Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6
Hi Jeff and Cheryl,Reverting back to an older topic, I would like to ask when the Packet 7 issue is being scheduled for discussion in the WG? I'll certainly arrange to be on that call to talk this through with you. It is a topic worthy of discussion together. Quick background: This is a major change - and one appropriate for the give and take of our Packet discussions, per our well-established procedure. Further, if we can spent an hour together newly-presented changes to auctions proposals, I'm sure we spend a few minutes together vetting a change to RVCs which potentially reverses months of discussion and agreement. :-) Best and tx, Kathy On 7/16/2020 1:41 PM, Jeff Neuman wrote: Anne, I never said delete the second sentence of that paragraph…so the whole paragraph would state: ICANN must allow applicants to submit Registry Voluntary Commitments (RVCs)(previously called voluntary PICs) in subsequent rounds in their applications and/or to respond to public comments, objections, GAC Early Warnings, GAC Consensus Advice, or for any other reason the applicant desires to make additional commitments. Applicants must be able to submit RVCs at any time prior to the execution of a Registry Agreement; PROVIDED, HOWEVER, THAT ALL RVCS SUBMITTED AFTER THE APPLICATION SUBMISSION DATE SHALL BE CONSIDERED APPLICATION CHANGES AND BE SUBJECT TO THE RECOMMENDATION SET FORTH IN SECTION XX APPLICATION CHANGES REQUESTS, INCLUDING, BUT NOT LIMITED TO, PUBLIC COMMENT IN ACCORDANCE WITH ICANN’S STANDARD PROCEDURES AND TIMEFRAMES So how is that not clear…I have bolded it and added emphasis. Jeffrey J Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com [1] http://jjnsolutions.com FROM: Aikman-Scalese, Anne SENT: Thursday, July 16, 2020 1:31 PM TO: Jeff Neuman ; Jamie Baxter ; Rubens Kuhl ; gnso-newgtld-wg@icann.org SUBJECT: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Jeff, The Application Change Request section does NOT say that all RVCs are subject to public comment. You would have to add your language below to that section – but only IF the WG agrees that private negotiation of RVCs is ok. (I can’t remember but Kathy has a different recollection of this.) Anne FROM: Jeff Neuman SENT: Thursday, July 16, 2020 9:32 AM TO: Aikman-Scalese, Anne ; Jamie Baxter ; Rubens Kuhl ; gnso-newgtld-wg@icann.org [6] SUBJECT: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ------------------------- I am trying to distill all of these emails from the last 24 hours and here are my thoughts. * The text in the existing Applicant Guidebook states: “A formal objection can be filed only on four enumerated grounds, as described in this module. A formal objection initiates a dispute resolution proceeding.” Thus using the term “formal” does make sense in Section 2.3.2 Recommendation XX (Rationale 4). It does not make sense to include the word “informal” there because it creates a category of objections that does not exist. * Why don’t we just state something like: “ICANN must allow applicants to submit Registry Voluntary Commitments (RVCs)(previously called voluntary PICs) in subsequent rounds in their applications and/or to respond to public comments, objections, GAC Early Warnings, GAC Consensus Advice, or for any other reason the applicant desires to make additional commitments. The point of that language was to use as an example, but it was not intended to be a limited list. Plus, when combined with the language Steve quoted, there is no doubt that all RVCs are subject to public comment (whether they are in the initial application) or submitted as an Application Change. Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com [7] http://jjnsolutions.com [8] FROM: Gnso-newgtld-wg ON BEHALF OF Aikman-Scalese, Anne SENT: Thursday, July 16, 2020 10:26 AM TO: Jamie Baxter ; Rubens Kuhl ; gnso-newgtld-wg@icann.org [12] SUBJECT: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 No – that’s the issue I am raising. All the changes to “formal objection” in the Objections section raise questions about the various references to “objections” in both the RVC section and the Application Change Request section. Those sections talk about “objections”. I did not see a prohibition on adopting RVCs in response to private negotiations with a party that is threatening to file an Objection. If we are permitting an RVC to be adopted during a private negotiation process, the RVC should be subject to public comment. If we are prohibiting adoption of an RVC to resolve a dispute before it gets to the formal Objection phase, then I am also fine with that. I am not fine with RVCs being adopted in private negotiations with that potentially not being subject to public comment. This is not at all clear in the document. We make reference to “formal objections” in the Objections section and just use the word “objections” in the RVC and Application Change Request section. We do not make any references to an RVC adopted pursuant to private negotiation before an Objection is filed. If we are going to allow those, it needs to be clear and it also needs to be clear that they are subject to public comment. If we are not going to allow that kind of private resolution, that has to be clear from the document. Anne FROM: Jamie Baxter SENT: Thursday, July 16, 2020 7:16 AM TO: Aikman-Scalese, Anne ; Rubens Kuhl ; gnso-newgtld-wg@icann.org [16] SUBJECT: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ------------------------- Hey Anne And I don’t disagree with your concerns, however I thought Steve had pointed to where in the language your concern was covered. No? Jamie FROM: "Aikman-Scalese, Anne" DATE: Thursday, July 16, 2020 at 10:04 AM TO: Jamie Baxter , Rubens