Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC
Dear WG Members, Please find the proposed agenda for the New gTLD Subsequent Procedures PDP WG meeting scheduled for 2 October 2018 at 03:00 UTC, for 90 minutes. Agenda review/SOIs Supplemental Report: Review of sections 1.1, 1.2, 1.3, 1.4, and 1.5 continued Draft of the additional Supplemental Report sections. Initial assessment of work required for Final CCT-RT Report AOB For agenda item 2, please find the latest staff draft, which seeks to incorporate input received during past WG meetings. For item 2.a, please find an initial staff draft of the other sections intended to be included with the supplemental report. Staff has attempted to ensure that all required elements of an Initial Report are included, but done so in a streamlined fashion. For context, the documentation the WG has been reviewing the last few meetings (i.e., 1.1-1.5) will slot into section two (2) of this template. For Item 3, please find attached an initial staff draft that seeks to assess the level to which the PDP WG has already addressed CCT-RT recommendations and where additional work may be needed. This analysis is similar to that done for SAC090. 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 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 Mobile: +1.310.339.4410 Office Telephone: +1.310.301.5800 Office Fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses and visiting the GNSO Newcomer pages. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/
Jeff and Cheryl, I apologize if this comment comes later than expected. Regarding the section below related to Auctions, could you please add that “Another Working Group member noted that a system of graduated fees would favor larger entities with multiple applications and might also affect applicants’ strategies in relation to the formation of applicant entities.” [cid:image001.png@01D459AE.9EF38CD0] Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D459AE.A801AA50] 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, September 28, 2018 3:53 PM To: gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Dear WG Members, Please find the proposed agenda for the New gTLD Subsequent Procedures PDP WG meeting scheduled for 2 October 2018 at 03:00 UTC, for 90 minutes. 1. Agenda review/SOIs 2. Supplemental Report: Review of sections 1.1, 1.2, 1.3, 1.4, and 1.5 continued * Draft of the additional Supplemental Report sections. 3. Initial assessment of work required for Final CCT-RT Report 4. AOB For agenda item 2, please find the latest staff draft, which seeks to incorporate input received during past WG meetings. For item 2.a, please find an initial staff draft of the other sections intended to be included with the supplemental report. Staff has attempted to ensure that all required elements of an Initial Report are included, but done so in a streamlined fashion. For context, the documentation the WG has been reviewing the last few meetings (i.e., 1.1-1.5) will slot into section two (2) of this template. For Item 3, please find attached an initial staff draft that seeks to assess the level to which the PDP WG has already addressed CCT-RT recommendations and where additional work may be needed. This analysis is similar to that done for SAC090. 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>). Best, Steve Steven Chan Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 Mobile: +1.310.339.4410 Office Telephone: +1.310.301.5800 Office Fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses<https://learn.icann.org/> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-e...>. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/ ________________________________ 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.
Thanks Anne. If you are on the call in a couple of hours, can you remind us of this comment? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com www.comlaude.com<http://www.comlaude.com> Liability cannot be accepted for statements made which are clearly the sender’s own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: Aikman-Scalese, Anne <AAikman@lrrc.com> Sent: Monday, October 1, 2018 8:46 PM To: 'Steve Chan' <steve.chan@icann.org>; gnso-newgtld-wg@icann.org Cc: Jeff Neuman <jeff.neuman@comlaude.com>; Cheryl Langdon-Orr <langdonorr@gmail.com> Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Jeff and Cheryl, I apologize if this comment comes later than expected. Regarding the section below related to Auctions, could you please add that “Another Working Group member noted that a system of graduated fees would favor larger entities with multiple applications and might also affect applicants’ strategies in relation to the formation of applicant entities.” [cid:image001.png@01D459CA.69F8B5C0] Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image002.png@01D459CA.69F8B5C0] 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, September 28, 2018 3:53 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 - 2 October 2018 at 03:00 UTC Dear WG Members, Please find the proposed agenda for the New gTLD Subsequent Procedures PDP WG meeting scheduled for 2 October 2018 at 03:00 UTC, for 90 minutes. 1. Agenda review/SOIs 2. Supplemental Report: Review of sections 1.1, 1.2, 1.3, 1.4, and 1.5 continued * Draft of the additional Supplemental Report sections. 3. Initial assessment of work required for Final CCT-RT Report 4. AOB For agenda item 2, please find the latest staff draft, which seeks to incorporate input received during past WG meetings. For item 2.a, please find an initial staff draft of the other sections intended to be included with the supplemental report. Staff has attempted to ensure that all required elements of an Initial Report are included, but done so in a streamlined fashion. For context, the documentation the WG has been reviewing the last few meetings (i.e., 1.1-1.5) will slot into section two (2) of this template. For Item 3, please find attached an initial staff draft that seeks to assess the level to which the PDP WG has already addressed CCT-RT recommendations and where additional work may be needed. This analysis is similar to that done for SAC090. 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>). Best, Steve Steven Chan Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 Mobile: +1.310.339.4410 Office Telephone: +1.310.301.5800 Office Fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses<https://learn.icann.org/> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-e...>. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/ ________________________________ 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.
sure Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D459B3.9468C820] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Monday, October 01, 2018 6:05 PM To: Aikman-Scalese, Anne; 'Steve Chan'; gnso-newgtld-wg@icann.org Cc: Cheryl Langdon-Orr Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Anne. If you are on the call in a couple of hours, can you remind us of this comment? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com> Liability cannot be accepted for statements made which are clearly the sender’s own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Monday, October 1, 2018 8:46 PM To: 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@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>>; Cheryl Langdon-Orr <langdonorr@gmail.com<mailto:langdonorr@gmail.com>> Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Jeff and Cheryl, I apologize if this comment comes later than expected. Regarding the section below related to Auctions, could you please add that “Another Working Group member noted that a system of graduated fees would favor larger entities with multiple applications and might also affect applicants’ strategies in relation to the formation of applicant entities.” [cid:image005.png@01D459B3.942AFBD0] Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image006.png@01D459B3.942AFBD0] 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, September 28, 2018 3:53 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 - 2 October 2018 at 03:00 UTC Dear WG Members, Please find the proposed agenda for the New gTLD Subsequent Procedures PDP WG meeting scheduled for 2 October 2018 at 03:00 UTC, for 90 minutes. 1. Agenda review/SOIs 2. Supplemental Report: Review of sections 1.1, 1.2, 1.3, 1.4, and 1.5 continued * Draft of the additional Supplemental Report sections. 3. Initial assessment of work required for Final CCT-RT Report 4. AOB For agenda item 2, please find the latest staff draft, which seeks to incorporate input received during past WG meetings. For item 2.a, please find an initial staff draft of the other sections intended to be included with the supplemental report. Staff has attempted to ensure that all required elements of an Initial Report are included, but done so in a streamlined fashion. For context, the documentation the WG has been reviewing the last few meetings (i.e., 1.1-1.5) will slot into section two (2) of this template. For Item 3, please find attached an initial staff draft that seeks to assess the level to which the PDP WG has already addressed CCT-RT recommendations and where additional work may be needed. This analysis is similar to that done for SAC090. 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>). Best, Steve Steven Chan Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 Mobile: +1.310.339.4410 Office Telephone: +1.310.301.5800 Office Fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses<https://learn.icann.org/> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-e...>. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/ ________________________________ 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 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 have significant suggested changes to the private auction section in the attached. There appears to be a fundamental misunderstanding of private auctions vs. other types of private resolutions in the 2012 round. If the WG wants to forbid all private resolutions and require an auction of last resort, it could do so as a matter of policy. I don't see how, however, the WG could bad one form of private resolution and not any others. If just private auctions are banned, then the applicants will come up with another way to pay each other. In a simple example take a contention set with only two applicants, the parties could simply negotiate a sale; could flip a coin with the loser to pay a pre-determined amount; could do a cut and choose option; could do a swap if there were more than one TLDs in contention between the parties, etc. There are dozens of creative ways to resolve contention sets without a private auction. In other words, if the WG wants all the money to go to ICANN or charity, it needs to ban all private resolutions (not just private auctions). Just banning private auctions would be like just banning one flavor of ice cream. The question is whether the WG has a consensus to ban private resolution and force auctions of last resort or some other means to resolve contention. Thanks. Jon
On Oct 1, 2018, at 9:21 PM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:
sure
Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com <mailto:AAikman@lrrc.com> _____________________________ <image001.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com <http://lrrc.com/>
From: Jeff Neuman [mailto:jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com>] Sent: Monday, October 01, 2018 6:05 PM To: Aikman-Scalese, Anne; 'Steve Chan'; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Cc: Cheryl Langdon-Orr Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC
Thanks Anne. If you are on the call in a couple of hours, can you remind us of this comment?
