Resolving Objection Proceedings with Mandatory PICs
Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it's important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure - PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation. So the points I am raising here are: (1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN. Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding. In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image006.png@01D5747C.E1E07CD0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [cid:image007.jpg@01D5747C.E1E07CD0] Because what matters to you, matters to us.(tm) ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. ?2510-2521.
This one is from the 'deja vu all over again' file. When I was a member of the ALAC and following the PIC matter - I said then that as configured, they were not worth a bucket of warm spit - a few of us thought third party rights for enforcement would rehabilitate them somewhat to near useful. That was never to be. -Carlton ============================== *Carlton A Samuels* *Mobile: 876-818-1799Strategy, Process, Governance, Assessment & Turnaround* ============================= On Thu, Sep 26, 2019 at 5:13 PM Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:
Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation.
So the points I am raising here are:
(1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN
(2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN.
Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding.
In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive.
Anne
*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
Because what matters
to you, matters to us.™
------------------------------
This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
All, Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules. We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objection *was *done in Round 1. But there was no question that there is a _high level Disagreement __to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. _This high level Disagreement was raised in every Objections call until last night. /Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections? / I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself. **Many, many changes to public portions of applications were made in response to the GAC in Round 1. / / Best, Kathy Kathryn Kleiman, American University Washington College of Law On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote:
Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation.
So the points I am raising here are:
(1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN
(2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN.
Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding.
In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive.
Anne
*Anne E. Aikman-Scalese*
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com <mailto:AAikman@lrrc.com>
_____________________________
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
lrrc.com <http://lrrc.com/>
Because what matters
to you, matters to us.™
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Kathy, Changes to the application that happen outside of PICs and/or Exhibit A (registry services) are unenforceable. PICs were created by ICANN Org in response to the lack of enforceability, and are an integral part of what happened in 2012. Although you mentioned some PICs with applicant-thought features, most of them were imposed down applicants throats by ICANN Org, following GAC advice. So, characterizing the whole using a minority is likely a distortion. If you succeed in making this discussion a lack of consensus, the default in this case is to include mandatory and voluntary PICs as they existed. Rubens
Em 26 de set de 2019, à(s) 19:39:000, Kathy Kleiman <kathy@kathykleiman.com> escreveu:
All,
Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules.
We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objection was done in Round 1.
But there was no question that there is a high level Disagreement to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. This high level Disagreement was raised in every Objections call until last night. Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections?
I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself. Many, many changes to public portions of applications were made in response to the GAC in Round 1.
Best, Kathy
Kathryn Kleiman, American University Washington College of Law
On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote:
<>Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation.
So the points I am raising here are:
(1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN.
Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding.
In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive.
Anne
Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com <mailto:AAikman@lrrc.com> _____________________________ <image006.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com <http://lrrc.com/> <image007.jpg> Because what matters to you, matters to us.™
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Tx Rubens for your message. What you say simply can't be true. The public portion of the application is binding and enforceable. If you are .BANK and you are serving the banking community that's a commitment. If you are .HALAL or .KOSHER, ditto. In response to community objections, substantive changes were offered by the applicant *to their application.* They were posted for public comment, monitored and commented on by the relevant communities, and ultimately adopted. PICs were not part of the original applicant guidebook. Fadi, standing on one foot when he created them, may have intended them for one thing, but they became something else almost immediately -- a dumping ground, and provably (for many of them) having absolutely nothing to do with GAC Early Warnings. (We can sit down any time you want to run a 1:1 comparison.) There are seminars discussing this - I can send you links. Voluntary PICs are not part of the original rules, Rubens, and have no consensus for going forward. But revising the original application - particularly to serve the commercial, business or noncommercial communities who should be served -- sure. That can and has been done. Best, Kathy On 9/26/2019 6:56 PM, Rubens Kuhl wrote:
Kathy,
Changes to the application that happen outside of PICs and/or Exhibit A (registry services) are unenforceable. PICs were created by ICANN Org in response to the lack of enforceability, and are an integral part of what happened in 2012.
