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

Dec. 11, 2019

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

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

Dec. 10, 2019

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

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

Dec. 10, 2019

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

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

Dec. 9, 2019

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

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

Dec. 9, 2019

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

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Re: [Gnso-newgtld-wg] [Ext] RE: Process Flow for Vickrey Auction Model
by Julie Hedlund Dec. 6, 2019

Dec. 6, 2019

Hi Jeff, Jessica sent me the attached editable version in Visio. She’s asked me to post it too. Kind regards, Julie From: Jeff Neuman <jeff.neuman(a)comlaude.com> Date: Friday, December 6, 2019 at 11:15 AM To: Julie Hedlund <julie.hedlund(a)icann.org>, "Hooper, Jessica" <jhooper(a)verisign.com>, "gnso-newgtld-wg(a)icann.org" <gnso-newgtld-wg(a)icann.org> Subject: [Ext] RE: [Gnso-newgtld-wg] Process Flow for Vickrey Auction Model Thanks Jessica for this. If we can get an editable version of this over to ICANN policy staff, there are a couple of things I think we need to add, and to change around. For example, to the extent we have Pre-Delegation Testing, that would actually occur as part of Transition to Delegation as opposed to before objections. Plus we would want to add in some of the other elements. This is a great chart and one we can easily build on, so thanks again! Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman(a)comlaude.com<mailto:jeff.neuman@comlaude.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org> On Behalf Of Julie Hedlund Sent: Thursday, December 5, 2019 5:21 PM To: Hooper, Jessica <jhooper(a)verisign.com>; gnso-newgtld-wg(a)icann.org Subject: Re: [Gnso-newgtld-wg] Process Flow for Vickrey Auction Model Hi Jessica, Thanks very much for providing the flowchart. That’s really helpful. I’ve attached the document. Let’s see if this works. Kind regards, Julie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Hooper, Jessica via Gnso-newgtld-wg" <gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>> Reply-To: "Hooper, Jessica" <jhooper(a)verisign.com<mailto:jhooper@verisign.com>> Date: Thursday, December 5, 2019 at 5:13 PM To: "gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] Process Flow for Vickrey Auction Model Looks like the file didn’t come through. I’ll work with Julie to get it posted to the group. Thanks, Jessica From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces(a)icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Hooper, Jessica via Gnso-newgtld-wg Sent: Thursday, December 5, 2019 5:06 PM To: gnso-newgtld-wg(a)icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [EXTERNAL] [Gnso-newgtld-wg] Process Flow for Vickrey Auction Model Team – During a recent plenary meeting pertaining to String Contention Resolution, there were calls from WG members to have ICANN Staff develop a workflow or diagram to show how Alternative 1 (Vickrey Auction Model) from the Summary Document [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> would work and what that process would look like. Attached is a framework I put together when this idea first arose last year that illustrates the Vickrey Model and may address some of the outstanding questions around timing for objections… and it might save ICANN Staff from starting from scratch. Again, just a framework, a visual to help launch discussion. Thanks! Jessica Jessica Hooper | Senior Manager, Naming Operations | jhooper(a)verisign.com<mailto:jhooper@verisign.com> | O: 703-948-4553 |C: 1-571-230-2801 | verisign.com ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com [comlaude.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__comlaude.com&d=DwMGaQ&…>

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Process Flow for Vickrey Auction Model
by Hooper, Jessica Dec. 5, 2019

Dec. 5, 2019

Team - During a recent plenary meeting pertaining to String Contention Resolution, there were calls from WG members to have ICANN Staff develop a workflow or diagram to show how Alternative 1 (Vickrey Auction Model) from the Summary Document<https://docs.google.com/document/d/16qDoiK6vydQp6a0v9tMvU2l5fcypJY24hCzTIVT…> would work and what that process would look like. Attached is a framework I put together when this idea first arose last year that illustrates the Vickrey Model and may address some of the outstanding questions around timing for objections... and it might save ICANN Staff from starting from scratch. Again, just a framework, a visual to help launch discussion. Thanks! Jessica Jessica Hooper | Senior Manager, Naming Operations | jhooper(a)verisign.com<mailto:jhooper@verisign.com> | O: 703-948-4553 |C: 1-571-230-2801 | verisign.com

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Proposed agenda - New gTLD Subsequent Procedures PDP WG - Tuesday, 10 December 2019 at 03:00 UTC
by Julie Hedlund Dec. 5, 2019