Jeff Neuman Senior Vice President
Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA
D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> www.comlaude.com <http://www.comlaude.com/>
Liability cannot be accepted for statements made which are clearly the sender’s own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com <http://attachment.com/> Laude USA and Valideus are trading names of Consonum, Inc.
From: Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> Sent: Monday, October 1, 2018 8:46 PM To: 'Steve Chan' <steve.chan@icann.org <mailto:steve.chan@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>>; Cheryl Langdon-Orr <langdonorr@gmail.com <mailto:langdonorr@gmail.com>> Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC
Jeff and Cheryl, I apologize if this comment comes later than expected. Regarding the section below related to Auctions, could you please add that “Another Working Group member noted that a system of graduated fees would favor larger entities with multiple applications and might also affect applicants’ strategies in relation to the formation of applicant entities.”
<image005.png>
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/>
From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Steve Chan Sent: Friday, September 28, 2018 3:53 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 - 2 October 2018 at 03:00 UTC
Dear WG Members,
Please find the proposed agenda for the New gTLD Subsequent Procedures PDP WG meeting scheduled for 2 October 2018 at 03:00 UTC, for 90 minutes.
Agenda review/SOIs Supplemental Report: Review of sections 1.1, 1.2, 1.3, 1.4, and 1.5 continued Draft of the additional Supplemental Report sections. Initial assessment of work required for Final CCT-RT Report AOB
For agenda item 2, please find the latest staff draft, which seeks to incorporate input received during past WG meetings. For item 2.a, please find an initial staff draft of the other sections intended to be included with the supplemental report. Staff has attempted to ensure that all required elements of an Initial Report are included, but done so in a streamlined fashion. For context, the documentation the WG has been reviewing the last few meetings (i.e., 1.1-1.5) will slot into section two (2) of this template.
For Item 3, please find attached an initial staff draft that seeks to assess the level to which the PDP WG has already addressed CCT-RT recommendations and where additional work may be needed. This analysis is similar to that done for SAC090.
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>).
Best, Steve
Steven Chan > Policy Director, GNSO Support
ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 > Mobile: +1.310.339.4410 Office Telephone: +1.310.301.5800 Office Fax: +1.310.823.8649
Find out more about the GNSO by taking our interactive courses <https://learn.icann.org/> and visiting the GNSO Newcomer pages <http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-e...>.
Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO <https://twitter.com/ICANN_GNSO> Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ <https://www.facebook.com/icanngnso/> http://gnso.icann.org/en/ <http://gnso.icann.org/en/>
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 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 <https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg>
Thanks Jon. Great comments. Hopefully you can be on the call in 30 mins. Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com www.comlaude.com<http://www.comlaude.com> Liability cannot be accepted for statements made which are clearly the sender’s own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: Jon Nevett <jon@donuts.email> Sent: Monday, October 1, 2018 10:06 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com> Cc: Jeff Neuman <jeff.neuman@comlaude.com>; Steve Chan <steve.chan@icann.org>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC I have significant suggested changes to the private auction section in the attached. There appears to be a fundamental misunderstanding of private auctions vs. other types of private resolutions in the 2012 round. If the WG wants to forbid all private resolutions and require an auction of last resort, it could do so as a matter of policy. I don't see how, however, the WG could bad one form of private resolution and not any others. If just private auctions are banned, then the applicants will come up with another way to pay each other. In a simple example take a contention set with only two applicants, the parties could simply negotiate a sale; could flip a coin with the loser to pay a pre-determined amount; could do a cut and choose option; could do a swap if there were more than one TLDs in contention between the parties, etc. There are dozens of creative ways to resolve contention sets without a private auction. In other words, if the WG wants all the money to go to ICANN or charity, it needs to ban all private resolutions (not just private auctions). Just banning private auctions would be like just banning one flavor of ice cream. The question is whether the WG has a consensus to ban private resolution and force auctions of last resort or some other means to resolve contention. Thanks. Jon On Oct 1, 2018, at 9:21 PM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: sure Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ <image001.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Monday, October 01, 2018 6:05 PM To: Aikman-Scalese, Anne; 'Steve Chan'; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Cc: Cheryl Langdon-Orr Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Anne. If you are on the call in a couple of hours, can you remind us of this comment? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<http://www.comlaude.com/> Liability cannot be accepted for statements made which are clearly the sender’s own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com<http://attachment.com/> Laude USA and Valideus are trading names of Consonum, Inc. From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Monday, October 1, 2018 8:46 PM To: 'Steve Chan' <steve.chan@icann.org<mailto:steve.chan@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>>; Cheryl Langdon-Orr <langdonorr@gmail.com<mailto:langdonorr@gmail.com>> Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Jeff and Cheryl, I apologize if this comment comes later than expected. Regarding the section below related to Auctions, could you please add that “Another Working Group member noted that a system of graduated fees would favor larger entities with multiple applications and might also affect applicants’ strategies in relation to the formation of applicant entities.” <image005.png> 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/> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Steve Chan Sent: Friday, September 28, 2018 3:53 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 - 2 October 2018 at 03:00 UTC Dear WG Members, Please find the proposed agenda for the New gTLD Subsequent Procedures PDP WG meeting scheduled for 2 October 2018 at 03:00 UTC, for 90 minutes. 1. Agenda review/SOIs 2. Supplemental Report: Review of sections 1.1, 1.2, 1.3, 1.4, and 1.5 continued * Draft of the additional Supplemental Report sections. 1. Initial assessment of work required for Final CCT-RT Report 2. AOB For agenda item 2, please find the latest staff draft, which seeks to incorporate input received during past WG meetings. For item 2.a, please find an initial staff draft of the other sections intended to be included with the supplemental report. Staff has attempted to ensure that all required elements of an Initial Report are included, but done so in a streamlined fashion. For context, the documentation the WG has been reviewing the last few meetings (i.e., 1.1-1.5) will slot into section two (2) of this template. For Item 3, please find attached an initial staff draft that seeks to assess the level to which the PDP WG has already addressed CCT-RT recommendations and where additional work may be needed. This analysis is similar to that done for SAC090. 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>). Best, Steve Steven Chan Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 Mobile: +1.310.339.4410 Office Telephone: +1.310.301.5800 Office Fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses<https://learn.icann.org/> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-e...>. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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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
