAC: “the Applicant Comment Period should only run for the predetermined period outlined in the AGB. Any comments received during the period would be the only comments considered during evaluations.” Row 14 -- PETILLION Law Firm re: Inform applicant if information is submitted on confidential portions of an application. ACTION ITEM: Revise Recommendation 28.13 that if such information is submitted, the applicant should be fully informed of the submitted information and be able to respond through the same mechanism. Notes: 1. Updates to Statements of Interest: None provided. 2. Review draft Final Report Public Comments – to prepare see the links to the Public Comment Review Tool on the wiki at: https://community.icann.org/display/NGSPP/h.+Published+Draft+reports and review the following topics and comments: Topic 31: Objections<https://docs.google.com/spreadsheets/d/1Pk3SadfiropKdD387FrgELdulfZuTbUCivf…> Row 14 – ALAC re: ALAC should be equal in standing to the Independent Objector insofar as not having to prove a link to the community invoked in its Community Objection. Leadership Comments: WG Discussed whether ALAC should automatically have standing for Community-based objections and there was no agreement within the Working Group to give ALAC that. Does WG want to revisit? Discussion: -- No agreement in Work Track 3 on this. They didn’t want to duplicate the Independent Objector role. -- No interest from the WG to revisit this issue. Row 16 -- Intellectual Property Constituency (IPC) and PETILLION Law Firm re: Applicants in String Confusion Objection set should respond if an objection is filed. Leadership Comments: Does the Working Group wish to consider a default option? -- No WG action noted. Row 18 – ICANN Board re: Identify the purpose of continuing the IO role. Leadership Comments: We did discuss this and there was no agreement on changing this part of the program. Discussion: -- No agreement in the WG to keep the IO, but no agreement to get rid of it. -- Decide whether the WG should respond to the Board to address their comments. Could say that the same justifications for the IO program exist as they did for the 2012 round. -- Don't get continued employment of an IO. It was a failed experiment and the Board is right to question us. The best we could say that some WG members think the same justifications as in 2012 exist for subsequent rounds, other WG members think it’s a wasteful and unnecessary program. Row 19 – ALAC re: Questions about budget/resources for IO panel Leadership Comments: More an issue for ICANN Org/IRT. Row 21 – ICANN Org re: Questions about "arbitration forum". Leadership Comments: These are all clarifications - we should check the language to make sure it is clear. #1 and #2: Arbitration forum is the same thing as the panel. Switch the terminology to make it clear -- use "panel" not "arbitration forum" or "arbitration" or be consistent. #4 - The answer is to determine whether they are reasonable. ACTION ITEM: Check the language to make sure it is clear. Switch the terminology to make it clear -- use "panel" not "arbitration forum" or "arbitration" or be consistent. Topic 30: GAC Early Warning/GAC Consensus Advice<https://docs.google.com/spreadsheets/d/1Pk3SadfiropKdD387FrgELdulfZuTbUCivf…> Row 13 – Swiss Government OFCOM and Row 14 – GAC France re: Concerns about removal of "strong presumption" Reiterates GAC concerns listed under "new information" and Row 20 – GAC re: WG shouldn't make recommendations on limiting GAC activities under Bylaws; amend Recommendation 30.6 to allow applicants to address issues raised in GAC Early Warning. Leadership Comments: Should we amend the language also submitted by Swiss Govt on "possible" mechanisms to address GAC Advice? Recommendation 30.3: As stated in the ICANN Bylaws, GAC Consensus Advice must include a clearly articulated rationale.[1] The Working Group recommends that GAC Consensus Advice be limited to the scope set out in the applicable Bylaws provisions and elaborate on any “interaction between ICANN's policies and various laws and international agreements or where they may affect public policy issues.” To the extent that the rationale for GAC Consensus Advice is based on public policy considerations, well-founded merits-based public policy reasons must be articulated. Discussion: -- WG recommendations can’t change the Bylaws. -- GAC says it can provide advice on policy, which may not be in the law. -- The recommendation is not a Bylaws change. -- Example: There is no law against Closed Generics. The existing advice is based on public policy. -- On the GAC Consensus Advice, when that came through after applications were submitted was problematic. -- GAC when it provides advice it has to provide a rationale. -- Make sure we are being consistent in the recommendations. -- Options re GAC Consensus Advice: 1) leave as is; 2) clarify as suggested by IPC; 3) state it as 12.3 of the Bylaws states it. ACTION ITEM: Take the discussion to the list on the three options with respect to Recommendation 30.3 and GAC Consensus Advice. Options: 1) don’t change the language of the recommendation; 2) clarify the recommendation as suggested by IPC; 3) revise the recommendation to use the language it as in 12.3 of the Bylaws. Row 21 – ICANN Org re: Clarification on whether amendments permitted in response to "non-consensus advice"; need clear