Thank you Jamie. I appreciate your concern. I don’t know personally what the deadline is for filing letters of opposition to a community application. I assume it is the public comment period? I guess I would just repeat that as long as it is clear that any either public or private resolution of issues that results in the adoption of an RVC not contained in the original application absolutely requires public comment, then I am okay with the appropriate language/implementation. My example is: I write to you after your application is published and say, “unless you adopt X RVC, I will file an Objection or letter of Opposition to your application.” I think Kathie strongly objects to private resolution of issues via RVCs but I am not certain where she stands on this at this point. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 10:54 AM To: Steve Chan <steve.chan@icann.org>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Thanks Steve I would like to draw attention to Topic 28: Role of Application Comment (page 123, c.) On a call about RVC/PICs within the past few weeks I raised the concern about the term “informal opposition” and I asked quite clearly if it was considered “public comment” since it was certainly not “formal Objection.” The answer to that question was a resounding YES, specifically sighting that the group was not attempting to create a third type of input process/period beyond “public comment” and “formal Objections,” both of which have very specific rules and timelines linked to them. When I raised further concern about the need to limit “public comment” (including informal opposition) to the AGB designated “public comment period”, Jeff assured me that language had been adjusted elsewhere in the report to address it (presumably this section). None of the language in Topic 28 does however. Justine Chew also raised concern in the chat (possibly even Paul too), and I even requested to be pointed to that language since I had not seen it yet, but I never received a follow-up. The reason for this distinction is that in the 2012 round, ICANN permitted “informal opposition” to be submitted days before CPE started for Community applicants. This was years after the AGB advertised “public comment period” had ended, and months after “formal Objections” were completed. That “informal opposition” took direct aim at scoring in CPE (criteria #4). If “informal opposition” is officially considered “public comment,” and we are not creating a third layer of public input in addition to “public comment” and “formal Objections,” then why does the report suggest there is not group agreement on changing the 2012 practice to prevent last minute “informal opposition” against Community applicants that target CPE scoring? These two agreements/non-agreements are in direct conflict with each other. Either we require all “informal opposition” to be submitted during the official “public comment period” published in the AGB (as Jeff affirmed on the call), or we are giving ICANN the ability to toss out all applicant predictability and arbitrarily introduce new informal input periods not described in the AGB. In the bigger picture, and bringing it back to RVC/PICs, if ICANN allows last minute “informal opposition” it could create yet another delay for a Community applicant required to submit RVC/PICs or change their application to protect CPE points, when it could have been handled during the official “public comment period” already described in the AGB. Without addressing this issue, I feel confident that last minute “informal opposition” will once again be used as a gaming tactic in subsequent rounds to target and delay Community applicants during the homestretch. Happy to answer any questions for those who are not as familiar with how this all unfolded in the 2012 round. Cheers Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Date: Friday, August 7, 2020 at 11:36 AM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: steve.chan@icann.org<mailto:steve.chan@icann.org> Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=o7Auz997kA-HPv9PHJCjFVZw7Pgo8krw4MxfqCwBrIU&e=> Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNSO&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=kWw4fQPNjw2lVKy1UjTxS2F0BmjEAzaDFWNmsYywbmE&e=> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...> ________________________________ 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.

1. In the report, in Section 28, I see the following language in the New Ideas Section, but it did not achieve group agreement at the time: “The Working Group discussed whether the public comment period for Community Priority Evaluation applications should be longer than the public comment period for standard applications, as was the case in the 2012 round, or if the two periods should be equal in length. The Working Group did not reach any agreement to change the 2012 practice, and therefore has not made any recommendations in this regard.” Jamie – I think for CPE, we need to think of that as separate and apart from all of the other discussions of formal and informal objections. This would be good to submit in a public comment on because the Applicant Guidebook does not provide any time lines for “letters of opposition.” It also does not set a deadline on letters of support either. In fact, with respect to CPE, the AGB states: “Before the community priority evaluation begins, the applicants who have elected to participate may be asked to provide additional information relevant to the community priority evaluation. “ Section 4.2.1 at p. 4-8. I think both those in support as well as those opposing took advantage of the extra time period. Bottom Line is that if we set a cutoff date for letters of opposition, should we set one up for letters of support? 1. We should also not confuse the normal public comment period with comment periods that are in response to application changes. The reason RVCs will trigger a new comment period is because it represents a change to the original application. And those changes should be subject to review. If an applicant does not make any changes to their application, there would not be a need for a new public comment period on that application. [cid:image001.png@01D66F30.6F325050] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 3:30 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Steve Chan <steve.chan@icann.org>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thanks Anne. The 2012 AGB provided for 2 application input opportunities, not including the GAC – “public comment” & “formal Objections.” That is it. Comment periods related to RVC and application changes are separate from these, but related in that they happen because of changes made to address concerns expressed during “public comment” and “formal Objections.” This means that we are telling everyone that if you have an issue with an application you must submit it during either the “public comment period” or the “formal Objections,” providing predictability to applicants on when they might need to react and respond with RVC or an application change. By not restricting “letters of opposition” to the “public comment period” we are essentially introducing a new application input period not described in the AGB – one that has no timeline and no rules around how it should work. I believe I heard Jeff say on that prior call that we are not trying to create this third new period for input, which I fully support not creating. ICANN staff arbitrarily created the “third input period,” simply because a “letter of opposition” was submitted months after formal Objections were completed in the 2012 round. It seems they didn’t know what to do with that input and instead of saying “sorry, it’s too late to submit public comment that could impact CPE scoring,” they decided to allow it to be submitted, against the timelines and rules provided in the AGB. I believe we need to correct that in subsequent rounds and Jeff suggested that the language in this report supports that. I don’t believe the language does, and worse, I think it is in conflict with his statement that “letters of opposition” should be considered “public comment” and follow the rules of the “public comment period.” I am all for supporting required comment periods around RVCs, but I am just suggesting that those periods where RVCs or application changes may occur should be predictable and centered around the “public comment period” and “formal Objections.” There should not be unlimited times during the application process for outsiders to insert pressure on an applicant that is not described in the AGB. Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Monday, August 10, 2020 at 2:25 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thank you Jamie. I appreciate your concern. I don’t know personally what the deadline is for filing letters of opposition to a community application. I assume it is the public comment period? I guess I would just repeat that as long as it is clear that any either public or private resolution of issues that results in the adoption of an RVC not contained in the original application absolutely requires public comment, then I am okay with the appropriate language/implementation. My example is: I write to you after your application is published and say, “unless you adopt X RVC, I will file an Objection or letter of Opposition to your application.” I think Kathie strongly objects to private resolution of issues via RVCs but I am not certain where she stands on this at this point. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 10:54 AM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Thanks Steve I would like to draw attention to Topic 28: Role of Application Comment (page 123, c.) On a call about RVC/PICs within the past few weeks I raised the concern about the term “informal opposition” and I asked quite clearly if it was considered “public comment” since it was certainly not “formal Objection.” The answer to that question was a resounding YES, specifically sighting that the group was not attempting to create a third type of input process/period beyond “public comment” and “formal Objections,” both of which have very specific rules and timelines linked to them. When I raised further concern about the need to limit “public comment” (including informal opposition) to the AGB designated “public comment period”, Jeff assured me that language had been adjusted elsewhere in the report to address it (presumably this section). None of the language in Topic 28 does however. Justine Chew also raised concern in the chat (possibly even Paul too), and I even requested to be pointed to that language since I had not seen it yet, but I never received a follow-up. The reason for this distinction is that in the 2012 round, ICANN permitted “informal opposition” to be submitted days before CPE started for Community applicants. This was years after the AGB advertised “public comment period” had ended, and months after “formal Objections” were completed. That “informal opposition” took direct aim at scoring in CPE (criteria #4). If “informal opposition” is officially considered “public comment,” and we are not creating a third layer of public input in addition to “public comment” and “formal Objections,” then why does the report suggest there is not group agreement on changing the 2012 practice to prevent last minute “informal opposition” against Community applicants that target CPE scoring? These two agreements/non-agreements are in direct conflict with each other. Either we require all “informal opposition” to be submitted during the official “public comment period” published in the AGB (as Jeff affirmed on the call), or we are giving ICANN the ability to toss out all applicant predictability and arbitrarily introduce new informal input periods not described in the AGB. In the bigger picture, and bringing it back to RVC/PICs, if ICANN allows last minute “informal opposition” it could create yet another delay for a Community applicant required to submit RVC/PICs or change their application to protect CPE points, when it could have been handled during the official “public comment period” already described in the AGB. Without addressing this issue, I feel confident that last minute “informal opposition” will once again be used as a gaming tactic in subsequent rounds to target and delay Community applicants during the homestretch. Happy to answer any questions for those who are not as familiar with how this all unfolded in the 2012 round. Cheers Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Date: Friday, August 7, 2020 at 11:36 AM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: steve.chan@icann.org<mailto:steve.chan@icann.org> Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=o7Auz997kA-HPv9PHJCjFVZw7Pgo8krw4MxfqCwBrIU&e=> Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNSO&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=kWw4fQPNjw2lVKy1UjTxS2F0BmjEAzaDFWNmsYywbmE&e=> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...> ________________________________ 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.

Hi Jeff, I do not distinctly recall, during the relevant WG calls, anyone objecting to what Jamie and I have been submitting in terms of prohibiting the acceptance by the evaluators of letters of opposition outside the accepted channels of public comment periods. If my recollection is faulty then I hope staff could enlighten us on who had objected. In the event no objection was recorded, then how were we supposed to have otherwise "achieved group agreement"? I do not see why Community-based applications should be subjected to additional - discriminatory, in effect - opportunity for scrutiny outside the opening public comment period or a subsequent public comment period triggered only by an Application Change Request submitted by the applicant. Same as any other applicant. There is no basis for any difference in treatment of Community-based applications beyond the additional questions required to be answered by an applicant if it indicates that its application is a community-based one at the point of submission. Much obliged, Justine --- On Tue, 11 Aug 2020 at 04:34, Jamie Baxter <jbaxter@spimarketing.com> wrote:

Thanks Jeff

As I have said in the past I am completely fine with not accepting support or opposition for an application after the public comment period published in the AGB. Consistency and predictability is key. I do not believe it was the practice of Community applicants to submit their application with the hope of gaining community support just prior to CPE commencing. It was however the practice that the necessary community support letters were submitted with the original applications.

What the AGB is clear on is that there are 2 periods for input outside of any “comment period” required for RVCs and application changes. As I’ve previously stated, there is the “public comment period” and the “formal Objections.” I believe you previously confirmed this when you stated that we are not trying to introduce any additional input periods – which would be some kind of new comment period prior to CPE starting.

I do not support keeping CPE separate from this discussion. I have never heard a valid reason to do so, other than to provide a third attempt to someone trying to derail a community applicant during CPE scoring. I think Community applicants should have the same predictability on opposition to their application that Standard applications currently have – i.e. it all needs to come in during the “public comment period” or “formal Objections.” To suggest Community applicants should be subject to further scrutiny is not based in any legitimate rational, and it was a bad judgement call made by ICANN in the 2012 round.