Well, If you would just ban chocolate ice-cream, then that would do the trick for me personally. But Jon is right: For the overwhelming portion of applicants their new gTLD applications represent some sort of "financial asset". If just one entity within a given contention set is driven by commercial aspects (creating profits for example) then they will NOT be willing to give up their "position" without a fair "compensation". Which in our world is usually "cash". That might be different if for example the European and the U.S. board of pharmacies had each applied for a non-profit registry ".pharmacy" - with the aim to make online commerce for pharmaceutical products safer. They might come up with an agreement - and for example join forces to operate the string jointly. So in other words: In the overwhelming majority of cases "private contention resolution" equals: A way to determine the fair value of and then processing a compensation for those who have to withdraw their applications. And obviously the different "private" auction models have proven to be reliable to achieve that. But Jon is right: If not an "auction": it would be always a way to COMPENSATE THE APPLICANTS WHO GIVE UP THEIR APPLICATION. And who pays for that? Nobody has any motivation but the applicant who will remain the only contention set member. Who else would come up with that "compensation"? So in this respect: If we want to foster "private contention set resolution" - then "denying auctions" is pointless. I have always been very outspoken AGAINST auctions - because these invite speculative registrations and "extortion" of other applicants. But this isn't tied to the contention set resolution mechanism "auction" - but rather to the nature of "compensation". And private contention set resolution is usually synonym to just that: fair compensation for those who withdraw; paid for by the prevailing applicant. So I am in agreement with Jon on this: We either scrap the "private contention resolution" - or we leave it in the AGB. If we leave it in the AGB - then any attempts to "regulate it" would create an ad absurdum. In my eyes this is btw another argument why we should keep (or even raise) the entry barrier into new gTLD applications. One entry barrier could be the application cost: Keep it at the 2012 level or raise it even. At least for the next round(s) - until "contention" doesn't anymore play a role. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Tuesday, October 02, 2018 5:06 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC I have significant suggested changes to the private auction section in the attached. There appears to be a fundamental misunderstanding of private auctions vs. other types of private resolutions in the 2012 round. If the WG wants to forbid all private resolutions and require an auction of last resort, it could do so as a matter of policy. I don't see how, however, the WG could bad one form of private resolution and not any others. If just private auctions are banned, then the applicants will come up with another way to pay each other. In a simple example take a contention set with only two applicants, the parties could simply negotiate a sale; could flip a coin with the loser to pay a pre-determined amount; could do a cut and choose option; could do a swap if there were more than one TLDs in contention between the parties, etc. There are dozens of creative ways to resolve contention sets without a private auction. In other words, if the WG wants all the money to go to ICANN or charity, it needs to ban all private resolutions (not just private auctions). Just banning private auctions would be like just banning one flavor of ice cream. The question is whether the WG has a consensus to ban private resolution and force auctions of last resort or some other means to resolve contention. Thanks. Jon
Thanks Alexander. I AM SENDING THIS E-MAIL AS FOOD FOR THOUGHT AND NOT ADVOCATING A PARTICULAR POSITION. THIS IS NOT A POSITION OF THE LEADERSHIP OF THE WORKING GROUP, BUT RATHER MY OWN THOUGHTS TO KEEP THE CONVERSATION MOVING. Before we engage in whether something will be a pointless exercise or whether whatever we create will be non-enforceable or will lead to gaming, etc., I would like to make sure that this supplemental report from a policy perspective reflects the views of members in the Working Group. Some of these views are expressed below. First, unless I am completely misreading the past few months and the discussions that have taken place, there seems to be a general view from many members of the Working Group that creating a process that allows applicants to generate substantial sums of money from not being selected as the applicant in a contention set does not serve the public interest. Or stated differently, there seems to be a desire to not create incentives for applicants to apply for strings with the intention of losing contention sets to generate money. [Some have used much stronger language, but I am trying to put it in a more objective way]. Second, although many are not in favor of private auctions, some do believe that certain forms of private resolution of contention sets may actually be constructive and in the public interest. We have discussed the notion, for example, of two entities applying for the same string, but then after negotiations either allowing one party to use the string, while the other selects a different string or both choosing different strings (eg., United Airlines and United Van Lines both apply for .united and then agree to change to .unitedair and .unitedvan). Third, some members of the group discussed the notion that if applicants in a contention set could figure out a way for all of them to be involved in the Registry through a joint venture, that may not necessarily be a bad thing either. Perhaps you, Jon and others are right that we may not be able to create the perfect non-gaming solution. Or perhaps after putting this out to the community for comment, someone will have an idea that will be workable. I think it is our obligation to put this out for comment and see rather than just giving this up. ************** P.S. As I could not sleep last night a thought did occur to me that one option may be that any private resolution would need to be approved by ICANN (or its designee) whereby ICANN would need to see the ultimate agreement between the parties to ensure that any private resolution agreement reached did not contain anything that was deemed to be a prohibited form of resolution. And the registry agreement would have to contain representations and warranties (with severe penalties) that the agreement reviewed by ICANN contained all of the terms and conditions between the parties (i.e., no side deals or side letters). So, we could have a policy that stated in short hand: * No Private Resolution of contention sets except as otherwise approved by ICANN * Acceptable forms of Private Resolution that could be approved by ICANN include: [List acceptable forms like the ones mentioned above plus other forms the Working Group believes are beneficial] * If parties are found to have engaged in non acceptable forms of private resolution, that will result in (a) withdrawing of an application - if an agreement was not signed by the time it is discovered, or (b) forfeiture of the registry (if after a contract is signed) Lots of details to work out if the Working Group were comfortable with that, but I believe that putting this stuff out there for public comment would generate some of those necessary details. Best regards, Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com www.comlaude.com<http://www.comlaude.com> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Alexander Schubert Sent: Tuesday, October 2, 2018 10:11 AM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Well, If you would just ban chocolate ice-cream, then that would do the trick for me personally. But Jon is right: For the overwhelming portion of applicants their new gTLD applications represent some sort of "financial asset". If just one entity within a given contention set is driven by commercial aspects (creating profits for example) then they will NOT be willing to give up their "position" without a fair "compensation". Which in our world is usually "cash". That might be different if for example the European and the U.S. board of pharmacies had each applied for a non-profit registry ".pharmacy" - with the aim to make online commerce for pharmaceutical products safer. They might come up with an agreement - and for example join forces to operate the string jointly. So in other words: In the overwhelming majority of cases "private contention resolution" equals: A way to determine the fair value of and then processing a compensation for those who have to withdraw their applications. And obviously the different "private" auction models have proven to be reliable to achieve that. But Jon is right: If not an "auction": it would be always a way to COMPENSATE THE APPLICANTS WHO GIVE UP THEIR APPLICATION. And who pays for that? Nobody has any motivation but the applicant who will remain the only contention set member. Who else would come up with that "compensation"? So in this respect: If we want to foster "private contention set resolution" - then "denying auctions" is pointless. I have always been very outspoken AGAINST auctions - because these invite speculative registrations and "extortion" of other applicants. But this isn't tied to the contention set resolution mechanism "auction" - but rather to the nature of "compensation". And private contention set resolution is usually synonym to just that: fair compensation for those who withdraw; paid for by the prevailing applicant. So I am in agreement with Jon on this: We either scrap the "private contention resolution" - or we leave it in the AGB. If we leave it in the AGB - then any attempts to "regulate it" would create an ad absurdum. In my eyes this is btw another argument why we should keep (or even raise) the entry barrier into new gTLD applications. One entry barrier could be the application cost: Keep it at the 2012 level or raise it even. At least for the next round(s) - until "contention" doesn't anymore play a role. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Tuesday, October 02, 2018 5:06 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC I have significant suggested changes to the private auction section in the attached. There appears to be a fundamental misunderstanding of private auctions vs. other types of private resolutions in the 2012 round. If the WG wants to forbid all private resolutions and require an auction of last resort, it could do so as a matter of policy. I don't see how, however, the WG could bad one form of private resolution and not any others. If just private auctions are banned, then the applicants will come up with another way to pay each other. In a simple example take a contention set with only two applicants, the parties could simply negotiate a sale; could flip a coin with the loser to pay a pre-determined amount; could do a cut and choose option; could do a swap if there were more than one TLDs in contention between the parties, etc. There are dozens of creative ways to resolve contention sets without a private auction. In other words, if the WG wants all the money to go to ICANN or charity, it needs to ban all private resolutions (not just private auctions). Just banning private auctions would be like just banning one flavor of ice cream. The question is whether the WG has a consensus to ban private resolution and force auctions of last resort or some other means to resolve contention. Thanks. Jon
