January 2021 - Gnso-newgtld-wg

Challenge to designation on Recommendation 35.2
by Jim Prendergast Jan. 14, 2021

Jan. 14, 2021

Cheryl and Jeff Thanks for the call yesterday explaining the process by which you made consensus designations. I appreciated the tremendous effort that went into this exercise. Purpose of this email is to challenge the designation of Recommendation 35.2 which is currently deemed Consensus. While I may refer to determinations for recommendations, it is not my intent to challenge those with this email. For reference, 35.2 reads as follows Recommendation 35.2: Consistent with the Application Change processes set forth under Topic 20: Application Change Requests, the Applicant Guidebook (AGB) must reflect that applicants will be permitted to creatively resolve contention sets in a multitude of manners, including but not limited to business combinations or other forms of joint ventures and private resolutions (including private auctions). * All private resolutions reached by means of forming business combinations or other joint ventures resulting in the withdrawal of one or more applications are subject to the Application Change processes set forth under Topic 20: Application Change Requests. * Any materially modified application resulting from a private resolution will be subject to a new operational comment period on the changes as well as a new period to file objections; provided however, objections during this new period must be of the type that arise due to the changing circumstances of the application and not merely the type of objection that could have been filed against the surviving application or the withdrawn applications in the contention set during the initial objection filing period. *All contention sets resolved through private resolution shall adhere to the transparency requirements set forth in the Contention Resolution Transparency Requirements in the relevant recommendation. My challenge touches on the following points - inconsistency of determinations between recommendations and Leadership's desire to preserve other parts of the recommendation. Inconsistent determinations In discussing the determination to classify recommendation 35.4 as Strong Support but Significant Opposition, Leadership talked about the number comments received, the diversity of those comments and a consultation of public comments. Further examination shows that the majority the 11 comments on the consensus call came from members of the IPC which should not surprise anyone as they also filed a public comment<https://docs.google.com/spreadsheets/d/1kmZRLAsW6wlTyQ8LA3KhOQzU1UABL9zCPWw…> on this. The only other comment on this recommendation was a support of the IPC response to Public Comment by PETILLION Law Firm, an IPC member. The balance of the consensus call comments came from individuals, RySG members and an ALAC member. Compare that to the comments that came in on 35.2. While there may not been the same number of emails that came in on 35.4, you had more diversity than what was accepted for 35.4. There were consensus call responses from individuals as well as members of the ALAC, RySG, and the GAC. In the public comments, you had opposition to Private auctions from the following ICANN SO/AC/SGs * Non-Commercial Stakeholder Group - "...we support the move to set aside private actions." "Private auctions should simply be banned, and other solutions such as Vickrey auctions and "sealed bid, second price auctions" through the ICANN-run auction process should be adopted for the fairness and integrity of the auction process." * Business Constituency - "As we said in 2018, the BC recommends that private auctions be eliminated." * At-Large Advisory Committee - The ALAC remains concerned about efforts to "game" the application process, in part, through the use of private auctions. We disagree with the SubPro WG recommendation to allow them and believe that attempts to determine "good faith" will ultimately be little more than window dressing. Further, the proposed "sealed bid, second price auction" compromise, while superior to the status quo, represents a highly watered down version of the far superior traditional Vickrey auction. The ALAC implore the working group to revisit the prohibition of private auctions and implement a true Vickrey auction solution." When asked if leadership had consulted these responses to the public comments, we were told that unless someone from one of those SO/ACs/SGs specifically replied on the consensus call, they were not consulted. By that standard, the opposition from the Business Constituency and the NCSG was ignored and not used to calculate the designation. This discounting of a comment from a SO/AC/SG is especially troubling because as many in this this working group have said, as an individual, we cannot speak for an SO/AC/SG but when the SO/AC/SG does speak, like the NCSG, BC and ALAC have, it should carry weight. Many of us also know how difficult it is to get a diverse group of voices within an SO/AC/SG to agree to submit a statement on behalf of the entire group. To hear these were not considered is disappointing. Leadership's desire to preserve other parts of the recommendation During our discussion, I agreed with Leadership's assertion that there was not opposition in spirit to the ability to settle contention sets via "private resolution" which could include joint ventures and other arrangements as well as all the other provisions included in the recommendation. But the drafting of the recommendation and the inclusion of "and private resolutions (including private auctions)" poisons the entire recommendation. I understand the desire of leadership to not have to discard what are very good recommendations but in response to leadership's direction to be very specific, people were specific in their opposition to private auctions and not to the entire recommendation. If WG members had known that we had to object to the entire recommendation, as opposed to being specific, the responses would have been different. I fear that in a desire to preserve the rest of the recommendation, leadership is discounting the opposition to Private Auctions. While understandable, that potential bias cannot stand. Thanks for your consideration. Jim Prendergast The Galway Strategy Group jim(a)galwaysg.com<mailto:jim@galwaysg.com> +1 202-285-3699 @jimpren