Dec. 5, 2019

Dear all, Please find below the proposed agenda for the call on Tuesday, 10 December 2019 at 03:00 UTC for 90 minutes: 1. Review Agenda/Statements of Interest 2. Limited Appeals Mechanism -- Objections (second tab in the spreadsheet): https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8f… 3. Predictability Framework (if time permits): https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecG… 4. AOB If you need a dial out or would like to submit an apology, please email gnso-secs(a)icann.org<mailto:gnso-secs@icann.org>. Kind regards, Julie Julie Hedlund, Policy Director

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Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 05 December 2019
by Julie Hedlund Dec. 5, 2019

Dec. 5, 2019

Dear Working Group members, Please see below the notes from the meeting on 05 December 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-12-05+New+gTLD+Subsequent+Pr…. Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: ACTION ITEM 1: Staff will update the Limited New Appeals Processes spreadsheet based on today’s WG discussion at: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8f… Notes: 1. Review Agenda/Statements of Interest: No updates provided. 2. Limited Appeals Mechanism https://docs.google.com/document/d/1pw98QzloHsVaM22VjYy95G-QmHULKbB2gPTSdzQ… What is the Issue we are Trying To Address? -- Are dispute resolution and challenge processes provide adequate redress options or if additional redress options specific to the program are needed. -- The Working Group believes that the accountability mechanisms set forth in the ICANN Bylaws (“Accountability Mechanisms) were inadequate in resolving issues that applicants or the wider community experienced during the 2012 round of the New gTLD Program. -- Although there have been significant changes to the Accountability Mechanisms as a result of the work done in conjunction with the IANA Transition, the Working Group still views them as insufficient to serve as the sole mechanism for redress within the New gTLD Program. Policy Goals / What the WG is Seeking to Accomplish The following from the 2007 policy continue to be appropriate: -- Recommendation 12: “Dispute resolution and challenge processes must be established prior to the start of the process.” -- Implementation Guideline R: “Once formal objections or disputes are accepted for review there will be a cooling off period to allow parties to resolve the dispute or objection before review by the panel is initiated.” -- Dispute resolution and challenge processes should be transparent, fair and cost effective and panelists, evaluators, and the Independent Objector must be free from conflicts of interests. -- Applicants and other impacted parties should have a challenge process to seek redress to errors in processes and/or outcomes, specific to the New gTLD Program. -- Any challenge processes must not conflict with, or impinge access to, Accountability Mechanisms under the ICANN Bylaws. -- Any challenge process must have measures to prevent frivolous usage. What are we Proposing? -- The WG proposes a limited substantive appeals process for certain types of actions or inactions that are inconsistent with the Applicant Guidebook. In general, the appeals process could be used to challenge evaluation results and/or objection panel determinations where those results or determinations are inconsistent with the provisions in the Applicant Guidebook. -- The new substantive appeal mechanism must not be a substitute for, nor act as a replacement for, the Accountability Mechanisms in the ICANN Bylaws that may be invoked to determine whether ICANN (staff or Board) violated the Bylaws by making (or not making) a certain decision. -- The substantive appeals process could apply to the following: Evaluation Elements [challenges] 1. Background Screening 2. String Similarity 3. DNS Stability 4. Geographic Names 5. Technical / Operational Evaluation 6. Financial Evaluation 7. Registry Services 8. Applicant Support 9. Community Priority Evaluation Objections [appeals] 1. String Confusion 2. Legal Rights Objection 3. Limited Public Interest 4. Community Objection 5. Conflict of Interest of Panelists Comments from Kathy: Recommend changing names for clarity: Challenges to Evaluation Elements could be called “Challenges” Appeals of Objections should be called “Appeals” One is more an administrative process, one is an arbitration process, and changes to name will make the process differences clearer. -- Confused about the different types of proceedings. Evaluations are between the applicant and the evaluation panel. The appeal is a more traditional judicial type of appeal. Using the same terminology for everything seemed confusing. Outline of Additional Recommendations: Discussion: -- Not intending to replace or do anything inconsistent with any of the accountability mechanisms in the ICANN Bylaws. -- Comment added by Kathy Kleiman: Where the appeal will be heard would be the same institution that heard the underlying objection, except for conflicts of interest. Consider making it clear that the recourse against Evaluations is a challenge to evaluation elements while in respect of objections the recourse is an appeal. -- Have a final decision for everything except for a conflict of interest. -- By adding “Challenges” and “Appeals” to