Jamie

*From: *Jeff Neuman <jeff@jjnsolutions.com> *Date: *Monday, August 10, 2020 at 4:20 PM *To: *Jamie Baxter <jbaxter@spimarketing.com>, "Aikman-Scalese, Anne" < AAikman@lrrc.com>, Steve Chan <steve.chan@icann.org>, " gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> *Subject: *RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

1. In the report, in Section 28, I see the following language in the New Ideas Section, but it did not achieve group agreement at the time:

“The Working Group discussed whether the public comment period for Community Priority Evaluation applications should be longer than the public comment period for standard applications, as was the case in the 2012 round, or if the two periods should be equal in length. The Working Group did not reach any agreement to change the 2012 practice, and therefore has not made any recommendations in this regard.”

Jamie – I think for CPE, we need to think of that as separate and apart from all of the other discussions of formal and informal objections. This would be good to submit in a public comment on because the Applicant Guidebook does not provide any time lines for “letters of opposition.” It also does not set a deadline on letters of support either. In fact, with respect to CPE, the AGB states:

“Before the community priority evaluation begins, the applicants who have elected to participate may be asked to provide additional information relevant to the community priority evaluation. “ Section 4.2.1 at p. 4-8.

I think both those in support as well as those opposing took advantage of the extra time period. Bottom Line is that if we set a cutoff date for letters of opposition, should we set one up for letters of support?

1. We should also not confuse the normal public comment period with comment periods that are in response to application changes. The reason RVCs will trigger a new comment period is because it represents a change to the original application. And those changes should be subject to review. If an applicant does not make any changes to their application, there would not be a need for a new public comment period on that application.

Jeffrey J. Neuman

Founder & CEO

JJN Solutions, LLC

p: +1.202.549.5079

E: jeff@jjnsolutions.com

http://jjnsolutions.com

*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Jamie Baxter *Sent:* Monday, August 10, 2020 3:30 PM *To:* Aikman-Scalese, Anne <AAikman@lrrc.com>; Steve Chan < steve.chan@icann.org>; gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Thanks Anne.

The 2012 AGB provided for 2 application input opportunities, not including the GAC – “public comment” & “formal Objections.” That is it.

Comment periods related to RVC and application changes are separate from these, but related in that they happen because of changes made to address concerns expressed during “public comment” and “formal Objections.” This means that we are telling everyone that if you have an issue with an application you must submit it during either the “public comment period” or the “formal Objections,” providing predictability to applicants on when they might need to react and respond with RVC or an application change.

By not restricting “letters of opposition” to the “public comment period” we are essentially introducing a new application input period not described in the AGB – one that has no timeline and no rules around how it should work. I believe I heard Jeff say on that prior call that we are not trying to create this third new period for input, which I fully support not creating.

ICANN staff arbitrarily created the “third input period,” simply because a “letter of opposition” was submitted months after formal Objections were completed in the 2012 round. It seems they didn’t know what to do with that input and instead of saying “sorry, it’s too late to submit public comment that could impact CPE scoring,” they decided to allow it to be submitted, against the timelines and rules provided in the AGB. I believe we need to correct that in subsequent rounds and Jeff suggested that the language in this report supports that. I don’t believe the language does, and worse, I think it is in conflict with his statement that “letters of opposition” should be considered “public comment” and follow the rules of the “public comment period.”

I am all for supporting required comment periods around RVCs, but I am just suggesting that those periods where RVCs or application changes may occur should be predictable and centered around the “public comment period” and “formal Objections.” There should not be unlimited times during the application process for outsiders to insert pressure on an applicant that is not described in the AGB.

Jamie

*From: *"Aikman-Scalese, Anne" <AAikman@lrrc.com> *Date: *Monday, August 10, 2020 at 2:25 PM *To: *Jamie Baxter <jbaxter@spimarketing.com>, Steve Chan < steve.chan@icann.org>, "gnso-newgtld-wg@icann.org" < gnso-newgtld-wg@icann.org> *Subject: *RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Thank you Jamie. I appreciate your concern. I don’t know personally what the deadline is for filing letters of opposition to a community application. I assume it is the public comment period?

I guess I would just repeat that as long as it is clear that any either public or private resolution of issues that results in the adoption of an RVC not contained in the original application absolutely requires public comment, then I am okay with the appropriate language/implementation. My example is: I write to you after your application is published and say, “unless you adopt X RVC, I will file an Objection or letter of Opposition to your application.”

I think Kathie strongly objects to private resolution of issues via RVCs but I am not certain where she stands on this at this point.

Anne

*From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> *On Behalf Of *Jamie Baxter *Sent:* Monday, August 10, 2020 10:54 AM *To:* Steve Chan <steve.chan@icann.org>; gnso-newgtld-wg@icann.org *Subject:* Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

*[EXTERNAL]* ------------------------------

Thanks Steve

I would like to draw attention to Topic 28: Role of Application Comment (page 123, c.)

On a call about RVC/PICs within the past few weeks I raised the concern about the term “informal opposition” and I asked quite clearly if it was considered “public comment” since it was certainly not “formal Objection.” The answer to that question was a resounding YES, specifically sighting that the group was not attempting to create a third type of input process/period beyond “public comment” and “formal Objections,” both of which have very specific rules and timelines linked to them.

When I raised further concern about the need to limit “public comment” (including informal opposition) to the AGB designated “public comment period”, Jeff assured me that language had been adjusted elsewhere in the report to address it (presumably this section). None of the language in Topic 28 does however. Justine Chew also raised concern in the chat (possibly even Paul too), and I even requested to be pointed to that language since I had not seen it yet, but I never received a follow-up.

The reason for this distinction is that in the 2012 round, ICANN permitted “informal opposition” to be submitted days before CPE started for Community applicants. This was years after the AGB advertised “public comment period” had ended, and months after “formal Objections” were completed. That “informal opposition” took direct aim at scoring in CPE (criteria #4).

If “informal opposition” is officially considered “public comment,” and we are not creating a third layer of public input in addition to “public comment” and “formal Objections,” then why does the report suggest there is not group agreement on changing the 2012 practice to prevent last minute “informal opposition” against Community applicants that target CPE scoring? These two agreements/non-agreements are in direct conflict with each other.

Either we require all “informal opposition” to be submitted during the official “public comment period” published in the AGB (as Jeff affirmed on the call), or we are giving ICANN the ability to toss out all applicant predictability and arbitrarily introduce new informal input periods not described in the AGB.

In the bigger picture, and bringing it back to RVC/PICs, if ICANN allows last minute “informal opposition” it could create yet another delay for a Community applicant required to submit RVC/PICs or change their application to protect CPE points, when it could have been handled during the official “public comment period” already described in the AGB. Without addressing this issue, I feel confident that last minute “informal opposition” will once again be used as a gaming tactic in subsequent rounds to target and delay Community applicants during the homestretch.

Happy to answer any questions for those who are not as familiar with how this all unfolded in the 2012 round.

Cheers

Jamie

*From: *Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of Steve Chan <steve.chan@icann.org> *Date: *Friday, August 7, 2020 at 11:36 AM *To: *"gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> *Subject: *[Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Dear WG Members,

As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020.

- For review and feedback no later than *Thursday, 13 August* (and for discussion on the WG call that same day) - Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding): https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... - Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report

- Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due *11 August at 23:59 UTC. *Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached.

- *NEW!* - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due *12 August at 23:59 UTC* – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgD... <https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgD...>. Again, feedback form is attached.

Please let us know if you have any questions or concerns.

Best,

Steve

*Steven Chan*

Policy Director, GNSO Support

Internet Corporation for Assigned Names and Numbers (ICANN)

12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536

Email: steve.chan@icann.org

Skype: steve.chan55

Mobile: +1.310.339.4410

Find out more about the GNSO by visiting: https://learn.icann.org/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMG...>

Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO <https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNS...>

Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...>

------------------------------

This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

Justine, this issue is a little more complex then it may initially appear and can form the basis for discussions during the public comment period. There are a number of sub-issues. First, during the 2012 round, there was no discussion about when comments about support and/or opposition for community applications had to be received. In fact, there is a specific reference in the AGB to allow CPE Evaluators to ask for additional information when it comes to for the actual evaluation. Although Applicants were annoyed that Letters of Opposition came in after the public comment period, there were also letters of Support that came in outside the normal public comment periods. So, do we continue to allow Letters of Support outside public comment periods, but not Letters of Opposition? Or do we establish a cut off for both? Should there be an extended Public Comment period for Letters of Support/Opposition, or should it be run in parallel with the regular public comment period? These are issues in all fairness that we did not come to any conclusion on and I think at this point would be ripe for comments to be filed during the comment period and we can discuss as well during the comment period. I don’t think we should be adding this to the draft at this point because it has not been fully sorted out. Its not that I object to the substance, but rather to the process of adding this at this time. Sincerely, Jeff [cid:image001.png@01D66FB9.B3DC4B00] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Justine Chew <justine.chew@gmail.com> Sent: Monday, August 10, 2020 11:23 PM To: Jeff Neuman <jeff@jjnsolutions.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi Jeff, I do not distinctly recall, during the relevant WG calls, anyone objecting to what Jamie and I have been submitting in terms of prohibiting the acceptance by the evaluators of letters of opposition outside the accepted channels of public comment periods. If my recollection is faulty then I hope staff could enlighten us on who had objected. In the event no objection was recorded, then how were we supposed to have otherwise "achieved group agreement"? I do not see why Community-based applications should be subjected to additional - discriminatory, in effect - opportunity for scrutiny outside the opening public comment period or a subsequent public comment period triggered only by an Application Change Request submitted by the applicant. Same as any other applicant. There is no basis for any difference in treatment of Community-based applications beyond the additional questions required to be answered by an applicant if it indicates that its application is a community-based one at the point of submission. Much obliged, Justine --- On Tue, 11 Aug 2020 at 04:34, Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> wrote: Thanks Jeff As I have said in the past I am completely fine with not accepting support or opposition for an application after the public comment period published in the AGB. Consistency and predictability is key. I do not believe it was the practice of Community applicants to submit their application with the hope of gaining community support just prior to CPE commencing. It was however the practice that the necessary community support letters were submitted with the original applications. What the AGB is clear on is that there are 2 periods for input outside of any “comment period” required for RVCs and application changes. As I’ve previously stated, there is the “public comment period” and the “formal Objections.” I believe you previously confirmed this when you stated that we are not trying to introduce any additional input periods – which would be some kind of new comment period prior to CPE starting. I do not support keeping CPE separate from this discussion. I have never heard a valid reason to do so, other than to provide a third attempt to someone trying to derail a community applicant during CPE scoring. I think Community applicants should have the same predictability on opposition to their application that Standard applications currently have – i.e. it all needs to come in during the “public comment period” or “formal Objections.” To suggest Community applicants should be subject to further scrutiny is not based in any legitimate rational, and it was a bad judgement call made by ICANN in the 2012 round. Jamie From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: Monday, August 10, 2020 at 4:20 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review 1. In the report, in Section 28, I see the following language in the New Ideas Section, but it did not achieve group agreement at the time: “The Working Group discussed whether the public comment period for Community Priority Evaluation applications should be longer than the public comment period for standard applications, as was the case in the 2012 round, or if the two periods should be equal in length. The Working Group did not reach any agreement to change the 2012 practice, and therefore has not made any recommendations in this regard.” Jamie – I think for CPE, we need to think of that as separate and apart from all of the other discussions of formal and informal objections. This would be good to submit in a public comment on because the Applicant Guidebook does not provide any time lines for “letters of opposition.” It also does not set a deadline on letters of support either. In fact, with respect to CPE, the AGB states: “Before the community priority evaluation begins, the applicants who have elected to participate may be asked to provide additional information relevant to the community priority evaluation. “ Section 4.2.1 at p. 4-8. I think both those in support as well as those opposing took advantage of the extra time period. Bottom Line is that if we set a cutoff date for letters of opposition, should we set one up for letters of support? 1. We should also not confuse the normal public comment period with comment periods that are in response to application changes. The reason RVCs will trigger a new comment period is because it represents a change to the original application. And those changes should be subject to review. If an applicant does not make any changes to their application, there would not be a need for a new public comment period on that application. [cid:image002.png@01D66FB9.B3DC4B00] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 3:30 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thanks Anne. The 2012 AGB provided for 2 application input opportunities, not including the GAC – “public comment” & “formal Objections.” That is it. Comment periods related to RVC and application changes are separate from these, but related in that they happen because of changes made to address concerns expressed during “public comment” and “formal Objections.” This means that we are telling everyone that if you have an issue with an application you must submit it during either the “public comment period” or the “formal Objections,” providing predictability to applicants on when they might need to react and respond with RVC or an application change. By not restricting “letters of opposition” to the “public comment period” we are essentially introducing a new application input period not described in the AGB – one that has no timeline and no rules around how it should work. I believe I heard Jeff say on that prior call that we are not trying to create this third new period for input, which I fully support not creating. ICANN staff arbitrarily created the “third input period,” simply because a “letter of opposition” was submitted months after formal Objections were completed in the 2012 round. It seems they didn’t know what to do with that input and instead of saying “sorry, it’s too late to submit public comment that could impact CPE scoring,” they decided to allow it to be submitted, against the timelines and rules provided in the AGB. I believe we need to correct that in subsequent rounds and Jeff suggested that the language in this report supports that. I don’t believe the language does, and worse, I think it is in conflict with his statement that “letters of opposition” should be considered “public comment” and follow the rules of the “public comment period.” I am all for supporting required comment periods around RVCs, but I am just suggesting that those periods where RVCs or application changes may occur should be predictable and centered around the “public comment period” and “formal Objections.” There should not be unlimited times during the application process for outsiders to insert pressure on an applicant that is not described in the AGB. Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Monday, August 10, 2020 at 2:25 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thank you Jamie. I appreciate your concern. I don’t know personally what the deadline is for filing letters of opposition to a community application. I assume it is the public comment period? I guess I would just repeat that as long as it is clear that any either public or private resolution of issues that results in the adoption of an RVC not contained in the original application absolutely requires public comment, then I am okay with the appropriate language/implementation. My example is: I write to you after your application is published and say, “unless you adopt X RVC, I will file an Objection or letter of Opposition to your application.” I think Kathie strongly objects to private resolution of issues via RVCs but I am not certain where she stands on this at this point. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 10:54 AM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Thanks Steve I would like to draw attention to Topic 28: Role of Application Comment (page 123, c.) On a call about RVC/PICs within the past few weeks I raised the concern about the term “informal opposition” and I asked quite clearly if it was considered “public comment” since it was certainly not “formal Objection.” The answer to that question was a resounding YES, specifically sighting that the group was not attempting to create a third type of input process/period beyond “public comment” and “formal Objections,” both of which have very specific rules and timelines linked to them. When I raised further concern about the need to limit “public comment” (including informal opposition) to the AGB designated “public comment period”, Jeff assured me that language had been adjusted elsewhere in the report to address it (presumably this section). None of the language in Topic 28 does however. Justine Chew also raised concern in the chat (possibly even Paul too), and I even requested to be pointed to that language since I had not seen it yet, but I never received a follow-up. The reason for this distinction is that in the 2012 round, ICANN permitted “informal opposition” to be submitted days before CPE started for Community applicants. This was years after the AGB advertised “public comment period” had ended, and months after “formal Objections” were completed. That “informal opposition” took direct aim at scoring in CPE (criteria #4). If “informal opposition” is officially considered “public comment,” and we are not creating a third layer of public input in addition to “public comment” and “formal Objections,” then why does the report suggest there is not group agreement on changing the 2012 practice to prevent last minute “informal opposition” against Community applicants that target CPE scoring? These two agreements/non-agreements are in direct conflict with each other. Either we require all “informal opposition” to be submitted during the official “public comment period” published in the AGB (as Jeff affirmed on the call), or we are giving ICANN the ability to toss out all applicant predictability and arbitrarily introduce new informal input periods not described in the AGB. In the bigger picture, and bringing it back to RVC/PICs, if ICANN allows last minute “informal opposition” it could create yet another delay for a Community applicant required to submit RVC/PICs or change their application to protect CPE points, when it could have been handled during the official “public comment period” already described in the AGB. Without addressing this issue, I feel confident that last minute “informal opposition” will once again be used as a gaming tactic in subsequent rounds to target and delay Community applicants during the homestretch. Happy to answer any questions for those who are not as familiar with how this all unfolded in the 2012 round. Cheers Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Date: Friday, August 7, 2020 at 11:36 AM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: steve.chan@icann.org<mailto:steve.chan@icann.org> Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=o7Auz997kA-HPv9PHJCjFVZw7Pgo8krw4MxfqCwBrIU&e=> Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNSO&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=kWw4fQPNjw2lVKy1UjTxS2F0BmjEAzaDFWNmsYywbmE&e=> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...> ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

