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UPDATE re: Proposed agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 24 October 2019 at 20:00 UTC
by Julie Hedlund Oct. 23, 2019

Oct. 23, 2019

Dear all, This agenda has been updated to include the DNS Abuse document. Please find below the proposed agenda for the call on Thursday, 24 October 2019 at 20:00 UTC for 90 minutes: 1. Welcome and Updates to Statements of Interest 2. Review of summary documents: 1. DNS Abuse: https://docs.google.com/document/d/1nIorSwzwom_yXvzWwo9pElsnFfK7bwcuYQq_Hur… 2. Registrar Support for New gTLDs: https://docs.google.com/document/d/14HxLzQMXs90hAkpRStPAwHDC4CxaYXWqxZ-psTm… page 8 (time permitting) 3. 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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Proposed agenda - New gTLD Subsequent Procedures PDP WG - Thursday, 24 October 2019 at 20:00 UTC
by Julie Hedlund Oct. 23, 2019

Oct. 23, 2019

Dear all, Please find below the proposed agenda for the call on Thursday, 24 October 2019 at 20:00 UTC for 90 minutes: 1. Welcome and Updates to Statements of Interest 2. Review of summary documents: 1. DNS Abuse (document(s) TBD) 2. Registrar Support for New gTLDs: https://docs.google.com/document/d/14HxLzQMXs90hAkpRStPAwHDC4CxaYXWqxZ-psTm… page 8 (time permitting) 3. 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 - 22 October 2019
by Emily Barabas Oct. 22, 2019