process and deadlines to change an application. Leadership Comments: Fix terminology to be consistent. Clarity on Deadlines? Discussion: -- Look at 12:2a1: That’s what we had in mind when we made the recommendations and maybe the IPC. -- Re: non-consensus advice in 2012 – is the WG recommending particular actions in the event that the GAC issued non-consensus advice? -- Should we change the recommendation to say that applicants should be able to change an application in response to non-consensus advice? ACTION ITEM: Clarify with Leadership the terminology to use be consistent re: “GAC Advice” and “GAC Consensus Advice”. ACTION ITEM: Send the question to the WG list: “is the WG recommending particular actions in the event that the GAC issued non-consensus advice?” Topic 28: Role of Application Comment<https://docs.google.com/spreadsheets/d/1YJJDm9mdmSssXav1P08Uhw6Ofyp0KtfTX8Q…> Row 10 – Jamie Baxter and also Row 12 – ALAC re: “the Applicant Comment Period should only run for the predetermined period outlined in the AGB. Any comments received during the period would be the only comments considered during evaluations.” Leadership Comments: This is still an issue. Agreed that it should be for a definitive period of time, but didn't say that they had to be at the exact same time. Recommendation 34.6: Evaluators must continue to be able to send Clarifying Questions to CPE applicants but further, must be able to engage in written dialogue with them as well. Recommendation 34.7: Evaluators must be able to issue Clarifying Questions, or utilize similar methods to address potential issues, to those who submit letters of opposition to community-based applications.  Recommendation 34.9: If the Community Priority Evaluation Panel conducts independent research while evaluating an application, limitations on this research and additional requirements must apply. The Working Group recommends including the following text in the Applicant Guidebook: “The Community Priority Evaluation Panel may perform independent research deemed necessary to evaluate the application (the “Limited Research”), provided, however, that the evaluator shall disclose the results of such Limited Research to the applicant and the applicant shall have an opportunity to respond. The applicant shall be provided 30 days to respond before the evaluation decision is rendered. When conducting any such Limited Research, panelists are cautioned not to assume an advocacy role either for or against the applicant or application.” Implementation Guideline 34.10: To support transparency, if the Community Priority Evaluation Panel relied on research for the decision it should be cited and a link to the information provided. Discussion: -- Comment period needs to be aligned with when the objections happen. -- There were never two application comment periods. ICANN just never closed the application comment period for community applicants. -- Question: Is there information that could come in during the evaluation that would be subject to public review? Answer: Research is provided to the applicant and others could get clarifying question. There isn’t a general open public comment period. But opportunities for those who have provided letters of objection or support to provide clarifications. -- If there was independent research thought we said that the applicant would be notified. Might be prejudicial if an applicant couldn’t get public comment on research that the applicant doesn’t agree with. -- In Rec 34.10 we do say the applicant can respond, but it’s not a public comment. -- Add a recommendation to specify that there is only one comment period and that all comments should be provided in that period. ACTION ITEM: Add a recommendation along the lines suggested by Jamie Baxter/ALAC: “the Applicant Comment Period should only run for the predetermined period outlined in the AGB. Any comments received during the period would be the only comments considered during evaluations.” Row 14 -- PETILLION Law Firm re: Inform applicant if information is submitted on confidential portions of an application. Leadership Comments: Ask the WG if this is a good clarification. ACTION ITEM: Revise Recommendation 28.13 that if such information is submitted, the applicant should be fully informed of the submitted information and be able to respond through the same mechanism. Row 15 – ALAC re: Clarify consequences of violation of Recommendation 28.3 and related IG; allow applicant time to reply to late comments. Leadership Comments: Consequence of a violation is that it won't be considered. Bring this up with the WG. 28.12 -- It's a clarification. No WG action noted. Row 17 – ICANN Org re: Differentiate between Recommendation 28.3 and related IG; concerns with data privacy, verification, confidentiality, security, and implementation. Leadership Comments: Many of these are clarifications. These can be noted, but nothing new or to change. Might be information to be provided to the IRT to consider. No WG action noted. ________________________________ [1] Section 12.3. PROCEDURES of the ICANN Bylaws states: “. . .each Advisory Committee shall ensure that the advice provided to the Board by such Advisory Committee is communicated in a clear and unambiguous written statement, including the rationale for such advice.” See https://www.icann.org/resources/pages/governance/bylaws-en.