Hey Jeff As an applicant in the 2012 round, the AGB was clear that letters of support were required to be submitted with the application. Nothing suggested that you could gather your letters of support months or years later. Just because some submitted additional letters of support during the comment period to show the ongoing awareness and growing support of their application, it was not assumed that those letters would be part of the evaluation. In fact it would silly for community applicants not to continue outreach into their communities just because their application was submitted, and if some decided to they still wanted to submit a letter of support on their letterhead so be it. It is important to clarify this because your suggestion is that it was assumed by applicants that they could submit support letters well after submitting their original application. That is a false narrative and not what the AGB says. It clearly states your letters of support need to be submitted with the application. As I have stated before and will continue to state, I am all for preventing any further support or opposition from being considered if it does not get submitted during the “public comment period” described in the AGB. The AGB reference to CPE evaluators asking for more information when it comes to the actual evaluation has no connection to giving more time for support or opposition submission. It was a chance for CPE evaluators to better understand the application as it was submitted, through communication with the applicant only, and I don’t think it is fair or appropriate to suggest it means something more. As Justine pointed out, I would like to see records of any disagreement on this topic, one which even you as co-chair indicated did not have disagreement and was reflected in the report when I raised this issue on a call a few weeks back when discussing RVCs. Thanks Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of Jeff Neuman <jeff@jjnsolutions.com> Date: Tuesday, August 11, 2020 at 8:34 AM To: Justine Chew <justine.chew@gmail.com> Cc: "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Justine, this issue is a little more complex then it may initially appear and can form the basis for discussions during the public comment period. There are a number of sub-issues. First, during the 2012 round, there was no discussion about when comments about support and/or opposition for community applications had to be received. In fact, there is a specific reference in the AGB to allow CPE Evaluators to ask for additional information when it comes to for the actual evaluation. Although Applicants were annoyed that Letters of Opposition came in after the public comment period, there were also letters of Support that came in outside the normal public comment periods. So, do we continue to allow Letters of Support outside public comment periods, but not Letters of Opposition? Or do we establish a cut off for both? Should there be an extended Public Comment period for Letters of Support/Opposition, or should it be run in parallel with the regular public comment period? These are issues in all fairness that we did not come to any conclusion on and I think at this point would be ripe for comments to be filed during the comment period and we can discuss as well during the comment period. I don’t think we should be adding this to the draft at this point because it has not been fully sorted out. Its not that I object to the substance, but rather to the process of adding this at this time. Sincerely, Jeff [cid:image001.png@01D66FBC.B8AB57E0] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Justine Chew <justine.chew@gmail.com> Sent: Monday, August 10, 2020 11:23 PM To: Jeff Neuman <jeff@jjnsolutions.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi Jeff, I do not distinctly recall, during the relevant WG calls, anyone objecting to what Jamie and I have been submitting in terms of prohibiting the acceptance by the evaluators of letters of opposition outside the accepted channels of public comment periods. If my recollection is faulty then I hope staff could enlighten us on who had objected. In the event no objection was recorded, then how were we supposed to have otherwise "achieved group agreement"? I do not see why Community-based applications should be subjected to additional - discriminatory, in effect - opportunity for scrutiny outside the opening public comment period or a subsequent public comment period triggered only by an Application Change Request submitted by the applicant. Same as any other applicant. There is no basis for any difference in treatment of Community-based applications beyond the additional questions required to be answered by an applicant if it indicates that its application is a community-based one at the point of submission. Much obliged, Justine --- On Tue, 11 Aug 2020 at 04:34, Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> wrote: Thanks Jeff As I have said in the past I am completely fine with not accepting support or opposition for an application after the public comment period published in the AGB. Consistency and predictability is key. I do not believe it was the practice of Community applicants to submit their application with the hope of gaining community support just prior to CPE commencing. It was however the practice that the necessary community support letters were submitted with the original applications. What the AGB is clear on is that there are 2 periods for input outside of any “comment period” required for RVCs and application changes. As I’ve previously stated, there is the “public comment period” and the “formal Objections.” I believe you previously confirmed this when you stated that we are not trying to introduce any additional input periods – which would be some kind of new comment period prior to CPE starting. I do not support keeping CPE separate from this discussion. I have never heard a valid reason to do so, other than to provide a third attempt to someone trying to derail a community applicant during CPE scoring. I think Community applicants should have the same predictability on opposition to their application that Standard applications currently have – i.e. it all needs to come in during the “public comment period” or “formal Objections.” To suggest Community applicants should be subject to further scrutiny is not based in any legitimate rational, and it was a bad judgement call made by ICANN in the 2012 round. Jamie From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: Monday, August 10, 2020 at 4:20 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review 1. In the report, in Section 28, I see the following language in the New Ideas Section, but it did not achieve group agreement at the time: “The Working Group discussed whether the public comment period for Community Priority Evaluation applications should be longer than the public comment period for standard applications, as was the case in the 2012 round, or if the two periods should be equal in length. The Working Group did not reach any agreement to change the 2012 practice, and therefore has not made any recommendations in this regard.” Jamie – I think for CPE, we need to think of that as separate and apart from all of the other discussions of formal and informal objections. This would be good to submit in a public comment on because the Applicant Guidebook does not provide any time lines for “letters of opposition.” It also does not set a deadline on letters of support either. In fact, with respect to CPE, the AGB states: “Before the community priority evaluation begins, the applicants who have elected to participate may be asked to provide additional information relevant to the community priority evaluation. “ Section 4.2.1 at p. 4-8. I think both those in support as well as those opposing took advantage of the extra time period. Bottom Line is that if we set a cutoff date for letters of opposition, should we set one up for letters of support? 1. We should also not confuse the normal public comment period with comment periods that are in response to application changes. The reason RVCs will trigger a new comment period is because it represents a change to the original application. And those changes should be subject to review. If an applicant does not make any changes to their application, there would not be a need for a new public comment period on that application. [cid:image002.png@01D66FBC.B8AB57E0] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 3:30 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thanks Anne. The 2012 AGB provided for 2 application input opportunities, not including the GAC – “public comment” & “formal Objections.” That is it. Comment periods related to RVC and application changes are separate from these, but related in that they happen because of changes made to address concerns expressed during “public comment” and “formal Objections.” This means that we are telling everyone that if you have an issue with an application you must submit it during either the “public comment period” or the “formal Objections,” providing predictability to applicants on when they might need to react and respond with RVC or an application change. By not restricting “letters of opposition” to the “public comment period” we are essentially introducing a new application input period not described in the AGB – one that has no timeline and no rules around how it should work. I believe I heard Jeff say on that prior call that we are not trying to create this third new period for input, which I fully support not creating. ICANN staff arbitrarily created the “third input period,” simply because a “letter of opposition” was submitted months after formal Objections were completed in the 2012 round. It seems they didn’t know what to do with that input and instead of saying “sorry, it’s too late to submit public comment that could impact CPE scoring,” they decided to allow it to be submitted, against the timelines and rules provided in the AGB. I believe we need to correct that in subsequent rounds and Jeff suggested that the language in this report supports that. I don’t believe the language does, and worse, I think it is in conflict with his statement that “letters of opposition” should be considered “public comment” and follow the rules of the “public comment period.” I am all for supporting required comment periods around RVCs, but I am just suggesting that those periods where RVCs or application changes may occur should be predictable and centered around the “public comment period” and “formal Objections.” There should not be unlimited times during the application process for outsiders to insert pressure on an applicant that is not described in the AGB. Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Monday, August 10, 2020 at 2:25 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thank you Jamie. I appreciate your concern. I don’t know personally what the deadline is for filing letters of opposition to a community application. I assume it is the public comment period? I guess I would just repeat that as long as it is clear that any either public or private resolution of issues that results in the adoption of an RVC not contained in the original application absolutely requires public comment, then I am okay with the appropriate language/implementation. My example is: I write to you after your application is published and say, “unless you adopt X RVC, I will file an Objection or letter of Opposition to your application.” I think Kathie strongly objects to private resolution of issues via RVCs but I am not certain where she stands on this at this point. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 10:54 AM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Thanks Steve I would like to draw attention to Topic 28: Role of Application Comment (page 123, c.) On a call about RVC/PICs within the past few weeks I raised the concern about the term “informal opposition” and I asked quite clearly if it was considered “public comment” since it was certainly not “formal Objection.” The answer to that question was a resounding YES, specifically sighting that the group was not attempting to create a third type of input process/period beyond “public comment” and “formal Objections,” both of which have very specific rules and timelines linked to them. When I raised further concern about the need to limit “public comment” (including informal opposition) to the AGB designated “public comment period”, Jeff assured me that language had been adjusted elsewhere in the report to address it (presumably this section). None of the language in Topic 28 does however. Justine Chew also raised concern in the chat (possibly even Paul too), and I even requested to be pointed to that language since I had not seen it yet, but I never received a follow-up. The reason for this distinction is that in the 2012 round, ICANN permitted “informal opposition” to be submitted days before CPE started for Community applicants. This was years after the AGB advertised “public comment period” had ended, and months after “formal Objections” were completed. That “informal opposition” took direct aim at scoring in CPE (criteria #4). If “informal opposition” is officially considered “public comment,” and we are not creating a third layer of public input in addition to “public comment” and “formal Objections,” then why does the report suggest there is not group agreement on changing the 2012 practice to prevent last minute “informal opposition” against Community applicants that target CPE scoring? These two agreements/non-agreements are in direct conflict with each other. Either we require all “informal opposition” to be submitted during the official “public comment period” published in the AGB (as Jeff affirmed on the call), or we are giving ICANN the ability to toss out all applicant predictability and arbitrarily introduce new informal input periods not described in the AGB. In the bigger picture, and bringing it back to RVC/PICs, if ICANN allows last minute “informal opposition” it could create yet another delay for a Community applicant required to submit RVC/PICs or change their application to protect CPE points, when it could have been handled during the official “public comment period” already described in the AGB. Without addressing this issue, I feel confident that last minute “informal opposition” will once again be used as a gaming tactic in subsequent rounds to target and delay Community applicants during the homestretch. Happy to answer any questions for those who are not as familiar with how this all unfolded in the 2012 round. Cheers Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Date: Friday, August 7, 2020 at 11:36 AM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
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Jamie, Please understand that I do not have a substantive objection to any of this. But as Working Group Chairs, we try to assess levels of support for a particular proposal, not just the absence of disagreement. There were plenty of ideas that were presented to the group at one time or another that did not have vocal opposition, but on the other hand, there was not much vocal support. And therefore, they were not included. All I am saying here is that we need to give this a little more thought. We are going to be addressing CPE during the Public Comment Period anyway, so why not just add this issue to the mix. Whether it was understood by the applicants or not, in the CPE Panel Process document (http://newgtlds.icann.org/en/applicants/cpe/panel-process-07aug14-en.pdf), the EIU states that “On a regular basis, the EIU reviews ICANN’s public correspondence page (http://newgtlds.icann.org/en/program-status/correspondence) for recently received correspondence to assess whether it is relevant to an ongoing evaluation. If it is relevant, the public correspondence is provided to the evaluators assigned to the evaluation for review." (Page 5) This meant that in the 2012 round, whether anticipated by Applicants or not, comments were accepted both in support and against Community Applications. So: 1. I agree with you all that this was an unpredictable process not necessarily known by applicants 2. It was, and could be in the future, highly susceptible to gaming 3. There should be controls developed to prevent this kind of thing in the future. That said, this requires a much more comprehensive discussion that our final review of the Draft Final Report. I promise we will discuss it and hopefully come up with an acceptable solution. We already have this topic scheduled for discussion during the Draft Final Report public comment period. We also have the topic of the CPE Guidelines document as well. So for now, can we just recognize we have a hole we need to patch during the next month or two and move on. The hole includes (a) defining the CPE Public Comment period which includes when Letters of Support and Opposition must be submitted, (b) whether Letters of Support after such date can be accepted as an “Application Change” that would give rise to another public comment period, and (c) discussing the verification process of Letters of Support/Opposition in some more details, (d) reviewing the rest of the CPE Guidelines. Sincerely, Jeff [cid:image003.png@01D66FC0.50E46E40] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Jamie Baxter <jbaxter@spimarketing.com> Sent: Tuesday, August 11, 2020 8:52 AM To: Jeff Neuman <jeff@jjnsolutions.com>; Justine Chew <justine.chew@gmail.