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Challenge to Consensus Designation
by Hooper, Jessica Jan. 14, 2021

Jan. 14, 2021

Jeff and Cheryl, Thank you for the opportunity to provide feedback in opposition to the Consensus Designations. Attached you'll find a joint letter from several active Working Group members pertaining to the designation assigned to Topic 9 regarding Registry Voluntary Commitments / Public Interest Commitments. Please let me know if you have any questions related to the content of the letter. Many 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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Slight change to Consensus Designation for Topic 29
by Aikman-Scalese, Anne Jan. 14, 2021

Jan. 14, 2021

Jeff, As discussed on yesterday's call, Topic 29 is Consensus (as opposed to full consensus). Full Consensus is as to all but 29.2, which has Consensus (not full consensus.) Thank you, 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@01D6E9D0.4D0A5340] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [cid:image003.jpg@01D6E9D0.4D0A5340] 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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Post Call / New gTLD Subsequent Procedures Working Group call / Tuesday, 12 January 2021 at 20:00 UTC
by Julie Bisland Jan. 12, 2021

Jan. 12, 2021

Dear all, All recordings for the New gTLD Subsequent Procedures Working Group call held on Tuesday, 12 January 2021 at 20:00 UTC can be found on the agenda wiki page <https://community.icann.org/x/5YgmCQ> (attendance included) and the GNSO Master calendar .<https://gnso.icann.org/en/group-activities/calendar/2021> 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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Action Items re: Updated Consensus Designations Table
by Julie Hedlund Jan. 12, 2021