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ICANN69 Policy Outcomes Report
by Andrea Glandon Nov. 9, 2020

Nov. 9, 2020

Dear all, The ICANN69 Policy Outcomes Report (formerly known as the Post-ICANN69 Policy Report) is now available. Please click here to access it: http://go.icann.org/outcomes69 Thank you. Andrea Glandon GNSO SO/AC Support Internet Corporation for Assigned Names and Numbers (ICANN) Skype ID: acglandon76 Find out more about the GNSO by visiting: https://learn.icann.org/ Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO [twitter.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGN…> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar [gnso.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_grou…>

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Sub Pro Call with Board Liaisons
by Jim Prendergast Nov. 9, 2020

Nov. 9, 2020

Jeff - on one of the calls this week, you mentioned that you were in the process scheduling a call with the Sub Pro Board Liaisons to get further clarification on key aspects of the Board Comments. It was unclear to me if that was just for you and Cheryl or for the entire Working Group. I would ask that it be with the working group as a whole because understanding the Board thinking these critical issues will help everyone as we work to try and finish this up. thanks Jim Prendergast The Galway Strategy Group +1 202-285-3699

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Consolidated list of materials for WG Member review
by Steve Chan Nov. 6, 2020

Nov. 6, 2020

Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6P… Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPl…. Feedback form is attached. NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxg…. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan  Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536  Email: steve.chan(a)icann.org Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/ Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar

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Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 05 November 03:00 UTC
by Jamie Baxter Nov. 5, 2020