Although you mentioned some PICs with applicant-thought features, most of them were imposed down applicants throats by ICANN Org, following GAC advice. So, characterizing the whole using a minority is likely a distortion.
If you succeed in making this discussion a lack of consensus, the default in this case is to include mandatory and voluntary PICs as they existed.
Rubens
Em 26 de set de 2019, à(s) 19:39:000, Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com>> escreveu:
All,
Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules.
We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objection*was*done in Round 1.
But there was no question that there is a_high level Disagreement__to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. _This high level Disagreement was raised in every Objections call until last night./Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections? /
I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself. **Many, many changes to public portions of applications were made in response to the GAC in Round 1. / /
Best, Kathy
Kathryn Kleiman, American University Washington College of Law
On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote:
Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation. So the points I am raising here are: (1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN. Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding. In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive. Anne *Anne E. Aikman-Scalese* Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com <mailto:AAikman@lrrc.com> _____________________________ <image006.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com <http://lrrc.com/>
<image007.jpg>
Because what matters
to you, matters to us.™
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Hello Kathy, Please provide an evidence, like the reference to the Registry Agreement clause, which at least mentions the application (there is none). There is no legal link between an Applicant and the Registry after the execution of the contract (RA). Though nothing prevents a Registry from including the most important ideas of the application into the Registry own set of policies and contractual texts with Registrars (RRA), which was usually done. For example a Registry might include some elegibility criteria (like a certain kinds of license for food manufacturer in case of a relevant TLD), and the process of review, when they receive a notification, that the particular Registrant does not follow policies or lost the required license. The review process might be held by a panel of community recognized or appointed respected experts in this field (and this can be in Registry policies). So there is a way to do these things, but it is up to a Registry and not derived from the Application. P. S: In the 2012 round all applicants included business models, which became unworkable after sudden unpredicted changes from ICANN side (RAA 2013 restriction, long delays with Archery, glitches, name collisions e.t.c.) , So making the application binding might not work at all (and Registry Agreements are almost unified, unlike texts of aplications, so it would lead to the compliance nightmare). Maxim Alzoba Sorry for typos, smartphone was used. On 27 Sep 2019, 06:13, at 06:13, Kathy Kleiman <kathy@kathykleiman.com> wrote:
Tx Rubens for your message. What you say simply can't be true. The public portion of the application is binding and enforceable. If you are .BANK and you are serving the banking community that's a commitment. If
you are .HALAL or .KOSHER, ditto.
In response to community objections, substantive changes were offered by the applicant *to their application.* They were posted for public comment, monitored and commented on by the relevant communities, and ultimately adopted.
PICs were not part of the original applicant guidebook. Fadi, standing on one foot when he created them, may have intended them for one thing,
but they became something else almost immediately -- a dumping ground, and provably (for many of them) having absolutely nothing to do with GAC Early Warnings. (We can sit down any time you want to run a 1:1 comparison.) There are seminars discussing this - I can send you links.
Voluntary PICs are not part of the original rules, Rubens, and have no consensus for going forward. But revising the original application - particularly to serve the commercial, business or noncommercial communities who should be served -- sure. That can and has been done.
Best, Kathy
On 9/26/2019 6:56 PM, Rubens Kuhl wrote:
Kathy,
Changes to the application that happen outside of PICs and/or Exhibit
A (registry services) are unenforceable. PICs were created by ICANN Org in response to the lack of enforceability, and are an integral part of what happened in 2012.
Although you mentioned some PICs with applicant-thought features, most of them were imposed down applicants throats by ICANN Org, following GAC advice. So, characterizing the whole using a minority is likely a
distortion.
If you succeed in making this discussion a lack of consensus, the default in this case is to include mandatory and voluntary PICs as they existed.
Rubens
Em 26 de set de 2019, à(s) 19:39:000, Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com>> escreveu:
All,
Mandatory PICS are unchanging. You can't resolve an Objection with a
Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted
to throw into the kitchen sink. There are longstanding objections to
"voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including
them -- and they were not part of the Round 1 rules.