Jan. 12, 2021

Dear Working Group members, Per the action items below captured during the WG meeting, please see the updated table of Consensus Designations indicating the change to “Consensus” for Topic 21.1 Geographic Names and Topic 29 Name Collisions. Please note also that per the Work Plan the deadline for submission of Challenges to Designation of Levels of Support by Working Group Leadership Team (if any) is Wednesday (tomorrow), 13 January at 23:59 UTC. Kind regards, Julie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Tuesday, January 12, 2021 at 5:00 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 - 12 January 2021 20:00 UTC Dear Working Group members, Please see below the notes from the WG meeting on 12 January 2021 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/2021-01-12+New+gTLD+Subsequent+Pr…. Kind regards, Julie == Notes and Action Items: Action Items: Topic 21.1: Geographic Names ACTION ITEM: Change designation to “Consensus”. Topic 29: Name Collisions ACTION ITEM: Change designation to “Consensus”. AOB: Response to the ICANN Board’s questions ACTION ITEM: WG members to respond by 23:59 UTC on Friday, 15 January by notifying staff if interested in joining a group to develop the response. Notes: 1. Updates to Statements of Interest: None provided. 2. Discussion of Consensus Designations See attached Consensus Call Responses See attached Consensus Designations Also see the wiki at: https://community.icann.org/display/NGSPP/2021-01-12+New+gTLD+Subsequent+Pr… Minority or other statements due by Monday, 18 January 23:59 UTC. Methodology for Consensus Designations: From Section 3.6 of the Working Group Guidelines: Standard Methodology for Making Decisions – see: https://gnso.icann.org/sites/default/files/file/field-file-attach/annex-1-g… The Chair will be responsible for designating each position as having one of the following designations:[1] * Full consensus - when no one in the group speaks against the recommendation in its last readings. This is also sometimes referred to as Unanimous Consensus. · Consensus - a position where only a small minority disagrees, but most agree.[2] · Strong support but significant opposition - a position where, while most of the group supports a recommendation, there are a significant number of those who do not support it. -- Auctions topic Topic 35: Auctions: Mechanisms of Last Resort / Private Resolution of Contention Sets – Only one where the outputs couldn’t be designated as Consensus, instead Strong Support but Significant Opposition. -- In looking at responses looked at number of objections, diversity (different groups/entities), representation. -- Strong Support but Significant Opposition is not consensus, but does indicate support. -- Leadership has tried to be conservative in making the Consensus Designations. Full Consensus: -- For those items for which no comments/objections were filed, those were considered “Full Consensus”. Details: Topic 2: Predictability Full Consensus on 2.1, 2.2, 2.4-2.8; Consensus on 2.3 Topic 3: Applications Assessed in Rounds Full Consensus on 3.1-3.5, and 3.7; Consensus on 3.6 Topic 4: Different TLD Types Full Consensus on 4.2 and 4.3; Consensus on 4.1 Topic 9: Registry Voluntary Commitments / Public Interest Commitments Full Consensus on 9.1-9.8, 9.13, and 9.14; Consensus on 9.9-9.12 and 9.15 Full Consensus on the importance of ongoing important work in the community on the topic of DNS abuse and a holistic solution is needed to account for DNS abuse in all gTLDs; Consensus on referring the topic outside of the SubPro PDP and Consensus on the inclusion of ccTLDs in the process. Discussion: -- Some members said we could have discussed the rationale more. When looking at the group as a whole a small minority of members opposed the recommendations. Any member who did not objection was considered as supporting the recommendation. -- If you look at the active members, the leadership considered that all of the recommendations had Consensus. -- Elaine Pruis has stated that she doesn’t not support all of the outputs under Topic 9. -- Even if we look at all of Topic 9 and the responses we still would have Consensus. If we looked at one level down that would be Strong Support but Significant Opposition. -- Need to be careful revising opinions after the end of the Consensus Call. -- Option to submit a minority statement/report. Topic 12: Applicant Guidebook Full Consensus on 12.1-12.8; Consensus on 12.9 and 12.10 Full Consensus on the fact that the Guidebook be translated into at least the 6 UN languages and that the translated versions should be publishes at or as close as possible in time to the English version. There is Consensus on the fact that "other translated version, including in the 6 UN languages must be available no later than two (2) months prior to the commencement of the application submission period." The reason this is not Full Consensus is due to the fact that a couple of members commented that the translated versions should be made available earlier than two (2) months prior to commencement of the application submission period. Topic 15: Application Fees Full Consensus on 15.2-15.6; Consensus on 15.1 and 15.7 Topic 17: Applicant Support Full Consensus on 17.2, 17.3, 17.5-17.14; Consensus on 17.1, 17.4, 17.15-17.18 - In general, Full Consensus on 17.1 and having the applicant support program, except to the extent that it has language related to the bid credit/multiplier - Full Consensus on the restrictions on assignments if Bid Credits/Multipliers are applied - Full Consensus on giving unsucessful applicants for Applicant Support the ability to keep their application alive by paying the remainder of the fee. - However, there is only Consensus on the gaming exception to being able to keep application alive; more specifically who can evaluate gaming and how that evaluation would be done. Topic 18: Terms & Conditions Full Consensus on 17.2, 17.3, 17.5-17.14; Consensus on 17.1, 17.4, 17.15-17.18 Full consensus that there be appeals/challenge mechanisms, but Consensus on whether the Ts and Cs should have a covenant not to sue even with those Appeals/challenge mechanisms. Topic 21: Reserved Names Full Consensus on 21.1-21.3 and 21.5-21.6; Consensus on 21.4 Agree as Consensus; only opposition is to 21.4 reserving "PTI". 