Oct. 22, 2019

Dear Working Group members, Please see below the notes from the meeting on 22 October 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/x/oooCBw. Kind regards, Emily Notes and Action Items: Actions: ACTION ITEM: Working Group members to respond on list to the proposal to add a Public Interest Commitment stating that the registry operator will not engage in fraudulent and deceptive practices. Are there objections? Notes: 1. Welcome and Updates to Statements of Interest * No SOI updates * Phil Buckingham shared an update on the mailing list. 2. Review of summary documents: a. Auctions: Mechanisms of Last Resort:https://docs.google.com/document/d/15S_sUuP_gmKqba26tU9kYQ8mVF76W_3C… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> * On the last call, the WG focused mechanisms of last resort and then went on to discuss private resolution. We covered what was in the summary document, but we will talk more today about Donna’s proposal on the last call, Jeff’s version as he has interpreted the proposal, and possible alternatives. * Taking a step back, what is the problem or perceived problem that we are trying to solve? This requires going back to Supplemental Initial Report, Board letter, and other materials. * Concern raised by the Board with respect to private auctions - possibility of gaming, potential financial benefit to parties who do not intend to use the string. Concerns also raised by GAC, ALAC, and others. * Review of Supplemental Initial Report text on concerns raised about gaming (see page 19). * Community comments indicate that it doesn’t feel right or send the right message to those outside ICANN that we are creating a secondary market for top level domains. This is the problem we are trying to solve. * Note that there were other comments that said that this issue should be studied further before the WG should make any recommendations. It’s important to keep this in mind before making a conclusion. * Response: the WG tried to study this issue, but there are confidentiality agreements and some parties do not want to share information. It is possible to look at some public data (links shared in chat). * In defense of private auctions, there is the argument that all parties must consent to go to private auction. There is also the question of whether ICANN should be getting involved in transactions between private actors. At the same time, it is important to take comments from the Board and governments and address those in some way. * Proposals regarding alternatives to auction, such as RFPs or random draws, did not receive favorable comments. Therefore, the auction is likely to stay in some form, but there are different types to consider. * One member raised that the ICANN Board is an interested party in the issue of auctions of last resort, and this should be taken into account when reviewing Board comments on the topic. * Response – the Board comments did not advocate for auctions of last resort. They raised concerns about perception issues about private auctions. * Staff comment – Looking back at the Supplemental Initial Report, one connection that the WG made based on the links Jeff provided, was that there is evidence that applicants were able to gain financially from private auctions. This will be known in future rounds, and may incentivize an increase in private auctions in subsequent procedures absent measures to disincentivize the practice. * Donna’s proposal for sealed bid auction process: Applicants submit applications, ICANN determines which applications would be in contention, ICANN would contact applicants and let them know that there is contention but not which parties are in the contention set. Applicants could submit a sealed bid before reveal day or withdraw the application. After reveal day applicants would go through all of the steps as they would in 2012. If the applications still remained in contention at that point, there would be a period for private resolution. If that didn’t resolve contention, the bids would be opened and the string would be granted to highest bidder. * Second option: the beginning would be the same. Applicants submit applications, ICANN determines which applications would be in contention, ICANN would contact applicants and let them know that there is contention but not which parties are in the set. Applicants could submit a sealed bid before reveal day or withdraw the application. After reveal day, there would be string similarity review to see if there might be other strings in the contention set, string confusion objections, CPE. Once that is done, before evaluation of applications from a technical perspective, bids are opened, the highest bidder is selected and only that applicant moves through the process. Jeff’s email provides additional detail about different scenarios. * Question about Donna’s proposal – the applicants do not learn about the identities of the other applicants when they are notified of contention, correct? * Response – it might be helpful to first focus on the high-level idea, and then get into details. * For both proposals, the idea is that parties would be told that there was contention, but does not state who is in the contention set. * Donna’s proposal solves for the issue of having a long drawn-out auction of last resort, but doesn’t solve for the concern that private auctions may have financial benefit. All applications still need to be evaluated, so there are not necessarily cost savings. * Jeff’s alternative would make things more complicated, but it would not allow for private resolution. You would only evaluate one application, as opposed to evaluating all applications. The additional complication might or might not be worth it. * Discussion will continue of the list on the different options. Unless we stay with the status quo, this will likely need to go out for public comment. * Consideration - We have already ruled out other things that could have addressed collusion or profiting from the program – for example, we could have raised the application fee, or could have said that portfolio applicants are not allowed. We are potentially running out of options and this is what we are left with. It’s tricky and we may not completely be able to prevent the behavior. * We can revisit some of the other solutions, but there were many negative public comments on them. * Clarification – there is no need to revisit the other solutions that were eliminated, it’s just important to acknowledge the challenges of the solutions we are still considering. * This will be discussed further on the mailing list. We might be able to develop some additional materials on email and then if necessary, another call can be scheduled on this topic to discuss further. b. Base Registry Agreement:https://docs.google.com/document/d/14HxLzQMXs90hAkpRStPAwHDC4CxaY… [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> * Review of policy goals and high-level agreements. * Proposed high-level agreement would leave quite a bit of detail for the IRT to work out. * Review of concerns and new ideas regarding the proposed high-level agreement. Is there more detail we can add to the high-level agreement to address concerns raised by ICANN org? * Maybe the proposed high-level agreement is already getting into implementation issues. Perhaps