We agreed in last week's call that you could *amend the application*
to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications
(with public comment) to settle an Objection*was*done in Round 1.
But there was no question that there is a_high level Disagreement__to settling disputes with changes to PICs -- because mandatory PICs are
fixed and unchanging. _This high level Disagreement was raised in every Objections call until last night./Surely we are not saying that if you miss one discussion in the dead of night, you have waived all
previous objections? /
I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself. **Many, many changes
to public portions of applications were made in response to the GAC in Round 1. / /
Best, Kathy
Kathryn Kleiman, American University Washington College of Law
On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote:
Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important
to note that there is no private right of action to enforce a PIC.
The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation. So the points I am raising here are: (1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN. Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding. In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive. Anne *Anne E. Aikman-Scalese* Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com <mailto:AAikman@lrrc.com> _____________________________ <image006.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com <http://lrrc.com/>
<image007.jpg>
Because what matters
to you, matters to us.™
This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader
of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to
the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
_______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
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_______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
My understanding is that the Baseline that we are working to is not the Applicant Guidebook but the final effective implementation including Board actions, so Voluntary PICS, (which predated Mandatory PICS) are there unless we have agreement to change them. JEFF/CHERYL: Can you confirm exactly what our baseline is? Alan At 26/09/2019 06:39 PM, Kathy Kleiman wrote: All, Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules. We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objection was done in Round 1. But there was no question that there is a high level Disagreement to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. This high level Disagreement was raised in every Objections call until last night. Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections? I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself. Many, many changes to public portions of applications were made in response to the GAC in Round 1. Best, Kathy Kathryn Kleiman, American University Washington College of Law On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote: [[]] Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation. So the points I am raising here are: (1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN. Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding. In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [[]] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [[]] Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
As Alan states below, the baseline that we use is how the program was actually implemented as opposed to what was in the 2007/2008 GNSO Policy and/or what was in the Applicant Guidebook. The one exception is on the issue of closed generics, where the board specifically stated that it was creating a temporary solution and that it wanted policy development on this matter. Therefore, in the event that we cannot find consensus on that subject, we will document the positions taken and at the end of the day it will be up to the board to determine what the baseline is. With respect to what constitutes high-level agreement, this is a determination that leadership of the working group will have to make. We take this responsibility very seriously and assure you that we are doing everything in our power to be fair and neutral. That said its determination (and ultimately the determination of consensus) is not formulaic, but rather is dependent on a number of factors. We also want to note that the fact that there is only one group, or one individual, or one constituency or stakeholder group that opposes a concept, does not automatically mean that there cannot be high level agreement on the concepts, or elements thereof. As you will see in a number of comments, many groups oppose an entire concept. However, when you read the comments as a whole you can see that their opposition to the entire concept may be based on one element of many that constitute the subject area. Where that is the case, If we can address that one element, we may still find high-level agreement on the concept as a whole. Therefore, what is most helpful to us is not a reply that states there is no high-level agreement on a subject. Rather, what is most helpful to us is a reply that states in specificity what elements of the overall concept you believe the group as a whole may not have addressed in a satisfactory manner. Some of the recent comments have done that, but others have not. Best regards, Jeffrey J Neuman (202) 549-5079 Jeff.Neuman@comlaude.com ________________________________ From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of Alan Greenberg <alan.greenberg@mcgill.ca> Sent: Friday, September 27, 2019 5:36 AM To: Kathy Kleiman; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs My understanding is that the Baseline that we are working to is not the Applicant Guidebook but the final effective implementation including Board actions, so Voluntary PICS, (which predated Mandatory PICS) are there unless we have agreement to change them. JEFF/CHERYL: Can you confirm exactly what our baseline is? Alan At 26/09/2019 06:39 PM, Kathy Kleiman wrote: All, Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules. We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objectionwas done in Round 1. But there was no question that there is a high level Disagreement to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. This high level Disagreement was raised in every Objections call until last night.Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections? I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself.Many, many changes to public portions of applications were made in response to the GAC in Round 1. Best, Kathy Kathryn Kleiman, American University Washington College of Law On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote: [[]] Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation. So the points I am raising here are: (1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN. Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding. In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [[]] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [[]] Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________Gnso-newgtld-wg mailing listGnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org>https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg_______________________... submitting your personal data, you consent to the processing of yourpersonal data for purposes of subscribing to this mailing list accordancewith the ICANN Privacy Policy(https://www.icann.org/privacy/policy) and the website Terms ofService(https://www.icann.org/privacy/tos). You can visit the Mailman linkabove to change your membership status or configuration, includingunsubscribing, setting digest-style delivery or disabling deliveryaltogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>
Jeff et al - a few clarifying questions if you don't mind the usage of that term.... On this paragraph - "The one exception is on the issue of closed generics, where the board specifically stated that it was creating a temporary solution and that it wanted policy development on this matter. Therefore, in the event that we cannot find consensus on that subject, we will document the positions taken and at the end of the day it will be up to the board to determine what the baseline is." At what point does the "temporary solution" become permanent? Is it when this group determines a policy that sets proactive rules going forward? Is it when the Board, based upon the deliberations, but not a consensus determination, comes up with a new resolution trumping the existing one? And how long does the GAC advice on this stand? Does he have a shelf life or expiration date? Thanks For handy reference, the Board resolution and rationale on this can be found here. https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-... From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jeff Neuman Sent: Friday, September 27, 2019 2:10 PM To: Alan Greenberg <alan.greenberg@mcgill.ca>; Kathy Kleiman <kathy@kathykleiman.com>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs As Alan states below, the baseline that we use is how the program was actually implemented as opposed to what was in the 2007/2008 GNSO Policy and/or what was in the Applicant Guidebook. The one exception is on the issue of closed generics, where the board specifically stated that it was creating a temporary solution and that it wanted policy development on this matter. Therefore, in the event that we cannot find consensus on that subject, we will document the positions taken and at the end of the day it will be up to the board to determine what the baseline is. With respect to what constitutes high-level agreement, this is a determination that leadership of the working group will have to make. We take this responsibility very seriously and assure you that we are doing everything in our power to be fair and neutral. That said its determination (and ultimately the determination of consensus) is not formulaic, but rather is dependent on a number of factors. We also want to note that the fact that there is only one group, or one individual, or one constituency or stakeholder group that opposes a concept, does not automatically mean that there cannot be high level agreement on the concepts, or elements thereof. As you will see in a number of comments, many groups oppose an entire concept. However, when you read the comments as a whole you can see that their opposition to the entire concept may be based on one element of many that constitute the subject area. Where that is the case, If we can address that one element, we may still find high-level agreement on the concept as a whole. Therefore, what is most helpful to us is not a reply that states there is no high-level agreement on a subject. Rather, what is most helpful to us is a reply that states in specificity what elements of the overall concept you believe the group as a whole may not have addressed in a satisfactory manner. Some of the recent comments have done that, but others have not. Best regards, Jeffrey J Neuman (202) 549-5079 Jeff.Neuman@comlaude.com<mailto:Jeff.Neuman@comlaude.com> ________________________________ From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Sent: Friday, September 27, 2019 5:36 AM To: Kathy Kleiman; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs My understanding is that the Baseline that we are working to is not the Applicant Guidebook but the final effective implementation including Board actions, so Voluntary PICS, (which predated Mandatory PICS) are there unless we have agreement to change them. JEFF/CHERYL: Can you confirm exactly what our baseline is? Alan At 26/09/2019 06:39 PM, Kathy Kleiman wrote: All, Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules. We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objectionwas done in Round 1. But there was no question that there is a high level Disagreement to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. This high level Disagreement was raised in every Objections call until last night.Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections? I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself.Many, many changes to public portions of applications were made in response to the GAC in Round 1. Best, Kathy Kathryn Kleiman, American University Washington College of Law On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote: [[]] Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it's important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure - PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation. So the points I am raising here are: (1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN. Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding. In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [[]] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [[]] Because what matters to you, matters to us.(tm) ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________Gnso-newgtld-wg mailing listGnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org>https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg_______________________... submitting your personal data, you consent to the processing of yourpersonal data for purposes of subscribing to this mailing list accordancewith the ICANN Privacy Policy(https://www.icann.org/privacy/policy) and the website Terms ofService(https://www.icann.org/privacy/tos). You can visit the Mailman linkabove to change your membership status or configuration, includingunsubscribing, setting digest-style delivery or disabling deliveryaltogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy ( https://www.icann.org/privacy/policy) and the website Terms of Service ( https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. For further information see www.comlaude.com<https://comlaude.com>
Thanks Jeff. I think it's going to be important to call for the Minority Statements when Leadership determines what high level agreement exists in cases where we do not have full consensus. However, something else very important to this process that you have not mentioned below is the fact that there are certain issues that will call for additional public comment. Hopefully we can discuss in Montreal which issues these are and get a WG consensus on further public comment that is needed. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jeff Neuman Sent: Friday, September 27, 2019 11:10 AM To: Alan Greenberg <alan.greenberg@mcgill.ca>; Kathy Kleiman <kathy@kathykleiman.com>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs [EXTERNAL] ________________________________ As Alan states below, the baseline that we use is how the program was actually implemented as opposed to what was in the 2007/2008 GNSO Policy and/or what was in the Applicant Guidebook. The one exception is on the issue of closed generics, where the board specifically stated that it was creating a temporary solution and that it wanted policy development on this matter. Therefore, in the event that we cannot find consensus on that subject, we will document the positions taken and at the end of the day it will be up to the board to determine what the baseline is. With respect to what constitutes high-level agreement, this is a determination that leadership of the working group will have to make. We take this responsibility very seriously and assure you that we are doing everything in our power to be fair and neutral. That said its determination (and ultimately the determination of consensus) is not formulaic, but rather is dependent on a number of factors. We also want to note that the fact that there is only one group, or one individual, or one constituency or stakeholder group that opposes a concept, does not automatically mean that there cannot be high level agreement on the concepts, or elements thereof. As you will see in a number of comments, many groups oppose an entire concept. However, when you read the comments as a whole you can see that their opposition to the entire concept may be based on one element of many that constitute the subject area. Where that is the case, If we can address that one element, we may still find high-level agreement on the concept as a whole. Therefore, what is most helpful to us is not a reply that states there is no high-level agreement on a subject. Rather, what is most helpful to us is a reply that states in specificity what elements of the overall concept you believe the group as a whole may not have addressed in a satisfactory manner. Some of the recent comments have done that, but others have not. Best regards, Jeffrey J Neuman (202) 549-5079 Jeff.Neuman@comlaude.com<mailto:Jeff.Neuman@comlaude.com> ________________________________ From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Sent: Friday, September 27, 2019 5:36 AM To: Kathy Kleiman; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs My understanding is that the Baseline that we are working to is not the Applicant Guidebook but the final effective implementation including Board actions, so Voluntary PICS, (which predated Mandatory PICS) are there unless we have agreement to change them. JEFF/CHERYL: Can you confirm exactly what our baseline is? Alan At 26/09/2019 06:39 PM, Kathy Kleiman wrote: All, Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules. We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objectionwas done in Round 1. But there was no question that there is a high level Disagreement to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. This high level Disagreement was raised in every Objections call until last night.Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections? I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself.Many, many changes to public portions of applications were made in response to the GAC in Round 1. Best, Kathy Kathryn Kleiman, American University Washington College of Law On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote: [[]] Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it's important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure - PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation. So the points I am raising here are: (1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN. Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding. In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive. Anne Anne E. 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Em 27 de set de 2019, à(s) 16:57:000, Aikman-Scalese, Anne <AAikman@lrrc.com> escreveu:
Thanks Jeff. I think it’s going to be important to call for the Minority Statements when Leadership determines what high level agreement exists in cases where we do not have full consensus.
However, something else very important to this process that you have not mentioned below is the fact that there are certain issues that will call for additional public comment. Hopefully we can discuss in Montreal which issues these are and get a WG consensus on further public comment that is needed.