Jeff, I was with you until the P.S. Do you really want to leave it up to ICANN and trust them to make a determination of what are acceptable forms of private resolution? I don't even mean deciding which forms are acceptable, which you indicate would be determined by the community. But with all the potential variations of private resolution, you would want ICANN to determine if a particular form is close enough to the acceptable ones? I see arbitrary decisions, frustrated applicants, and IRPs if we go down that path. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Tuesday, October 2, 2018 6:03 PM To: alexander@schubert.berlin; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Alexander. I AM SENDING THIS E-MAIL AS FOOD FOR THOUGHT AND NOT ADVOCATING A PARTICULAR POSITION. THIS IS NOT A POSITION OF THE LEADERSHIP OF THE WORKING GROUP, BUT RATHER MY OWN THOUGHTS TO KEEP THE CONVERSATION MOVING. Before we engage in whether something will be a pointless exercise or whether whatever we create will be non-enforceable or will lead to gaming, etc., I would like to make sure that this supplemental report from a policy perspective reflects the views of members in the Working Group. Some of these views are expressed below. First, unless I am completely misreading the past few months and the discussions that have taken place, there seems to be a general view from many members of the Working Group that creating a process that allows applicants to generate substantial sums of money from not being selected as the applicant in a contention set does not serve the public interest. Or stated differently, there seems to be a desire to not create incentives for applicants to apply for strings with the intention of losing contention sets to generate money. [Some have used much stronger language, but I am trying to put it in a more objective way]. Second, although many are not in favor of private auctions, some do believe that certain forms of private resolution of contention sets may actually be constructive and in the public interest. We have discussed the notion, for example, of two entities applying for the same string, but then after negotiations either allowing one party to use the string, while the other selects a different string or both choosing different strings (eg., United Airlines and United Van Lines both apply for .united and then agree to change to .unitedair and .unitedvan). Third, some members of the group discussed the notion that if applicants in a contention set could figure out a way for all of them to be involved in the Registry through a joint venture, that may not necessarily be a bad thing either. Perhaps you, Jon and others are right that we may not be able to create the perfect non-gaming solution. Or perhaps after putting this out to the community for comment, someone will have an idea that will be workable. I think it is our obligation to put this out for comment and see rather than just giving this up. ************** P.S. As I could not sleep last night a thought did occur to me that one option may be that any private resolution would need to be approved by ICANN (or its designee) whereby ICANN would need to see the ultimate agreement between the parties to ensure that any private resolution agreement reached did not contain anything that was deemed to be a prohibited form of resolution. And the registry agreement would have to contain representations and warranties (with severe penalties) that the agreement reviewed by ICANN contained all of the terms and conditions between the parties (i.e., no side deals or side letters). So, we could have a policy that stated in short hand: * No Private Resolution of contention sets except as otherwise approved by ICANN * Acceptable forms of Private Resolution that could be approved by ICANN include: [List acceptable forms like the ones mentioned above plus other forms the Working Group believes are beneficial] * If parties are found to have engaged in non acceptable forms of private resolution, that will result in (a) withdrawing of an application - if an agreement was not signed by the time it is discovered, or (b) forfeiture of the registry (if after a contract is signed) Lots of details to work out if the Working Group were comfortable with that, but I believe that putting this stuff out there for public comment would generate some of those necessary details. Best regards, Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com&d=DwMFA...> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Tuesday, October 2, 2018 10:11 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Well, If you would just ban chocolate ice-cream, then that would do the trick for me personally. But Jon is right: For the overwhelming portion of applicants their new gTLD applications represent some sort of "financial asset". If just one entity within a given contention set is driven by commercial aspects (creating profits for example) then they will NOT be willing to give up their "position" without a fair "compensation". Which in our world is usually "cash". That might be different if for example the European and the U.S. board of pharmacies had each applied for a non-profit registry ".pharmacy" - with the aim to make online commerce for pharmaceutical products safer. They might come up with an agreement - and for example join forces to operate the string jointly. So in other words: In the overwhelming majority of cases "private contention resolution" equals: A way to determine the fair value of and then processing a compensation for those who have to withdraw their applications. And obviously the different "private" auction models have proven to be reliable to achieve that. But Jon is right: If not an "auction": it would be always a way to COMPENSATE THE APPLICANTS WHO GIVE UP THEIR APPLICATION. And who pays for that? Nobody has any motivation but the applicant who will remain the only contention set member. Who else would come up with that "compensation"? So in this respect: If we want to foster "private contention set resolution" - then "denying auctions" is pointless. I have always been very outspoken AGAINST auctions - because these invite speculative registrations and "extortion" of other applicants. But this isn't tied to the contention set resolution mechanism "auction" - but rather to the nature of "compensation". And private contention set resolution is usually synonym to just that: fair compensation for those who withdraw; paid for by the prevailing applicant. So I am in agreement with Jon on this: We either scrap the "private contention resolution" - or we leave it in the AGB. If we leave it in the AGB - then any attempts to "regulate it" would create an ad absurdum. In my eyes this is btw another argument why we should keep (or even raise) the entry barrier into new gTLD applications. One entry barrier could be the application cost: Keep it at the 2012 level or raise it even. At least for the next round(s) - until "contention" doesn't anymore play a role. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Tuesday, October 02, 2018 5:06 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC I have significant suggested changes to the private auction section in the attached. There appears to be a fundamental misunderstanding of private auctions vs. other types of private resolutions in the 2012 round. If the WG wants to forbid all private resolutions and require an auction of last resort, it could do so as a matter of policy. I don't see how, however, the WG could bad one form of private resolution and not any others. If just private auctions are banned, then the applicants will come up with another way to pay each other. In a simple example take a contention set with only two applicants, the parties could simply negotiate a sale; could flip a coin with the loser to pay a pre-determined amount; could do a cut and choose option; could do a swap if there were more than one TLDs in contention between the parties, etc. There are dozens of creative ways to resolve contention sets without a private auction. In other words, if the WG wants all the money to go to ICANN or charity, it needs to ban all private resolutions (not just private auctions). Just banning private auctions would be like just banning one flavor of ice cream. The question is whether the WG has a consensus to ban private resolution and force auctions of last resort or some other means to resolve contention. Thanks. Jon ---------------------------------------------------------------------- If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com, and do not use or disseminate such information.