21.1-21.3 and 21.5-21.6 Full Consensus Topic 21.1: Geographic Names Note objection from Christopher Wilkinson provided during the Consensus Call. ACTION ITEM: Change designation to “Consensus”. Topic 24: String Similarity Evaluations Full Consensus on 24.1-24.2; Consensus on 24.3-24.6 Consensus Full consensus on not allowing plurals/singulars. Just consensus on whether plurals/singulars should be allowed if intended use is different. Topic 27: Applicant Reviews: Technical/Operational, Financial and Registry Services Full Consensus on 27.1-27.17, and 27.18(i) and (ii); Consensus on 27.18(iii). The only element that was opposed by one member was allowing incumbent registry operators use their incumbency to automatically qualify financially during an evaluation of another TLD. Topic 29: Name Collisions Note objection from Anne Aikman-Scalese to 29.2 provided during the Consensus Call. ACTION ITEM: Change designation to “Consensus”. Topic 30: GAC Consensus Advice and GAC Early Warning Full Consensus on 30.1, 30.5, and 30.7-30.19 ; Consensus on 30.2, 30.4 and 30.6. There was only one member that opposed the language on GAC Advice and removal of the "strong presumption" Topic 34: Community Applications Full Consensus on 34.2, 34.3, 34.5-34.10, 34.13-34.22; Consensus on 34.1, 34.4, 34.11 and 34.12 Although one person objected to giving Communities any priority, Leadership determined that many of the other elements had full consensus if Communities were given priority. In other words, although that member objected to communities in general, if there were communities, then a number of the outputs would be supported. Topic 35: Auctions: Mechanisms of Last Resort / Private Resolution of Contention Sets Consensus on 35.1-35.3, and 35.5; Strong Support but Significant Opposition on 35.4 Consensus on the notion on resolving contention sets through the means of an ICANN auction of last resort and that Communities should receive priority to resolve contention sets., In addition, there seemed to be consensus on private resolution of contention sets. There was significant opposition to using a sealed bid process, especially to the timing of the submission of a bid. Discussion: -- With the number of respondents that have opposition could this be “Divergence”. -- Many WG members did not respond and this was taken as support. -- Option to challenge the designation and/or file a Minority Statement/Report. -- If a WG member just objected to one part of a recommendation it was not understood that they objected to all of the recommendation, or recommendations in a topic. -- Consider keeping the leadership notes in the Final Report. -- The table of Consensus Designations is a public document for reference as it is posted to the wiki, so the leadership notes are accessible. Topic 41: Contractual Compliance Full Consensus on 41.1; Consensus on 41.2 3. AOB: Response to the ICANN Board’s questions -- WG members should let Staff know if they wish to work on a response to the Board. ACTION ITEM: WG members to respond by 23:59 UTC on Friday, 15 January by notifying staff if interested in joining a group to develop the response. ________________________________ ________________________________ [1] The designations “Full consensus,” “Consensus,” and “Strong support but significant opposition” may also be used to signify levels of “consensus against” a particular recommendation if the consensus position of the Working Group warrants it. If this is the case, any “Minority View” will be in favor of the particular recommendation. It is expected that designations of “consensus against” will be rare and Working Groups are encouraged to draft (and revise) recommendations so that a level of consensus can be expressed “for” rather than “against” a recommendation. However, it is recognized that there can be times when a “consensus against” designation is both appropriate and unavoidable as a practical matter. A “consensus against” position should be distinguished from a position of “Divergence” (or “No Consensus”), which is applied where no consensus has emerged either for or against a recommendation (i.e., the consensus level of the Working Group cannot be described as “Full consensus,” “Consensus” or “Strong support but significant opposition” either for or against a recommendation). [2] For those that are unfamiliar with ICANN usage, you may associate the definition of ‘Consensus’ with other definitions and terms of art such as rough consensus or near consensus. It should be noted, however, that in the case of a GNSO PDP originated Working Group, all reports, especially Final Reports, must restrict themselves to the term ‘Consensus’ as this may have legal implications.