the descriptions above shouldn’t limit who can bring challenges (such as third parties for background screening) or appeals. An applicant who is successful in an appeal from an Evaluation Challenge should not have to bear the costs of that appeal. -- I'm confused by this line. We are using appeal and challenge in the same sentence. Now that we are bucketing things, is this still accurate? All challenges and appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a “De Novo” Standard. -- Clearly erroneous favors ICANN, not applicants. Everyone cool with that? Not sure I am. -- Might want to flesh out what we mean by “clearly erroneous” -- such as reasoning arbitrary or a finding was not supported by substantial evidence. Cornell Law says, “Clearly Erroneous means: A standard of review in civil appellate proceedings. Under this standard, an appeals court must accept the lower court's findings of fact unless the appellate court is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appellate court may have weighed the evidence and reached a different conclusion; the lower court's decision will only be reversed if it is implausible in light of all the evidence." Seems very high standard indeed. https://www.law.cornell.edu/wex/clearly_erroneous -- Suggested further standard for "clearly erroneous" - (a) arbitrary reasoning and/or (b) any element of the evaluation or Objection finding is not supported by substantial evidence.  -- What are the chances of a panelist from the same provider calling his colleague's decision "implausible"? Thought: approaches nil. -- It is my understanding that in legitimate arbitration forums there is always a process for handling conflict of interest issues. -- Other options are "arbitrary and capricious" and "substantial evidence". -- I think we should chart out what the various standards of review actually are. This seems to me like we have just thrown a dart across the room and hit "clearly erroneous" Limited New gTLD Appeals Processes: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8f… Background Screening: -- Need to add members of the contention set as potential affected parties. Make even more broad -- third parties that could show some potential direct impact on them if the background screening is botched. -- Justine Chew: On Background screening, please refer to my email to WG of 21 Sep 2019. DNS Stability: -- Question: Should a backend provider have a right to appeal? Answer: This refers to the string itself, not to the operation. Not an issue with the backend or frontend provider. Technical Operations: -- Question: Should you be able to amend your application if the backend provider has a problem? Answer: Yes it makes to provide a challenge mechanism for the registry backend provider that is applying for pre-approval and fails. It would make sense the applicant could challenge the results on behalf of the backend provider. Financial -- Existing Evaluator Entity - Different individual Evaluator? -- Who would be an arbiter of a failure? Don’t think it would be at the same financial house. -- Who would have the expertise for an appeals mechanism? -- Have to consider the potential costs of having another evaluator. -- Selection of provider should include a question on whether the provider has an appeals procedure in place. I am now wondering the need to reconsider implications of that. -- Don't think we should rush through Column E. An appeal to someone's buddy down the hall is not a meaningful appeal. -- CPE and evaluation challenges are likely to require an independent evaluator. So, then ICANN would need to hire two firms. Ramping up two different providers could be very resource intensive. Think about the impact on costs and complexity. Or maybe ICANN could be the arbiter. -- ICANN being the arbiter puts ICANN much closer to content regulation since content is at the heart of Community proposed purpose. -- Flag as a potential issue and for others where there might need to be multiple providers. -- Support - Evaluation Challenges should be considered by an Alternate Qualified Provider.

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Support for CCTRT recommendation for incentives
by Levine, Gertrude Dec. 5, 2019

Dec. 5, 2019

Hi all, I tried to post the following comments last week, but apparently they did not appear on the list. After conferring with Julie, I am trying again: I was unable to join the 26 November meeting; however, I would like to express my support for three of the ideas raised in the November 21 meeting in regard to the CCTRT recommendation to provide incentives or remove disincentives for new gTLDs to operate as verified TLDs. * ICANN's fees should be lowered for verified TLDs * In the case of string contention, applications for verified TLDs should get priority. * In the event that an applied-for string is similar to an existing verified TLD, and the applied-for string does not have the same or similar safeguards as the verified TLD, this would confuse and could harm end users. As such, it should be adequate grounds to file a formal objection. To preventing gaming, "verified TLD" could be defined in a specification within the RA. Thoughts? Thanks! Gertrude "Gg" Levine Digital Health Manager National Association of Boards of Pharmacy 847/391-4497

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