Re: [Gnso-newgtld-wg] Predictability - Section 1.2.2
Thanks Karen. I agree regarding the detail that Jamie wants to include, but given the discussion, it does seem to make sense to include his suggested edit in the Overarching Issues in the section from his e-mail pasted here: “…changes to pre-delegation testing mechanisms, changes to launch mechanisms as result of name collision studies, and the creation of additional CPE guidelines prepared by the CPE providers, to name a few.” That would make this section consistent with proposed future edits in the CPE section of the report when we get to those. Thank you, Anne Anne E. Aikman-Scalese 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D3D6EA.AB69DF10] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jamie Baxter [mailto:jamie@dotgay.com] Sent: Wednesday, April 18, 2018 7:46 AM To: Karen Day; Aikman-Scalese, Anne; 'Jim Prendergast'; gnso-newgtld-wg@icann.org Cc: Jeff Neuman; 'Steve Chan' Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Thanks so much Karen -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: Karen Day <Karen.Day@sas.com<mailto:Karen.Day@sas.com>> Date: Wed, April 18, 2018 10:38 am To: Jamie Baxter <jamie@dotgay.com<mailto:jamie@dotgay.com>>, "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Cc: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>> Hi all, I just wanted to thank you all for this added discussion with regard to the CPE process and let you know that we will be including this as another example of how predictability was lacking in 2012 round. But since the substance of the issue on CPE is dealt with in another section of the report (1.9.1), I would like to ask that when that section of the report comes out for your review, that those members of WT3 review what we’ve written to ensure that it accurately covers the work we did and comment on that. Best, Karen Co-chair, WT 3 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jamie Baxter Sent: Tuesday, April 17, 2018 6:49 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Predictability - Section 1.2.2 EXTERNAL I raised this concern in the initial comment period and on WT3 calls. I do recognize however that there are few (if any) other community applicants in the group and so the issue of the CPE guidelines (created by the CPE providers after applications were in) may not be widely known. I would be happy to engage in a further discussion on the issue within WT3 and dive deeper into the documents and subsequent impact on CPE. Unfortunately, the Board requested CPE investigation that concluded in December 2017 did not include any mention of this issue when it concluded that there we no issues with how the CPE providers conducted CPE. -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tue, April 17, 2018 6:18 pm To: 'Jamie Baxter' <jamie@dotgay.com<mailto:jamie@dotgay.com>>, 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> So did we ever examine these documents in Sub Pro Work Track 3? Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image005.png@01D3D6EA.AB349E40] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jamie Baxter [mailto:jamie@dotgay.com] Sent: Tuesday, April 17, 2018 2:45 PM To: Aikman-Scalese, Anne; 'Jim Prendergast'; Jeff Neuman; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 The additional CPE guideline publication was a product of the CPE providers, and which ICANN upholds as legitimate CPE documents. -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tue, April 17, 2018 5:10 pm To: 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, Jamie Baxter <jamie@dotgay.com<mailto:jamie@dotgay.com>>, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Were these criteria published by ICANN or the DRPs? Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image005.png@01D3D6EA.AB349E40] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jim Prendergast [mailto:jim@GALWAYSG.COM] Sent: Tuesday, April 17, 2018 1:40 PM To: Jamie Baxter; Aikman-Scalese, Anne; Jeff Neuman; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 I would also point out that community applicants were not allowed to update their answers to pertinent questions nor allowed to clarify them even after the criteria changed. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Tuesday, April 17, 2018 4:04 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Thanks for asking Anne. When the Applicant Guidebook was published, there was clear understanding (ie. predictability) for community applicants that they would be evaluated based on the details, definitions and guidance contained within the Applicant Guidebook. To no fault of the applicant, the Applicant Guidebook language was at times vague or flexible to interpretation to the extent that applicants could make reasoned interpretations. If that was not intended, then further definitions would have (or should have) been included in the guidebook to avoid misinterpretation of the language. There was never a suggestion in the guidebook that Community Priority Evaluation (CPE) providers would later be permitted to produce their own CPE guideline documents, or that the CPE providers would be given liberty to further narrow interpretation of guidebook language or further define words & phrases not previously defined in the guidebook. By doing this, many community applicants were immediately disadvantaged, presuming applicants should have been able to read the minds of the CPE providers prior to submitting their applications. The creation of CPE guidelines was a complete interruption of predictability, especially since the additional CPE documents were only produced after applications were submitted and published on the ICANN website for everyone to review (including the CPE providers themselves). My assertion here is that if details, words or guidance contained in the Applicants Guidebook require further clarification in order for the CPE providers to do their job, then that clarity must occur prior to all applications being submitted. Not doing so is in complete conflict with goals of predictability and may explain the low success rate of community applications in the 2012 round. Permitting additional CPE guidelines and documents during the 2012 round conflicts with Recommendations 1 & 9. I call this out specifically to ensure that it does not happen again in subsequent rounds. I hope that helps Anne. Jamie -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tue, April 17, 2018 1:58 pm To: 'Jamie Baxter' <jamie@dotgay.com<mailto:jamie@dotgay.com>>, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> I support Jamie’s changes. I don’t think CPE providers should be creating additional guidelines. If there is something valuable to the community in those additional guidelines, they should be added to the CPE process but only via consideration and adoption in this policy process, not on an “ad hoc” basis. Jamie, could you let us know what these additional ad hoc guidelines were? Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image005.png@01D3D6EA.AB349E40] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jamie Baxter [mailto:jamie@dotgay.com] Sent: Tuesday, April 17, 2018 9:40 AM To: Jeff Neuman; Aikman-Scalese, Anne; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Jeff & Cheryl Below are my recommended edits (noted in red) to 1.2.2 to reflect the inclusion of Work Track 3's discussion about the additional CPE guidelines that were introduced by the CPE providers after community applications were submitted. When discussing examples of changes to the new gTLD program, I believe it is important to note that "additions" are also considered a change and are just as detrimental to predictability. As discussed in WT3, I believe such additions are in direct contradiction to Recommendations 1 & 9 and it is important to call it out here. Much thanks Jamie 1.2.2 Predictability b. How was it implemented in the 2012 round of the New gTLD Program? The Applicant Guidebook was intended to serve as the roadmap for applicants, observers to the program, and the ICANN Organization to operationalize and execute the program. That said, one of the most common complaints by new gTLD Applicants and ICANN Community members was that there were a number changes to the New gTLD Program and additional evaluation guideline documents created after the finalization of the Applicant Guidebook that led overall to a process that was far from predictable. Such changes included for example, changes to the New gTLD Registry Agreement, the addition of Public Interest Commitments, changes to the application prioritization process, changes implemented as a result of GAC Advice, changes to pre-delegation testing mechanisms, changes to launch mechanisms as result of name collision studies, and the creation of additional CPE guidelines prepared by the CPE providers to name a few. c. What are the preliminary recommendations