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Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 12 January 2021 20:00 UTC
by Julie Hedlund Jan. 12, 2021

Jan. 12, 2021

Dear Working Group members, Please see below the notes from the WG meeting on 12 January 2021 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/2021-01-12+New+gTLD+Subsequent+Pr…. Kind regards, Julie == Notes and Action Items: Action Items: Topic 21.1: Geographic Names ACTION ITEM: Change designation to “Consensus”. Topic 29: Name Collisions ACTION ITEM: Change designation to “Consensus”. AOB: Response to the ICANN Board’s questions ACTION ITEM: WG members to respond by 23:59 UTC on Friday, 15 January by notifying staff if interested in joining a group to develop the response. Notes: 1. Updates to Statements of Interest: None provided. 2. Discussion of Consensus Designations See attached Consensus Call Responses See attached Consensus Designations Also see the wiki at: https://community.icann.org/display/NGSPP/2021-01-12+New+gTLD+Subsequent+Pr… Minority or other statements due by Monday, 18 January 23:59 UTC. Methodology for Consensus Designations: From Section 3.6 of the Working Group Guidelines: Standard Methodology for Making Decisions – see: https://gnso.icann.org/sites/default/files/file/field-file-attach/annex-1-g… The Chair will be responsible for designating each position as having one of the following designations:[1] * Full consensus - when no one in the group speaks against the recommendation in its last readings. This is also sometimes referred to as Unanimous Consensus. · Consensus - a position where only a small minority disagrees, but most agree.[2] · Strong support but significant opposition - a position where, while most of the group supports a recommendation, there are a significant number of those who do not support it. -- Auctions topic Topic 35: Auctions: Mechanisms of Last Resort / Private Resolution of Contention Sets – Only one where the outputs couldn’t be designated as Consensus, instead Strong Support but Significant Opposition. -- In looking at responses looked at number of objections, diversity (different groups/entities), representation. -- Strong Support but Significant Opposition is not consensus, but does indicate support. -- Leadership has tried to be conservative in making the Consensus Designations. Full Consensus: -- For those items for which no comments/objections were filed, those were considered “Full Consensus”. Details: Topic 2: Predictability Full Consensus on 2.1, 2.2, 2.4-2.8; Consensus on 2.3 Topic 3: Applications Assessed in Rounds Full Consensus on 3.1-3.5, and 3.7; Consensus on 3.6 Topic 4: Different TLD Types Full Consensus on 4.2 and 4.3; Consensus on 4.1 Topic 9: Registry Voluntary Commitments / Public Interest Commitments Full Consensus on 9.1-9.8, 9.13, and 9.14; Consensus on 9.9-9.12 and 9.15 Full Consensus on the importance of ongoing important work in the community on the topic of DNS abuse and a holistic solution is needed to account for DNS abuse in all gTLDs; Consensus on referring the topic outside of the SubPro PDP and Consensus on the inclusion of ccTLDs in the process. Discussion: -- Some members said we could have discussed the rationale more. When looking at the group as a whole a small minority of members opposed the recommendations. Any member who did not objection was considered as supporting the recommendation. -- If you look at the active members, the leadership considered that all of the recommendations had Consensus. -- Elaine Pruis has stated that she doesn’t not support all of the outputs under Topic 9. -- Even if we look at all of Topic 9 and the responses we still would have Consensus. If we looked at one level down that would be Strong Support but Significant Opposition. -- Need to be careful revising opinions after the end of the Consensus Call. -- Option to submit a minority statement/report. Topic 12: Applicant Guidebook Full Consensus on 12.1-12.8; Consensus on 12.9 and 12.10 Full Consensus on the fact that the Guidebook be translated into at least the 6 UN languages and that the translated versions should be publishes at or as close as possible in time to the English version. There is Consensus on the fact that "other translated version, including in the 6 UN languages must be available no later than two (2) months prior to the commencement of the application submission period." The reason this is not Full Consensus is due to the fact that a couple of members commented that the translated versions should be made available earlier than two (2) months prior to commencement of the application submission period. Topic 15: Application Fees Full Consensus on 15.2-15.6; Consensus on 15.1 and 15.7 Topic 17: Applicant Support Full Consensus on 17.2, 17.3, 17.5-17.14; Consensus on 17.1, 17.4, 17.15-17.18 - In general, Full Consensus on 17.1 and having the applicant support program, except to the extent that it has language related to the bid credit/multiplier - Full Consensus on the restrictions on assignments if Bid Credits/Multipliers are applied - Full Consensus on giving unsucessful applicants for Applicant Support the ability to keep their application alive by paying the remainder of the fee. - However, there is only Consensus on the gaming exception to being able to keep application alive; more specifically who can evaluate gaming and how that evaluation would be done. Topic 18: Terms & Conditions Full Consensus on 17.2, 17.3, 17.5-17.14; Consensus on 17.1, 17.4, 17.15-17.18 Full consensus that there be appeals/challenge mechanisms, but Consensus on whether the Ts and Cs should have a covenant not to sue even with those Appeals/challenge mechanisms. Topic 21: Reserved Names Full Consensus on 21.1-21.3 and 21.5-21.6; Consensus on 21.4 Agree as Consensus; only opposition is to 21.4 reserving "PTI". 