the policy should be higher-level -- ICANN org should accommodate different business models and be open to new ideas as long as it doesn’t do any harm to the rest of the industry. * We are putting ICANN in a difficult situation. If we just have that high-level recommendation, we are putting ICANN in a position where it needs to make a judgement call without further guidance. We talk about equitable treatment on the one hand and flexibility on the other. * Maybe it will solve the problem to provide advice to lean towards innovation. * We can add language that the purpose is to encourage innovation and allow ICANN to be more lenient towards additional types of business models and make a balanced determination about modifications where it’s either in the public interest to do so or no harm to the public interest in doing so. * Further analysis might be needed of RySG proposal: “The existing process of obtaining an exemption to the Code of Conduct results in some ambiguity under the Registry Agreement, since the registry operator is still bound by section 2.9. Since, under the current model, all exemptions must be for single- registrant models wherein the registry (as registrant) may still chose its registrar, we do not believe this language should apply to Specification 9 exempt TLDs, regardless of whether they additionally qualify for Specification 13.” * Review of comment on the process for obtaining exemptions - how can ICANN balance the need to consider unique aspects on applications while also treating each registry operator equitably? * RrSG suggests that SLA metrics should be equal. One WG member responded that he did not object to this approach. * Review of comments on suggestion that for exemptions or exceptions, the proposer could provide the specific problematic provisions, the underlying policy justifications for those provisions, and the reasons why the relief is not contrary to those justifications. * Neustar commented that this would require the proposer to know the underlying policy justification for any given part of the RA. To address this concern, perhaps instead the proposer must provide justification for the requested exemption. This would then potentially go out for public comment. Some information may be confidential, but the proposer and ICANN might be able to put forward a explanation that does not reveal any confidential information. * Review of comments on including a covenant in the RA that the registry operator will not engage in fraudulent and deceptive practices. This was suggested in response to a PICDRP case. The idea is that this would give ICANN a remedy if fraud was found to exist. * Thoughts on making this a PIC? If it’s in the RA, ICANN is the only one enforcing. If it’s a PIC, a complaint can be filed by a third party and ICANN has the discretion to initiate a PICDRP using the third-party complaint. * If it’s a PIC, we need to reconcile with the groups that oppose PICs in general, although some of the concerns about PICs may be the name used – the term “public interest” may be a misnomer. * Proposal to suggest that this is included in PICs. ACTION ITEM: Working Group members to respond on list to the proposal to add a Public Interest Commitment stating that the registry operator will not engage in fraudulent and deceptive practices. Are there objections? * Review of comment on registration terms, billing cycles, and presumptive renewals. In response to Google’s comment on this topic: the concerns should probably be addressed by asking for an exemption and providing a rationale. Otherwise there are mechanisms (SSAC, IETF – the EPP Protocol) to deal with these concerns, but this is outside of the WG’s area of expertise. * Review of comments on premium pricing. Note that there was also an issue that SubPro had referred to RPMs – reservation of names that later go to premium pricing, and whether they go around RPMs. * There is a fine balance about whether issues related to premium pricing are in scope or not. We can say that transparency is key, that provisions in the agreement are there to require this transparency, and that ICANN should be enforcing the provisions of the RA and RAA. * Comment from ICANN Org – it would be helpful to have a set of policy goals/principles in relation to exemptions. It’s hard to consider exemption requests in a vacuum. This would be helpful both in implementation of the program and also for guiding applicants as to whether an exemption is something they should pursue. * Maybe the group can look at the RSEP request form and some of the goals listed there as an example – encourage competition, reduce harm, etc. c. Registrar Non-Discrimination / Registry/Registrar Standardization (https://docs.google.com/document/d/14HxLzQMXs90hAkpRStPAwHDC4CxaYXWqxZ-psTm…<https://docs.google.com/document/d/14HxLzQMXs90hAkpRStPAwHDC4CxaYXWqxZ-psTm…>) * Review of policy goals and high-level agreement. * Review of comments on revision of recommendation 19 to make current with the current environment. * Review of general comments on the topic of vertical integration. * Review of comments on whether registry operators granted an exemption from the Code of Conduct should also be exempt from section 2.9 of the Registry Agreement. * Review of comments – if complete exemptions are granted, are there any obligations that should be imposed on .Brand registries? * Review of comments - additional situations where exemptions to the Code of Conduct should be available? * Review of comments - there are provisions in the Registrar Stakeholder Group Charter that some feel disfavor those who have been granted exemptions to the Code of Conduct. Would it be better to phrase the preliminary recommendation as “unless the Registry Code of Conduct does not apply” rather than “unless an exemption to the Registry Code of Conduct is granted”? * Main takeaways for this topic – there should be transparency and enforcement of existing provisions. 3. AOB * DNS Abuse – * Staff and leadership team are preparing a paper on this topic to support further discussion. CCT-RT recommendations address this topic. Many of those CCT-RT recommendations have not been approved by the Board, but those issues should still be discussed by this group. The discussion will focus on whether this group should make recommendations or let the community resolve this through another process since other discussions are ongoing. * If we want, we can make a recommendation regarding new TLDs going forward, but this would create a disparity between new TLDs and existing TLDs. We will not get into questions about what DNS Abuse is, unless the group feels strongly that we should be making recommendations. We will also look at relevant public comments from the Initial Report. * ICANN 66 * 4 sessions are scheduled for this group. * First 2 sessions are to receive the Report and recommendations from WT5. The full WG can ask questions of the Work Track. * In the 3rd and 4th session, we will talk about what topics need to go out for public comment as well as topics that were supposed to be addressed in small groups. * Request to get materials/slides ahead of time to review. It would be helpful to understand what the leadership team wants from the group in those sessions will help to ensure the group makes progress at ICANN66.