Thanks Marc. To be clear, this was not a proposal of something I want or believe should happen, but just another potential path. In the scenario of the two United's in my example, if there was an agreement between the parties to not object to the delegation of the two strings (Assuming that would not put the strings into contention with others), that would be the type of permissible private resolution agreements. If there were other forms of permissible private resolution scenarios, that too can be subject to approval. Of course, the proposal I mentioned in the P.S. is full of holes that would need to be filled. But by the same token, I don't believe it has to be either we allow no private resolutions or we all allow every form of private resolution (including auctions) which is what others were suggesting. So, turning the question back to you, how would you structure this? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com www.comlaude.com<http://www.comlaude.com> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: trachtenbergm@gtlaw.com <trachtenbergm@gtlaw.com> Sent: Tuesday, October 2, 2018 7:24 PM To: Jeff Neuman <jeff.neuman@comlaude.com>; alexander@schubert.berlin; gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Jeff, I was with you until the P.S. Do you really want to leave it up to ICANN and trust them to make a determination of what are acceptable forms of private resolution? I don't even mean deciding which forms are acceptable, which you indicate would be determined by the community. But with all the potential variations of private resolution, you would want ICANN to determine if a particular form is close enough to the acceptable ones? I see arbitrary decisions, frustrated applicants, and IRPs if we go down that path. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Tuesday, October 2, 2018 6:03 PM To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Alexander. I AM SENDING THIS E-MAIL AS FOOD FOR THOUGHT AND NOT ADVOCATING A PARTICULAR POSITION. THIS IS NOT A POSITION OF THE LEADERSHIP OF THE WORKING GROUP, BUT RATHER MY OWN THOUGHTS TO KEEP THE CONVERSATION MOVING. Before we engage in whether something will be a pointless exercise or whether whatever we create will be non-enforceable or will lead to gaming, etc., I would like to make sure that this supplemental report from a policy perspective reflects the views of members in the Working Group. Some of these views are expressed below. First, unless I am completely misreading the past few months and the discussions that have taken place, there seems to be a general view from many members of the Working Group that creating a process that allows applicants to generate substantial sums of money from not being selected as the applicant in a contention set does not serve the public interest. Or stated differently, there seems to be a desire to not create incentives for applicants to apply for strings with the intention of losing contention sets to generate money. [Some have used much stronger language, but I am trying to put it in a more objective way]. Second, although many are not in favor of private auctions, some do believe that certain forms of private resolution of contention sets may actually be constructive and in the public interest. We have discussed the notion, for example, of two entities applying for the same string, but then after negotiations either allowing one party to use the string, while the other selects a different string or both choosing different strings (eg., United Airlines and United Van Lines both apply for .united and then agree to change to .unitedair and .unitedvan). Third, some members of the group discussed the notion that if applicants in a contention set could figure out a way for all of them to be involved in the Registry through a joint venture, that may not necessarily be a bad thing either. Perhaps you, Jon and others are right that we may not be able to create the perfect non-gaming solution. Or perhaps after putting this out to the community for comment, someone will have an idea that will be workable. I think it is our obligation to put this out for comment and see rather than just giving this up. ************** P.S. As I could not sleep last night a thought did occur to me that one option may be that any private resolution would need to be approved by ICANN (or its designee) whereby ICANN would need to see the ultimate agreement between the parties to ensure that any private resolution agreement reached did not contain anything that was deemed to be a prohibited form of resolution. And the registry agreement would have to contain representations and warranties (with severe penalties) that the agreement reviewed by ICANN contained all of the terms and conditions between the parties (i.e., no side deals or side letters). So, we could have a policy that stated in short hand: * No Private Resolution of contention sets except as otherwise approved by ICANN * Acceptable forms of Private Resolution that could be approved by ICANN include: [List acceptable forms like the ones mentioned above plus other forms the Working Group believes are beneficial] * If parties are found to have engaged in non acceptable forms of private resolution, that will result in (a) withdrawing of an application - if an agreement was not signed by the time it is discovered, or (b) forfeiture of the registry (if after a contract is signed) Lots of details to work out if the Working Group were comfortable with that, but I believe that putting this stuff out there for public comment would generate some of those necessary details. Best regards, Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com&d=DwMFA...> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Tuesday, October 2, 2018 10:11 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Well, If you would just ban chocolate ice-cream, then that would do the trick for me personally. But Jon is right: For the overwhelming portion of applicants their new gTLD applications represent some sort of "financial asset". If just one entity within a given contention set is driven by commercial aspects (creating profits for example) then they will NOT be willing to give up their "position" without a fair "compensation". Which in our world is usually "cash". That might be different if for example the European and the U.S. board of pharmacies had each applied for a non-profit registry ".pharmacy" - with the aim to make online commerce for pharmaceutical products safer. They might come up with an agreement - and for example join forces to operate the string jointly. So in other words: In the overwhelming majority of cases "private contention resolution" equals: A way to determine the fair value of and then processing a compensation for those who have to withdraw their applications. And obviously the different "private" auction models have proven to be reliable to achieve that. But Jon is right: If not an "auction": it would be always a way to COMPENSATE THE APPLICANTS WHO GIVE UP THEIR APPLICATION. And who pays for that? Nobody has any motivation but the applicant who will remain the only contention set member. Who else would come up with that "compensation"? So in this respect: If we want to foster "private contention set resolution" - then "denying auctions" is pointless. I have always been very outspoken AGAINST auctions - because these invite speculative registrations and "extortion" of other applicants. But this isn't tied to the contention set resolution mechanism "auction" - but rather to the nature of "compensation". And private contention set resolution is usually synonym to just that: fair compensation for those who withdraw; paid for by the prevailing applicant. So I am in agreement with Jon on this: We either scrap the "private contention resolution" - or we leave it in the AGB. If we leave it in the AGB - then any attempts to "regulate it" would create an ad absurdum. In my eyes this is btw another argument why we should keep (or even raise) the entry barrier into new gTLD applications. One entry barrier could be the application cost: Keep it at the 2012 level or raise it even. At least for the next round(s) - until "contention" doesn't anymore play a role. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Tuesday, October 02, 2018 5:06 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC I have significant suggested changes to the private auction section in the attached. There appears to be a fundamental misunderstanding of private auctions vs. other types of private resolutions in the 2012 round. If the WG wants to forbid all private resolutions and require an auction of last resort, it could do so as a matter of policy. I don't see how, however, the WG could bad one form of private resolution and not any others. If just private auctions are banned, then the applicants will come up with another way to pay each other. In a simple example take a contention set with only two applicants, the parties could simply negotiate a sale; could flip a coin with the loser to pay a pre-determined amount; could do a cut and choose option; could do a swap if there were more than one TLDs in contention between the parties, etc. There are dozens of creative ways to resolve contention sets without a private auction. In other words, if the WG wants all the money to go to ICANN or charity, it needs to ban all private resolutions (not just private auctions). Just banning private auctions would be like just banning one flavor of ice cream. The question is whether the WG has a consensus to ban private resolution and force auctions of last resort or some other means to resolve contention. Thanks. Jon ________________________________ If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com<mailto:postmaster@gtlaw.com>, and do not use or disseminate such information.