21.1-21.3 and 21.5-21.6 Full Consensus Topic 21.1: Geographic Names Note objection from Christopher Wilkinson provided during the Consensus Call. ACTION ITEM: Change designation to “Consensus”. Topic 24: String Similarity Evaluations Full Consensus on 24.1-24.2; Consensus on 24.3-24.6 Consensus Full consensus on not allowing plurals/singulars. Just consensus on whether plurals/singulars should be allowed if intended use is different. Topic 27: Applicant Reviews: Technical/Operational, Financial and Registry Services Full Consensus on 27.1-27.17, and 27.18(i) and (ii); Consensus on 27.18(iii). The only element that was opposed by one member was allowing incumbent registry operators use their incumbency to automatically qualify financially during an evaluation of another TLD. Topic 29: Name Collisions Note objection from Anne Aikman-Scalese to 29.2 provided during the Consensus Call. ACTION ITEM: Change designation to “Consensus”. Topic 30: GAC Consensus Advice and GAC Early Warning Full Consensus on 30.1, 30.5, and 30.7-30.19 ; Consensus on 30.2, 30.4 and 30.6. There was only one member that opposed the language on GAC Advice and removal of the "strong presumption" Topic 34: Community Applications Full Consensus on 34.2, 34.3, 34.5-34.10, 34.13-34.22; Consensus on 34.1, 34.4, 34.11 and 34.12 Although one person objected to giving Communities any priority, Leadership determined that many of the other elements had full consensus if Communities were given priority. In other words, although that member objected to communities in general, if there were communities, then a number of the outputs would be supported. Topic 35: Auctions: Mechanisms of Last Resort / Private Resolution of Contention Sets Consensus on 35.1-35.3, and 35.5; Strong Support but Significant Opposition on 35.4 Consensus on the notion on resolving contention sets through the means of an ICANN auction of last resort and that Communities should receive priority to resolve contention sets., In addition, there seemed to be consensus on private resolution of contention sets. There was significant opposition to using a sealed bid process, especially to the timing of the submission of a bid. Discussion: -- With the number of respondents that have opposition could this be “Divergence”. -- Many WG members did not respond and this was taken as support. -- Option to challenge the designation and/or file a Minority Statement/Report. -- If a WG member just objected to one part of a recommendation it was not understood that they objected to all of the recommendation, or recommendations in a topic. -- Consider keeping the leadership notes in the Final Report. -- The table of Consensus Designations is a public document for reference as it is posted to the wiki, so the leadership notes are accessible. Topic 41: Contractual Compliance Full Consensus on 41.1; Consensus on 41.2 3. AOB: Response to the ICANN Board’s questions -- WG members should let Staff know if they wish to work on a response to the Board. ACTION ITEM: WG members to respond by 23:59 UTC on Friday, 15 January by notifying staff if interested in joining a group to develop the response. ________________________________ [1] The designations “Full consensus,” “Consensus,” and “Strong support but significant opposition” may also be used to signify levels of “consensus against” a particular recommendation if the consensus position of the Working Group warrants it. If this is the case, any “Minority View” will be in favor of the particular recommendation. It is expected that designations of “consensus against” will be rare and Working Groups are encouraged to draft (and revise) recommendations so that a level of consensus can be expressed “for” rather than “against” a recommendation. However, it is recognized that there can be times when a “consensus against” designation is both appropriate and unavoidable as a practical matter. A “consensus against” position should be distinguished from a position of “Divergence” (or “No Consensus”), which is applied where no consensus has emerged either for or against a recommendation (i.e., the consensus level of the Working Group cannot be described as “Full consensus,” “Consensus” or “Strong support but significant opposition” either for or against a recommendation). [2] For those that are unfamiliar with ICANN usage, you may associate the definition of ‘Consensus’ with other definitions and terms of art such as rough consensus or near consensus. It should be noted, however, that in the case of a GNSO PDP originated Working Group, all reports, especially Final Reports, must restrict themselves to the term ‘Consensus’ as this may have legal implications.