and/or implementation guidelines? In addition to ensuring adherence to the GNSO’s Consensus Policy Implementation Framework (CPIF)3, the Working Group believes that the New gTLD Program, once launched (i.e., after the Implementation Review Team), should also be subject to a new Predictability Framework, to tackle issues that arise regarding the introduction of new gTLDs. Among other recommendations, the Working Group believes that as part of the Predictability Framework, a standing Implementation Review Team should be constituted after the publication of the Applicant Guidebook to consider changes in the implementation, execution and/or operations of the new gTLD program after its launch, and the introduction of any further evaluation guidelines not available to applicants when applications were submitted. f. Deliberations The Working Group (WG) discussed a number of examples where predictability was lacking in the 2012 round. Some examples include the development of implementation elements in the Applicant Guidebook where there was no existing policy recommendations, the changes to the base registry agreement after the launch of the program, the difficulty and confusion with Continuing Operations Instrument (COI), the Public Interest Commitments (PICs), name collisions, the introduction on additional CPE guidelines after community applications were submitted and numerous other examples. The WG acknowledges that some level of uncertainty is unavoidable, even with the absolute best planning and thinking done in advance. It is with that acknowledgement that the WG generally agreed that establishing a framework, which allows for the disposition of post program launch issues in a predictable manner, might be the best way to provide some level of certainty. -------- Original Message -------- Subject: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Date: Tue, April 17, 2018 10:20 am To: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Anne, Thanks for the thorough comments. I have renamed the e-mail Chain to reflect the Section of the Report and give my thoughts: 1. Comment from Anne: Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. Response from Jeff: Good Suggestions. Can I offer the following slight tweaks: “Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of consensus recommendations made by the GNSO, the ICANN Board implemented approved the GNSO’s Consensus Policy Implementation Framework (“CPIF”) {footnote to Framework} a process for issues that arise during the implementation phase of Consensus Policies. This that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP {Insert Footnote to CPIF where definitions can be found for these terms}. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”).” 1. Comment from Anne: In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. Response from Jeff: Agree with that change. 1. Comment from Anne: In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.” Response from Jeff: I think the second paragraph in that section along with the expansion of the discussion in the next section “Details of the Predictability Framework” does exactly what you recommend. Do you disagree? 1. Comment from Anne: In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination? Response from Jeff: In the “Details of the Predictability Framework” Section, under Phase 3 we state: “For the purposes of the New gTLD Program, the effective date may better be considered as the date of program/Applicant Guidebook adoption by the ICANN Board or the opening of the application window.” How about we do the following: a. Put a footnote in the “Anticipated Outcome” section pointing to where we define “Launch”. b. Make it clear in the sentence referenced in Phase 3 above is our proposed definition of “Launch” and c. Add a question in the Feedback section that asks for comment on our definition of Launch. 1. Comment from Anne: In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. Then begin the new sentence. “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. (No need for underlining in the actual text – I show this only for emphasis on the requested changes.) Response from Jeff: I am a little confused as to why you are referring to it as a fourth element. The first element is policy development. The second is implementation (as covered by the CPIF). The Implementation Phase ends when the program is launched. Therefore, the third is this “Predictability Framework.” What am I missing? The Predictability Framework which envisions setting up a Standing IRT can refer things back to Phase 1 or Phase 2 at their discretion, but I re-read the CPIF and it does not necessarily apply once there is a launch of a program and changes to operations may need to be made. That is why we are creating this Framework in the first place as discussed on the numerous call. That said, I have no issue adding the work “considering” before the word “proposing” in that first paragraph. 1. Comment from Anne: Add the following to list of questions for feedback: How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense? Response from Jeff: Makes sense. We will work that in. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw The following additions/changes are needed to avoid the conflict with existing ICANN Board adopted policy in this arena: Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.” In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination? In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. Then begin the new sentence. “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. (No need for underlining in the actual text – I show this only for emphasis on the requested changes.) In the Section entitled “What specific questions are the PDP WG seeking feedback on?”, please add the following question: * How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense? Thank you, Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image006.png@01D3D6EA.AB349E40] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Steve Chan Sent: Friday, April 13, 2018 8:39 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 16 April 2018 at 20:00 UTC Dear WG Members, Below, please find the proposed agenda for the New gTLD Subsequent Procedures WG meeting scheduled for Monday 16 April 2018 at 20:00 UTC, for 90 minutes. 1. Agenda Review 2. Roll Call/SOIs 3. Review of the Initial Report (continued) 4. AOB For item 3 of the agenda, we will be reviewing another section of the draft Initial Report. Attached, please find an extract of the section on Overarching Issues, which includes eight (8) topics. Those signed up as Members to this PDP WG should have received meeting information from the SOAC Support team. If you did not receive these participation details or if you would like to send your apologies, please contact the SOAC Support team (gnso-secs@icann.org<mailto:gnso-secs@icann.org>). 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Hi, Yes, leadership agreed to those and the edits to 1.2.2 were ‘officially’ added to the report by staff yesterday. Thanks again for raising this on the call, Monday, Jamie. Karen ______________________________________________________________ Karen L. Day, NCCP ACP Brand Protection & Registry Operations Manager Tel: + 1 919-531-6016 ▪ Mobile: + 1 919-599-4356 From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Wednesday, April 18, 2018 10:56 AM To: 'Jamie Baxter' <jamie@dotgay.com>; Karen Day <Karen.Day@sas.com>; 'Jim Prendergast' <jim@GALWAYSG.COM>; gnso-newgtld-wg@icann.org Cc: Jeff Neuman <jeff.neuman@comlaude.com>; 'Steve Chan' <steve.chan@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 EXTERNAL Thanks Karen. I agree regarding the detail that Jamie wants to include, but given the discussion, it does seem to make sense to include his suggested edit in the Overarching Issues in the section from his e-mail pasted here: “…changes to pre-delegation testing mechanisms, changes to launch mechanisms as result of name collision studies, and the creation of additional CPE guidelines prepared by the CPE providers, to name a few.” That would make this section consistent with proposed future edits in the CPE section of the report when we get to those. Thank you, Anne Anne E. Aikman-Scalese 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D3D704.9CE65C60] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jamie Baxter [mailto:jamie@dotgay.com] Sent: Wednesday, April 18, 2018 7:46 AM To: Karen Day; Aikman-Scalese, Anne; 'Jim Prendergast'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Cc: Jeff Neuman; 'Steve Chan' Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Thanks so much Karen -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: Karen Day <Karen.Day@sas.com<mailto:Karen.Day@sas.com>> Date: Wed, April 18, 2018 10:38 am To: Jamie Baxter <jamie@dotgay.com<mailto:jamie@dotgay.com>>, "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Cc: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>> Hi