Nov. 5, 2020

Hey Jeff & Cheryl Apologizes for missing the call last night, but I listened to the recording today on ICANN ORG & FEES and wanted to offer support for Jeff’s suggestion that ICANN issue refunds by component (assuming excess) and not wait until the end of a subsequent procedure. This is key to preventing ICANN from using excess funds in one component for another and it could also help return more money sooner before applicants that don’t ultimately run a registry become a challenge to find. Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Thursday, November 5, 2020 at 12:00 PM To: "gnso-newgtld-wg(a)icann.org" <gnso-newgtld-wg(a)icann.org> Subject: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 05 November 03:00 UTC Dear Working Group members, Please see below the notes from the working sessions on 05 November at 03:00 UTC. 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/2020-11-05+New+gTLD+Subsequent+Pr…. Kind regards, Julie == Notes and Action Items: Action Items: Topic 15: Application Fees<https://docs.google.com/spreadsheets/d/1rOqfucddhWhYK8u3-O7IHg772BpjEIGhlmC…> Row 13 -- Dotzon GmbH re: IG 15.8 modification: excess fees must be returned to applicants ACTION ITEM: Add that ICANN may want to spread out the cost. Not as Implementation Guidance. Row 24 -- Christa Taylor (Individual) re: Fee floor evaluation; excess fee uses; periodic review; timely return of excess fees; determining fees ACTION ITEM: Revise the language of the recommendation along the lines that Christa is suggesting: From Christa: “15.8 In the event, the excess fees are less than an agreed-upon amount for example, $1k then those funds should be used for the purpose as outlined in recommendation 15.9.” Row 23 – RySG re: Fee floor evaluation; excess fee uses; periodic review; timely return of excess fees; determining fees ACTION ITEMS: Revise the Recommendation: 1) Change the refund to be refund or credit towards future fees where applicable; 2) If you can't find that entity or, you know, there's no entity to claim that refund, then it would go towards one of the purposes set forth and 15.9. ACTION ITEM: Staff to check to see how the US47k was derived in the 2012 round. Row 26 – ICANN Board re: Further examine concepts: excess fees, closure, round. ACTION ITEM: Leadership will put suggested Implementation Guidance language out on the list for the WG to consider: Could provide Implementation Guidance to the IRT that if ICANN can determine its budget to cover historical, evaluation, and contingency costs, it could release refunds on a percentage basis depending on how many applications are final. Row 27 – ICANN Org re: multiple comments ACTION ITEM: Revise the Recommendation and Implementation Guidance to put 15.5, 15.6, and 15.7 directly into Recommendation 15.4. Leave 15.8 as the only Implementation Guidance for Recommendation 15.4. Topic 36: Base Registry Agreement<https://docs.google.com/spreadsheets/d/1mkfwWZtyGAOdIbN3LsgNtDnVs6ehPmgrONz…> Row 12 -- Intellectual Property Constituency (IPC) and PETILLION Law Firm re: “Accordingly, the IPC advocates for strict limitations on exemptions from the base RA, if any, which must not weaken existing rights protection mechanisms or public interest commitments otherwise present in the RA.” ACTION ITEM: Revise the recommendation to make it clear that consensus policy should not be the subject of individual RA negotiations. Rows 17 and 29 – ALAC re: Enforce prohibition on fraudulent/deceptive practices in PIC or base RA/Answer to Community Question: Both PIC and RA ACTION ITEM: Leadership will put the question out to the list for the WG to consider: “PICDRP does allow in theory "both options", but ALAC does not like the requirement that someone needs to allege and show how they have been harmed by the action. Does WG want to address this? Row 18 – ICANN Org re: Concern about custom RAs; clear rationale for exemptions; request clarity from WG on recommendation 36.3 and provisions; lack of clarity concerning aspects of recommendation 36.4. ACTION ITEM: Add language to Recommendation 36.3 that a clear rationale must accompany any exemption request. Notes: 1. Updates to Statements of Interest: None provided. 2. Review draft Final Report Public Comments – to prepare see the links to the Public Comment Review Tool on the wiki at: https://community.icann.org/display/NGSPP/h.+Published+Draft+reports and review the following topics and comments: Topic 15: Application Fees<https://docs.google.com/spreadsheets/d/1rOqfucddhWhYK8u3-O7IHg772BpjEIGhlmC…> Row 13 -- Dotzon GmbH re: IG 15.8 modification: excess fees must be returned to applicants Leadership Comments: Should we provide more clarity around "cost recovery period" Discussion: -- It needs to consider expenses that go beyond one round i.e. systems. -- For the next round we may want some note as IG an acknowledgement that ICANN will be developing new systems and they may want to space that out among new rounds. -- Might be something that we recover over a period of time. -- Cost recovery should be based on that particular round. Could leave it to ICANN/IRT to determine how to do this. -- On cost definition: from 2012 round, the answer has been that the costs are ongoing and there continues to be risk. -- But we are making a number of changes to the evaluation process so how will ICANN know how much everything will cost this time? Also the changes we make could result in more litigation and disputes. So is it really that easy to determine? ACTION ITEM: Add that ICANN may want to spread out the cost. Not as Implementation Guidance. Row 24 -- Christa Taylor (Individual) re: Fee floor evaluation; excess fee uses; periodic review; timely return of excess fees; determining fees Leadership Comments: 15.5 - Already discussed 15.8 - Excess fees should have at least $1k go to 15.9 purposes. 