Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 20 July at 15:00 UTC
Thanks for the notes Julie. Regarding “-- Seems that ICANN can already refer something to a competition authority if they want to.” Would someone point to the languages in the ICANN applicant guidebook, new gTLD contract, or bylaws (or whatever other source) that already indicates that ICANN can refer applications or contention resolution outcomes to a competition authority? Folks on the call made the statement that ICANN already has the ability to refer applications or contention resolution outcomes to a competition authority, but I’d like to see the authoritative language to confirm; especially considering the option is clearly called out in the RSEP text. We don’t want to make policy on assumptions. If we can’t find supporting documentation, I’ll feel a lot better about subsequent procedures if we clearly outline ICANN’s rights and responsibilities on this issue. Thanks much Elaine Pruis Senior Director Naming Operations and Policy epruis@verisign.com<mailto:epruis@verisign.com> 703.948.4672 [signature_1324536874] From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of Julie Hedlund <julie.hedlund@icann.org> Date: Monday, July 20, 2020 at 12:39 PM To: "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> Subject: [EXTERNAL] [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 20 July at 15:00 UTC Dear Working Group members, Please see below the notes from the meeting on 20 July at 15:00 UTC. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2020-07-20+New+gTLD+Subsequent+Procedures+PDP<https://secure-web.cisco.com/1c9SWrzlMyLvuKjMkzaGbbpJHtV2fQ66daMSMh_pRKARnAnNH8rBiNqCQCcYSyrmU63u7IzQ2VwuQMzPDwbGKEuZ0ZNEkUJrq4qGHoV3thaTytXmhb3EGwN3W_QepQl7f_2H3tiuSkSdlRypZhyHJtXJLe3P5X_37Pnh6SN9qg2wQkmjTIsInWFi9-ktR-q4j_Fud6HgXJ5m-e9woXX4YN4CfzcatrCK475P4ogoa5UDeCbZFRCRT__Ry8grtxGaXae3SDerXQH23UFuojobcvQ/https%3A%2F%2Fcommunity.icann.org%2Fdisplay%2FNGSPP%2F2020-07-20%2BNew%2BgTLD%2BSubsequent%2BProcedures%2BPDP>. Kind regards, Julie Notes and Action Items: Actions: Private Resolutions: ACTION ITEM: Consider the Proposed alternative: General notice that ICANN may refer any application and/or the outcome of contention resolution to a competition authority at its sole discretion. ACTION ITEM: WG members should review Model 5 and provide comments. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Closed Generics – Update from George Sadowsky/Small Group (George with Greg Shatan, Alan Greenberg, and Kathy Kleiman) -- Group is about 95% done with the document. Expect it will be distributed tomorrow. -- We started this effort because of a divergence between two poles – those that oppose Closed Generics and those that think they should be allowed in some form. -- The group is attempting to find a middle ground between the poles. -- Will be presenting a general concept along with a lot of detail. -- Trying to come out with something that could be put together relatively quickly and coherent for discussion. 3. Private Resolutions and Auctions: Mechanisms of Last Resort: Model 5: https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZz... [Additional language proposed by Jim Prendergast: In the event ICANN reasonably determines during any resolution of a contention set, might raise significant competition issues, ICANN shall refer the issue to the appropriate governmental competition authority or authorities with jurisdiction over the matter within five business days of making its determination, with notice to the potential Registry Operator. Any such referral communication shall be posted on ICANN's website on the date of transmittal. If such a referral occurs, the potential Registry Operator’s application will placed on hold until (XX) calendar days following the referral, unless earlier cleared by the referred governmental competition authority.] Discussion: -- Board Concerns – second concern doesn’t seem to be addressed: private resolutions to finance other applications. -- Don’t think the bona fide as states goes far enough. -- Also not addressing the gaming concerning rolling the money to another application. -- Question: What’s the difference between gaming and a strategy? Answer: -- Any objections to including the language proposed by Jim? -- Question: How many is XX calendar days? Answer: 30 days as a placeholder. -- Question: When does ICANN have to submit it? Answer: If it’s an auction result you’ll know that right away. If it’s a JV it needs to go out for public comment. Depends on if someone submits a change there is a new entity applying, so needs to be a background check, etc. Differentiate between auction results and other forms of resolution. -- Proposed language is within 5 days of ICANN making its determination. -- Question: What would a significant competition issue be? Answer: Suggested language is from ICANN’s RSEP rules for Registry Operators. -- Ask ICANN if they have applied this – submitted this to a competition authority? This seems unworkable and impractical. Competition issues are varied. Could be many different things. -- Who does the deferral – ICANN Org or the Board? -- Seems that ICANN can already refer something to a competition authority if they want to. -- Need to agree on what we think is a significant competition issue. -- Just trying to make applicants aware that if something arises concerning resolving the contention set that involves competition issues then ICANN has the right to refer the application to a competition authority. -- It