all, I just wanted to thank you all for this added discussion with regard to the CPE process and let you know that we will be including this as another example of how predictability was lacking in 2012 round. But since the substance of the issue on CPE is dealt with in another section of the report (1.9.1), I would like to ask that when that section of the report comes out for your review, that those members of WT3 review what we’ve written to ensure that it accurately covers the work we did and comment on that. Best, Karen Co-chair, WT 3 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jamie Baxter Sent: Tuesday, April 17, 2018 6:49 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Predictability - Section 1.2.2 EXTERNAL I raised this concern in the initial comment period and on WT3 calls. I do recognize however that there are few (if any) other community applicants in the group and so the issue of the CPE guidelines (created by the CPE providers after applications were in) may not be widely known. I would be happy to engage in a further discussion on the issue within WT3 and dive deeper into the documents and subsequent impact on CPE. Unfortunately, the Board requested CPE investigation that concluded in December 2017 did not include any mention of this issue when it concluded that there we no issues with how the CPE providers conducted CPE. -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tue, April 17, 2018 6:18 pm To: 'Jamie Baxter' <jamie@dotgay.com<mailto:jamie@dotgay.com>>, 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> So did we ever examine these documents in Sub Pro Work Track 3? Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image002.png@01D3D704.9CE65C60] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jamie Baxter [mailto:jamie@dotgay.com] Sent: Tuesday, April 17, 2018 2:45 PM To: Aikman-Scalese, Anne; 'Jim Prendergast'; Jeff Neuman; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 The additional CPE guideline publication was a product of the CPE providers, and which ICANN upholds as legitimate CPE documents. -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tue, April 17, 2018 5:10 pm To: 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, Jamie Baxter <jamie@dotgay.com<mailto:jamie@dotgay.com>>, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Were these criteria published by ICANN or the DRPs? Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image002.png@01D3D704.9CE65C60] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jim Prendergast [mailto:jim@GALWAYSG.COM] Sent: Tuesday, April 17, 2018 1:40 PM To: Jamie Baxter; Aikman-Scalese, Anne; Jeff Neuman; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 I would also point out that community applicants were not allowed to update their answers to pertinent questions nor allowed to clarify them even after the criteria changed. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Tuesday, April 17, 2018 4:04 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Thanks for asking Anne. When the Applicant Guidebook was published, there was clear understanding (ie. predictability) for community applicants that they would be evaluated based on the details, definitions and guidance contained within the Applicant Guidebook. To no fault of the applicant, the Applicant Guidebook language was at times vague or flexible to interpretation to the extent that applicants could make reasoned interpretations. If that was not intended, then further definitions would have (or should have) been included in the guidebook to avoid misinterpretation of the language. There was never a suggestion in the guidebook that Community Priority Evaluation (CPE) providers would later be permitted to produce their own CPE guideline documents, or that the CPE providers would be given liberty to further narrow interpretation of guidebook language or further define words & phrases not previously defined in the guidebook. By doing this, many community applicants were immediately disadvantaged, presuming applicants should have been able to read the minds of the CPE providers prior to submitting their applications. The creation of CPE guidelines was a complete interruption of predictability, especially since the additional CPE documents were only produced after applications were submitted and published on the ICANN website for everyone to review (including the CPE providers themselves). My assertion here is that if details, words or guidance contained in the Applicants Guidebook require further clarification in order for the CPE providers to do their job, then that clarity must occur prior to all applications being submitted. Not doing so is in complete conflict with goals of predictability and may explain the low success rate of community applications in the 2012 round. Permitting additional CPE guidelines and documents during the 2012 round conflicts with Recommendations 1 & 9. I call this out specifically to ensure that it does not happen again in subsequent rounds. I hope that helps Anne. Jamie -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tue, April 17, 2018 1:58 pm To: 'Jamie Baxter' <jamie@dotgay.com<mailto:jamie@dotgay.com>>, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> I support Jamie’s changes. I don’t think CPE providers should be creating additional guidelines. If there is something valuable to the community in those additional guidelines, they should be added to the CPE process but only via consideration and adoption in this policy process, not on an “ad hoc” basis. Jamie, could you let us know what these additional ad hoc guidelines were? Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image002.png@01D3D704.9CE65C60] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jamie Baxter [mailto:jamie@dotgay.com] Sent: Tuesday, April 17, 2018 9:40 AM To: Jeff Neuman; Aikman-Scalese, Anne; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Jeff & Cheryl Below are my recommended edits (noted in red) to 1.2.2 to reflect the inclusion of Work Track 3's discussion about the additional CPE guidelines that were introduced by the CPE providers after community applications were submitted. When discussing examples of changes to the new gTLD program, I believe it is important to note that "additions" are also considered a change and are just as detrimental to predictability. As discussed in WT3, I believe such additions are in direct contradiction to Recommendations 1 & 9 and it is important to call it out here. Much thanks Jamie 1.2.2 Predictability b. How was it implemented in the 2012 round of the New gTLD Program? The Applicant Guidebook was intended to serve as the roadmap for applicants, observers to the program, and the ICANN Organization to operationalize and execute the program. That said, one of the most common complaints by new gTLD Applicants and ICANN Community members was that there were a number changes to the New gTLD Program and additional evaluation guideline documents created after the finalization of the Applicant Guidebook that led overall to a process that was far from predictable. Such changes included for example, changes to the New gTLD Registry Agreement, the addition of Public Interest Commitments, changes to the application prioritization process, changes implemented as a result of GAC Advice, changes to pre-delegation testing mechanisms, changes to launch mechanisms as result of name collision studies, and the creation of additional CPE guidelines prepared by the CPE providers to name a few. c. What are the preliminary recommendations and/or implementation guidelines? In addition to ensuring adherence to the GNSO’s Consensus Policy Implementation Framework (CPIF)3, the Working Group believes that the New gTLD Program, once launched (i.e., after the Implementation Review Team), should also be subject to a new Predictability Framework, to tackle issues that arise regarding the introduction of new gTLDs. Among other recommendations, the Working Group believes that as part of the Predictability Framework, a standing Implementation Review Team should be constituted after the publication of the Applicant Guidebook to consider changes in the implementation, execution and/or operations of the new gTLD program after its launch, and the introduction of any further evaluation guidelines not available to applicants when applications were submitted. f. Deliberations The Working Group (WG) discussed a number of examples where predictability was lacking in the 2012 round. Some examples include the development of implementation elements in the Applicant Guidebook where there was no existing policy recommendations, the changes to the base registry agreement after the launch of the program, the difficulty and confusion with Continuing Operations Instrument (COI), the Public Interest Commitments (PICs), name collisions, the