Kuhl , "gnso-newgtld-wg@icann.org [20]" SUBJECT: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Jamie, I don’t disagree with any of what you have said below. I am only saying that the document now creates the possibility that someone can argue that an RVC adopted in response to private negotiations (as opposed to the currently listed mechanisms) would not be viewed as an application change request requiring public comment. It is certainly not my purpose to “create” an informal objection. My purpose is to clarify that any RVC adopted to resolve a potential dispute (not just formal objection) should trigger an application change request process that requires public comment. Perhaps I have used the wrong language to try to accomplish that but it seems to me that once we say that Application Change Request with public comment only applies where there is a “formal objection”, then you have created a big loophole to transparency. Not intending to create a new category, just recognizing that private parties may approach each other and negotiate and the outcome could be a “settlement” that results in an RVC and that should always be subject to public comment. Anne FROM: Jamie Baxter SENT: Thursday, July 16, 2020 6:56 AM TO: Aikman-Scalese, Anne ; Rubens Kuhl ; gnso-newgtld-wg@icann.org [25] SUBJECT: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ------------------------- Hey Anne I think my point may have been missed so I’ll try again. Currently there are public comments and there are objections (formal objections). These are two clearly defined periods for comment and opposition to be expressed by those reviewing applications (minus any GAC processes). Each of these have clearly defined procedures and timelines associated with them as noted in the 2012 AGB, creating transparency and predictability for all. If someone is interested in expressing comment or opposition about an application they are required to do so within those confines (minus GAC). This makes it a fair playing field for all applicants, including community applicants. In the 2012 round, people expressed comment and opposition outside of those confines and ICANN took no steps to enforce the AGB rules or prevent that comment or opposition from impacting the application and evaluation process. This diminished any transparency and predictability that was promised to applicants, and it was in contradiction to what the AGB provided for comment and oppostion. For standard applicants, any comment or opposition expressed after initial evaluation and “formal” objections were completed had no further impact, however for community applicants, ICANN’s miscarriage of the AGB rules had a direct impact on CPE scoring because of gaming. There is no such thing as informal objection in the AGB (as Steve Chan has confirmed), and I do not believe we should be creating such a thing. There are clearly defined times to submit public comment (for free) and there are clearly defined times to challenge applications via the objection process (at a cost). We should not be striping the transparency and predictability out of the process for applicants by allowing an undefined new category of “informal objection” that has no time limit or constraint. As I have pointed out on multiple occasion, all applicants should be treated equally in the process, but community applicants were not in the 2012 round, leaving them subject to an ICANN imposed additional period for people to game them in CPE by going after criteria 4 scoring. Hopefully that clarifies. Jamie FROM: "Aikman-Scalese, Anne" DATE: Wednesday, July 15, 2020 at 8:08 PM TO: Jamie Baxter , Rubens Kuhl , "gnso-newgtld-wg@icann.org [29]" SUBJECT: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Hi Jamie – I think transparency is the issue. If the new language says that RVCs that are adopted in response to a “formal” objection require public comment, then that language, in and of itself, creates a category of objection that is “not formal”. That could easily be a call or a letter from some party that says, “If you don’t adopt the following RVC, we are going to file an objection.” In that case, the RVC that is adopted should also be subject to an Application Change Request and public comment. A private “threat” like that would not be a matter of public comment. Anne FROM: Jamie Baxter SENT: Wednesday, July 15, 2020 4:01 PM TO: Aikman-Scalese, Anne ; Rubens Kuhl ; gnso-newgtld-wg@icann.org [34] SUBJECT: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ------------------------- Hey Anne I would venture to argue that informal objection is technically “public comment.” I do not support creating an undefined category of application input/intervention called “informal objection” that has no specific rules or timeline for submission. This does not add transparency to the process or predictability for applicants. Public comment and formal objections already have clearly defined rules and timelines. I continue to believe it was a miscarriage of the AGB to allow “letters of opposition” (a.k.a informal objection) to be accepted years after the public comment period was closed and the formal objection period was complete. There was certainly no reference in the AGB that this would be allowed or acceptable. It was ultimately a successful gaming tactic used against community applicants. Community applicants deserve the same level of predictability as all other applicants. Jamie FROM: Gnso-newgtld-wg on behalf of "Aikman-Scalese, Anne" DATE: Wednesday, July 15, 2020 at 6:21 PM TO: Rubens Kuhl , "gnso-newgtld-wg@icann.org [38]" SUBJECT: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Section 2.3.2 on RVCs and PICs says in Recommendation xx (Rationale 4) that ICANN