Jeff, I don't know how to structure this or if an effective structure is even possible that permits private resolutions and avoids or minimizes gaming and am happy to put it out for comment. However, I am confident that we don't want ICANN making determinations regarding third party private commercial arrangements that it is not involved in and may not be in any way qualified to evaluate. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Tuesday, October 2, 2018 8:22 PM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com>; alexander@schubert.berlin; gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Marc. To be clear, this was not a proposal of something I want or believe should happen, but just another potential path. In the scenario of the two United's in my example, if there was an agreement between the parties to not object to the delegation of the two strings (Assuming that would not put the strings into contention with others), that would be the type of permissible private resolution agreements. If there were other forms of permissible private resolution scenarios, that too can be subject to approval. Of course, the proposal I mentioned in the P.S. is full of holes that would need to be filled. But by the same token, I don't believe it has to be either we allow no private resolutions or we all allow every form of private resolution (including auctions) which is what others were suggesting. So, turning the question back to you, how would you structure this? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com&d=DwMFA...> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Sent: Tuesday, October 2, 2018 7:24 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Jeff, I was with you until the P.S. Do you really want to leave it up to ICANN and trust them to make a determination of what are acceptable forms of private resolution? I don't even mean deciding which forms are acceptable, which you indicate would be determined by the community. But with all the potential variations of private resolution, you would want ICANN to determine if a particular form is close enough to the acceptable ones? I see arbitrary decisions, frustrated applicants, and IRPs if we go down that path. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Tuesday, October 2, 2018 6:03 PM To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Alexander. I AM SENDING THIS E-MAIL AS FOOD FOR THOUGHT AND NOT ADVOCATING A PARTICULAR POSITION. THIS IS NOT A POSITION OF THE LEADERSHIP OF THE WORKING GROUP, BUT RATHER MY OWN THOUGHTS TO KEEP THE CONVERSATION MOVING. Before we engage in whether something will be a pointless exercise or whether whatever we create will be non-enforceable or will lead to gaming, etc., I would like to make sure that this supplemental report from a policy perspective reflects the views of members in the Working Group. Some of these views are expressed below. First, unless I am completely misreading the past few months and the discussions that have taken place, there seems to be a general view from many members of the Working Group that creating a process that allows applicants to generate substantial sums of money from not being selected as the applicant in a contention set does not serve the public interest. Or stated differently, there seems to be a desire to not create incentives for applicants to apply for strings with the intention of losing contention sets to generate money. [Some have used much stronger language, but I am trying to put it in a more objective way]. Second, although many are not in favor of private auctions, some do believe that certain forms of private resolution of contention sets may actually be constructive and in the public interest. We have discussed the notion, for example, of two entities applying for the same string, but then after negotiations either allowing one party to use the string, while the other selects a different string or both choosing different strings (eg., United Airlines and United Van Lines both apply for .united and then agree to change to .unitedair and .unitedvan). Third, some members of the group discussed the notion that if applicants in a contention set could figure out a way for all of them to be involved in the Registry through a joint venture, that may not necessarily be a bad thing either. Perhaps you, Jon and others are right that we may not be able to create the perfect non-gaming solution. Or perhaps after putting this out to the community for comment, someone will have an idea that will be workable. I think it is our obligation to put this out for comment and see rather than just giving this up. ************** P.S. As I could not sleep last night a thought did occur to me that one option may be that any private resolution would need to be approved by ICANN (or its designee) whereby ICANN would need to see the ultimate agreement between the parties to ensure that any private resolution agreement reached did not contain anything that was deemed to be a prohibited form of resolution. And the registry agreement would have to contain representations and warranties (with severe penalties) that the agreement reviewed by ICANN contained all of the terms and conditions between the parties (i.e., no side deals or side letters). So, we could have a policy that stated in short hand: * No Private Resolution of contention sets except as otherwise approved by ICANN * Acceptable forms of Private Resolution that could be approved by ICANN include: [List acceptable forms like the ones mentioned above plus other forms the Working Group believes are beneficial] * If parties are found to have engaged in non acceptable forms of private resolution, that will result in (a) withdrawing of an application - if an agreement was not signed by the time it is discovered, or (b) forfeiture of the registry (if after a contract is signed) Lots of details to work out if the Working Group were comfortable with that, but I believe that putting this stuff out there for public comment would generate some of those necessary details. Best regards, Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com&d=DwMFA...> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Tuesday, October 2, 2018 10:11 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Well, If you would just ban chocolate ice-cream, then that would do the trick for me personally. But Jon is right: For the overwhelming portion of applicants their new gTLD applications represent some sort of "financial asset". If just one entity within a given contention set is driven by commercial aspects (creating profits for example) then they will NOT be willing to give up their "position" without a fair "compensation". Which in our world is usually "cash". That might be different if for example the European and the U.S. board of pharmacies had each applied for a non-profit registry ".pharmacy" - with the aim to make online commerce for pharmaceutical products safer. They might come up with an agreement - and for example join forces to operate the string jointly. So in other words: In the overwhelming majority of cases "private contention resolution" equals: A way to determine the fair value of and then processing a compensation for those who have to withdraw their applications. And obviously the different "private" auction models have proven to be reliable to achieve that. But Jon is right: If not an "auction": it would be always a way to COMPENSATE THE APPLICANTS WHO GIVE UP THEIR APPLICATION. And who pays for that? Nobody has any motivation but the applicant who will remain the only contention set member. Who else would come up with that "compensation"? So in this respect: If we want to foster "private contention set resolution" - then "denying auctions" is pointless. I have always been very outspoken AGAINST auctions - because these invite speculative registrations and "extortion" of other applicants. But this isn't tied to the contention set resolution mechanism "auction" - but rather to the nature of "compensation". And private contention set resolution is usually synonym to just that: fair compensation for those who withdraw; paid for by the prevailing applicant. So I am in agreement with Jon on this: We either scrap the "private contention resolution" - or we leave it in the AGB. If we leave it in the AGB - then any attempts to "regulate it" would create an ad absurdum. In my eyes this is btw another argument why we should keep (or even raise) the entry barrier into new gTLD applications. One entry barrier could be the application cost: Keep it at the 2012 level or raise it even. At least for the next round(s) - until "contention" doesn't anymore play a role. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Tuesday, October 02, 2018 5:06 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC I have significant suggested changes to the private auction section in the attached. There appears to be a fundamental misunderstanding of private auctions vs. other types of private resolutions in the 2012 round. If the WG wants to forbid all private resolutions and require an auction of last resort, it could do so as a matter of policy. I don't see how, however, the WG could bad one form of private resolution and not any others. If just private auctions are banned, then the applicants will come up with another way to pay each other. In a simple example take a contention set with only two applicants, the parties could simply negotiate a sale; could flip a coin with the loser to pay a pre-determined amount; could do a cut and choose option; could do a swap if there were more than one TLDs in contention between the parties, etc. There are dozens of creative ways to resolve contention sets without a private auction. In other words, if the WG wants all the money to go to ICANN or charity, it needs to ban all private resolutions (not just private auctions). Just banning private auctions would be like just banning one flavor of ice cream. The question is whether the WG has a consensus to ban private resolution and force auctions of last resort or some other means to resolve contention. Thanks. Jon ________________________________ If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com<mailto:postmaster@gtlaw.com>, and do not use or disseminate such information.