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hey Jeff As an applicant in the 2012 round, the AGB was clear that letters of support were required to be submitted with the application. Nothing suggested that you could gather your letters of support months or years later. Just because some submitted additional letters of support during the comment period to show the ongoing awareness and growing support of their application, it was not assumed that those letters would be part of the evaluation. In fact it would silly for community applicants not to continue outreach into their communities just because their application was submitted, and if some decided to they still wanted to submit a letter of support on their letterhead so be it. It is important to clarify this because your suggestion is that it was assumed by applicants that they could submit support letters well after submitting their original application. That is a false narrative and not what the AGB says. It clearly states your letters of support need to be submitted with the application. As I have stated before and will continue to state, I am all for preventing any further support or opposition from being considered if it does not get submitted during the “public comment period” described in the AGB. The AGB reference to CPE evaluators asking for more information when it comes to the actual evaluation has no connection to giving more time for support or opposition submission. It was a chance for CPE evaluators to better understand the application as it was submitted, through communication with the applicant only, and I don’t think it is fair or appropriate to suggest it means something more. As Justine pointed out, I would like to see records of any disagreement on this topic, one which even you as co-chair indicated did not have disagreement and was reflected in the report when I raised this issue on a call a few weeks back when discussing RVCs. Thanks Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: Tuesday, August 11, 2020 at 8:34 AM To: Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Justine, this issue is a little more complex then it may initially appear and can form the basis for discussions during the public comment period. There are a number of sub-issues. First, during the 2012 round, there was no discussion about when comments about support and/or opposition for community applications had to be received. In fact, there is a specific reference in the AGB to allow CPE Evaluators to ask for additional information when it comes to for the actual evaluation. Although Applicants were annoyed that Letters of Opposition came in after the public comment period, there were also letters of Support that came in outside the normal public comment periods. So, do we continue to allow Letters of Support outside public comment periods, but not Letters of Opposition? Or do we establish a cut off for both? Should there be an extended Public Comment period for Letters of Support/Opposition, or should it be run in parallel with the regular public comment period? These are issues in all fairness that we did not come to any conclusion on and I think at this point would be ripe for comments to be filed during the comment period and we can discuss as well during the comment period. I don’t think we should be adding this to the draft at this point because it has not been fully sorted out. Its not that I object to the substance, but rather to the process of adding this at this time. Sincerely, Jeff [cid:image004.png@01D66FC0.50E46E40] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Sent: Monday, August 10, 2020 11:23 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi Jeff, I do not distinctly recall, during the relevant WG calls, anyone objecting to what Jamie and I have been submitting in terms of prohibiting the acceptance by the evaluators of letters of opposition outside the accepted channels of public comment periods. If my recollection is faulty then I hope staff could enlighten us on who had objected. In the event no objection was recorded, then how were we supposed to have otherwise "achieved group agreement"? I do not see why Community-based applications should be subjected to additional - discriminatory, in effect - opportunity for scrutiny outside the opening public comment period or a subsequent public comment period triggered only by an Application Change Request submitted by the applicant. Same as any other applicant. There is no basis for any difference in treatment of Community-based applications beyond the additional questions required to be answered by an applicant if it indicates that its application is a community-based one at the point of submission. Much obliged, Justine --- On Tue, 11 Aug 2020 at 04:34, Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> wrote: Thanks Jeff As I have said in the past I am completely fine with not accepting support or opposition for an application after the public comment period published in the AGB. Consistency and predictability is key. I do not believe it was the practice of Community applicants to submit their application with the hope of gaining community support just prior to CPE commencing. It was however the practice that the necessary community support letters were submitted with the original applications. What the AGB is clear on is that there are 2 periods for input outside of any “comment period” required for RVCs and application changes. As I’ve previously stated, there is the “public comment period” and the “formal Objections.” I believe you previously confirmed this when you stated that we are not trying to introduce any additional input periods – which would be some kind of new comment period prior to CPE starting. I do not support keeping CPE separate from this discussion. I have never heard a valid reason to do so, other than to provide a third attempt to someone trying to derail a community applicant during CPE scoring. I think Community applicants should have the same predictability on opposition to their application that Standard applications currently have – i.e. it all needs to come in during the “public comment period” or “formal Objections.” To suggest Community applicants should be subject to further scrutiny is not based in any legitimate rational, and it was a bad judgement call made by ICANN in the 2012 round. Jamie From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: Monday, August 10, 2020 at 4:20 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review 1. In the report, in Section 28, I see the following language in the New Ideas Section, but it did not achieve group agreement at the time: “The Working Group discussed whether the public comment period for Community Priority Evaluation applications should be longer than the public comment period for standard applications, as was the case in the 2012 round, or if the two periods should be equal in length. The Working Group did not reach any agreement to change the 2012 practice, and therefore has not made any recommendations in this regard.” Jamie – I think for CPE, we need to think of that as separate and apart from all of the other discussions of formal and informal objections. This would be good to submit in a public comment on because the Applicant Guidebook does not provide any time lines for “letters of opposition.” It also does not set a deadline on letters of support either. In fact, with respect to CPE, the AGB states: “Before the community priority evaluation begins, the applicants who have elected to participate may be asked to provide additional information relevant to the community priority evaluation. “ Section 4.2.1 at p. 4-8. I think both those in support as well as those opposing took advantage of the extra time period. Bottom Line is that if we set a cutoff date for letters of opposition, should we set one up for letters of support? 1. We should also not confuse the normal public comment period with comment periods that are in response to application changes. The reason RVCs will trigger a new comment period is because it represents a change to the original application. And those changes should be subject to review. If an applicant does not make any changes to their application, there would not be a need for a new public comment period on that application. [cid:image005.png@01D66FC0.50E46E40] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 3:30 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thanks Anne. The 2012 AGB provided for 2 application input opportunities, not including the GAC – “public comment” & “formal Objections.” That is it. Comment periods related to RVC and application changes are separate from these, but related in that they happen because of changes made to address concerns expressed during “public comment” and “formal Objections.” This means that we are telling everyone that if you have an issue with an application you must submit it during either the “public comment period” or the “formal Objections,” providing predictability to applicants on when they might need to react and respond with RVC or an application change. By not restricting “letters of opposition” to the “public comment period” we are essentially introducing a new application input period not described in the AGB – one that has no timeline and no rules around how it should work. I believe I heard Jeff say on that prior call that we are not trying to create this third new period for input, which I fully support not creating. ICANN staff arbitrarily created the “third input period,” simply because a “letter of opposition” was submitted months after formal Objections were completed in the 2012 round. It seems they didn’t know what to do with that input and instead of saying “sorry, it’s too late to submit public comment that could impact CPE scoring,” they decided to allow it to be submitted, against the timelines and rules provided in the AGB. I believe we need to correct that in subsequent rounds and Jeff suggested that the language in this report supports that. I don’t believe the language does, and worse, I think it is in conflict with his statement that “letters of opposition” should be considered “public comment” and follow the rules of the “public comment period.” I am all for supporting required comment periods around RVCs, but I am just suggesting that those periods where RVCs or application changes may occur should be predictable and centered around the “public comment period” and “formal Objections.” There should not be unlimited times during the application process for outsiders to insert pressure on an applicant that is not described in the AGB. Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Monday, August 10, 2020 at 2:25 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thank you Jamie. I appreciate your concern. I don’t know personally what the deadline is for filing letters of opposition to a community application. I assume it is the public comment period? I guess I would just repeat that as long as it is clear that any either public or private resolution of issues that results in the adoption of an RVC not contained in the original application absolutely requires public comment, then I am okay with the appropriate language/implementation. My example is: I write to you after your application is published and say, “unless you adopt X RVC, I will file an Objection or letter of Opposition to your application.” I think Kathie strongly objects to private resolution of issues via RVCs but I am not certain where she stands on this at this point. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 10:54 AM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Thanks Steve I would like to draw attention to Topic 28: Role of Application Comment (page 123, c.) On a call about RVC/PICs within the past few weeks I raised the concern about the term “informal opposition” and I asked quite clearly if it was considered “public comment” since it was certainly not “formal Objection.” The answer to that question was a resounding YES, specifically sighting that the group was not attempting to create a third type of input process/period beyond “public comment” and “formal Objections,” both of which have very specific rules and timelines linked to them. When I raised further concern about the need to limit “public comment” (including informal opposition) to the AGB designated “public comment period”, Jeff assured me that language had been adjusted elsewhere in the report to address it (presumably this section). None of the language in Topic 28 does however. Justine Chew also raised concern in the chat (possibly even Paul too), and I even requested to be pointed to that language since I had not seen it yet, but I never received a follow-up. The reason for this distinction is that in the 2012 round, ICANN permitted “informal opposition” to be submitted days before CPE started for Community applicants. This was years after the AGB advertised “public comment period” had ended, and months after “formal Objections” were completed. That “informal opposition” took direct aim at scoring in CPE (criteria #4). If “informal opposition” is officially considered “public comment,” and we are not creating a third layer of public input in addition to “public comment” and “formal Objections,” then why does the report suggest there is not group agreement on changing the 2012 practice to prevent last minute “informal opposition” against Community applicants that target CPE scoring? These two agreements/non-agreements are in direct conflict with each other. Either we require all “informal opposition” to be submitted during the official “public comment period” published in the AGB (as Jeff affirmed on the call), or we are giving ICANN the ability to toss out all applicant predictability and arbitrarily introduce new informal input periods not described in the AGB. In the bigger picture, and bringing it back to RVC/PICs, if ICANN allows last minute “informal opposition” it could create yet another delay for a Community applicant required to submit RVC/PICs or change their application to protect CPE points, when it could have been handled during the official “public comment period” already described in the AGB. Without addressing this issue, I feel confident that last minute “informal opposition” will once again be used as a gaming tactic in subsequent rounds to target and delay Community applicants during the homestretch. Happy to answer any questions for those who are not as familiar with how this all unfolded in the 2012 round. Cheers Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Date: Friday, August 7, 2020 at 11:36 AM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
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Hi Jeff, Just a note regarding (c) verification of letters of support/opposition, we do have some language related to the boundaries for the evaluator in terms of relying on independent research in making a determination. It strikes me that “verification” is a form of independent research that would trigger an ability on the part of the applicant to respond before the evaluator issues a decision based on that information. We tried to cover at least that much in the agreed changes to the CPE. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jeff Neuman Sent: Tuesday, August 11, 2020 6:18 AM To: Jamie Baxter <jbaxter@spimarketing.com>; Justine Chew <justine.chew@gmail.