Kathy, Changes to the application that happen outside of PICs and/or Exhibit A (registry services) are unenforceable. PICs were created by ICANN Org in response to the lack of enforceability, and are an integral part of what happened in 2012. Although you mentioned some PICs with applicant-thought features, most of them were imposed down applicants throats by ICANN Org, following GAC advice. So, characterizing the whole using a minority is likely a distortion. If you succeed in making this discussion a lack of consensus, the default in this case is to include mandatory and voluntary PICs as they existed. Rubens
Em 26 de set de 2019, à(s) 19:39:000, Kathy Kleiman <kathy@kathykleiman.com> escreveu:
All,
Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules.
We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objection was done in Round 1.
But there was no question that there is a high level Disagreement to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. This high level Disagreement was raised in every Objections call until last night. Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections?
I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself. Many, many changes to public portions of applications were made in response to the GAC in Round 1.
Best, Kathy
Kathryn Kleiman, American University Washington College of Law
On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote:
<>Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation.
So the points I am raising here are:
(1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN.
Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding.
In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive.
Anne
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