I don't know a lot about the private string contention resolution issues, but it seems that Sarah's "silent bid" idea could make sense if the entity that has entered a silent bid is publicly known. The reasons it seems this idea may have merit are: 1. If the winning entity wants to "sell" the TLD after the award, don't they have to get ICANN approval for the transfer to another entity? Could the applicant be asked to represent that its bid is not being financed by another TLD Registry Operator? 2. The point of the TLD program was not to raise auction funds. When private entities don't agree, it's clear I am not saying that I am opposed to private string contention resolution entirely. One drawback I see is that if an entity is going to make several silent bids, then it is going to have a lot of financial risk out there. What if all of its "silent bids" are accepted? Can it then turn some of them down and ICANN would move on to the next entity that applied with the next highest bid. Or does this "silent bid" system create a situation where companies will be negotiating with each other because they will be "trading" awards like NFL draft picks? (And if that happens, is that a bad thing?) The private auction proposals still don't address the financial disadvantage for Community Applications. I had typed in chat that I believe we should discuss a Community priority round here. I also believe the GAC is going to advise a Community Priority round. If private companies can stay in that because we don't try to censor the appropriate topics and purposes as long as there is a valid community represented, then nothing would stop them from participating and thus serving online freedom of expression. This would be a whole lot simpler than assigning a certain multiple to a community application. I think maybe Community Evaluation in a Priority Round would be a whole lot simpler than Community Priority Evaluation in a general round. What do others think? 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@01D45B0F.1718DF10] 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 trachtenbergm@gtlaw.com Sent: Tuesday, October 02, 2018 7:33 PM To: jeff.neuman@comlaude.com; alexander@schubert.berlin; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Jeff, I don't know how to structure this or if an effective structure is even possible that permits private resolutions and avoids or minimizes gaming and am happy to put it out for comment. However, I am confident that we don't want ICANN making determinations regarding third party private commercial arrangements that it is not involved in and may not be in any way qualified to evaluate. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Jeff Neuman [mailto:jeff.neuman@comlaude.com] Sent: Tuesday, October 2, 2018 8:22 PM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Marc. To be clear, this was not a proposal of something I want or believe should happen, but just another potential path. In the scenario of the two United's in my example, if there was an agreement between the parties to not object to the delegation of the two strings (Assuming that would not put the strings into contention with others), that would be the type of permissible private resolution agreements. If there were other forms of permissible private resolution scenarios, that too can be subject to approval. Of course, the proposal I mentioned in the P.S. is full of holes that would need to be filled. But by the same token, I don't believe it has to be either we allow no private resolutions or we all allow every form of private resolution (including auctions) which is what others were suggesting. So, turning the question back to you, how would you structure this? Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com&d=DwMFA...> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> <trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com>> Sent: Tuesday, October 2, 2018 7:24 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Jeff, I was with you until the P.S. Do you really want to leave it up to ICANN and trust them to make a determination of what are acceptable forms of private resolution? I don't even mean deciding which forms are acceptable, which you indicate would be determined by the community. But with all the potential variations of private resolution, you would want ICANN to determine if a particular form is close enough to the acceptable ones? I see arbitrary decisions, frustrated applicants, and IRPs if we go down that path. Best regards, Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trachtenbergm@gtlaw.com<mailto:trachtenbergm@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Tuesday, October 2, 2018 6:03 PM To: alexander@schubert.berlin<mailto:alexander@schubert.berlin>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Thanks Alexander. I AM SENDING THIS E-MAIL AS FOOD FOR THOUGHT AND NOT ADVOCATING A PARTICULAR POSITION. THIS IS NOT A POSITION OF THE LEADERSHIP OF THE WORKING GROUP, BUT RATHER MY OWN THOUGHTS TO KEEP THE CONVERSATION MOVING. Before we engage in whether something will be a pointless exercise or whether whatever we create will be non-enforceable or will lead to gaming, etc., I would like to make sure that this supplemental report from a policy perspective reflects the views of members in the Working Group. Some of these views are expressed below. First, unless I am completely misreading the past few months and the discussions that have taken place, there seems to be a general view from many members of the Working Group that creating a process that allows applicants to generate substantial sums of money from not being selected as the applicant in a contention set does not serve the public interest. Or stated differently, there seems to be a desire to not create incentives for applicants to apply for strings with the intention of losing contention sets to generate money. [Some have used much stronger language, but I am trying to put it in a more objective way]. Second, although many are not in favor of private auctions, some do believe that certain forms of private resolution of contention sets may actually be constructive and in the public interest. We have discussed the notion, for example, of two entities applying for the same string, but then after negotiations either allowing one party to use the string, while the other selects a different string or both choosing different strings (eg., United Airlines and United Van Lines both apply for .united and then agree to change to .unitedair and .unitedvan). Third, some members of the group discussed the notion that if applicants in a contention set could figure out a way for all of them to be involved in the Registry through a joint venture, that may not necessarily be a bad thing either. Perhaps you, Jon and others are right that we may not be able to create the perfect non-gaming solution. Or perhaps after putting this out to the community for comment, someone will have an idea that will be workable. I think it is our obligation to put this out for comment and see rather than just giving this up. ************** P.S. As I could not sleep last night a thought did occur to me that one option may be that any private resolution would need to be approved by ICANN (or its designee) whereby ICANN would need to see the ultimate agreement between the parties to ensure that any private resolution agreement reached did not contain anything that was deemed to be a prohibited form of resolution. And the registry agreement would have to contain representations and warranties (with severe penalties) that the agreement reviewed by ICANN contained all of the terms and conditions between the parties (i.e., no side deals or side letters). So, we could have a policy that stated in short hand: * No Private Resolution of contention sets except as otherwise approved by ICANN * Acceptable forms of Private Resolution that could be approved by ICANN include: [List acceptable forms like the ones mentioned above plus other forms the Working Group believes are beneficial] * If parties are found to have engaged in non acceptable forms of private resolution, that will result in (a) withdrawing of an application - if an agreement was not signed by the time it is discovered, or (b) forfeiture of the registry (if after a contract is signed) Lots of details to work out if the Working Group were comfortable with that, but I believe that putting this stuff out there for public comment would generate some of those necessary details. Best regards, Jeff Neuman Senior Vice President Com Laude | Valideus 1751 Pinnacle Drive Suite 600, McLean VA 22102, USA D: +1.703.635.7514 T: +44 (0) 20 7421 8250 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> www.comlaude.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.comlaude.com&d=DwMFA...