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Jamie, Please understand that I do not have a substantive objection to any of this. But as Working Group Chairs, we try to assess levels of support for a particular proposal, not just the absence of disagreement. There were plenty of ideas that were presented to the group at one time or another that did not have vocal opposition, but on the other hand, there was not much vocal support. And therefore, they were not included. All I am saying here is that we need to give this a little more thought. We are going to be addressing CPE during the Public Comment Period anyway, so why not just add this issue to the mix. Whether it was understood by the applicants or not, in the CPE Panel Process document (http://newgtlds.icann.org/en/applicants/cpe/panel-process-07aug14-en.pdf), the EIU states that “On a regular basis, the EIU reviews ICANN’s public correspondence page (http://newgtlds.icann.org/en/program-status/correspondence) for recently received correspondence to assess whether it is relevant to an ongoing evaluation. If it is relevant, the public correspondence is provided to the evaluators assigned to the evaluation for review." (Page 5) This meant that in the 2012 round, whether anticipated by Applicants or not, comments were accepted both in support and against Community Applications. So: a) I agree with you all that this was an unpredictable process not necessarily known by applicants b) It was, and could be in the future, highly susceptible to gaming c) There should be controls developed to prevent this kind of thing in the future. That said, this requires a much more comprehensive discussion that our final review of the Draft Final Report. I promise we will discuss it and hopefully come up with an acceptable solution. We already have this topic scheduled for discussion during the Draft Final Report public comment period. We also have the topic of the CPE Guidelines document as well. So for now, can we just recognize we have a hole we need to patch during the next month or two and move on. The hole includes (a) defining the CPE Public Comment period which includes when Letters of Support and Opposition must be submitted, (b) whether Letters of Support after such date can be accepted as an “Application Change” that would give rise to another public comment period, and (c) discussing the verification process of Letters of Support/Opposition in some more details, (d) reviewing the rest of the CPE Guidelines. Sincerely, Jeff [cid:image001.png@01D66FE0.856207C0] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> Sent: Tuesday, August 11, 2020 8:52 AM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hey Jeff As an applicant in the 2012 round, the AGB was clear that letters of support were required to be submitted with the application. Nothing suggested that you could gather your letters of support months or years later. Just because some submitted additional letters of support during the comment period to show the ongoing awareness and growing support of their application, it was not assumed that those letters would be part of the evaluation. In fact it would silly for community applicants not to continue outreach into their communities just because their application was submitted, and if some decided to they still wanted to submit a letter of support on their letterhead so be it. It is important to clarify this because your suggestion is that it was assumed by applicants that they could submit support letters well after submitting their original application. That is a false narrative and not what the AGB says. It clearly states your letters of support need to be submitted with the application. As I have stated before and will continue to state, I am all for preventing any further support or opposition from being considered if it does not get submitted during the “public comment period” described in the AGB. The AGB reference to CPE evaluators asking for more information when it comes to the actual evaluation has no connection to giving more time for support or opposition submission. It was a chance for CPE evaluators to better understand the application as it was submitted, through communication with the applicant only, and I don’t think it is fair or appropriate to suggest it means something more. As Justine pointed out, I would like to see records of any disagreement on this topic, one which even you as co-chair indicated did not have disagreement and was reflected in the report when I raised this issue on a call a few weeks back when discussing RVCs. Thanks Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: Tuesday, August 11, 2020 at 8:34 AM To: Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Justine, this issue is a little more complex then it may initially appear and can form the basis for discussions during the public comment period. There are a number of sub-issues. First, during the 2012 round, there was no discussion about when comments about support and/or opposition for community applications had to be received. In fact, there is a specific reference in the AGB to allow CPE Evaluators to ask for additional information when it comes to for the actual evaluation. Although Applicants were annoyed that Letters of Opposition came in after the public comment period, there were also letters of Support that came in outside the normal public comment periods. So, do we continue to allow Letters of Support outside public comment periods, but not Letters of Opposition? Or do we establish a cut off for both? Should there be an extended Public Comment period for Letters of Support/Opposition, or should it be run in parallel with the regular public comment period? These are issues in all fairness that we did not come to any conclusion on and I think at this point would be ripe for comments to be filed during the comment period and we can discuss as well during the comment period. I don’t think we should be adding this to the draft at this point because it has not been fully sorted out. Its not that I object to the substance, but rather to the process of adding this at this time. Sincerely, Jeff [cid:image002.png@01D66FE0.856207C0] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Sent: Monday, August 10, 2020 11:23 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi Jeff, I do not distinctly recall, during the relevant WG calls, anyone objecting to what Jamie and I have been submitting in terms of prohibiting the acceptance by the evaluators of letters of opposition outside the accepted channels of public comment periods. If my recollection is faulty then I hope staff could enlighten us on who had objected. In the event no objection was recorded, then how were we supposed to have otherwise "achieved group agreement"? I do not see why Community-based applications should be subjected to additional - discriminatory, in effect - opportunity for scrutiny outside the opening public comment period or a subsequent public comment period triggered only by an Application Change Request submitted by the applicant. Same as any other applicant. There is no basis for any difference in treatment of Community-based applications beyond the additional questions required to be answered by an applicant if it indicates that its application is a community-based one at the point of submission. Much obliged, Justine --- On Tue, 11 Aug 2020 at 04:34, Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> wrote: Thanks Jeff As I have said in the past I am completely fine with not accepting support or opposition for an application after the public comment period published in the AGB. Consistency and predictability is key. I do not believe it was the practice of Community applicants to submit their application with the hope of gaining community support just prior to CPE commencing. It was however the practice that the necessary community support letters were submitted with the original applications. What the AGB is clear on is that there are 2 periods for input outside of any “comment period” required for RVCs and application changes. As I’ve previously stated, there is the “public comment period” and the “formal Objections.” I believe you previously confirmed this when you stated that we are not trying to introduce any additional input periods – which would be some kind of new comment period prior to CPE starting. I do not support keeping CPE separate from this discussion. I have never heard a valid reason to do so, other than to provide a third attempt to someone trying to derail a community applicant during CPE scoring. I think Community applicants should have the same predictability on opposition to their application that Standard applications currently have – i.e. it all needs to come in during the “public comment period” or “formal Objections.” To suggest Community applicants should be subject to further scrutiny is not based in any legitimate rational, and it was a bad judgement call made by ICANN in the 2012 round. Jamie From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: Monday, August 10, 2020 at 4:20 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review 1. In the report, in Section 28, I see the following language in the New Ideas Section, but it did not achieve group agreement at the time: “The Working Group discussed whether the public comment period for Community Priority Evaluation applications should be longer than the public comment period for standard applications, as was the case in the 2012 round, or if the two periods should be equal in length. The Working Group did not reach any agreement to change the 2012 practice, and therefore has not made any recommendations in this regard.” Jamie – I think for CPE, we need to think of that as separate and apart from all of the other discussions of formal and informal objections. This would be good to submit in a public comment on because the Applicant Guidebook does not provide any time lines for “letters of opposition.” It also does not set a deadline on letters of support either. In fact, with respect to CPE, the AGB states: “Before the community priority evaluation begins, the applicants who have elected to participate may be asked to provide additional information relevant to the community priority evaluation. “ Section 4.2.1 at p. 4-8. I think both those in support as well as those opposing took advantage of the extra time period. Bottom Line is that if we set a cutoff date for letters of opposition, should we set one up for letters of support? 1. We should also not confuse the normal public comment period with comment periods that are in response to application changes. The reason RVCs will trigger a new comment period is because it represents a change to the original application. And those changes should be subject to review. If an applicant does not make any changes to their application, there would not be a need for a new public comment period on that application. [cid:image006.png@01D66FE0.856207C0] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 3:30 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thanks Anne. The 2012 AGB provided for 2 application input opportunities, not including the GAC – “public comment” & “formal Objections.” That is it. Comment periods related to RVC and application changes are separate from these, but related in that they happen because of changes made to address concerns expressed during “public comment” and “formal Objections.” This means that we are telling everyone that if you have an issue with an application you must submit it during either the “public comment period” or the “formal Objections,” providing predictability to applicants on when they might need to react and respond with RVC or an application change. By not restricting “letters of opposition” to the “public comment period” we are essentially introducing a new application input period not described in the AGB – one that has no timeline and no rules around how it should work. I believe I heard Jeff say on that prior call that we are not trying to create this third new period for input, which I fully support not creating. ICANN staff arbitrarily created the “third input period,” simply because a “letter of opposition” was submitted months after formal Objections were completed in the 2012 round. It seems they didn’t know what to do with that input and instead of saying “sorry, it’s too late to submit public comment that could impact CPE scoring,” they decided to allow it to be submitted, against the timelines and rules provided in the AGB. I believe we need to correct that in subsequent rounds and Jeff suggested that the language in this report supports that. I don’t believe the language does, and worse, I think it is in conflict with his statement that “letters of opposition” should be considered “public comment” and follow the rules of the “public comment period.” I am all for supporting required comment periods around RVCs, but I am just suggesting that those periods where RVCs or application changes may occur should be predictable and centered around the “public comment period” and “formal Objections.” There should not be unlimited times during the application process for outsiders to insert pressure on an applicant that is not described in the AGB. Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Monday, August 10, 2020 at 2:25 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thank you Jamie. I appreciate your concern. I don’t know personally what the deadline is for filing letters of opposition to a community application. I assume it is the public comment period? I guess I would just repeat that as long as it is clear that any either public or private resolution of issues that results in the adoption of an RVC not contained in the original application absolutely requires public comment, then I am okay with the appropriate language/implementation. My example is: I write to you after your application is published and say, “unless you adopt X RVC, I will file an Objection or letter of Opposition to your application.” I think Kathie strongly objects to private resolution of issues via RVCs but I am not certain where she stands on this at this point. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 10:54 AM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Thanks Steve I would like to draw attention to Topic 28: Role of Application Comment (page 123, c.) On a call about RVC/PICs within the past few weeks I raised the concern about the term “informal opposition” and I asked quite clearly if it was considered “public comment” since it was certainly not “formal Objection.” The answer to that question was a resounding YES, specifically sighting that the group was not attempting to create a third type of input process/period beyond “public comment” and “formal Objections,” both of which have very specific rules and timelines linked to them. When I raised further concern about the need to limit “public comment” (including informal opposition) to the AGB designated “public comment period”, Jeff assured me that language had been adjusted elsewhere in the report to address it (presumably this section). None of the language in Topic 28 does however. Justine Chew also raised concern in the chat (possibly even Paul too), and I even requested to be pointed to that language since I had not seen it yet, but I never received a follow-up. The reason for this distinction is that in the 2012 round, ICANN permitted “informal opposition” to be submitted days before CPE started for Community applicants. This was years after the AGB advertised “public comment period” had ended, and months after “formal Objections” were completed. That “informal opposition” took direct aim at scoring in CPE (criteria #4). If “informal opposition” is officially considered “public comment,” and we are not creating a third layer of public input in addition to “public comment” and “formal Objections,” then why does the report suggest there is not group agreement on changing the 2012 practice to prevent last minute “informal opposition” against Community applicants that target CPE scoring? These two agreements/non-agreements are in direct conflict with each other. Either we require all “informal opposition” to be submitted during the official “public comment period” published in the AGB (as Jeff affirmed on the call), or we are giving ICANN the ability to toss out all applicant predictability and arbitrarily introduce new informal input periods not described in the AGB. In the bigger picture, and bringing it back to RVC/PICs, if ICANN allows last minute “informal opposition” it could create yet another delay for a Community applicant required to submit RVC/PICs or change their application to protect CPE points, when it could have been handled during the official “public comment period” already described in the AGB. Without addressing this issue, I feel confident that last minute “informal opposition” will once again be used as a gaming tactic in subsequent rounds to target and delay Community applicants during the homestretch. Happy to answer any questions for those who are not as familiar with how this all unfolded in the 2012 round. Cheers Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Date: Friday, August 7, 2020 at 11:36 AM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
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Thanks Jamie. I wasn’t involved in any CPE proceedings so this is helpful information. Anne From: Jamie Baxter <jbaxter@spimarketing.com> Sent: Tuesday, August 11, 2020 2:35 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Jeff Neuman <jeff@jjnsolutions.com>; Justine Chew <justine.chew@gmail.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Hey Anne I think the key here is that verifying letters of support/opposition is something very different than CPE evaluators asking for/soliciting/accepting any new support or opposition just before CPE starts. Support & opposition should have been submitted during the “public comment period” or detailed in a “formal Objection” according to the AGB. The AGB does not specify any other input periods for comment on an application (support or opposition). The EIU however ignored the AGB when they published their own CPE Guidelines in 2014, allowing an extended comment period on Community applicants. Why publish rules and timelines about these two input periods in the AGB if there is no consistency on how they are applied and administered. The CPE Guidelines published in 2014 created two sets of rules on “public comment” – one for Standard applications limited to what the AGB says, and a second set of rules for Community applications with no limitations. I assume that Standard applicants would not accept this if CPE was done at the beginning of the evaluation process and Standards were subject to extended and unequal scrutiny while they waited for evaluation. Let’s be clear. No Community applicant requested, nor were Community applicants asked if they wanted a rule change to extend the public comment period so they could submit new letters of support. This was an EIU decision that contradicted the AGB. Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Tuesday, August 11, 2020 at 4:08 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>, Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi Jeff, Just a note regarding (c) verification of letters of support/opposition, we do have some language related to the boundaries for the evaluator in terms of relying on independent research in making a determination. It strikes me that “verification” is a form of independent research that would trigger an ability on the part of the applicant to respond before the evaluator issues a decision based on that information. We tried to cover at least that much in the agreed changes to the CPE. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jeff Neuman Sent: Tuesday, August 11, 2020 6:18 AM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>; Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Jamie, Please understand that I do not have a substantive objection to any of this. But as Working Group Chairs, we try to assess levels of support for a particular proposal, not just the absence of disagreement. There were plenty of ideas that were presented to the group at one time or another that did not have vocal opposition, but on the other hand, there was not much vocal support. And therefore, they were not included. All I am saying here is that we need to give this a little more thought. We are going to be addressing CPE during the Public Comment Period anyway, so why not just add this issue to the mix. Whether it was understood by the applicants or not, in the CPE Panel Process document (http://newgtlds.icann.org/en/applicants/cpe/panel-process-07aug14-en.pdf), the EIU states that “On a regular basis, the EIU reviews ICANN’s public correspondence page (http://newgtlds.icann.org/en/program-status/correspondence) for recently received correspondence to assess whether it is relevant to an ongoing evaluation. If it is relevant, the public correspondence is provided to the evaluators assigned to the evaluation for review." (Page 5) This meant that in the 2012 round, whether anticipated by Applicants or not, comments were accepted both in support and against Community Applications. So: a) I agree with you all that this was an unpredictable process not necessarily known by applicants b) It was, and could be in the future, highly susceptible to gaming c) There should be controls developed to prevent this kind of thing in the future. That said, this requires a much more comprehensive discussion that our final review of the Draft Final Report. I promise we will discuss it and hopefully come up with an acceptable solution. We already have this topic scheduled for discussion during the Draft Final Report public comment period. We also have the topic of the CPE Guidelines document as well. So for now, can we just recognize we have a hole we need to patch during the next month or two and move on. The hole includes (a) defining the CPE Public Comment period which includes when Letters of Support and Opposition must be submitted, (b) whether Letters of Support after such date can be accepted as an “Application Change” that would give rise to another public comment period, and (c) discussing the verification process of Letters of Support/Opposition in some more details, (d) reviewing the rest of the CPE Guidelines. Sincerely, Jeff [cid:image001.png@01D66FEE.09E83200] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> Sent: Tuesday, August 11, 2020 8:52 AM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hey Jeff As an applicant in the 2012 round, the AGB was clear that letters of support were required to be submitted with the application. Nothing suggested that you could gather your letters of support months or years later. Just because some submitted additional letters of support during the comment period to show the ongoing awareness and growing support of their application, it was not assumed that those letters would be part of the evaluation. In fact it would silly for community applicants not to continue outreach into their communities just because their application was submitted, and if some decided to they still wanted to submit a letter of support on their letterhead so be it. It is important to clarify this because your suggestion is that it was assumed by applicants that they could submit support letters well after submitting their original application. That is a false narrative and not what the AGB says. It clearly states your letters of support need to be submitted with the application. As I have stated before and will continue to state, I am all for preventing any further support or opposition from being considered if it does not get submitted during the “public comment period” described in the AGB. The AGB reference to CPE evaluators asking for more information when it comes to the actual evaluation has no connection to giving more time for support or opposition submission. It was a chance for CPE evaluators to better understand the application as it was submitted, through communication with the applicant only, and I don’t think it is fair or appropriate to suggest it means something more. As Justine pointed out, I would like to see records of any disagreement on this topic, one which even you as co-chair indicated did not have disagreement and was reflected in the report when I raised this issue on a call a few weeks back when discussing RVCs. Thanks Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: Tuesday, August 11, 2020 at 8:34 AM To: Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Cc: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Justine, this issue is a little more complex then it may initially appear and can form the basis for discussions during the public comment period. There are a number of sub-issues. First, during the 2012 round, there was no discussion about when comments about support and/or opposition for community applications had to be received. In fact, there is a specific reference in the AGB to allow CPE Evaluators to ask for additional information when it comes to for the actual evaluation. Although Applicants were annoyed that Letters of Opposition came in after the public comment period, there were also letters of Support that came in outside the normal public comment periods. So, do we continue to allow Letters of Support outside public comment periods, but not Letters of Opposition? Or do we establish a cut off for both? Should there be an extended Public Comment period for Letters of Support/Opposition, or should it be run in parallel with the regular public comment period? These are issues in all fairness that we did not come to any conclusion on and I think at this point would be ripe for comments to be filed during the comment period and we can discuss as well during the comment period. I don’t think we should be adding this to the draft at this point because it has not been fully sorted out. Its not that I object to the substance, but rather to the process of adding this at this time. Sincerely, Jeff [cid:image002.png@01D66FEE.09E83200] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>> Sent: Monday, August 10, 2020 11:23 PM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi Jeff, I do not distinctly recall, during the relevant WG calls, anyone objecting to what Jamie and I have been submitting in terms of prohibiting the acceptance by the evaluators of letters of opposition outside the accepted channels of public comment periods. If my recollection is faulty then I hope staff could enlighten us on who had objected. In the event no objection was recorded, then how were we supposed to have otherwise "achieved group agreement"? I do not see why Community-based applications should be subjected to additional - discriminatory, in effect - opportunity for scrutiny outside the opening public comment period or a subsequent public comment period triggered only by an Application Change Request submitted by the applicant. Same as any other applicant. There is no basis for any difference in treatment of Community-based applications beyond the additional questions required to be answered by an applicant if it indicates that its application is a community-based one at the point of submission. Much obliged, Justine --- On Tue, 11 Aug 2020 at 04:34, Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>> wrote: Thanks Jeff As I have said in the past I am completely fine with not accepting support or opposition for an application after the public comment period published in the AGB. Consistency and predictability is key. I do not believe it was the practice of Community applicants to submit their application with the hope of gaining community support just prior to CPE commencing. It was however the practice that the necessary community support letters were submitted with the original applications. What the AGB is clear on is that there are 2 periods for input outside of any “comment period” required for RVCs and application changes. As I’ve previously stated, there is the “public comment period” and the “formal Objections.” I believe you previously confirmed this when you stated that we are not trying to introduce any additional input periods – which would be some kind of new comment period prior to CPE starting. I do not support keeping CPE separate from this discussion. I have never heard a valid reason to do so, other than to provide a third attempt to someone trying to derail a community applicant during CPE scoring. I think Community applicants should have the same predictability on opposition to their application that Standard applications currently have – i.e. it all needs to come in during the “public comment period” or “formal Objections.” To suggest Community applicants should be subject to further scrutiny is not based in any legitimate rational, and it was a bad judgement call made by ICANN in the 2012 round. Jamie From: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: Monday, August 10, 2020 at 4:20 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review 1. In the report, in Section 28, I see the following language in the New Ideas Section, but it did not achieve group agreement at the time: “The Working Group discussed whether the public comment period for Community Priority Evaluation applications should be longer than the public comment period for standard applications, as was the case in the 2012 round, or if the two periods should be equal in length. The Working Group did not reach any agreement to change the 2012 practice, and therefore has not made any recommendations in this regard.” Jamie – I think for CPE, we need to think of that as separate and apart from all of the other discussions of formal and informal objections. This would be good to submit in a public comment on because the Applicant Guidebook does not provide any time lines for “letters of opposition.” It also does not set a deadline on letters of support either. In fact, with respect to CPE, the AGB states: “Before the community priority evaluation begins, the applicants who have elected to participate may be asked to provide additional information relevant to the community priority evaluation. “ Section 4.2.1 at p. 4-8. I think both those in support as well as those opposing took advantage of the extra time period. Bottom Line is that if we set a cutoff date for letters of opposition, should we set one up for letters of support? 1. We should also not confuse the normal public comment period with comment periods that are in response to application changes. The reason RVCs will trigger a new comment period is because it represents a change to the original application. And those changes should be subject to review. If an applicant does not make any changes to their application, there would not be a need for a new public comment period on that application. [cid:image003.png@01D66FEE.09E83200] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 3:30 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thanks Anne. The 2012 AGB provided for 2 application input opportunities, not including the GAC – “public comment” & “formal Objections.” That is it. Comment periods related to RVC and application changes are separate from these, but related in that they happen because of changes made to address concerns expressed during “public comment” and “formal Objections.” This means that we are telling everyone that if you have an issue with an application you must submit it during either the “public comment period” or the “formal Objections,” providing predictability to applicants on when they might need to react and respond with RVC or an application change. By not restricting “letters of opposition” to the “public comment period” we are essentially introducing a new application input period not described in the AGB – one that has no timeline and no rules around how it should work. I believe I heard Jeff say on that prior call that we are not trying to create this third new period for input, which I fully support not creating. ICANN staff arbitrarily created the “third input period,” simply because a “letter of opposition” was submitted months after formal Objections were completed in the 2012 round. It seems they didn’t know what to do with that input and instead of saying “sorry, it’s too late to submit public comment that could impact CPE scoring,” they decided to allow it to be submitted, against the timelines and rules provided in the AGB. I believe we need to correct that in subsequent rounds and Jeff suggested that the language in this report supports that. I don’t believe the language does, and worse, I think it is in conflict with his statement that “letters of opposition” should be considered “public comment” and follow the rules of the “public comment period.” I am all for supporting required comment periods around RVCs, but I am just suggesting that those periods where RVCs or application changes may occur should be predictable and centered around the “public comment period” and “formal Objections.” There should not be unlimited times during the application process for outsiders to insert pressure on an applicant that is not described in the AGB. Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Monday, August 10, 2020 at 2:25 PM To: Jamie Baxter <jbaxter@spimarketing.com<mailto:jbaxter@spimarketing.com>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thank you Jamie. I appreciate your concern. I don’t know personally what the deadline is for filing letters of opposition to a community application. I assume it is the public comment period? I guess I would just repeat that as long as it is clear that any either public or private resolution of issues that results in the adoption of an RVC not contained in the original application absolutely requires public comment, then I am okay with the appropriate language/implementation. My example is: I write to you after your application is published and say, “unless you adopt X RVC, I will file an Objection or letter of Opposition to your application.” I think Kathie strongly objects to private resolution of issues via RVCs but I am not certain where she stands on this at this point. Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 10:54 AM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] ________________________________ Thanks Steve I would like to draw attention to Topic 28: Role of Application Comment (page 123, c.) On a call about RVC/PICs within the past few weeks I raised the concern about the term “informal opposition” and I asked quite clearly if it was considered “public comment” since it was certainly not “formal Objection.” The answer to that question was a resounding YES, specifically sighting that the group was not attempting to create a third type of input process/period beyond “public comment” and “formal Objections,” both of which have very specific rules and timelines linked to them. When I raised further concern about the need to limit “public comment” (including informal opposition) to the AGB designated “public comment period”, Jeff assured me that language had been adjusted elsewhere in the report to address it (presumably this section). None of the language in Topic 28 does however. Justine Chew also raised concern in the chat (possibly even Paul too), and I even requested to be pointed to that language since I had not seen it yet, but I never received a follow-up. The reason for this distinction is that in the 2012 round, ICANN permitted “informal opposition” to be submitted days before CPE started for Community applicants. This was years after the AGB advertised “public comment period” had ended, and months after “formal Objections” were completed. That “informal opposition” took direct aim at scoring in CPE (criteria #4). If “informal opposition” is officially considered “public comment,” and we are not creating a third layer of public input in addition to “public comment” and “formal Objections,” then why does the report suggest there is not group agreement on changing the 2012 practice to prevent last minute “informal opposition” against Community applicants that target CPE scoring? These two agreements/non-agreements are in direct conflict with each other. Either we require all “informal opposition” to be submitted during the official “public comment period” published in the AGB (as Jeff affirmed on the call), or we are giving ICANN the ability to toss out all applicant predictability and arbitrarily introduce new informal input periods not described in the AGB. In the bigger picture, and bringing it back to RVC/PICs, if ICANN allows last minute “informal opposition” it could create yet another delay for a Community applicant required to submit RVC/PICs or change their application to protect CPE points, when it could have been handled during the official “public comment period” already described in the AGB. Without addressing this issue, I feel confident that last minute “informal opposition” will once again be used as a gaming tactic in subsequent rounds to target and delay Community applicants during the homestretch. Happy to answer any questions for those who are not as familiar with how this all unfolded in the 2012 round. Cheers Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Date: Friday, August 7, 2020 at 11:36 AM To: "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: steve.chan@icann.org<mailto:steve.chan@icann.org> Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=o7Auz997kA-HPv9PHJCjFVZw7Pgo8krw4MxfqCwBrIU&e=> Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNSO&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=kWw4fQPNjw2lVKy1UjTxS2F0BmjEAzaDFWNmsYywbmE&e=> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...> ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ 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.