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Text from Working Group Guidelines 3.6 on Challenging Consensus Designations
by Julie Hedlund Jan. 12, 2021

Jan. 12, 2021

Dear WG members, Per the discussion during today’s meeting there was a question as to whether there is guidance on WG members lodging a challenge to the leadership’s Consensus Designations. Here is the relevant guidance in Section 3.6 of the Working Group Guidelines: “If several participants[1] in a WG disagree with the designation given to a position by the Chair or any other consensus call, they may follow these steps sequentially: 1. Send email to the Chair, copying the WG explaining why the decision is believed to be in error. 2. If the Chair still disagrees with the complainants, the Chair will forward the appeal to the CO liaison(s). The Chair must explain his or her reasoning in the response to the complainants and in the submission to the liaison. If the liaison(s) supports the Chair's position, the liaison(s) will provide their response to the complainants. The liaison(s) must explain their reasoning in the response. If the CO liaison disagrees with the Chair, the liaison will forward the appeal to the CO. Should the complainants disagree with the liaison support of the Chair’s determination, the complainants may appeal to the Chair of the CO or their designated representative. If the CO agrees with the complainants’ position, the CO should recommend remedial action to the Chair. 3. In the event of any appeal, the CO will attach a statement of the appeal to the WG and/or Board report. This statement should include all of the documentation from all steps in the appeals process and should include a statement from the CO.[2] Footnote: Any Working Group member may raise an issue for reconsideration; however, a formal appeal will require that that a single member demonstrates a sufficient amount of support for initiating an appeal before the formal process outlined in Section 3.7 can be invoked. In those cases where a single Working Group member is seeking reconsideration, the member will advise the Chair and/or Liaison of their issue and the Chair and/or Liaison will work with the dissenting member to investigate the issue and to determine if there is sufficient support for the reconsideration to initial the appeal process set forth in Section 3.7.” Note that the deadline for challenges per the work plan is Wednesday, 13 January. Kind regards, Julie ________________________________ ________________________________ [1] Any Working Group member may raise an issue for reconsideration; however, a formal appeal will require that that a single member demonstrates a sufficient amount of support for initiating an appeal before the formal process outlined in Section 3.7 can be invoked. In those cases where a single Working Group member is seeking reconsideration, the member will advise the Chair and/or Liaison of their issue and the Chair and/or Liaison will work with the dissenting member to investigate the issue and to determine if there is sufficient support for the reconsideration to initial the appeal process set forth in Section 3.7. [2] It should be noted that ICANN also has other conflict resolution mechanisms available that could be considered in case any of the parties are dissatisfied with the outcome of this process.

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Re: [Gnso-newgtld-wg] I support concerns voiced regarding the draft report's treatment of PICs and RVCs
by Pruis, Elaine Jan. 12, 2021

Jan. 12, 2021

To clarify, my opposition is to the RVCs being included in the registry contract. RVCs in the application and in the registry operator’s policies I don’t mind. But in no way should my lack of calling out 9.9 specifically indicate support for 9 overall. Elaine Pruis Senior Director Naming Operations and Policy epruis(a)verisign.com<mailto:epruis@verisign.com> 703.948.4672 [signature_1932908514] From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> on behalf of Jeff Neuman <jeff(a)jjnsolutions.com> Date: Tuesday, January 12, 2021 at 2:55 PM To: George Sadowsky <george.sadowsky(a)gmail.com>, New gTLD SubPro <gnso-newgtld-wg(a)icann.org> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] I support concerns voiced regarding the draft report's treatment of PICs and RVCs Caution: This email originated from outside the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. George, I think you need to read the responses carefully to get the intricacies of the statement that everyone has made to understand why we have labeled them as consensus. For example, according to the responses, Jim, Elaine and Jessica did not state that they opposed the recommendation in 9.9. They have some issues with the rationale and they would like the rationale to be worked on, but they have not indicated opposition to 9.9. Greg actually stated the opposite, that he supported 9.9 and does not see any way that PICs could violate the Bylaws. The ONLY objection to the recommendation came from Kathy. And one person’s objection does not indicate a lack of consensus. Happy to discuss further in 10 minutes. [cid:image002.png@01D6E8F4.04491150] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff(a)jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of George Sadowsky Sent: Tuesday, January 12, 2021 2:38 PM To: New gTLD SubPro <gnso-newgtld-wg(a)icann.org> Subject: [Gnso-newgtld-wg] I support concerns voiced regarding the draft report's treatment of PICs and RVCs Dear Jeff and Cheryl, At the end of this long effort, I want to thank you very much for your willingness to lead what appears to have turned out to be a major life event for you both! I would like to note for the record that I support the concerns raised by Greg, Elaine Pruis, Jim Prendergast, Jessica Hooper, Kathy Kleiman and others on Topic 9 about RVCs, and specifically oppose draft recommendations 9.9 and 9.10. I do not think these recommendations have consensus without absolute clarity and determination that PICs and RVCs must not and will not violate the scope and mission of ICANN. I share the current Board members worries, and the dilemma that ICANN will be asked to enforce things outside its scope and mission, which it cannot do (directly or through a third party). The Board members who have contributed their views on this are right; we cannot allow this to happen. I do not think these recommendations have consensus to move forward - under any definition of consensus that I know. This certainly would not pass the carefully considered consensus evaluation of RFC 7282, which is in my opinion one of the most careful and considerate studies of the factors that are relevant and important in assessing a degree of consensus. Best regards, George