> Liability cannot be accepted for statements made which are clearly the sender's own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Alexander Schubert Sent: Tuesday, October 2, 2018 10:11 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Well, If you would just ban chocolate ice-cream, then that would do the trick for me personally. But Jon is right: For the overwhelming portion of applicants their new gTLD applications represent some sort of "financial asset". If just one entity within a given contention set is driven by commercial aspects (creating profits for example) then they will NOT be willing to give up their "position" without a fair "compensation". Which in our world is usually "cash". That might be different if for example the European and the U.S. board of pharmacies had each applied for a non-profit registry ".pharmacy" - with the aim to make online commerce for pharmaceutical products safer. They might come up with an agreement - and for example join forces to operate the string jointly. So in other words: In the overwhelming majority of cases "private contention resolution" equals: A way to determine the fair value of and then processing a compensation for those who have to withdraw their applications. And obviously the different "private" auction models have proven to be reliable to achieve that. But Jon is right: If not an "auction": it would be always a way to COMPENSATE THE APPLICANTS WHO GIVE UP THEIR APPLICATION. And who pays for that? Nobody has any motivation but the applicant who will remain the only contention set member. Who else would come up with that "compensation"? So in this respect: If we want to foster "private contention set resolution" - then "denying auctions" is pointless. I have always been very outspoken AGAINST auctions - because these invite speculative registrations and "extortion" of other applicants. But this isn't tied to the contention set resolution mechanism "auction" - but rather to the nature of "compensation". And private contention set resolution is usually synonym to just that: fair compensation for those who withdraw; paid for by the prevailing applicant. So I am in agreement with Jon on this: We either scrap the "private contention resolution" - or we leave it in the AGB. If we leave it in the AGB - then any attempts to "regulate it" would create an ad absurdum. In my eyes this is btw another argument why we should keep (or even raise) the entry barrier into new gTLD applications. One entry barrier could be the application cost: Keep it at the 2012 level or raise it even. At least for the next round(s) - until "contention" doesn't anymore play a role. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jon Nevett Sent: Tuesday, October 02, 2018 5:06 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC I have significant suggested changes to the private auction section in the attached. There appears to be a fundamental misunderstanding of private auctions vs. other types of private resolutions in the 2012 round. If the WG wants to forbid all private resolutions and require an auction of last resort, it could do so as a matter of policy. I don't see how, however, the WG could bad one form of private resolution and not any others. If just private auctions are banned, then the applicants will come up with another way to pay each other. In a simple example take a contention set with only two applicants, the parties could simply negotiate a sale; could flip a coin with the loser to pay a pre-determined amount; could do a cut and choose option; could do a swap if there were more than one TLDs in contention between the parties, etc. There are dozens of creative ways to resolve contention sets without a private auction. In other words, if the WG wants all the money to go to ICANN or charity, it needs to ban all private resolutions (not just private auctions). Just banning private auctions would be like just banning one flavor of ice cream. The question is whether the WG has a consensus to ban private resolution and force auctions of last resort or some other means to resolve contention. Thanks. 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Jeff and Cheryl, Regarding agenda item 3 – Initial Assessment of work required in response to the Final Consumer Confidence and Trust Review Team Report, I have the following preliminary questions: 1. Regarding Recommendation 9 of CCT-RT, the draft response for our WG refers that matter to the RPM “PDP”. However, my understanding is that the RPM Review is a required Review and not a Policy Development Process. Is that incorrect? Should the RPM Review results be incorporated into the work of the Sub Pro PDP or do they stand alone as separate policy recommendations to the GNSO? In other words, what is the status of the mandated “Reviews” in relation to future gTLD policy? 2. Regarding Recommendations 14 and 15 of the CCT-RT related to DNS Security Abuse and consideration of a possible DNS Abuse Dispute Resolution Policy, it appears the draft Responses says that such matters are outside the “remit” of the Subsequent Procedures Working Group and not within the purview of the community. It is stated that these are suggestions to be negotiated between ICANN and the Contracted Parties. Has this been discussed in the full WG? 3. Regarding Recommendations 14 and 16, the proposed Responses state that the Sub Pro PDP should look at the data that the CCT-RT has gathered rather than simply relying on the CCT-RT Recommendations. Is the idea here that Sub Pro may elect to ignore CCT-RT Recommendations and form its own conclusions regarding DNS abuse? 4. There appear to be several comments framing questions as to whether the Sub Pro PDP WG “agrees” with the CCT-RT recommendations. Is that an exercise that has to be performed with respect to each Recommendation of CCT-RT? If the Reviews represent separate policy recommendations to the GNSO, does GNSO have to resolve differences between the Reviews and the Sub Pro recommendations before making recommendations to the ICANN Board? 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@01D459B3.4676DD00] 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, September 28, 2018 3:53 PM To: gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 2 October 2018 at 03:00 UTC Dear WG Members, Please find the proposed agenda for the New gTLD Subsequent Procedures PDP WG meeting scheduled for 2 October 2018 at 03:00 UTC, for 90 minutes. 1. Agenda review/SOIs 2. Supplemental Report: Review of sections 1.1, 1.2, 1.3, 1.4, and 1.5 continued * Draft of the additional Supplemental Report sections. 3. Initial assessment of work required for Final CCT-RT Report 4. AOB For agenda item 2, please find the latest staff draft, which seeks to incorporate input received during past WG meetings. For item 2.a, please find an initial staff draft of the other sections intended to be included with the supplemental report. Staff has attempted to ensure that all required elements of an Initial Report are included, but done so in a streamlined fashion. For context, the documentation the WG has been reviewing the last few meetings (i.e., 1.1-1.5) will slot into section two (2) of this template. For Item 3, please find attached an initial staff draft that seeks to assess the level to which the PDP WG has already addressed CCT-RT recommendations and where additional work may be needed. This analysis is similar to that done for SAC090. 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>). Best, Steve Steven Chan Policy Director, GNSO Support ICANN 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536 Mobile: +1.310.339.4410 Office Telephone: +1.310.301.5800 Office Fax: +1.310.823.8649 Find out more about the GNSO by taking our interactive courses<https://learn.icann.org/> and visiting the GNSO Newcomer pages<http://gnso.icann.org/sites/gnso.icann.org/files/gnso/presentations/policy-e...>. Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO Follow the GNSO on Facebook: https://www.facebook.com/icanngnso/ http://gnso.icann.org/en/ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. 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3. Regarding Recommendations 14 and 16, the proposed Responses state that the Sub Pro PDP should look at the data that the CCT-RT has gathered rather than simply relying on the CCT-RT Recommendations. Is the idea here that Sub Pro may elect to ignore CCT-RT Recommendations and form its own conclusions regarding DNS abuse?
Rec. 14 has two angles, one that can't be looked in a PDP, one that can. The one that can't are financial incentives; this would be a direct violation of the picket fence. But as long as the non-financial incentives do not violate any contract clause, this could be a PDP; but since existing agreements are mentioned, this can only be some other PDP than SubPro. So my guess is that the response is looking into what could specifically apply to subsequent gTLDs, since the recommendation per se couldn't be dealt by SubPro PDP.
4. There appear to be several comments framing questions as to whether the Sub Pro PDP WG “agrees” with the CCT-RT recommendations. Is that an exercise that has to be performed with respect to each Recommendation of CCT-RT? If the Reviews represent separate policy recommendations to the GNSO, does GNSO have to resolve differences between the Reviews and the Sub Pro recommendations before making recommendations to the ICANN Board?
The reviews represent advice applicable to all ICANN organisations, including Board and GNSO, but I don't see them as binding. I believe they have to be duly considered either by SubPro PDP, for those applicable to new procedures, or by some other PDP, if applicable to all gTLDs (like rec. 14 and 16) . Rubens
participants (7)
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Aikman-Scalese, Anne -
Alexander Schubert -
Jeff Neuman -
Jon Nevett -
Rubens Kuhl -
Steve Chan -
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