15.9 - Excess fees could be a credit towards future ICANN Payments. If the excess is less than $1 then the excess goes to something. Could we say if there is some amount that was to hard to do a refund, then it should go to on of these other areas. Re: From Christa: “15.8 In the event, the excess fees are less than an agreed-upon amount for example, $1k then those funds should be used for the purpose as outlined in recommendation 15.9. This will help ICANN remain efficient while ensuring the costs related to the return of the fees do not exceed the resources required to return the excess to applicants. These funds could be used for items in Recommendation 15.9.” Discussion: -- Won't we know whether there is an excess for some time after the round as there could be potential disputes or litigation later which would normally be paid for from application fees. -- We do recommend a separate work track or team for AS. -- We could say that the IRT should work with the AS work track. -- Could keep this at a high level. Just give guidance to the IRT. -- There were metrics that we wanted developed by the IRT. -- If we have an understanding of how USD47k was derived, then we can at least consider if that formula could be retained for IRT to work on. ACTION ITEM: Revise the language of the recommendation along the lines that Christa is suggesting: From Christa: “15.8 In the event, the excess fees are less than an agreed-upon amount for example, $1k then those funds should be used for the purpose as outlined in recommendation 15.9.” Row 23 – RySG re: Fee floor evaluation; excess fee uses; periodic review; timely return of excess fees; determining fees Leadership Comments: Move first $1k of excess fees (From each application) into contingency fund) Do we need to provide more information on determination of Applicant Support Fees -- maybe leave for the IRT? But is there a principle that we can rely on that was used the last time? Option: Maybe the percentage discount used in the 2012 round could be leveraged for future rounds. Discussion: -- Could start as a baseline from the 2012 round. -- Could use the excess fees as credits for future services, instead of as a refund. -- Could use the excess fees for those items mentioned in Recommendation 15.9, such as an education/awareness campaign. -- Question: Why do we need to build a system to deal with unfixable refunds? For non-profits by default they go to the Secretary of State of California. Answer: We think we’d rather have the funds go to the new gTLD program and specifically the purposes in Recommendation 15.9. ACTION ITEMS: Revise the Recommendation: 1) Change the refund to be refund or credit towards future fees where applicable; 2) If you can't find that entity or, you know, there's no entity to claim that refund, then it would go towards one of the purposes set forth and 15.9. ACTION ITEM: Staff to check to see how the US47k was derived in the 2012 round. Row 25 -- GAC-France re: Concerns about fee floor Leadership Comments: We believe this was intended, but transparency requirement to setting fees should apply to setting the Fee Floor as well. ACTION ITEM: Revise the recommendation to apply the transparency requirement to both the establishment of the fee, as well as the establishment of the floor. Row 26 – ICANN Board re: Further examine concepts: excess fees, closure, round. Leadership Comments: Important to consider when a round is closed IF we are to refund applicants. Leadership believes that looking at a schedule of refunds, or a percentage basis rather than a full refund may be more palatable. (eg., once 50% of apps are "final", then an estimate of excess be determined and payment of 25% of the estimate is paid and then apply a scale after that point). Could set aside part of the payment for continency items and the rest could be available for refund. ACTION ITEM: Leadership will put suggested Implementation Guidance language out on the list for the WG to consider: Could provide Implementation Guidance to the IRT that if ICANN can determine its budget to cover historical, evaluation, and contingency costs, it could release refunds on a percentage basis depending on how many applications are final. Row 27 – ICANN Org re: multiple comments Leadership Comments: -- 15.2 ICANN Org wants a Uniform Charge regardless of whether a registry uses a pre-evaluated RSP. Although more complex from billing, it should be relatively easy. If applicant checks box for using a Pre-evaluated RSP, the fee is less. -- 15.3 Historical Costs should not include any work not directly related to the next round. This means, for example, the NCAP project should not be billed to the next round, nor should any of the work of the CCT Review Team or the SubPro. Only true development costs, personnel costs, etc. once program is approved. -- 15.4 - Leadership believes that 15.5, 15.6 and 15.7 are "musts", and 15.8 is should and therefore the first three are part of the recommendation. -- 15.5 - WG is leaving it to ICANN/implementation as to who determines the "Floor". 