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Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 07 October 2019
by Steve Chan Oct. 22, 2019

Oct. 22, 2019

Dear WG Members, As agreed on the 7 October 2019 WG call, staff has updated the limited appeals mechanism matrix to address several items identified during the call (e.g., background screening, Community Priority Evaluation, Independent Objector). The link to the working document is available here: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8f… The WG Co-chairs of course encourage your review and feedback. Best, Steve From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> on behalf of Julie Hedlund <julie.hedlund(a)icann.org> Date: Monday, October 7, 2019 at 9:38 AM 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 - 07 October 2019 Dear Working Group members, Please see below the notes from the meeting on 07 October 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/2019-10-07+New+gTLD+Subsequent+Pr…. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: Accountability Mechanisms -- Evaluation Procedures: Background Screening: ACTION ITEM 1: Add a row in the chart where the applicant can appeal and for contention sets and exact match, for WG comment. CPE: ACTION ITEM 2: Someone has to pay the brunt of the cost -- who paid last time for .gay? Was that the service provider? Ask ICANN Org. ACTION ITEM 3: Add Applicant Support Program as new line 14. Notes: 1. Updates to Statements of Interest: No updates provided 2. Review of summary documents: a. Accountability Mechanisms -- See: https://docs.google.com/document/d/1BkRn9nYeBNjyx2mTw-3nIDn22jTumWd4w1PZR-K… [docs.google.com] page 19 -- Who will be the arbiter of such an appeal? See also: concepts related to the Limited New gTLD Appeals Processes:https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKV… -- This is an aid to help everyone. It is not a final document. WG members can make comments during the call and afterwards. Evaluation Procedures: -- Add line 13 -- CPE Background Screening: -- Should there be a panel of experts? For string similarity they were farmed out to do the background screen. -- In this case we don’t know if there could be some kind of standing panel. -- Not sure how prescriptive the WG should be. But the Individual Evaluator who made the decision probably shouldn’t be the one that reviews the appeal. -- For background screening, Applicant for identical string should also have a right to appeal. There was no mechanism for this in the last round and ICANN ignored objections when someone passed who should not have passed under the clear language of the AGB. If contention sets are done before screening then anyone in a contention set should have the right to appeal. -- Doesn’t that open every single applicant up to an additional layer of delay by contestants? -- Does it mean that an applicant has to pay for bad work of the screeners of the first wave?  --  Evaluators should be INDIVIDUALS with recognized personal expertise. -- If it is loser pays that addresses concerns about frivolous appeals. -- Real life example: CPE that had to be done a second time for .gay. In that case .gay didn’t pay, not sure who did. -- How would a member of the public have access to the private portions of the application? (How would a private party challenge that application?) -- Not all background information is private -- We’re talking about background screening. It seems like clear parameters (felony, x number of UDRP losses, etc) should be established so it is not subjective. -- Appeal would be on one of the publicly known data points. -- This is a concern for .brands, but not just .brands. ACTION: Add a row in the chart where the applicant can appeal and for contention sets and exact match. CPE: -- Someone has to pay the brunt of the cost -- who paid last time for .gay? Was that the service provider? Ask ICANN Org. ACTION: Add Applicant Support Program as new line 14. Objections: String Confusion Objection: -- Question: What’s the difference between the appeals that are allowed for string similarity? Answer: The string similarity evaluation as the way it was in 2012 was a strictly visual evaluation. That was a pass/fail. If the application failed the evaluation then it was thrown out (if similar to another string). If similar to another application then it was thrown into a contention set. The string confusion is a broader analysis, looking at other factors other than just visual. It’s between the applicant and an existing TLD objector or another applicant objector. It’s an appellate process if the existing objector believes that the evaluator got it wrong. In 2012 if it was decided that a string was in a contention set there was not way for an applicant to appeal being put in a contention set as there were no grounds for objection. -- When .unicorn and .unicom where put in the same contention set there was no appeal for that or objection. -- In the case shown in the matrix, .unicorn or .unicom could appeal. -- Doesn't this mean that contention sets need to be done very early so that any contention set folks can use the string similarity objectioner string non-similarity objection? Yes. Legal Rights Objection: -- Questions: 1) Weren’t we trying to come up with narrowly tailored appeals? 2) how much consideration has been given to the 15 days? Answer: For this charter whatever grounds we decide on for Legal Rights Objections are used, and we are just talking about appeals. We haven’t decided if there should a de novo review or where something is clearly erroneous where the panel made a mistake. Still need to decide the burden of proof/standard. Also need to decide what the timeline must be, 15 days is just an example/placeholder. Could a be notice of appeal in 10 days and a brief within 20 days. Limited Public Interest Objection: -- Included ALAC because their fees are covered by ICANN. -- On the last call we talked about options for applicants. On the last call some people did not agree that the Independent Objector should have a right to an appeal due to costs. Did the Work Track discussing this issue provide any guidance? Did not think there was enough support to get rid of the IO and didn’t think there would be anyone else who would have the will to file an appeal. WT3 decided to keep the IO but there were no discussions on appeals. -- Question: Do we want ICANN and Contracted Parties to pay for the IO to be able to appeal a decision? -- Plus a remote possibility for extension of time under special circumstances. -- If the IO fails is there another objection that can be used? Depends on whether there are mechanisms under the Bylaws, also the GAC could file advice, and any third party that filed the initial objection could appeal, but who pays the costs? -- IO should have the same rights of appeal. -- If appeals are designed to counter panelist mistakes then it does appear to discriminate against IO objections . -- Add back in that the IO can appeal under user pays (which would be ICANN). -- ALAC has no funding ability beyond that supplied by ICANN. -- Still there that whether it is a team of IOs -- we said that there should be multiple IOs. We use it in the singular, but it could be a team. If there is a team, then there would not have to be an appeal. -- But what if the IO team made a mistake? -- In the previous discussion there were no objections to ALAC making an appeal, but there were to ICANN funding it. That makes no sense because there is no ALAC as such without ICANN. ALAC will provide a statement. -- Talked about budgets for IOs -- if they have the budget to go to appeal they IOs should be able to take that into account. Budget should be scaled to applications. Community Objection: -- Should increase the number of days to file -- 15-20 days for notice of appeal, and 45 days to file the appeal. -- Plus a remote possibility for extension of time under special circumstances. Conflict of Interest of Panelist: -- Question: In the Chamber of Commerce you can challenge an arbitrator as soon as you know. If the issue has already been heard we don’t want to encourage anyone to wait? Answer: They should go through the normal conflict process, and then if they disagree with that decision then they could appeal it. It is appealing the decision of the entity who made the decision on conflicts. -- What about 15 days from when the appealing party has knowledge of the conflict. Conflicts aren't always known up front.  -- Interlocatory means before a decision is made in the case.