might be important to capture a timeframe for a quiet period after string contention resolution to see if there are competition authorities raise concerns. -- This has been done before – ICANN has done it and has the right to do it. -- The Board did not raise issues of JVs, etc. WG doesn’t have to address them. -- Maybe there is another way to restate this: perhaps as an overarching principle that applies to the program and applicants in the whole--ICANN may refer an issue/applicant to the appropriate governmental competition authority. -- Just do a general notice that any outcome that raises competition issues ICANN has the right to refer the issue to a competition authority. -- Proposal: 30 days from the publication of the result of the private resolution for ICANN to refer to a competition authority; and 30 days for a response from the competition authority. -- Competition authority will take as long as it will take – it’s out of our control. -- Could say at the beginning that any application could be referred by ICANN to a competition authority, not necessarily in the context of private resolution. -- This should be an overarching statement/principle that is applicable to any applicant or application and not just contention set resolution. ACTION ITEM: Consider the Proposed alternative: General notice that ICANN may refer any application and/or the outcome of contention resolution to a competition authority at its sole discretion. Second Proposal: “All private auctions would be conducted using sealed bids and all bids, regardless of whether they be used for ICANN Auction of last resort or for ICANN administered “private auctions” would be due on the same day. Any bids not used would be destroyed and not revealed.” Discussion: -- “The board believes that applications should not be submitted as a means to engage in private auctions…” if we take away private auctions we remove that problem. -- We could make it simple and say that everything goes to an auction of last resort. The is so complicated because we are dealing with the notion of private resolutions, that was introduced in the last round. -- If we want private resolutions to remain it will be complicated. -- Need to make this achievable for applicants. Having all bids at one time with multiple applications would put them at a disadvantage. ACTION ITEM: WG members should review Model 5 and provide comments.
I would point out that if there is nothing in the ICANN applicant guidebook, new gTLD contract, or bylaws regarding referring applicants to the relevant competition authority and ICANN and there is nothing that prohibits ICANN from doing this under the applicable law then ICANN is able to do it. Anything a party to a contract is legally permitted to do that is not addressed in the contract the party can continue to do. I don’t think we need to add in to the new rules a specific permission for ICANN to do everything else in the world that it is already able to legally do. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac@gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Monday, July 20, 2020 2:28 PM To: julie.hedlund@icann.org; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 20 July at 15:00 UTC *EXTERNAL TO GT* Thanks for the notes Julie. Regarding “-- Seems that ICANN can already refer something to a competition authority if they want to.” Would someone point to the languages in the ICANN applicant guidebook, new gTLD contract, or bylaws (or whatever other source) that already indicates that ICANN can refer applications or contention resolution outcomes to a competition authority? Folks on the call made the statement that ICANN already has the ability to refer applications or contention resolution outcomes to a competition authority, but I’d like to see the authoritative language to confirm; especially considering the option is clearly called out in the RSEP text. We don’t want to make policy on assumptions. If we can’t find supporting documentation, I’ll feel a lot better about subsequent procedures if we clearly outline ICANN’s rights and responsibilities on this issue. Thanks much Elaine Pruis Senior Director Naming Operations and Policy epruis@verisign.com<mailto:epruis@verisign.com> 703.948.4672 [signature_1324536874] From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Julie Hedlund <julie.hedlund@icann.org<mailto:julie.hedlund@icann.org>> Date: Monday, July 20, 2020 at 12:39 PM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 20 July at 15:00 UTC Dear Working Group members, Please see below the notes from the meeting on 20 July at 15:00 UTC. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://urldefense.com/v3/__https://community.icann.org/display/NGSPP/2020-0... <https://urldefense.com/v3/__https:/secure-web.cisco.com/1c9SWrzlMyLvuKjMkzaG...>. Kind regards, Julie Notes and Action Items: Actions: Private Resolutions: ACTION ITEM: Consider the Proposed alternative: General notice that ICANN may refer any application and/or the outcome of contention resolution to a competition authority at its sole discretion. ACTION ITEM: WG members should review Model 5 and provide comments. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Closed Generics – Update from George Sadowsky/Small Group (George with Greg Shatan, Alan Greenberg, and Kathy Kleiman) -- Group is about 95% done with the document. Expect it will be distributed tomorrow. -- We started this effort because of a divergence between two poles – those that oppose Closed Generics and those that think they should be allowed in some form. -- The group is attempting to find a middle ground between the poles. -- Will be presenting a general concept along with a lot of detail. -- Trying to come out with something that could be put together relatively quickly and coherent for discussion. 