Anne, An additional public comment is not a given yet. It might happen, it might not happen, AFAIK. Rubens
I don’t want to speak for Anne but I’d say its more that a “might happen.” But don’t take my word – I’m just going by what Jeff said during one of our sessions in Marrakech. “I think we’re all resolved now that there likely will be a public comment period, though we haven’t decided one way or the other officially.” I haven’t seen anything since then that would move us away from that presumption. Lots of good, new ideas came in via the comment process that should get feedback from the larger community. The Neustar Proposal, Vickery Auctions, possible solutions to Closed Generics, etc. Jim Prendergast The Galway Strategy Group +1 202 285 3699 @jimpren From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Rubens Kuhl Sent: Friday, September 27, 2019 5:25 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs Em 27 de set de 2019, à(s) 16:57:000, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> escreveu: Thanks Jeff. I think it’s going to be important to call for the Minority Statements when Leadership determines what high level agreement exists in cases where we do not have full consensus. However, something else very important to this process that you have not mentioned below is the fact that there are certain issues that will call for additional public comment. Hopefully we can discuss in Montreal which issues these are and get a WG consensus on further public comment that is needed. Anne, An additional public comment is not a given yet. It might happen, it might not happen, AFAIK. Rubens
Yes – agree with Jim on this and hopefully Leadership is budgeting time in one of our sessions to review a list of issues that should be considered for public comment. I would add the new Predictability Framework language to this list. I would also add the question of resolving Objections via PICs and related enforcement issues that arise - cause I really cannot see ICANN bearing the expense associated with PICs coming out of those solutions. I think another topic which deserves a second pass in public comment is any WG tentative consensus on application “types”. We have quite a long list now. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jim Prendergast Sent: Monday, September 30, 2019 6:30 AM To: Rubens Kuhl <rubensk@nic.br>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs [EXTERNAL] ________________________________ I don’t want to speak for Anne but I’d say its more that a “might happen.” But don’t take my word – I’m just going by what Jeff said during one of our sessions in Marrakech. “I think we’re all resolved now that there likely will be a public comment period, though we haven’t decided one way or the other officially.” I haven’t seen anything since then that would move us away from that presumption. Lots of good, new ideas came in via the comment process that should get feedback from the larger community. The Neustar Proposal, Vickery Auctions, possible solutions to Closed Generics, etc. Jim Prendergast The Galway Strategy Group +1 202 285 3699 @jimpren From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Rubens Kuhl Sent: Friday, September 27, 2019 5:25 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs Em 27 de set de 2019, à(s) 16:57:000, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> escreveu: Thanks Jeff. I think it’s going to be important to call for the Minority Statements when Leadership determines what high level agreement exists in cases where we do not have full consensus. However, something else very important to this process that you have not mentioned below is the fact that there are certain issues that will call for additional public comment. Hopefully we can discuss in Montreal which issues these are and get a WG consensus on further public comment that is needed. Anne, An additional public comment is not a given yet. It might happen, it might not happen, AFAIK. Rubens ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
Jim, That might turn out this way if those new ideas get consensus in the WG. Lately I've only seen people sticking to petty causes, unwilling to compromise, so the 2012 round defaults have been the most usual outcome in most discussions. And if that's the case, then no additional public comment would be needed. Rubens
Em 30 de set de 2019, à(s) 10:29:000, Jim Prendergast <jim@GALWAYSG.COM> escreveu:
I don’t want to speak for Anne but I’d say its more that a “might happen.” But don’t take my word – I’m just going by what Jeff said during one of our sessions in Marrakech.
“I think we’re all resolved now that there likely will be a public comment period, though we haven’t decided one way or the other officially.”
I haven’t seen anything since then that would move us away from that presumption. Lots of good, new ideas came in via the comment process that should get feedback from the larger community. The Neustar Proposal, Vickery Auctions, possible solutions to Closed Generics, etc.
Jim Prendergast The Galway Strategy Group +1 202 285 3699 @jimpren
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Rubens Kuhl Sent: Friday, September 27, 2019 5:25 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs
Em 27 de set de 2019, à(s) 16:57:000, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> escreveu:
Thanks Jeff. I think it’s going to be important to call for the Minority Statements when Leadership determines what high level agreement exists in cases where we do not have full consensus.