introduction on additional CPE guidelines after community applications were submitted and numerous other examples. The WG acknowledges that some level of uncertainty is unavoidable, even with the absolute best planning and thinking done in advance. It is with that acknowledgement that the WG generally agreed that establishing a framework, which allows for the disposition of post program launch issues in a predictable manner, might be the best way to provide some level of certainty. -------- Original Message -------- Subject: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Date: Tue, April 17, 2018 10:20 am To: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Anne, Thanks for the thorough comments. I have renamed the e-mail Chain to reflect the Section of the Report and give my thoughts: 1. Comment from Anne: Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. Response from Jeff: Good Suggestions. Can I offer the following slight tweaks: “Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of consensus recommendations made by the GNSO, the ICANN Board implemented approved the GNSO’s Consensus Policy Implementation Framework (“CPIF”) {footnote to Framework} a process for issues that arise during the implementation phase of Consensus Policies. This that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP {Insert Footnote to CPIF where definitions can be found for these terms}. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”).” 1. Comment from Anne: In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. Response from Jeff: Agree with that change. 1. Comment from Anne: In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.” Response from Jeff: I think the second paragraph in that section along with the expansion of the discussion in the next section “Details of the Predictability Framework” does exactly what you recommend. Do you disagree? 1. Comment from Anne: In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination? Response from Jeff: In the “Details of the Predictability Framework” Section, under Phase 3 we state: “For the purposes of the New gTLD Program, the effective date may better be considered as the date of program/Applicant Guidebook adoption by the ICANN Board or the opening of the application window.” How about we do the following: a. Put a footnote in the “Anticipated Outcome” section pointing to where we define “Launch”. b. Make it clear in the sentence referenced in Phase 3 above is our proposed definition of “Launch” and c. Add a question in the Feedback section that asks for comment on our definition of Launch. 1. Comment from Anne: In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. Then begin the new sentence. “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. (No need for underlining in the actual text – I show this only for emphasis on the requested changes.) Response from Jeff: I am a little confused as to why you are referring to it as a fourth element. The first element is policy development. The second is implementation (as covered by the CPIF). The Implementation Phase ends when the program is launched. Therefore, the third is this “Predictability Framework.” What am I missing? The Predictability Framework which envisions setting up a Standing IRT can refer things back to Phase 1 or Phase 2 at their discretion, but I re-read the CPIF and it does not necessarily apply once there is a launch of a program and changes to operations may need to be made. That is why we are creating this Framework in the first place as discussed on the numerous call. That said, I have no issue adding the work “considering” before the word “proposing” in that first paragraph. 1. Comment from Anne: Add the following to list of questions for feedback: How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense? Response from Jeff: Makes sense. We will work that in. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw The following additions/changes are needed to avoid the conflict with existing ICANN Board adopted policy in this arena: Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.” In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination? In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. Then begin the new sentence. “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. (No need for underlining in the actual text – I show this only for emphasis on the requested changes.) In the Section entitled “What specific questions are the PDP WG seeking feedback on?”, please add the following question: * How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense? Thank you, Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D3D704.9CE65C60] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Steve Chan Sent: Friday, April 13, 2018 8:39 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 16 April 2018 at 20:00 UTC Dear WG Members, Below, please find the proposed agenda for the New gTLD Subsequent Procedures WG meeting scheduled for Monday 16 April 2018 at 20:00 UTC, for 90 minutes. 1. Agenda Review 2. Roll Call/SOIs 3. Review of the Initial Report (continued) 4. AOB For item 3 of the agenda, we will be reviewing another section of the draft Initial Report. Attached, please find an extract of the section on Overarching Issues, which includes eight (8) topics. Those signed up as Members to this PDP WG should have received meeting information from the SOAC Support team. If you did not receive these participation details or if you would like to send your apologies, please contact the SOAC Support team (gnso-secs@icann.org<mailto:gnso-secs@icann.org>). 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Great. Many thanks Karen. Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D3D6EB.E6BDBF90] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Karen Day [mailto:Karen.Day@sas.com] Sent: Wednesday, April 18, 2018 8:02 AM To: Aikman-Scalese, Anne; 'Jamie Baxter'; 'Jim Prendergast'; gnso-newgtld-wg@icann.org Cc: Jeff Neuman; 'Steve Chan' Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Hi, Yes, leadership agreed to those and the edits to 1.2.2 were ‘officially’ added to the report by staff yesterday. Thanks again for raising this on the call, Monday, Jamie. Karen ______________________________________________________________ Karen L. Day, NCCP ACP Brand Protection & Registry Operations Manager Tel: + 1 919-531-6016 ▪ Mobile: + 1 919-599-4356 From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Wednesday, April 18, 2018 10:56 AM To: 'Jamie Baxter' <jamie@dotgay.com<mailto:jamie@dotgay.com>>; Karen Day <Karen.Day@sas.com<mailto:Karen.Day@sas.com>>; 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Cc: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 EXTERNAL Thanks Karen. I agree regarding the detail that Jamie wants to include, but given the discussion, it does seem to make sense to include his suggested edit in the Overarching Issues in the section from his e-mail pasted here: “…changes to pre-delegation testing mechanisms, changes to launch mechanisms as result of name collision studies, and the creation of additional CPE guidelines prepared by the CPE providers, to name a few.” That would make this section consistent with proposed future edits in the CPE section of the report when we get to those. Thank you, Anne Anne E. Aikman-Scalese 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image006.png@01D3D6EB.E67DF770] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jamie Baxter [mailto:jamie@dotgay.com] Sent: Wednesday, April 18, 2018 7:46 AM To: Karen Day; Aikman-Scalese, Anne; 'Jim Prendergast'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Cc: Jeff Neuman; 'Steve Chan' Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Thanks so much Karen -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: Karen Day <Karen.Day@sas.com<mailto:Karen.Day@sas.com>> Date: Wed, April 18, 2018 10:38 am To: Jamie Baxter <jamie@dotgay.com<mailto:jamie@dotgay.com>>, "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Cc: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>> Hi all, I just wanted to thank you all for this added discussion with regard to the CPE process and let you know that we will be including this as another example of how predictability was lacking in 2012 round. But since the substance of the issue on CPE is dealt with in another section of the report (1.9.1), I would like to ask that when that section of the report comes out for your review, that those members of WT3 review what we’ve written to ensure that it accurately covers the work we did and comment on that. Best, Karen Co-chair, WT 3 From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jamie Baxter Sent: Tuesday, April 17, 2018 6:49 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Predictability - Section 1.2.2 EXTERNAL I raised this concern in the initial comment period and on WT3 calls. I do recognize however that there are few (if any) other community applicants in the group and so the issue of the CPE guidelines (created by the CPE providers after applications were in) may not be widely known. I would be happy to engage in a further discussion on the issue within WT3 and dive deeper into the documents and subsequent impact on CPE. Unfortunately, the Board requested CPE investigation that concluded in December 2017 did not include any mention of this issue when it concluded that there we no issues with how the CPE providers conducted CPE. -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tue, April 17, 2018 6:18 pm To: 'Jamie Baxter' <jamie@dotgay.com<mailto:jamie@dotgay.com>>, 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> So did we ever examine these documents in Sub Pro Work Track 3? Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image007.png@01D3D6EB.E67DF770] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jamie Baxter [mailto:jamie@dotgay.com] Sent: Tuesday, April 17, 2018 2:45 PM To: Aikman-Scalese, Anne; 'Jim Prendergast'; Jeff Neuman; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 The additional CPE guideline publication was a product of the CPE providers, and which ICANN upholds as legitimate CPE documents. -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tue, April 17, 2018 5:10 pm To: 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, Jamie Baxter <jamie@dotgay.com<mailto:jamie@dotgay.com>>, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Were these criteria published by ICANN or the DRPs? Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image007.png@01D3D6EB.E67DF770] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jim Prendergast [mailto:jim@GALWAYSG.COM] Sent: Tuesday, April 17, 2018 1:40 PM To: Jamie Baxter; Aikman-Scalese, Anne; Jeff Neuman; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 I would also point out that community applicants were not allowed to update their answers to pertinent questions nor allowed to clarify them even after the criteria changed. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Tuesday, April 17, 2018 4:04 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Thanks for asking Anne. When the Applicant Guidebook was published, there was clear understanding (ie. predictability) for community applicants that they would be evaluated based on the details, definitions and guidance contained within the Applicant Guidebook. To no fault of the applicant, the Applicant Guidebook language was at times vague or flexible to interpretation to the extent that applicants could make reasoned interpretations. If that was not intended, then further definitions would have (or should have) been included in the guidebook to avoid misinterpretation of the language. There was never a suggestion in the guidebook that Community Priority Evaluation (CPE) providers would later be permitted to produce their own CPE guideline documents, or that the CPE providers would be given liberty to further narrow interpretation of guidebook language or further define words & phrases not previously defined in the guidebook. By doing this, many community applicants were immediately disadvantaged, presuming applicants should have been able to read the minds of the CPE providers prior to submitting their applications. The creation of CPE guidelines was a complete interruption of predictability, especially since the additional CPE documents were only produced after applications were submitted and published on the ICANN website for everyone to review (including the CPE providers themselves). My assertion here is that if details, words or guidance contained in the Applicants Guidebook require further clarification in order for the CPE providers to do their job, then that clarity must occur prior to all applications being submitted. Not doing so is in complete conflict with goals of predictability and may explain the low success rate of community applications in the 2012 round. Permitting additional CPE guidelines and documents during the 2012 round conflicts with Recommendations 1 & 9. I call this out specifically to ensure that it does not happen again in subsequent rounds. I hope that helps Anne. Jamie -------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tue, April 17, 2018 1:58 pm To: 'Jamie Baxter' <jamie@dotgay.com<mailto:jamie@dotgay.com>>, Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> I support Jamie’s changes. I don’t think CPE providers should be creating additional guidelines. If there is something valuable to the community in those additional guidelines, they should be added to the CPE process but only via consideration and adoption in this policy process, not on an “ad hoc” basis. Jamie, could you let us know what these additional ad hoc guidelines were? Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image007.png@01D3D6EB.E67DF770] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jamie Baxter [mailto:jamie@dotgay.com] Sent: Tuesday, April 17, 2018 9:40 AM To: Jeff Neuman; Aikman-Scalese, Anne; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 Jeff & Cheryl Below are my recommended edits (noted in red) to 1.2.2 to reflect the inclusion of Work Track 3's discussion about the additional CPE guidelines that were introduced by the CPE providers after community applications were submitted. When discussing examples of changes to the new gTLD program, I believe it is important to note that "additions" are also considered a change and are just as detrimental to predictability. As discussed in WT3, I believe such additions are in direct contradiction to Recommendations 1 & 9 and it is important to call it out here. Much thanks Jamie 1.2.2 Predictability b. How was it implemented in the 2012 round of the New gTLD Program? The Applicant Guidebook was intended to serve as the roadmap for applicants, observers to the program, and the ICANN Organization to operationalize and execute the program. That said, one of the most common complaints by new gTLD Applicants and ICANN Community members was that there were a number changes to the New gTLD Program and additional evaluation guideline documents created after the finalization of the Applicant Guidebook that led overall to a process that was far from predictable. Such changes included for example, changes to the New gTLD Registry Agreement, the addition of Public Interest Commitments, changes to the application prioritization process, changes implemented as a result of GAC Advice, changes to pre-delegation testing mechanisms, changes to launch mechanisms as result of name collision studies, and the creation of additional CPE guidelines prepared by the CPE providers to name a few. c. What are the preliminary recommendations and/or implementation guidelines? In addition to ensuring adherence to the GNSO’s Consensus Policy Implementation Framework (CPIF)3, the Working Group believes that the New gTLD Program, once launched (i.e., after the Implementation Review Team), should also be subject to a new Predictability Framework, to tackle issues that arise regarding the introduction of new gTLDs. Among other recommendations, the Working Group believes that as part of the Predictability Framework, a standing Implementation Review Team should be constituted after the publication of the Applicant Guidebook to consider changes in the implementation, execution and/or operations of the new gTLD program after its launch, and the introduction of any further evaluation guidelines not available to applicants when applications were submitted. f. Deliberations The Working Group (WG) discussed a number of examples where predictability was lacking in the 2012 round. Some examples include the development of implementation elements in the Applicant Guidebook where there was no existing policy recommendations, the changes to the base registry agreement after the launch of the program, the difficulty and confusion with Continuing Operations Instrument (COI), the Public Interest Commitments (PICs), name collisions, the introduction on additional CPE guidelines after community applications were submitted and numerous other examples. The WG acknowledges that some level of uncertainty is unavoidable, even with the absolute best planning and thinking done in advance. It is with that acknowledgement that the WG generally agreed that establishing a framework, which allows for the disposition of post program launch issues in a predictable manner, might be the best way to provide some level of certainty. -------- Original Message -------- Subject: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Date: Tue, April 17, 2018 10:20 am To: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Anne, Thanks for the thorough comments. I have renamed the e-mail Chain to reflect the Section of the Report and give my thoughts: 1. Comment from Anne: Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. Response from Jeff: Good Suggestions. Can I offer the following slight tweaks: “Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of consensus recommendations made by the GNSO, the ICANN Board implemented approved the GNSO’s Consensus Policy Implementation Framework (“CPIF”) {footnote to Framework} a process for issues that arise during the implementation phase of Consensus Policies. This that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP {Insert Footnote to CPIF where definitions can be found for these terms}. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”).” 1. Comment from Anne: In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. Response from Jeff: Agree with that change. 1. Comment from Anne: In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.” Response from Jeff: I think the second paragraph in that section along with the expansion of the discussion in the next section “Details of the Predictability Framework” does exactly what you recommend. Do you disagree? 1. Comment from Anne: In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination? Response from Jeff: In the “Details of the Predictability Framework” Section, under Phase 3 we state: “For the purposes of the New gTLD Program, the effective date may better be considered as the date of program/Applicant Guidebook adoption by the ICANN Board or the opening of the application window.” How about we do the following: a. Put a footnote in the “Anticipated Outcome” section pointing to where we define “Launch”. b. Make it clear in the sentence referenced in Phase 3 above is our proposed definition of “Launch” and c. Add a question in the Feedback section that asks for comment on our definition of Launch. 1. Comment from Anne: In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. Then begin the new sentence. “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. (No need for underlining in the actual text – I show this only for emphasis on the requested changes.) Response from Jeff: I am a little confused as to why you are referring to it as a fourth element. The first element is policy development. The second is implementation (as covered by the CPIF). The Implementation Phase ends when the program is launched. Therefore, the third is this “Predictability Framework.” What am I missing? The Predictability Framework which envisions setting up a Standing IRT can refer things back to Phase 1 or Phase 2 at their discretion, but I re-read the CPIF and it does not necessarily apply once there is a launch of a program and changes to operations may need to be made. That is why we are creating this Framework in the first place as discussed on the numerous call. That said, I have no issue adding the work “considering” before the word “proposing” in that first paragraph. 1. Comment from Anne: Add the following to list of questions for feedback: How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense? Response from Jeff: Makes sense. We will work that in. Jeffrey J. Neuman Senior Vice President |Valideus USA | Com Laude USA 1751 Pinnacle Drive, Suite 600 Mclean, VA 22102, United States E: jeff.neuman@valideus.com<mailto:jeff.neuman@valideus.com> or jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> T: +1.703.635.7514 M: +1.202.549.5079 @Jintlaw The following additions/changes are needed to avoid the conflict with existing ICANN Board adopted policy in this arena: Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.” In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination? In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. Then begin the new sentence. “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. (No need for underlining in the actual text – I show this only for emphasis on the requested changes.) In the Section entitled “What specific questions are the PDP WG seeking feedback on?”, please add the following question: * How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense? Thank you, Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image008.png@01D3D6EB.E67DF770] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Steve Chan Sent: Friday, April 13, 2018 8:39 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 16 April 2018 at 20:00 UTC Dear WG Members, Below, please find the proposed agenda for the New gTLD Subsequent Procedures WG meeting scheduled for Monday 16 April 2018 at 20:00 UTC, for 90 minutes. 1. Agenda Review 2. Roll Call/SOIs 3. Review of the Initial Report (continued) 4. AOB For item 3 of the agenda, we will be reviewing another section of the draft Initial Report. Attached, please find an extract of the section on Overarching Issues, which includes eight (8) topics. Those signed up as Members to this PDP WG should have received meeting information from the SOAC Support team. If you did not receive these participation details or if you would like to send your apologies, please contact the SOAC Support team (gnso-secs@icann.org<mailto:gnso-secs@icann.org>). 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Dear Karen, Thanks for the clarifications. Kind Regards Poncelet On 18 April 2018 at 15:01, Karen Day <Karen.Day@sas.com> wrote:
Hi, Yes, leadership agreed to those and the edits to 1.2.2 were ‘officially’ added to the report by staff yesterday.
Thanks again for raising this on the call, Monday, Jamie.
Karen
*______________________________________________________________*
*Karen L. Day, NCCP **ACP*
Brand Protection & Registry Operations Manager
Tel: + 1 919-531-6016 ▪ Mobile: + 1 919-599-4356
*From:* Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] *Sent:* Wednesday, April 18, 2018 10:56 AM *To:* 'Jamie Baxter' <jamie@dotgay.com>; Karen Day <Karen.Day@sas.com>; 'Jim Prendergast' <jim@GALWAYSG.COM>; gnso-newgtld-wg@icann.org *Cc:* Jeff Neuman <jeff.neuman@comlaude.com>; 'Steve Chan' < steve.chan@icann.org> *Subject:* RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2
*EXTERNAL*
Thanks Karen. I agree regarding the detail that Jamie wants to include, but given the discussion, it does seem to make sense to include his suggested edit in the Overarching Issues in the section from his e-mail pasted here:
“…changes to pre-delegation testing mechanisms, changes to launch mechanisms as result of name collision studies, and the creation of additional CPE guidelines prepared by the CPE providers, to name a few.”
That would make this section consistent with proposed future edits in the CPE section of the report when we get to those.
Thank you,
Anne
*Anne E. Aikman-Scalese*
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com
_____________________________
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
lrrc.com
*From:* Jamie Baxter [mailto:jamie@dotgay.com <jamie@dotgay.com>] *Sent:* Wednesday, April 18, 2018 7:46 AM *To:* Karen Day; Aikman-Scalese, Anne; 'Jim Prendergast'; gnso-newgtld-wg@icann.org *Cc:* Jeff Neuman; 'Steve Chan' *Subject:* RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2
Thanks so much Karen
-------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: Karen Day <Karen.Day@sas.com> Date: Wed, April 18, 2018 10:38 am To: Jamie Baxter <jamie@dotgay.com>, "Aikman-Scalese, Anne" <AAikman@lrrc.com>, 'Jim Prendergast' <jim@GALWAYSG.COM>, "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> Cc: Jeff Neuman <jeff.neuman@comlaude.com>, 'Steve Chan' <steve.chan@icann.org>
Hi all,
I just wanted to thank you all for this added discussion with regard to the CPE process and let you know that we will be including this as another example of how predictability was lacking in 2012 round. But since the substance of the issue on CPE is dealt with in another section of the report (1.9.1), I would like to ask that when that section of the report comes out for your review, that those members of WT3 review what we’ve written to ensure that it accurately covers the work we did and comment on that.
Best,
Karen
Co-chair, WT 3
*From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org <gnso-newgtld-wg-bounces@icann.org>] *On Behalf Of *Jamie Baxter *Sent:* Tuesday, April 17, 2018 6:49 PM *To:* Aikman-Scalese, Anne <AAikman@lrrc.com>; 'Jim Prendergast' < jim@GALWAYSG.COM>; Jeff Neuman <jeff.neuman@comlaude.com>; 'Steve Chan' < steve.chan@icann.org>; gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Predictability - Section 1.2.2
*EXTERNAL*
I raised this concern in the initial comment period and on WT3 calls. I do recognize however that there are few (if any) other community applicants in the group and so the issue of the CPE guidelines (created by the CPE providers after applications were in) may not be widely known. I would be happy to engage in a further discussion on the issue within WT3 and dive deeper into the documents and subsequent impact on CPE.
Unfortunately, the Board requested CPE investigation that concluded in December 2017 did not include any mention of this issue when it concluded that there we no issues with how the CPE providers conducted CPE.