MUST allow RVCs to be added after the application submission date in order to respond to public comments, objection, GAC Early Warnings, and/or GAC Consensus Advice. So obviously RVCs can be adopted in a context other than “formal objection”. That section then refers us to the Application Change Request section. Thus, in Section 2.4 Application Change Requests, it appears we may have to amend the following language in a. Recommendation xx (rationale 2): ICANN org must document the types of changes which are required to be posted for public comment and which are not required to be posted for public comment. The following is a non-exhaustive list of changes that must require public comment: * The addition of Registry Voluntary Commitments in response to public comments, objections (whether formal or informal), GAC Consensus Advice, or GAC Early Warnings * Changes to Registry Voluntary Commitments in response to public comments, objections, GAC Consensus Advice, or GAC Early Warnings * Changes associated with the formation of joint ventures (see Recommendation xx below) FROM: Aikman-Scalese, Anne SENT: Wednesday, July 15, 2020 2:53 PM TO: 'Rubens Kuhl' ; gnso-newgtld-wg@icann.org [41] SUBJECT: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Right Rubens – just looking for the language that confirms that because the section on Objections now says in d. that this applies where RVCs are adopted in response to concerns raised in a FORMAL objection. FROM: Gnso-newgtld-wg ON BEHALF OF Rubens Kuhl SENT: Wednesday, July 15, 2020 2:49 PM TO: gnso-newgtld-wg@icann.org [43] SUBJECT: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 My take is that unless the RVC is already filed in the application, when it will be subject by comments as all applications, will trigger application change request which includes public comments. Why would that not be so ? Rubens On 15 Jul 2020, at 18:38, Aikman-Scalese, Anne wrote: Thanks Jamie. I’m looking for the language in the draft Final Report that confirms your understanding. As mentioned below, Subsection d. has some added language stating that RVCs adopted in response to “concerns raised in a formal objection” will be considered application changes. Maybe Jeff or staff can advise where we would find that RVCs adopted in response to concerns expressed by a party that has not yet filed such “formal objection” would also be subject to application change request and public comment. (It may be in the section on Registry Voluntary Commitments”, but I am just looking for confirmation that all RVCs, regardless of the stage in which they are proposed to address concerns, trigger application change request procedures and public comment on the RVCs. Anne FROM: Jamie Baxter SENT: Wednesday, July 15, 2020 2:34 PM TO: Aikman-Scalese, Anne ; Emily Barabas ; gnso-newgtld-wg@icann.org [48] SUBJECT: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ------------------------- Hey Anne I do not believe that all informal objection is weighted equally (or at the level of formal objection) – at least that was our experience in the 2012 round – therefore not all informal objection necessarily invokes an application change request. That said, I do see opportunities where informal objection may invoke an application change request, such as in CPE to address a “letter of objection” targeting points in criteria 4. It has been my understanding that any application change request that extends beyond administrative adjustments to an application goes out for public comment – which I believe is the catch net to address your concerns below. I have never assumed that change requests stemming from informal objection are exempt from public comment. Do I understand that correctly? Jamie FROM: "Aikman-Scalese, Anne" DATE: Wednesday, July 15, 2020 at 5:07 PM TO: Jamie Baxter , Emily Barabas , "gnso-newgtld-wg@icann.org [52]" SUBJECT: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Yes – Jamie – that would be my understanding. The question posed relates to the fact that the later paragraph says that RVCs developed in response to a “formal objection” invoke an application change request and require public comment. I hope we have not inadvertently created an exception to this requirement in relation to RVCs adopted in response to an “informal” objection. Anne FROM: Jamie Baxter SENT: Wednesday, July 15, 2020 1:29 PM TO: Aikman-Scalese, Anne ; Emily Barabas ; gnso-newgtld-wg@icann.org [57] SUBJECT: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ------------------------- Hey Anne My interpretation of “formal objection” would be those that are paid for via a dispute resolution provider, not to be confused with any other objection expressed in public comment or other format, including the ICANN correspondence page. Jamie FROM: Gnso-newgtld-wg on behalf of "Aikman-Scalese, Anne" DATE: Wednesday, July 15, 2020 at 4:19 PM TO: Emily Barabas , "gnso-newgtld-wg@icann.org [61]" SUBJECT: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 ON PACKAGE 6, PLEASE SEE BELOW: 1. RE 2.6.1 RE “APPLICATION QUEUING”, the language shown below should be modified because the previous section is drafted as “more than 125” and the section below is drafted as “less than 125”. Language should be revised does not cover what happens if you get exactly 125 IDN applications: * * If there are (delete “less than”) 125 or fewer applications for IDN strings that elect to participate in the prioritization draw, then all such applications shall be assigned priority numbersprocessed in the first batch prior to any non-IDN application. 