However, something else very important to this process that you have not mentioned below is the fact that there are certain issues that will call for additional public comment. Hopefully we can discuss in Montreal which issues these are and get a WG consensus on further public comment that is needed.
Anne,
An additional public comment is not a given yet. It might happen, it might not happen, AFAIK.
Rubens
Rubens, I think you make a good point that we don’t know the status of various “small group” deliberations. That would be something else to add to the agenda for the WG to review in Montreal. So far it appears the small groups may only be working via some Google Docs drafting changes but I am only on one of these (Predictability Framework) so I am not sure. Hopefully Leadership will devote time to status in Montreal and get reports from the small groups. I don’t even know how many there are at this point, but I am sure that staff is tracking. In addition, there were topics flagged for possible public comment in previous F2F meetings. I’m sure staff has a record of those topics. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Rubens Kuhl Sent: Monday, September 30, 2019 3:20 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs Jim, That might turn out this way if those new ideas get consensus in the WG. Lately I've only seen people sticking to petty causes, unwilling to compromise, so the 2012 round defaults have been the most usual outcome in most discussions. And if that's the case, then no additional public comment would be needed. Rubens Em 30 de set de 2019, à(s) 10:29:000, Jim Prendergast <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>> escreveu: I don’t want to speak for Anne but I’d say its more that a “might happen.” But don’t take my word – I’m just going by what Jeff said during one of our sessions in Marrakech. “I think we’re all resolved now that there likely will be a public comment period, though we haven’t decided one way or the other officially.” I haven’t seen anything since then that would move us away from that presumption. Lots of good, new ideas came in via the comment process that should get feedback from the larger community. The Neustar Proposal, Vickery Auctions, possible solutions to Closed Generics, etc. Jim Prendergast The Galway Strategy Group +1 202 285 3699 @jimpren From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Rubens Kuhl Sent: Friday, September 27, 2019 5:25 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs Em 27 de set de 2019, à(s) 16:57:000, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> escreveu: Thanks Jeff. I think it’s going to be important to call for the Minority Statements when Leadership determines what high level agreement exists in cases where we do not have full consensus. However, something else very important to this process that you have not mentioned below is the fact that there are certain issues that will call for additional public comment. Hopefully we can discuss in Montreal which issues these are and get a WG consensus on further public comment that is needed. Anne, An additional public comment is not a given yet. It might happen, it might not happen, AFAIK. Rubens ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.
I’m familiar with the entities known as the Noncommercial Stakeholder Group and the Electronic Frontier Foundation, and I’m reasonably confident Kathy can speak to their views, particularly since EFF is a member of the NCSG (but perhaps not of this WG, or if so, not particularly active). I’m not familiar with any entity known as the Public Interest Community. Indeed I’m pretty sure there is no such monolithic entity. I’m not even quite sure what the phrase refers, but to the extent I understand it, it is a diverse group of entities that does not speak with one voice or a single perspective. I doubt we can ascribe a single position to the “public interest community.” To the extent we try, it makes no sense to lump it in with NCSG and EFF (and I look skeptically on any attempt to do so). Indeed, I would expect At Large to have a firmer grasp on this group of entities than NCSG — particularly since I believe the public interest community (as I try to understand it) looks primarily to the interests of individual internet users, as does At Large. Greg On Thu, Sep 26, 2019 at 6:41 PM Kathy Kleiman <kathy@kathykleiman.com> wrote:
All,
Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules.
We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objection *was *done in Round 1.
But there was no question that there is a *high level Disagreement **to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. *This high level Disagreement was raised in every Objections call until last night. *Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections? *
I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself. Many, many changes to public portions of applications were made in response to the GAC in Round 1.
Best, Kathy
Kathryn Kleiman, American University Washington College of Law
On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote:
Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation.
So the points I am raising here are:
(1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN
(2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN.
Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding.
In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive.
