Hi Jeff – Do we have Susan’s draft language on your first point yet?  (You may recall that there were even discussions about PROHIBITING new applications for the same string as some still pending from 2012 –that was not agreed so Susan is working on a statement that 2012 string application processing must be complete before any new application for that string would be considered.  HOWEVER – again here is the “rub” – When you say 2012 string applications have to be “completed”, what are you saying about the policy that applies to those?    What if the pending strings from 2012 don’t meet current new gTLD policy but they did not violate that policy as of the time of application?  We can only skirt this issue for so long.  Are 2012 strings going to be allowed to update to current gTLD policy in order to get authorization to proceed or not?  Or are you saying GNSO Council will have to launch another PDP for that purpose?

From: Jeff Neuman <jeff.neuman@comlaude.com>
Sent: Monday, August 26, 2019 12:43 PM
To: Aikman-Scalese, Anne <AAikman@lrrc.com>; gnso-newgtld-wg@icann.org
Subject: RE: Closed Generics and the 2012 Round

Anne,

Where has it been proposed that applications from 2012 get priority?  I am not aware of any recommendation that we have made that gives “priority” to any applicants from 2012.  We did recommend that any applications that were still outstanding for a string that is applied from in a subsequent round be completed. 

With respect to Exclusive Generics, the Board resolution on this matter stated that any applications that wanted to maintain their “exclusive generic” status would be “deferred to the next round of the New gTLD Program, subject to rules developed for the next round…”   They did not state that any of those applications would get priority.  However, there were no applications that were deferred from the last round.

If we did allow some form of Exclusive Generic in the next round, then those rules would only apply to new applicants for TLDs.  Discussing what happens to TLDs from 2012 that wanted to be Exclusive Generics, but ended up opening their TLDs because of the Board Resolution is not within the topics contained within our Charter.  So yes if we wanted to discuss that issue we would need an amendment to our charter to allow us to tackle that subject.  The GNSO could then either grant our request or farm that issue out to a separate group.  That is within their discretion. 

This is no different than any other changes we recommend where applicants from the past round would want the same things.  For example, if we accept changes to the code of conduct, the COI, reserved names, agreement, etc., the existing registries would not get the benefit of those changes unless the changes go through a PDP that has jurisdiction over those issues.   All Applications / TLDs are treated according the to rules for the round in which they applied.  This is true regardless of whether they have launched yet or not.

I hope this clears things up.

Thanks Jeff.  Your reasoning below is not consistent with what has been proposed in relation to giving priority to applications from the 2012 round that have not been withdrawn.  (How is it that this “priority” is in scope for our WG but nothing else re 2012 applicants is in scope?   AND if I applied for a Closed Generic and didn’t get it in 2012, why should I have to require another PDP authorization from GNSO Council in order to be treated similarly to new applicants and convert to a Closed Generic?  (I believe some open registries that won contention sets in 2012 may not have not have actually launched yet.  Why would we say that whether or not they can launch as a Closed Generic is up to GNSO Council?)

Thank you,

Anne

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jeff Neuman
Sent: Monday, August 26, 2019 5:27 AM
To: Jeff Neuman <jeff.neuman@comlaude.com>; gnso-newgtld-wg@icann.org
Subject: Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round

Thanks all.  We have already got a number of people signed up for the group.  I expect substantive discussions on this topic to start this week.  So, it is not too late to join.  But remember that if you join, the expectation is that we will attempt to find a compromise solution that we all can live with (if possible).

You can view the member list for the small group here:  https://community.icann.org/display/NGSPP/Members+New+gTLD+%3A+Topic+of+Closed+Generics  Please allow a day or two to pass before seeing your name on the list if you just volunteered over the weekend or today. 

We will not be talking about Closed Generics in our next meeting tomorrow (late tonight for some of us).

All,

There has been a lot of discussion in the past 24 hours or so on the applicability of our work on the 2012 applications.  Some have expressed concerns about the “fairness” of establishing a policy or new procedures for subsequent rounds when Closed Generics were not allowed in 2012. 

The applicable Board Resolution covering Closed Generics required the 2012 applicants for Closed Generics to do one of three things.  Applicants could have withdrawn their applications completely, signed the then-current Registry Agreement which did not allow Closed Generics, or could have deferred their applications for consideration in a subsequent round.   As we covered on the call on Thursday, all of the applicants chose either to convert their applications to open TLDs or withdraw their applications completely.  There were NO applicants that elected to defer their applications to any future round.   

Therefore, although in theory we could have had some issues that we needed to address involving applicants in the 2012 round, the reality is that we do not have any such issues.  To address the arguments about fairness of any new policy recommendations on applicants from the previous round, all we can say is that we need to focus on what the right policy should be first without the consideration of the fairness or unfairness to previous applicants from having different rules.  If we as a group determine that the right policy is something other than what happened in 2012, then it will by up to the GNSO Council to either set up a new group to deal with that issue or to refer the issue to this group at a later date.  But for now, as some have stated, that issue is out of scope for our group. 

The reality is that there are many things that this group is considering which could produce results that may treat new applicants differently than previous round applicants.  Some of those changes may be favorable to the new applicants and some less favorable.  The same is true with respect to previous applicants.  If we did not make any changes to policy or implementation for fear of the impact on previous or new applicants, no changes would ever be made.  The point is that we need to decide what is the right thing to do, point out to the GNSO Council the potential impacts, and then leave it to the Council on what the next steps should be.