-------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com> Date: Tue, April 17, 2018 6:18 pm To: 'Jamie Baxter' <jamie@dotgay.com>, 'Jim Prendergast' <jim@GALWAYSG.COM>, Jeff Neuman <jeff.neuman@comlaude.com>, 'Steve Chan' <steve.chan@icann.org>, "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org>
So did we ever examine these documents in Sub Pro Work Track 3?
*Anne E. Aikman-Scalese*
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com
_____________________________
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
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*From:* Jamie Baxter [mailto:jamie@dotgay.com <jamie@dotgay.com>] *Sent:* Tuesday, April 17, 2018 2:45 PM *To:* Aikman-Scalese, Anne; 'Jim Prendergast'; Jeff Neuman; 'Steve Chan'; gnso-newgtld-wg@icann.org *Subject:* RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2
The additional CPE guideline publication was a product of the CPE providers, and which ICANN upholds as legitimate CPE documents.
-------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com> Date: Tue, April 17, 2018 5:10 pm To: 'Jim Prendergast' <jim@GALWAYSG.COM>, Jamie Baxter <jamie@dotgay.com>, Jeff Neuman <jeff.neuman@comlaude.com>, 'Steve Chan' <steve.chan@icann.org>, "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org>
Were these criteria published by ICANN or the DRPs?
*Anne E. Aikman-Scalese*
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com
_____________________________
Lewis Roca Rothgerber Christie LLP
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Tucson, Arizona 85701-1611
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*From:* Jim Prendergast [mailto:jim@GALWAYSG.COM <jim@GALWAYSG.COM>] *Sent:* Tuesday, April 17, 2018 1:40 PM *To:* Jamie Baxter; Aikman-Scalese, Anne; Jeff Neuman; 'Steve Chan'; gnso-newgtld-wg@icann.org *Subject:* RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2
I would also point out that community applicants were not allowed to update their answers to pertinent questions nor allowed to clarify them even after the criteria changed.
*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Jamie Baxter *Sent:* Tuesday, April 17, 2018 4:04 PM *To:* Aikman-Scalese, Anne <AAikman@lrrc.com>; Jeff Neuman < jeff.neuman@comlaude.com>; 'Steve Chan' <steve.chan@icann.org>; gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Predictability - Section 1.2.2
Thanks for asking Anne.
When the Applicant Guidebook was published, there was clear understanding (ie. predictability) for community applicants that they would be evaluated based on the details, definitions and guidance contained within the Applicant Guidebook. To no fault of the applicant, the Applicant Guidebook language was at times vague or flexible to interpretation to the extent that applicants could make reasoned interpretations. If that was not intended, then further definitions would have (or should have) been included in the guidebook to avoid misinterpretation of the language.
There was never a suggestion in the guidebook that Community Priority Evaluation (CPE) providers would later be permitted to produce their own CPE guideline documents, or that the CPE providers would be given liberty to further narrow interpretation of guidebook language or further define words & phrases not previously defined in the guidebook. By doing this, many community applicants were immediately disadvantaged, presuming applicants should have been able to read the minds of the CPE providers prior to submitting their applications. The creation of CPE guidelines was a complete interruption of predictability, especially since the additional CPE documents were only produced after applications were submitted and published on the ICANN website for everyone to review (including the CPE providers themselves).
My assertion here is that if details, words or guidance contained in the Applicants Guidebook require further clarification in order for the CPE providers to do their job, then that clarity must occur prior to all applications being submitted. Not doing so is in complete conflict with goals of predictability and may explain the low success rate of community applications in the 2012 round.
Permitting additional CPE guidelines and documents during the 2012 round conflicts with Recommendations 1 & 9. I call this out specifically to ensure that it does not happen again in subsequent rounds.
I hope that helps Anne.
Jamie
-------- Original Message -------- Subject: RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: "Aikman-Scalese, Anne" <AAikman@lrrc.com> Date: Tue, April 17, 2018 1:58 pm To: 'Jamie Baxter' <jamie@dotgay.com>, Jeff Neuman <jeff.neuman@comlaude.com>, 'Steve Chan' <steve.chan@icann.org>, "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org>
I support Jamie’s changes. I don’t think CPE providers should be creating additional guidelines. If there is something valuable to the community in those additional guidelines, they should be added to the CPE process but only via consideration and adoption in this policy process, not on an “ad hoc” basis. Jamie, could you let us know what these additional ad hoc guidelines were?
Anne
*Anne E. Aikman-Scalese*
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com
_____________________________
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
lrrc.com
*From:* Jamie Baxter [mailto:jamie@dotgay.com <jamie@dotgay.com>] *Sent:* Tuesday, April 17, 2018 9:40 AM *To:* Jeff Neuman; Aikman-Scalese, Anne; 'Steve Chan'; gnso-newgtld-wg@icann.org *Subject:* RE: [Gnso-newgtld-wg] Predictability - Section 1.2.2
Jeff & Cheryl
Below are my recommended edits (noted in red) to 1.2.2 to reflect the inclusion of Work Track 3's discussion about the additional CPE guidelines that were introduced by the CPE providers after community applications were submitted. When discussing examples of changes to the new gTLD program, I believe it is important to note that "additions" are also considered a change and are just as detrimental to predictability. As discussed in WT3, I believe such additions are in direct contradiction to Recommendations 1 & 9 and it is important to call it out here.
Much thanks
Jamie
1.2.2 Predictability
*b. How was it implemented in the 2012 round of the New gTLD Program? *
The Applicant Guidebook was intended to serve as the roadmap for applicants, observers to the program, and the ICANN Organization to operationalize and execute the program. That said, one of the most common complaints by new gTLD Applicants and ICANN Community members was that there were a number changes to the New gTLD Program and additional evaluation guideline documents created after the finalization of the Applicant Guidebook that led overall to a process that was far from predictable. Such changes included for example, changes to the New gTLD Registry Agreement, the addition of Public Interest Commitments, changes to the application prioritization process, changes implemented as a result of GAC Advice, changes to pre-delegation testing mechanisms, changes to launch mechanisms as result of name collision studies, and the creation of additional CPE guidelines prepared by the CPE providers to name a few.
*c. What are the preliminary recommendations and/or implementation guidelines?*
In addition to ensuring adherence to the GNSO’s *Consensus Policy Implementation Framework (CPIF)3*, the Working Group believes that the New gTLD Program, once launched (i.e., after the Implementation Review Team), should also be subject to a new *Predictability Framework, *to tackle issues that arise regarding the introduction of new gTLDs.
Among other recommendations, the Working Group believes that as part of the Predictability Framework, a standing Implementation Review Team should be constituted after the publication of the Applicant Guidebook to consider changes in the implementation, execution and/or operations of the new gTLD program after its launch, and the introduction of any further evaluation guidelines not available to applicants when applications were submitted.