Anne
*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
Because what matters
to you, matters to us.™
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_______________________________________________ Gnso-newgtld-wg mailing listGnso-newgtld-wg@icann.orghttps://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
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One definition of “public interest”: "The well-being of the general public and society.” And ALL ICANN constituencies should be engaged in it. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, October 01, 2019 6:12 AM To: Kathy Kleiman <kathy@kathykleiman.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs I’m familiar with the entities known as the Noncommercial Stakeholder Group and the Electronic Frontier Foundation, and I’m reasonably confident Kathy can speak to their views, particularly since EFF is a member of the NCSG (but perhaps not of this WG, or if so, not particularly active). I’m not familiar with any entity known as the Public Interest Community. Indeed I’m pretty sure there is no such monolithic entity. I’m not even quite sure what the phrase refers, but to the extent I understand it, it is a diverse group of entities that does not speak with one voice or a single perspective. I doubt we can ascribe a single position to the “public interest community.” To the extent we try, it makes no sense to lump it in with NCSG and EFF (and I look skeptically on any attempt to do so). Indeed, I would expect At Large to have a firmer grasp on this group of entities than NCSG — particularly since I believe the public interest community (as I try to understand it) looks primarily to the interests of individual internet users, as does At Large. Greg On Thu, Sep 26, 2019 at 6:41 PM Kathy Kleiman <kathy@kathykleiman.com <mailto:kathy@kathykleiman.com> > wrote: All, Mandatory PICS are unchanging. You can't resolve an Objection with a Mandatory PIC. It would require a Voluntary PIC -- which has become a misnomer, and a complete garbage can of everything applicants wanted to throw into the kitchen sink. There are longstanding objections to "voluntary PICs" from the Noncommercial Stakeholder Group, Electronic Frontier Foundation and the Public Interest Community (as we discussed many times). There is no high-level agreement on including them -- and they were not part of the Round 1 rules. We agreed in last week's call that you could *amend the application* to settle an Objection. That puts the private Objection settlement out for fuller and fairer review -- which is fair. Changes to public portion of applications would be subject to public comment -- and hopefully notification to all who have filed comments and therefore are likely interested in following changes to that application. Publication and public notice on significant changes to applications (with public comment) to settle an Objection was done in Round 1. But there was no question that there is a high level Disagreement to settling disputes with changes to PICs -- because mandatory PICs are fixed and unchanging. This high level Disagreement was raised in every Objections call until last night. Surely we are not saying that if you miss one discussion in the dead of night, you have waived all previous objections? I'm assuming GAC objections were the topic at issue here -- and can settled with changes to the application itself. Many, many changes to public portions of applications were made in response to the GAC in Round 1. Best, Kathy Kathryn Kleiman, American University Washington College of Law On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote: Regarding the last call and the possible high level agreement on resolving Objection proceedings with mandatory PICs, it’s important to note that there is no private right of action to enforce a PIC. The current PIC Dispute Resolution procedure – PICDRP (see attached) provides for various steps to be taken in resolving the PIC complaint and if unresolved, ICANN at its SOLE discrestion, can invoke a a Staning Panel or undertake a compliance investigation. So the points I am raising here are: (1) Proceeding on the report of a PIC violation rests in the sole discretion of ICANN (2) The expense of the Compliance investigation and/or Standing Panel is an expense of ICANN. Accordingly, it may be appropriate to consider adopting a private right of action (rather than forcing the expense on ICANN) in connection with the enforcement of mandatory PICs adopted for purposes of resolving an Objection proceeding. In fact, the PICDRP originally contained a provision allowing the enforcement issue to be taken to a third party provider. However, that draft did not survive. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax <mailto:AAikman@lrrc.com> AAikman@lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 <http://lrrc.com/> lrrc.com Because what matters to you, matters to us.™ _____ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.
participants (10)
-
Aikman-Scalese, Anne -
Alan Greenberg -
Alexander Schubert -
Carlton Samuels -
Greg Shatan -
Jeff Neuman -
Jim Prendergast -
Kathy Kleiman -
Maxim Alzoba -
Rubens Kuhl