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I support concerns voiced regarding the draft report's treatment of PICs and RVCs
by George Sadowsky Jan. 12, 2021

Jan. 12, 2021

Dear Jeff and Cheryl, At the end of this long effort, I want to thank you very much for your willingness to lead what appears to have turned out to be a major life event for you both! I would like to note for the record that I support the concerns raised by Greg, Elaine Pruis, Jim Prendergast, Jessica Hooper, Kathy Kleiman and others on Topic 9 about RVCs, and specifically oppose draft recommendations 9.9 and 9.10. I do not think these recommendations have consensus without absolute clarity and determination that PICs and RVCs must not and will not violate the scope and mission of ICANN. I share the current Board members worries, and the dilemma that ICANN will be asked to enforce things outside its scope and mission, which it cannot do (directly or through a third party). The Board members who have contributed their views on this are right; we cannot allow this to happen. I do not think these recommendations have consensus to move forward - under any definition of consensus that I know. This certainly would not pass the carefully considered consensus evaluation of RFC 7282, which is in my opinion one of the most careful and considerate studies of the factors that are relevant and important in assessing a degree of consensus. Best regards, George

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Official Consensus Call Designations and Responses
by Jeff Neuman Jan. 12, 2021

Jan. 12, 2021

All, Attached is the Working Group Co-Chairs' designation as to the level of Consensus on each Overall Topic containing Affirmations, Recommendations and/or Implementation Guidance in the Final Report on the new gTLD Subsequent Procedures Policy Development Process. We have also attached a copy of a spreadsheet with all of the Consensus Call Responses filed by members of the Working Group. As a reminder, Section 3.6 of the GNSO Working Group Guidelines<https://gnso.icann.org/sites/default/files/file/field-file-attach/annex-1-g…> provides the applicable methodology for the Chairs for Making Decisions. We are proud to announce that of the 41 overall topics, all but 1 of the topics received a designation of either Full Consensus or Consensus. More specifically, 26 topics received Full Consensus, 14 received Consensus and 1 received a designation of Strong Support but Significant Opposition. Within each of the topics that received either Consensus or Strong Support but Significant Opposition, the table sets forth those outputs which the topic that achieved Consensus or Full Consensus. For example, in Topic 2, the overall designation for the Topic is "Consensus." That said, Outputs 2.1, 2.2, 2.4, 2.5, 2.6, 2.7 and 2.8 actually had "Full Consensus", but Output 2.3 had Consensus. We look forward to discussing any questions you might have on Tuesday's Working Group Call. Please remember that you have until 13 January 2021 at 23:59 UTC to challenge any of these designations, and until 18 January 2021 at 23:59 UTC to file any Minority Reports or other statements. In full disclosure, some members have asked whether they could file statements of support and leadership can see no reason to not include links to those statements (like the minority reports) in the Final Report. We also wanted to thank you for all of your effort these past 4-5 years and for helping us get to the finish line. And a special thanks of course to the other members of the leadership team who have helped us along the way and of course to Steve, Emily and Julie for their amazing work! Sincerely, Cheryl Langdon-Orr and Jeff Neuman, SubPro Chairs

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