15.5/6 Rationale - The WG is NOT saying that the Fee Floor should be the primary mechanism for enforcing the Bona Fide intention requirement. The WG does not believe the Fee Floor should be set at an artificially high amount. ACTION ITEM: Revise the Recommendation and Implementation Guidance to put 15.5, 15.6, and 15.7 directly into Recommendation 15.4. Leave 15.8 as the only Implementation Guidance for Recommendation 15.4. Topic 36: Base Registry Agreement<https://docs.google.com/spreadsheets/d/1mkfwWZtyGAOdIbN3LsgNtDnVs6ehPmgrONz…> General Leadership Comment: Should be noted that ALL constituencies and SGs of GNSO (except IPC) either support the section or have no opinion. And IPC only objection is on negotiating exceptions to RPMs. Row 10 -- National Association of Boards of Pharmacy (NABP) re: apply to all subsequent TLDs; Category 1 Safeguards should apply to Registry Operators Leadership Comments: Leadership believes that this relates the fact that Safeguards only require provisions in a Registry-Registrar Agreement, but may not necessarily not require enforcement. Row 11 -- Swiss Government OFCOM re: RA operational criteria should be binding Leadership Comments: Do we want to take up this issue or is it a broader issue (like DNS Abuse) that if reviewed, should be done in a wholistic manner? Row 12 -- Intellectual Property Constituency (IPC) and PETILLION Law Firm re: “Accordingly, the IPC advocates for strict limitations on exemptions from the base RA, if any, which must not weaken existing rights protection mechanisms or public interest commitments otherwise present in the RA.” Leadership Comments: Does the WG want to make a statement saying that the, the working group does not believe that a consensus policy should be the subject of individual negotiations? Discussion: -- We didn’t put this out for public comment, but it’s not controversial. When we talked about flexibility in our recommendation we don’t think anyone thought this meant that someone could negotiate out of consensus policies. -- You could hypothetically have a situation where a registry wanted to negotiate out of a non-consensus policy, such as indemnity. ACTION ITEM: Revise the recommendation to make it clear that consensus policy should not be the subject of individual RA negotiations. Rows 17 and 29 – ALAC re: Enforce prohibition on fraudulent/deceptive practices in PIC or base RA/Answer to Community Question: Both PIC and RA Leadership Comments: PICDRP does allow in theory "both options", but ALAC does not like the requirement that someone needs to allege and show how they have been harmed by the action. Does WG want to address this? ACTION ITEM: Leadership will put the question out to the list for the WG to consider: “PICDRP does allow in theory "both options", but ALAC does not like the requirement that someone needs to allege and show how they have been harmed by the action. Does WG want to address this? Row 18 – ICANN Org re: Concern about custom RAs; clear rationale for exemptions; request clarity from WG on recommendation 36.3 and provisions; lack of clarity concerning aspects of recommendation 36.4. Leadership Comments: 1. A Rationale should be provided with an exemption request. This seems like a clarification. 2. ICANN Org wants to know why process was not clear. Response: WG found that although exemptions could be granted, few if any were granted and there was no criteria explaining what could and what could not be accepted. 3. Re - 36.4: As pointed out in the .Feedback case, ICANN did not believe it had the right to terminate the Agreement based on Fraud even when it was found by an independent party. Its not outside any organization's remit to cancel a contract based on fraud. If it wants to rely on a third party to make that determination, ICANN could always take the issue to Court for a declaratory judgment if it wants. 4. Re - Applicability to existing TLDs, that can be said of everything we add. But existing TLDs are not within our scope. Discussion: -- Question: From ICANN Org – “Is there an identified set of provisions that could be sought an exemption from versus others that were more fundamental and could not, or is it just open ended -- anybody who wants to propose an exemption or negotiate any provision can just send ICANN a request with a rationale, depending on which it is, those are very different processes to try to build.” Answer: Jeff Neuman -- Once we exclude the consensus policies I don't think that was intended to exclude any other provisions that could be requested or changes that can be requested. We're pretty much asking, ICANN can you tell us what that process is and be clear and transparent about it. The recommendation was not intended to just cover the provisions that already have the built-in exemption. It was intended for other provisions, but not intended to negotiate consensus policies. ACTION ITEM: Add language to Recommendation 36.3 that a clear rationale must accompany any exemption request.

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