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Post call / New gTLD Subsequent Procedures Working Group call / Tuesday, 22 October 2019 at 03:00 UTC
by Julie Bisland Oct. 22, 2019

Oct. 22, 2019

Dear all, All recordings for the New gTLD Subsequent Procedures Working Group call held on Tuesday, 22 October 2019 at 03:00 UTC can be found on the agenda wiki page <https://community.icann.org/x/oooCBw> (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] Community Priority Evaluation - EIU Guidelines
by Jamie Baxter Oct. 21, 2019

Oct. 21, 2019

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Proposed agenda - New gTLD Subsequent Procedures PDP WG - Tuesday, 22 October 2019 at 03:00 UTC
by Julie Hedlund Oct. 21, 2019

Oct. 21, 2019

Dear all, Please find below the proposed agenda for the call on Tuesday, 22 October 2019 at 03:00 UTC for 90 minutes: 1. Welcome and Updates to Statements of Interest 2. Review of summary documents: 1. Auctions: Mechanisms of Last Resort: https://docs.google.com/document/d/15S_sUuP_gmKqba26tU9kYQ8mVF76W_3CSl4raxS… 2. Base Registry Agreement: https://docs.google.com/document/d/14HxLzQMXs90hAkpRStPAwHDC4CxaYXWqxZ-psTm… 3. Registrar Non-Discrimination / Registry/Registrar Standardization (time permitting) 3. 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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Post call / New gTLD Subsequent Procedures Working Group call / Thursday, 17 October 2019 at 20:00 UTC
by Julie Bisland Oct. 18, 2019

Oct. 18, 2019

Dear all, All recordings for the New gTLD Subsequent Procedures Working Group call held on Thursday, 17 October 2019 at 20:00 UTC can be found on the agenda wiki page <https://community.icann.org/x/oIoCBw> (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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Community Priority Evaluation - EIU Guidelines
by Aikman-Scalese, Anne Oct. 17, 2019