2. SECTION 2.8.1 – OBJECTIONS I don’t understand why we would remove affirmations of Recommendation 2 and Recommendation 3 from this section. The fact that these Affirmations are affirmed elsewhere in the report does not change their relevance in relation to the subject of Objections. Please clarify whether these Affirmations are “in” or “out.” They don’t appear to be deleted but there are comments on the side saying they should be. Recommendation xx (rationale 3) Throughout this rationale, the word, “formal” has been inserted in front of the word, “objection”. What is the meaning/need for the insertion of “formal” before “objection”? Is there a thought that there are “informal” objection processes? This language also appears in Rationale 6 and there are NUMEROUS insertions of this reference in the Section on Deliberations. Is there some intended effect here with respect to Subsection d. which specifies that a change in Registry Voluntary Commitments that is made in response to a “formal objection” invokes an application change process? Is the idea that if there are RVCs that are agreed OUTSIDE the “formal objection” process (i.e. via an “informal” objection), those RVCs are somehow NOT subject to an application change process and related public comment? I thought we had established that all new RVCs need to be subject to an application change process and public comment. 3. SECTION 2.9.1 COMMUNITY APPLICATIONS – SUBSECTION C. “New issues raised in deliberations since publication of the Initial Report, if applicable.” Thanks for deleting the reference to the conclusion that the IRT should be the body that determines any needed changes to the CPE Guidelines. However, what was discussed when the “can’t live with” comments were reviewed is that there is a need to specify that the WG is seeking public comment on the CPE Guidelines. We should be specifying at this point in the text that we are seeking that comment and we should provide the link at this same point in the text so that we call attention to the request for public comment on the CPE Guidelines (but not the scoring.) Thank you, Anne FROM: Gnso-newgtld-wg ON BEHALF OF Emily Barabas SENT: Friday, July 10, 2020 10:44 AM TO: gnso-newgtld-wg@icann.org [64] SUBJECT: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ------------------------- Dear all, The following are now available for your review in the production document [65]. The DEADLINE for comments is WEDNESDAY 15 JULY AT 23:59 UTC. * PACKAGE 7 sections of the Report are now ready for “CAN’T LIVE WITH” review (beginning on page 148 [66]): * Please limit comments to items in the revised sections that you absolutely “cannot live with.” If there is text that you cannot accept, please fill out the attached form and send it to the WG by email. Please do not provide your input in any other format. * Package 7 includes two report sections: * 2.5.4 Applicant Support (last discussed on 11 June [67]) - For this section, PLEASE LIMIT “CAN’T LIVE WITH” COMMENTS TO THE NEW TEXT IN THE SECTION, which is displayed in black. The text in grey has already gone through “Can’t Live With” review as part of an earlier package. * 2.3.2 Registry Voluntary Commitments (RVCs) / Public Interest Commitments (PICs) (last discussed on 18 June [68]) * Comments will be tracked here [69]. * PACKAGE 6 revisions of the report, now ready for a FINAL CHECK (beginning on page 118 [70]): * Please limit feedback to errors in the edits, for example a revision that you believe does not accurately reflect the outcome of discussions about a “Can’t Live With” item. * Please send this type of feedback to the mailing list. 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Kathy, Packet 7 is scheduled for discussion for next Thursday’s meeting. I understand that it is your interpretation that we have changed the RVC concept by stating that they can be submitted at any time, but we do not believe that is the case. Even as far back as prior to ICANN67 when this issue was discussed with the community and the GAC, there was no limitation on how and when RVCs could be filed. The important part of the discussion was not when or why they were filed, but that they would be sent out for review and public comment. An older version sent around prior to ICANN67 stated<https://docs.google.com/document/d/1REdkptQvv6OTf3l5kyM2AhRG5Mk0vQpC_PArk_pO...>: “ICANN must allow applicants to submit Registry Voluntary Commitments (RVCs)(previously called voluntary PICs) in subsequent rounds in their applications and/or to respond to public comments, objections, GAC Early Warnings, and/or GAC Consensus Advice. Applicants must be able to submit RVCs at any time prior to the execution of a Registry Agreement; provided, however, that all RVCs submitted after the application submission date shall be considered Application Changes and be subject to the recommendation set forth in Section xx Application Changes Requests, including, but not limited to, public comment in accordance with ICANN’s standard procedures and timeframes." The rationale in that document stated: Rationale for Recommendation xx (rationale 4): The Working Group agreed that it is important for applicants to have an opportunity to make commitments either in anticipation of concerns or objections that might be raised about an application or in response to concerns or objections that have been raised. The Working Group further agreed that there must be a mechanism to transform these application statements into binding contractual commitments. The Working Group believes that the system of Registry Voluntary Commitments (RVCs) (previously called Voluntary PICs) in the 2012 round served the purpose of allowing applicants to make and be held to such commitments. Therefore, the Working Group recommends maintaining this mechanism in subsequent procedures. [Emphasis added] A couple of key points: 1. In looking