*f. Deliberations *
The Working Group (WG) discussed a number of examples where predictability was lacking in the 2012 round. Some examples include the development of implementation elements in the Applicant Guidebook where there was no existing policy recommendations, the changes to the base registry agreement after the launch of the program, the difficulty and confusion with Continuing Operations Instrument (COI), the Public Interest Commitments (PICs), name collisions, the introduction on additional CPE guidelines after community applications were submitted and numerous other examples. The WG acknowledges that some level of uncertainty is unavoidable, even with the absolute best planning and thinking done in advance. It is with that acknowledgement that the WG generally agreed that establishing a framework, *which allows for the disposition of post program launch issues in a predictable manner*, might be the best way to provide some level of certainty.
-------- Original Message -------- Subject: [Gnso-newgtld-wg] Predictability - Section 1.2.2 From: Jeff Neuman <jeff.neuman@comlaude.com> Date: Tue, April 17, 2018 10:20 am To: "Aikman-Scalese, Anne" <AAikman@lrrc.com>, 'Steve Chan' <steve.chan@icann.org>, "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org>
Anne,
Thanks for the thorough comments. I have renamed the e-mail Chain to reflect the Section of the Report and give my thoughts:
1. *Comment from Anne*: *Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. *
*Response from Jeff*: Good Suggestions. Can I offer the following slight tweaks:
“Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of consensus recommendations made by the GNSO, the ICANN Board implemented approved the GNSO’s Consensus Policy Implementation Framework (“CPIF”) {footnote to Framework} a process for issues that arise during the implementation phase of Consensus Policies. This that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP {Insert Footnote to CPIF where definitions can be found for these terms}. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”).”
1. *Comment from Anne:* In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”.
*Response from Jeff*: Agree with that change.
1. *Comment from Anne*: *In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.*”
*Response from Jeff*: I think the second paragraph in that section along with the expansion of the discussion in the next section “Details of the Predictability Framework” does exactly what you recommend. Do you disagree?
1. *Comment from Anne*: In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination?
*Response from Jeff:* In the “Details of the Predictability Framework” Section, under Phase 3 we state: “For the purposes of the New gTLD Program, the effective date may better be considered as the date of program/Applicant Guidebook adoption by the ICANN Board or the opening of the application window.” How about we do the following:
a. Put a footnote in the “Anticipated Outcome” section pointing to where we define “Launch”.
b. Make it clear in the sentence referenced in Phase 3 above is our proposed definition of “Launch” and
c. Add a question in the Feedback section that asks for comment on our definition of Launch.
1. *Comment from Anne**:* *In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. *Then begin the new sentence.* “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. * (No need for underlining in the actual text – I show this only for emphasis on the requested changes.)
*Response from Jeff*: I am a little confused as to why you are referring to it as a fourth element. The first element is policy development. The second is implementation (as covered by the CPIF). The Implementation Phase ends when the program is launched. Therefore, the third is this “Predictability Framework.” What am I missing? The Predictability Framework which envisions setting up a Standing IRT can refer things back to Phase 1 or Phase 2 at their discretion, but I re-read the CPIF and it does not necessarily apply once there is a launch of a program and changes to operations may need to be made. That is why we are creating this Framework in the first place as discussed on the numerous call. That said, I have no issue adding the work “considering” before the word “proposing” in that first paragraph.
1. *Comment from Anne*: Add the following to list of questions for feedback: *How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense?*
*Response from Jeff*: Makes sense. We will work that in.
*Jeffrey J. Neuman*
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Mclean, VA 22102, United States
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@Jintlaw
The following additions/changes are needed to avoid the conflict with existing ICANN Board adopted policy in this arena:
*Under Section 1.2.2 Predictability, item c., Please add the following first sentence. “Currently, as a result of recommendations made by the GNSO, the ICANN Board implemented a process for issues that arise during the implementation phase that permits the GNSO to provide “GNSO Input” or “GNSO Guidance” on an issue or to advise the Board that the issue requires either a full or Expedited PDP. Guidelines for these processes are provided in the GNSO’s Consensus Policy Implementation Framework (“CPIF”). In the second sentence, please change “The Working Group believes that” to “there is support in the Working Group for a recommendation that”. *
*In the section “Anticipated Outcome”, please add the following after the first sentence: “The existing CPIF also recognizes this fact and provides for three mechanisms that mandate a process for additional advice where issues arise.” However, many in the New gTLD Subsequent Procedures PDP WG are seeking to establish a supplemental framework (designed to apply when implementation is complete) which, even in the event of changes, etc etc.*” In the last sentence in that section on “Anticipated Outcome”, the use of the term “after program launch” is unclear. “Launch” is a clear term as to a particular TLD. Acceptance of applications could be considered “launch” of the next round, but at that time, there would likely still be an IRT. What exactly do we mean by “implementation is considered complete” and who makes that determination?
*In the Section “Details of the Predictability Framework”, please Delete a portion of the second sentence of this section after the word, “ambiguities” and insert the following: “The GNSO proposed and the Board adopted a process whereby the GNSO could provide additional input with respect to various issues which might arise in the implementation phase”. *Then begin the new sentence.* “The WG is considering proposing the addition of a fourth element to be known as the ‘Predictability Framework” etc etc. *(No need for underlining in the actual text – I show this only for emphasis on the requested changes.)
*In the Section entitled “What specific questions are the PDP WG seeking feedback on?”, please add the following question:*
- *How do you see the proposed Predictability Framework interacting with the existing CPIF procedures known as GNSO Input, GNSO Guidance, and GNSO Expedited PDP? In other words, when would these processes be utilized and when would application of the Predictability Framework make more sense?*
Thank you,
Anne
*Anne E. Aikman-Scalese*
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com
_____________________________
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
lrrc.com
*From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org <gnso-newgtld-wg-bounces@icann.org>] *On Behalf Of *Steve Chan *Sent:* Friday, April 13, 2018 8:39 PM *To:* gnso-newgtld-wg@icann.org *Subject:* [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 16 April 2018 at 20:00 UTC
Dear WG Members,
Below, please find the proposed agenda for the New gTLD Subsequent Procedures WG meeting scheduled for Monday 16 April 2018 at 20:00 UTC, for 90 minutes.
1. Agenda Review 2. Roll Call/SOIs 3. Review of the Initial Report (continued) 4. AOB
For item 3 of the agenda, we will be reviewing another section of the draft Initial Report. Attached, please find an extract of the section on Overarching Issues, which includes eight (8) topics.
Those signed up as Members to this PDP WG should have received meeting information from the SOAC Support team. If you did not receive these participation details or if you would like to send your apologies, please contact the SOAC Support team (gnso-secs@icann.org).
Best,
Steve
*Steven Chan*
Policy Director, GNSO Support
*ICANN*
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Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages <http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-e...> .
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participants (4)
-
Aikman-Scalese, Anne -
Jamie Baxter -
Karen Day -
Poncelet Ileleji