Oct. 17, 2019

Jeff and Cheryl, Regarding the EIU guidelines and possible adoption of a recommendation by the WG to continue with those in the next round, I have a couple of notes: 1. p. 4 - The Guidelines say re "Pre-existing" means that the community has to have existed since 2007 - assume we would need to change this date. 2. p.3 and 4 - There is language about awarding points based on the idea that the applicant entity was formed to "administer the community". Does this requirement make sense when we are trying to encourage Community TLDs for purposes of Applicant Freedom of Expression? It would seem more appropriate to talk about an entity that is formed for the purpose of administering the TLD for a clearly-delineated community. Is there an assumption here that all communities are somehow "administered"? And was that the assumption in the 2012 AGB? Maybe Jamie or others will have more background on this standard? 3. p. 5 - Re 1-B Extension - it is a bit confusing that the 1 point category is defined as "not meeting the 2 point category" Is the only difference here the fact that 2 points emphasizes "considerable size AND longevity" whereas 1 point could mean "either considerable size OR longevity" or could the entity be of less than considerable "size" but have lots of longevity - maybe like the Kurds? 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:image003.png@01D58504.D5A9DC20] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [cid:image005.jpg@01D58504.D5A9DC20] 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 - 17 October 2019
by Julie Hedlund Oct. 17, 2019