3. Private Resolutions and Auctions: Mechanisms of Last Resort: Model 5: https://urldefense.com/v3/__https://docs.google.com/document/d/1X8F8zHkgMzQg... <https://urldefense.com/v3/__https:/docs.google.com/document/d/1X8F8zHkgMzQg2...> [Additional language proposed by Jim Prendergast: In the event ICANN reasonably determines during any resolution of a contention set, might raise significant competition issues, ICANN shall refer the issue to the appropriate governmental competition authority or authorities with jurisdiction over the matter within five business days of making its determination, with notice to the potential Registry Operator. Any such referral communication shall be posted on ICANN's website on the date of transmittal. If such a referral occurs, the potential Registry Operator’s application will placed on hold until (XX) calendar days following the referral, unless earlier cleared by the referred governmental competition authority.] Discussion: -- Board Concerns – second concern doesn’t seem to be addressed: private resolutions to finance other applications. -- Don’t think the bona fide as states goes far enough. -- Also not addressing the gaming concerning rolling the money to another application. -- Question: What’s the difference between gaming and a strategy? Answer: -- Any objections to including the language proposed by Jim? -- Question: How many is XX calendar days? Answer: 30 days as a placeholder. -- Question: When does ICANN have to submit it? Answer: If it’s an auction result you’ll know that right away. If it’s a JV it needs to go out for public comment. Depends on if someone submits a change there is a new entity applying, so needs to be a background check, etc. Differentiate between auction results and other forms of resolution. -- Proposed language is within 5 days of ICANN making its determination. -- Question: What would a significant competition issue be? Answer: Suggested language is from ICANN’s RSEP rules for Registry Operators. -- Ask ICANN if they have applied this – submitted this to a competition authority? This seems unworkable and impractical. Competition issues are varied. Could be many different things. -- Who does the deferral – ICANN Org or the Board? -- Seems that ICANN can already refer something to a competition authority if they want to. -- Need to agree on what we think is a significant competition issue. -- Just trying to make applicants aware that if something arises concerning resolving the contention set that involves competition issues then ICANN has the right to refer the application to a competition authority. -- It might be important to capture a timeframe for a quiet period after string contention resolution to see if there are competition authorities raise concerns. -- This has been done before – ICANN has done it and has the right to do it. -- The Board did not raise issues of JVs, etc. WG doesn’t have to address them. -- Maybe there is another way to restate this: perhaps as an overarching principle that applies to the program and applicants in the whole--ICANN may refer an issue/applicant to the appropriate governmental competition authority. -- Just do a general notice that any outcome that raises competition issues ICANN has the right to refer the issue to a competition authority. -- Proposal: 30 days from the publication of the result of the private resolution for ICANN to refer to a competition authority; and 30 days for a response from the competition authority. -- Competition authority will take as long as it will take – it’s out of our control. -- Could say at the beginning that any application could be referred by ICANN to a competition authority, not necessarily in the context of private resolution. -- This should be an overarching statement/principle that is applicable to any applicant or application and not just contention set resolution. ACTION ITEM: Consider the Proposed alternative: General notice that ICANN may refer any application and/or the outcome of contention resolution to a competition authority at its sole discretion. Second Proposal: “All private auctions would be conducted using sealed bids and all bids, regardless of whether they be used for ICANN Auction of last resort or for ICANN administered “private auctions” would be due on the same day. Any bids not used would be destroyed and not revealed.” Discussion: -- “The board believes that applications should not be submitted as a means to engage in private auctions…” if we take away private auctions we remove that problem. -- We could make it simple and say that everything goes to an auction of last resort. The is so complicated because we are dealing with the notion of private resolutions, that was introduced in the last round. -- If we want private resolutions to remain it will be complicated. -- Need to make this achievable for applicants. Having all bids at one time with multiple applications would put them at a disadvantage. ACTION ITEM: WG members should review Model 5 and provide comments. ---------------------------------------------------------------------- If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com, and do not use or disseminate the information.
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