at the rationale (and in line with our discussions) it was clear that Working Group wanted to allow registries to make commitments either “IN ANTICIPATION OF CONCERNS OR OBJECTIONS THAT MIGHT BE RAISED ABOUT AN APPLICATION OR IN RESPONSE TO CONCERNS OR OBJECTIONS THAT HAVE BEEN RAISED.” You have interpreted the Recommendation is a much more narrow sense that RVCs could only be introduced in response to a “formal public comment” or a “formal objection” in addition to GAC Advice or Early Warning. * But your interpretation is not in line with the way it was drafted. * It does not say that RVCs may only be filed for the reasons in the first sentence. * Nor does it state that “public comments” only means those submitted during the formal “Public Comment Period.” * For that matter it doesn’t state that “objections” only means the formal objection process. 2. Thus when you asked for “objections” to refer to the “formal objection period” that is what triggered the addition “or for any other reason” language to be in keeping with the original intent. Bottom line is that while the language “or for any other reason” is new, the concept is not. The addition of that language only became necessary after you recommended that we insert the word “formal” before objection to refer to the formal objection period in the Applicant Guidebook. So now have two choices. 1. Reject your proposed change of “formal” before objections; OR 2. Accept your proposed change adding “formal”, but then making it clear that the intent of adding the word “formal” was not to limit how or when a Registry files an RVC. Please remember the important component to every other member of the working group was not the trigger for the RVC, but rather the fact that the RVC would be subject to comment/review. [cid:image002.png@01D661B2.A46A4830] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Kathy Kleiman <kathy@kathykleiman.com> Sent: Friday, July 24, 2020 11:51 AM To: Jeff Neuman <jeff@jjnsolutions.com>; cheryl Langdon-Orr <langdonorr@gmail.com>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Hi Jeff and Cheryl, Reverting back to an older topic, I would like to ask when the Packet 7 issue is being scheduled for discussion in the WG? I'll certainly arrange to be on that call to talk this through with you. It is a topic worthy of discussion together. Quick background: This is a major change - and one appropriate for the give and take of our Packet discussions, per our well-established procedure. Further, if we can spent an hour together newly-presented changes to auctions proposals, I'm sure we spend a few minutes together vetting a change to RVCs which potentially reverses months of discussion and agreement. :-) Best and tx, Kathy On 7/16/2020 1:41 PM, Jeff Neuman wrote: Anne, I never said delete the second sentence of that paragraph…so the whole paragraph would state: ICANN must allow applicants to submit Registry Voluntary Commitments (RVCs)(previously called voluntary PICs) in subsequent rounds in their applications and/or to respond to public comments, objections, GAC Early Warnings, GAC Consensus Advice, or for any other reason the applicant desires to make additional commitments. Applicants must be able to submit RVCs at any time prior to the execution of a Registry Agreement; provided, however, that all RVCs submitted after the application submission date shall be considered Application Changes and be subject to the recommendation set forth in Section xx Application Changes Requests, including, but not limited to, public comment in accordance with ICANN’s standard procedures and timeframes. So how is that not clear…I have bolded it and added emphasis. Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, July 16, 2020 1:31 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>; Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Jeff, The Application Change Request section does NOT say that all RVCs are subject to public comment. You would have to add your language below to that section – but only IF the WG agrees that private negotiation of RVCs is ok. (I can’t remember but Kathy has a different recollection of this.) Anne From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Sent: Thursday, July 16, 2020 9:32 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>; Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ________________________________ I am trying to distill all of these emails from the last 24 hours and here are my thoughts. 1. The text in the existing Applicant Guidebook states: “A formal objection can be filed only on four enumerated grounds, as described in this module. A formal objection initiates a dispute resolution proceeding.” Thus using the term “formal” does make sense in Section 2.3.2 Recommendation XX (Rationale 4). It does not make sense to include the word “informal” there because it creates a category of objections that does not exist. 1. Why don’t we just state something like: “ICANN must allow applicants to submit Registry Voluntary Commitments (RVCs)(previously called voluntary PICs) in subsequent rounds in their applications and/or to respond to public comments, objections, GAC Early Warnings, GAC Consensus Advice, or for any other reason the applicant desires to make additional commitments. The point of that language was to use as an example, but it was not intended to be a limited list. Plus, when combined with the language Steve quoted, there is no doubt that all RVCs are subject to public comment (whether they are in the initial application) or submitted as an Application Change. Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Aikman-Scalese, Anne Sent: Thursday, July 16, 2020 10:26 AM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>; Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 No – that’s the issue I am raising. All the changes to “formal objection” in the Objections section raise questions about the various references to “objections” in both the RVC section and the Application Change Request section. Those sections talk about “objections”. I did not see a prohibition on adopting RVCs in response to private negotiations with a party that is threatening to file an Objection. If we are permitting an RVC to be adopted during a private negotiation process, the RVC should be subject to public comment. If we are prohibiting adoption of an RVC to resolve a dispute before it gets to the formal Objection phase, then I am also fine with that I am not fine with RVCs being adopted in private negotiations with that potentially not being subject to public comment. This is not at all clear in the document. We make reference to “formal objections” in the Objections section and just use the word “objections” in the RVC and Application Change Request section. We do not make any references to an RVC adopted pursuant to private negotiation before an Objection is filed. If we are going to allow those, it needs to be clear and it also needs to be clear that they are subject to public comment. If we are not going to allow that kind of private resolution, that has to be clear from the document. Anne From: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> Sent: Thursday, July 16, 2020 7:16 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ________________________________ Hey Anne And I don’t disagree with your concerns, however I thought Steve had pointed to where in the language your concern was covered. No? Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Thursday, July 16, 2020 at 10:04 AM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Jamie, I don’t disagree with any of what you have said below. I am only saying that the document now creates the possibility that someone can argue that an RVC adopted in response to private negotiations (as opposed to the currently listed mechanisms) would not be viewed as an application change request requiring public comment. It is certainly not my purpose to “create” an informal objection. My purpose is to clarify that any RVC adopted to resolve a potential dispute (not just formal objection) should trigger an application change request process that requires public comment. Perhaps I have used the wrong language to try to accomplish that but it seems to me that once we say that Application Change Request with public comment only applies where there is a “formal objection”, then you have created a big loophole to transparency. Not intending to create a new category, just recognizing that private parties may approach each other and negotiate and the outcome could be a “settlement” that results in an RVC and that should always be subject to public comment. Anne From: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> Sent: Thursday, July 16, 2020 6:56 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ________________________________ Hey Anne I think my point may have been missed so I’ll try again. Currently there are public comments and there are objections (formal objections). These are two clearly defined periods for comment and opposition to be expressed by those reviewing applications (minus any GAC processes). Each of these have clearly defined procedures and timelines associated with them as noted in the 2012 AGB, creating transparency and predictability for all. If someone is interested in expressing comment or opposition about an application they are required to do so within those confines (minus GAC). This makes it a fair playing field for all applicants, including community applicants. In the 2012 round, people expressed comment and opposition outside of those confines and ICANN took no steps to enforce the AGB rules or prevent that comment or opposition from impacting the application and evaluation process. This diminished any transparency and predictability that was promised to applicants, and it was in contradiction to what the AGB provided for comment and oppostion. For standard applicants, any comment or opposition expressed after initial evaluation and “formal” objections were completed had no further impact, however for community applicants, ICANN’s miscarriage of the AGB rules had a direct impact on CPE scoring because of gaming. There is no such thing as informal objection in the AGB (as Steve Chan has confirmed), and I do not believe we should be creating such a thing. There are clearly defined times to submit public comment (for free) and there are clearly defined times to challenge applications via the objection process (at a cost). We should not be striping the transparency and predictability out of the process for applicants by allowing an undefined new category of “informal objection” that has no time limit or constraint. As I have pointed out on multiple occasion, all applicants should be treated equally in the process, but community applicants were not in the 2012 round, leaving them subject to an ICANN imposed additional period for people to game them in CPE by going after criteria 4 scoring. Hopefully that clarifies. Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Wednesday, July 15, 2020 at 8:08 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Hi Jamie – I think transparency is the issue. If the new language says that RVCs that are adopted in response to a “formal” objection require public comment, then that language, in and of itself, creates a category of objection that is “not formal”. That could easily be a call or a letter from some party that says, “If you don’t adopt the following RVC, we are going to file an objection.” In that case, the RVC that is adopted should also be subject to an Application Change Request and public comment. A private “threat” like that would not be a matter of public comment. Anne From: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> Sent: Wednesday, July 15, 2020 4:01 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ________________________________ Hey Anne I would venture to argue that informal objection is technically “public comment.” I do not support creating an undefined category of application input/intervention called “informal objection” that has no specific rules or timeline for submission. This does not add transparency to the process or predictability for applicants. Public comment and formal objections already have clearly defined rules and timelines. I continue to believe it was a miscarriage of the AGB to allow “letters of opposition” (a.k.a informal objection) to be accepted years after the public comment period was closed and the formal objection period was complete. There was certainly no reference in the AGB that this would be allowed or acceptable. It was ultimately a successful gaming tactic used against community applicants. Community applicants deserve the same level of predictability as all other applicants. Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Wednesday, July 15, 2020 at 6:21 PM To: Rubens Kuhl <rubensk@nic.br<mailto:rubensk@nic.br>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Section 2.3.2 on RVCs and PICs says in Recommendation xx (Rationale 4) that ICANN MUST allow RVCs to be added after the application submission date in order to respond to public comments, objection, GAC Early Warnings, and/or GAC Consensus Advice. So obviously RVCs can be adopted in a context other than “formal objection”. That section then refers us to the Application Change Request section. Thus, in Section 2.4 Application Change Requests, it appears we may have to amend the following language in a. Recommendation xx (rationale 2): ICANN org must document the types of changes which are required to be posted for public comment and which are not required to be posted for public comment. The following is a non-exhaustive list of changes that must require public comment: * The addition of Registry Voluntary Commitments in response to public comments, objections (whether formal or informal), GAC Consensus Advice, or GAC Early Warnings * Changes to Registry Voluntary Commitments in response to public comments, objections, GAC Consensus Advice, or GAC Early Warnings * Changes associated with the formation of joint ventures (see Recommendation xx below) From: Aikman-Scalese, Anne Sent: Wednesday, July 15, 2020 2:53 PM To: 'Rubens Kuhl' <rubensk@nic.br<mailto:rubensk@nic.br>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Right Rubens – just looking for the language that confirms that because the section on Objections now says in d. that this applies where RVCs are adopted in response to concerns raised in a FORMAL objection. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Rubens Kuhl Sent: Wednesday, July 15, 2020 2:49 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 My take is that unless the RVC is already filed in the application, when it will be subject by comments as all applications, will trigger application change request which includes public comments. Why would that not be so ? Rubens On 15 Jul 2020, at 18:38, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Thanks Jamie. I’m looking for the language in the draft Final Report that confirms your understanding. As mentioned below, Subsection d. has some added language stating that RVCs adopted in response to “concerns raised in a formal objection” will be considered application changes. Maybe Jeff or staff can advise where we would find that RVCs adopted in response to concerns expressed by a party that has not yet filed such “formal objection” would also be subject to application change request and public comment. (It may be in the section on Registry Voluntary Commitments”, but I am just looking for confirmation that all RVCs, regardless of the stage in which they are proposed to address concerns, trigger application change request procedures and public comment on the RVCs. Anne From: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> Sent: Wednesday, July 15, 2020 2:34 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Emily Barabas <emily.barabas@icann.org<mailto:emily.barabas@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ________________________________ Hey Anne I do not believe that all informal objection is weighted equally (or at the level of formal objection) – at least that was our experience in the 2012 round – therefore not all informal objection necessarily invokes an application change request. That said, I do see opportunities where informal objection may invoke an application change request, such as in CPE to address a “letter of objection” targeting points in criteria 4. It has been my understanding that any application change request that extends beyond administrative adjustments to an application goes out for public comment – which I believe is the catch net to address your concerns below. I have never assumed that change requests stemming from informal objection are exempt from public comment. Do I understand that correctly? Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Wednesday, July 15, 2020 at 5:07 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Emily Barabas <emily.barabas@icann.org<mailto:emily.barabas@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 Yes – Jamie – that would be my understanding. The question posed relates to the fact that the later paragraph says that RVCs developed in response to a “formal objection” invoke an application change request and require public comment. I hope we have not inadvertently created an exception to this requirement in relation to RVCs adopted in response to an “informal” objection. Anne From: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> Sent: Wednesday, July 15, 2020 1:29 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Emily Barabas <emily.barabas@icann.org<mailto:emily.barabas@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ________________________________ Hey Anne My interpretation of “formal objection” would be those that are paid for via a dispute resolution provider, not to be confused with any other objection expressed in public comment or other format, including the ICANN correspondence page. Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Wednesday, July 15, 2020 at 4:19 PM To: Emily Barabas <emily.barabas@icann.org<mailto:emilybarabas@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 On Package 6, please see below: 1. re 2.6.1 re “Application Queuing”, the language shown below should be modified because the previous section is drafted as “more than 125” and the section below is drafted as “less than 125”. Language should be revised does not cover what happens if you get exactly 125 IDN applications: · * If there are (delete “less than”) 125 or fewer applications for IDN strings that elect to participate in the prioritization draw, then all such applications shall be assigned priority numbersprocessed in the first batch prior to any non-IDN application. 2 Section 2.8.1 – Objections I don’t understand why we would remove affirmations of Recommendation 2 and Recommendation 3 from this section. The fact that these Affirmations are affirmed elsewhere in the report does not change their relevance in relation to the subject of Objections. Please clarify whether these Affirmations are “in” or “out.” They don’t appear to be deleted but there are comments on the side saying they should be. Recommendation xx (rationale 3) Throughout this rationale, the word, “formal” has been inserted in front of the word, “objection”. What is the meaning/need for the insertion of “formal” before “objection”? Is there a thought that there are “informal” objection processes? This language also appears in Rationale 6 and there are NUMEROUS insertions of this reference in the Section on Deliberations. Is there some intended effect here with respect to Subsection d. which specifies that a change in Registry Voluntary Commitments that is made in response to a “formal objection” invokes an application change process? Is the idea that if there are RVCs that are agreed OUTSIDE the “formal objection” process (i.e. via an “informal” objection), those RVCs are somehow NOT subject to an application change process and related public comment? I thought we had established that all new RVCs need to be subject to an application change process and public comment. 3. Section 2.9.1 Community Applications – Subsection c. “New issues raised in deliberations since publication of the Initial Report, if applicable.” Thanks for deleting the reference to the conclusion that the IRT should be the body that determines any needed changes to the CPE Guidelines. However, what was discussed when the “can’t live with” comments were reviewed is that there is a need to specify that the WG is seeking public comment on the CPE Guidelines. We should be specifying at this point in the text that we are seeking that comment and we should provide the link at this same point in the text so that we call attention to the request for public comment on the CPE Guidelines (but not the scoring.) Thank you, Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Emily Barabas Sent: Friday, July 10, 2020 10:44 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 [EXTERNAL] ________________________________ Dear all, The following are now available for your review in the production document<https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLu...>. The deadline for comments is Wednesday 15 July at 23:59 UTC. 1. Package 7 sections of the Report are now ready for “Can’t Live With” review (beginning on page 148<https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLu...>): * Please limit comments to items in the revised sections that you absolutely “cannot live with.” If there is text that you cannot accept, please fill out the attached form and send it to the WG by email. Please do not provide your input in any other format. * Package 7 includes two report sections: * 2.5.4 Applicant Support (last discussed on 11 June<https://community.icann.org/display/NGSPP/2020-06-11+New+gTLD+Subsequent+Pro...>) - For this section, please limit “Can’t Live With” comments to the new text in the section, which is displayed in black. The text in grey has already gone through “Can’t Live With” review as part of an earlier package. * 2.3.2 Registry Voluntary Commitments (RVCs) / Public Interest Commitments (PICs) (last discussed on 18 June<https://community.icann.org/display/NGSPP/2020-06-18+New+gTLD+Subsequent+Pro...>) * Comments will be tracked here<https://community.icann.org/x/JDKJBw>. 1. Package 6 revisions of the report, now ready for a final check (beginning on page 118<https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLu...>): * Please limit feedback to errors in the edits, for example a revision that you believe does not accurately reflect the outcome of discussions about a “Can’t Live With” item. * Please send this type of feedback to the mailing list. 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participants (2)
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Jeff Neuman -
Kathy Kleiman