Oct. 17, 2019

Dear Working Group members, Please see below the notes from the meeting on 17 October 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/2019-10-17+New+gTLD+Subsequent+Pr…. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: No actions captured. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Review of summary documents: a. Auctions: Mechanisms of Last Resort -- See: https://docs.google.com/document/d/15S_sUuP_gmKqba26tU9kYQ8mVF76W_3CSl4raxS…, page 10, Vickrey Auctions (continue discussion) Comments: -- Options were presented in the Initial Report. -- IPC supported Vickrey auction: support the use of sealed bid auctions where bids are submitted at the time of application only where the bid is unsealed when there are multiple contenders for the same string and none of the contenders have obtained community priority, and urge that processes used avoid disclosure of potentially sensitive commercial information when it may not be required. -- ALAC: supportive of the option to introduce the Vickrey auction in place of the regular auction process, as the resolution mechanism of last resort. -- RySG: Some support some do not. -- BC and BRG agree. Question: If the WG recommends a Vickrey sealed bid option, when would we recommend that the bids are submitted and when are they revealed? -- Determining when the bids should be submitted, opened, etc. -- those factors might be dependent on the objectives of the WG. Such as resolving string contention early, improve transparency, reduce impulsive bids. May drive the answer to the above question. If you can agree on those objectives you may not have to make a decision on the details of the process. -- The RySG struggled over the idea that there is not one path for every application. -- If you do bids at any other time it’s not a Vickrey auction. -- Allowing people to submit bids after the reveal could result in collusion. -- Force people to evaluate what the TLD is worth to them at application. -- Vickrey is a type of sealed bid auction -- at the time of the submission of the application. Commonly used in other types of government and other public resource auctions. -- There are contention sets that are still being resolved from 2012. -- We can talk about a sealed bid, but the timing is the biggest issue. The realities of how the process plays will have the biggest impact. -- Because we didn't consider the timing of bids, ALAC’s reference to and support for Vickrey auction is a qualified one (along with the multiplier). -- Unless two parties submitted the same exact bid - there wouldn't be any contention sets. Highest bidder gets its at second highest bid.  -- Except in cases where one of the bidders is a Community Based application that has to go through Community Evaluation. -- On the timing of bids for sealed bid auctions. The willingness to pay for a string is confidential information. We shouldn't be expecting applicants to disclose that information unless it is necessary (ie to resolve a contention set).  -- In ICANN's auction of last resort the applicants had to prove they had the funds to participate, how does that happen with sealed bids?  -- Why would there be a delay in selecting who is the successful bidder of the string? Many of these questions can be dealt with in implementation. -- Seems to be support for a sealed bid auction, but there are value judgement. This WG needs to decide what is most important. b. Private Resolution of Contention Sets -- https://docs.google.com/document/d/15S_sUuP_gmKqba26tU9kYQ8mVF76W_3CSl4raxS…, page 14 Policy Goal: 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. High-level Agreements Refer back to Changes of Applications Sections where high level agreement in the formation of joint ventures to address contention (See Section 2.4) which states: “Commenters generally supported allowing application changes to support the formation of joint ventures. ICANN org may determine that in the event of a joint venture, re-evaluation is needed to ensure that the new entity still meets the requirements of the program. The applicant may be responsible for additional, material costs incurred by ICANN due to re-evaluation and the application could be subject to delays”. Outstanding Items: Who Supports private financial resolution? -- Some RySG, RrSG, BRG, IPC, Neustar Who opposes private financial resolution or has concerns? -- GAC, ICANN Board has “concerns”, Some RySG, NCSG, ALAC, .in -- ICANN Board: ICANN Board: One of our major concerns in reading the discussions in the Supplementary Final report relates to new procedures that may be open to abuse in ways that have not yet been understood. We would like to better understand the analysis that has gone into determining the likelihood, and types, of abuse that may open up with any new procedures. We believe that any new recommendations should guard against bad faith applications to the extent possible. These concerns mostly center on the issues of auctions of last resort and on private auctions. We take special note of the possible practice of participating in private auctions for the sole purpose of being paid to drop out. We also take note of the abuse that becomes possible in alterations to the change request mechanisms. The Board has concerns about whether, and in what ways, the availability of private auctions incentivizes applications for purposes other than actually using the string; and we are interested in how these incentives for abuse might be minimized. Amend AGB and Terms & Conditions to disallow private string contention resolution where a party is paid to withdraw? Should the RA include provisions to take a string away from an RO that has taken part in private resolutions? -- ALAC, NCSG agreed. -- RySG: Divergence/New Idea/Agreement -- BRG/IPC/Neustar: Divergence (oppose restrictions on private resolution). -- RrSG: Given that private auctions were the result of a free marketplace, addressing private auctions within the Applicant Guidebook (or ICANN Org) does not seem appropriate. Ban all forms of private resolution of contention sets? -- Some RySG members: Some agreement/some divergence. -- BRG: Private auctions can be a valid way to resolve contention. -- ALAC: While ALAC opposes private auctions or other private resolution where the loser benefits financially for withdrawing their application, this option would force applicants into auctions of last resort as the only method of resolving contention. -- IPC: Opposes this option as it would curtail or prohibit the parties in a contention set from seeking to resolve the matter by negotiation. -- RrSG: Divergence. -- IPC: New Idea - Reiterates support for stronger LRO. Discussion: -- If there is something more accommodating in the ICANN mechanism of last resort, then maybe that alleviates some of the need for private resolutions. These are dependent. -- If we do an auction after the fact, as a last resort, then you could have private resolutions. -- What kinds of things would make the ICANN auction more enticing? Perhaps if it was more reasonable and cost effective. -- Proposal: One of the concerns Neustar has is that if you submit a sealed bid at the time of application you have no idea of the market/competition, and whether you will end up in a contention set. What if once the applications were submitted would it be possible for applicants who applied for the same string, in a contention set, and if a portfolio applicant know others in the group, they submit sealed bids at that time and the winner comes out of that? That would give the applicant a little more certainty. -- The above proposal was one of the options in the Initial Report. -- The problem with that scenario is it allows for collusion between applicants. You bid high on this one and I’ll bid high on another. Collusive private auctions could be very problematic in the eyes of competition authorities. -- If ICANN uses a Vickery auction then why not notifying the highest bidder ASAP (without revealing how much they have to pay / aka the 2nd bid amount) - then that applicant might see an incentive to NOT enter into private contention resolution (aka private auction); but going with the Vickery auction of ICANN. -- You could put into terms and conditions that you wouldn’t be allowed to do certain things (such as collude). -- Matching that with partial contention sets could be challenging (the above point). -- There are no doubt Implementation aspects we can explore if we go down this pathway of course... But identification of concerns and risks needs to come first. -- What if before reveal day the parties are contacted by ICANN indicating that they are in a contention set (without disclosing who is in the set) and they will need to submit a sealed bid, and then reveal comes after that? They would have the option to withdraw. -- So, requirement to put in a sealed bid is subject to establishment of a contention set, and identity of applicants still not revealed. -- Why would we need to get every applicant to submit sealed bid right up front? Better to wait until there is a known contention set. -- Vickrey auctions would be very daunting and discouraging to newcomers to this area. (Here is an asset that costs $100,000 but how many millions are you willing to pay?) I think (as a policy) these are the types of participants we are trying to attract. To make sealed bids palatable, the bidding should take place close to the award when the value of the asset can be evaluated. -- Would the above scenario prevent someone from making a legal rights objection to knock out the other applicant(s) in the set? 3. AOB: ICANN66 (5 min) Four Sessions: Saturday, 02 November: 12:15-13:15 -- SubPro Full WG Meeting Session 1 -- WT5 presentation on Report 13:30-15:00 -- SubPro Full WG Meeting Session 2 -- WT5 presentation on Report Monday, 04 November: 15:15-16:45 -- SubPro Full WG Meeting Session 3 -- areas for public comment 17:00-18:30 -- SubPro Full WG Meeting Session 4 -- topics for smaller groups (predictability model, closed generics, RSP pre-approval, etc.)

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