Good question, Anne. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Aikman-Scalese, Anne Sent: Thursday, November 5, 2020 5:06 PM To: Jeff Neuman <jeff@jjnsolutions.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Jeff, I am sorry I was not able to attend the WG meeting last night. I had a question about the note from Leadership in relation to the Base Registry Agreement in relation to Safeguards. Public comment asked about enforcement of Safeguards and the Leadership note was to the effect you did not believe that Safeguards needed to be enforced and so that didn’t need to be in the Base Registry Agreement? Could you please explain this by reply all? 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:image001.png@01D6B422.57673E40] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 2000 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [cid:image002.jpg@01D6B422.57673E40] Because what matters to you, matters to us.™ ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

+1 Here what will happen: o If there wasn’t a contention set nobody would attack the community status – as that wouldn’t bear any fruits (application is the only one. Goes through anyways). o So if there is any opposition then only if the community applicant is in a contention set. o And in many cases it will be a contention set member who is trying to force the community applicant into an auction (as otherwise the non-community applicants would lose everything). o That non-community contention set member will try to find some splinter group within the community to receive an opposition letter. E.g. in exchange for a donation. o The same way as the community applicant can’t provide support letters after the deadline; opposition letters should also be bound to a deadline. o Otherwise: If opposition letters would be counted after the initial deadline then support letters should be counted as well. Do we? No! o So either both or none. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Justine Chew Sent: Dienstag, 11. August 2020 06:23 To: Jeff Neuman <jeff@jjnsolutions.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi Jeff, I do not distinctly recall, during the relevant WG calls, anyone objecting to what Jamie and I have been submitting in terms of prohibiting the acceptance by the evaluators of letters of opposition outside the accepted channels of public comment periods. If my recollection is faulty then I hope staff could enlighten us on who had objected. In the event no objection was recorded, then how were we supposed to have otherwise "achieved group agreement"? I do not see why Community-based applications should be subjected to additional - discriminatory, in effect - opportunity for scrutiny outside the opening public comment period or a subsequent public comment period triggered only by an Application Change Request submitted by the applicant. Same as any other applicant. There is no basis for any difference in treatment of Community-based applications beyond the additional questions required to be answered by an applicant if it indicates that its application is a community-based one at the point of submission. Much obliged, Justine --- On Tue, 11 Aug 2020 at 04:34, Jamie Baxter <jbaxter@spimarketing.com <mailto:jbaxter@spimarketing.com> > wrote: Thanks Jeff As I have said in the past I am completely fine with not accepting support or opposition for an application after the public comment period published in the AGB. Consistency and predictability is key. I do not believe it was the practice of Community applicants to submit their application with the hope of gaining community support just prior to CPE commencing. It was however the practice that the necessary community support letters were submitted with the original applications. What the AGB is clear on is that there are 2 periods for input outside of any “comment period” required for RVCs and application changes. As I’ve previously stated, there is the “public comment period” and the “formal Objections.” I believe you previously confirmed this when you stated that we are not trying to introduce any additional input periods – which would be some kind of new comment period prior to CPE starting. I do not support keeping CPE separate from this discussion. I have never heard a valid reason to do so, other than to provide a third attempt to someone trying to derail a community applicant during CPE scoring. I think Community applicants should have the same predictability on opposition to their application that Standard applications currently have – i.e. it all needs to come in during the “public comment period” or “formal Objections.” To suggest Community applicants should be subject to further scrutiny is not based in any legitimate rational, and it was a bad judgement call made by ICANN in the 2012 round. Jamie From: Jeff Neuman <jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com> > Date: Monday, August 10, 2020 at 4:20 PM To: Jamie Baxter <jbaxter@spimarketing.com <mailto:jbaxter@spimarketing.com> >, "Aikman-Scalese, Anne" <AAikman@lrrc.com <mailto:AAikman@lrrc.com> >, Steve Chan <steve.chan@icann.org <mailto:steve.chan@icann.org> >, "gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> " <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review 1. In the report, in Section 28, I see the following language in the New Ideas Section, but it did not achieve group agreement at the time: “The Working Group discussed whether the public comment period for Community Priority Evaluation applications should be longer than the public comment period for standard applications, as was the case in the 2012 round, or if the two periods should be equal in length. The Working Group did not reach any agreement to change the 2012 practice, and therefore has not made any recommendations in this regard.” Jamie – I think for CPE, we need to think of that as separate and apart from all of the other discussions of formal and informal objections. This would be good to submit in a public comment on because the Applicant Guidebook does not provide any time lines for “letters of opposition.” It also does not set a deadline on letters of support either. In fact, with respect to CPE, the AGB states: “Before the community priority evaluation begins, the applicants who have elected to participate may be asked to provide additional information relevant to the community priority evaluation. “ Section 4.2.1 at p. 4-8. I think both those in support as well as those opposing took advantage of the extra time period. Bottom Line is that if we set a cutoff date for letters of opposition, should we set one up for letters of support? 2. We should also not confuse the normal public comment period with comment periods that are in response to application changes. The reason RVCs will trigger a new comment period is because it represents a change to the original application. And those changes should be subject to review. If an applicant does not make any changes to their application, there would not be a need for a new public comment period on that application. Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: <mailto:jeff@jjnsolutions.com> jeff@jjnsolutions.com <http://jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg < <mailto:gnso-newgtld-wg-bounces@icann.org> gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 3:30 PM To: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman@lrrc.com>; Steve Chan < <mailto:steve.chan@icann.org> steve.chan@icann.org>; <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thanks Anne. The 2012 AGB provided for 2 application input opportunities, not including the GAC – “public comment” & “formal Objections.” That is it. Comment periods related to RVC and application changes are separate from these, but related in that they happen because of changes made to address concerns expressed during “public comment” and “formal Objections.” This means that we are telling everyone that if you have an issue with an application you must submit it during either the “public comment period” or the “formal Objections,” providing predictability to applicants on when they might need to react and respond with RVC or an application change. By not restricting “letters of opposition” to the “public comment period” we are essentially introducing a new application input period not described in the AGB – one that has no timeline and no rules around how it should work. I believe I heard Jeff say on that prior call that we are not trying to create this third new period for input, which I fully support not creating. ICANN staff arbitrarily created the “third input period,” simply because a “letter of opposition” was submitted months after formal Objections were completed in the 2012 round. It seems they didn’t know what to do with that input and instead of saying “sorry, it’s too late to submit public comment that could impact CPE scoring,” they decided to allow it to be submitted, against the timelines and rules provided in the AGB. I believe we need to correct that in subsequent rounds and Jeff suggested that the language in this report supports that. I don’t believe the language does, and worse, I think it is in conflict with his statement that “letters of opposition” should be considered “public comment” and follow the rules of the “public comment period.” I am all for supporting required comment periods around RVCs, but I am just suggesting that those periods where RVCs or application changes may occur should be predictable and centered around the “public comment period” and “formal Objections.” There should not be unlimited times during the application process for outsiders to insert pressure on an applicant that is not described in the AGB. Jamie From: "Aikman-Scalese, Anne" <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > Date: Monday, August 10, 2020 at 2:25 PM To: Jamie Baxter <jbaxter@spimarketing.com <mailto:jbaxter@spimarketing.com> >, Steve Chan <steve.chan@icann.org <mailto:steve.chan@icann.org> >, "gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> " <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Thank you Jamie. I appreciate your concern. I don’t know personally what the deadline is for filing letters of opposition to a community application. I assume it is the public comment period? I guess I would just repeat that as long as it is clear that any either public or private resolution of issues that results in the adoption of an RVC not contained in the original application absolutely requires public comment, then I am okay with the appropriate language/implementation. My example is: I write to you after your application is published and say, “unless you adopt X RVC, I will file an Objection or letter of Opposition to your application.” I think Kathie strongly objects to private resolution of issues via RVCs but I am not certain where she stands on this at this point. Anne From: Gnso-newgtld-wg < <mailto:gnso-newgtld-wg-bounces@icann.org> gnso-newgtld-wg-bounces@icann.org> On Behalf Of Jamie Baxter Sent: Monday, August 10, 2020 10:54 AM To: Steve Chan < <mailto:steve.chan@icann.org> steve.chan@icann.org>; <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] _____ Thanks Steve I would like to draw attention to Topic 28: Role of Application Comment (page 123, c.) On a call about RVC/PICs within the past few weeks I raised the concern about the term “informal opposition” and I asked quite clearly if it was considered “public comment” since it was certainly not “formal Objection.” The answer to that question was a resounding YES, specifically sighting that the group was not attempting to create a third type of input process/period beyond “public comment” and “formal Objections,” both of which have very specific rules and timelines linked to them. When I raised further concern about the need to limit “public comment” (including informal opposition) to the AGB designated “public comment period”, Jeff assured me that language had been adjusted elsewhere in the report to address it (presumably this section). None of the language in Topic 28 does however. Justine Chew also raised concern in the chat (possibly even Paul too), and I even requested to be pointed to that language since I had not seen it yet, but I never received a follow-up. The reason for this distinction is that in the 2012 round, ICANN permitted “informal opposition” to be submitted days before CPE started for Community applicants. This was years after the AGB advertised “public comment period” had ended, and months after “formal Objections” were completed. That “informal opposition” took direct aim at scoring in CPE (criteria #4). If “informal opposition” is officially considered “public comment,” and we are not creating a third layer of public input in addition to “public comment” and “formal Objections,” then why does the report suggest there is not group agreement on changing the 2012 practice to prevent last minute “informal opposition” against Community applicants that target CPE scoring? These two agreements/non-agreements are in direct conflict with each other. Either we require all “informal opposition” to be submitted during the official “public comment period” published in the AGB (as Jeff affirmed on the call), or we are giving ICANN the ability to toss out all applicant predictability and arbitrarily introduce new informal input periods not described in the AGB. In the bigger picture, and bringing it back to RVC/PICs, if ICANN allows last minute “informal opposition” it could create yet another delay for a Community applicant required to submit RVC/PICs or change their application to protect CPE points, when it could have been handled during the official “public comment period” already described in the AGB. Without addressing this issue, I feel confident that last minute “informal opposition” will once again be used as a gaming tactic in subsequent rounds to target and delay Community applicants during the homestretch. Happy to answer any questions for those who are not as familiar with how this all unfolded in the 2012 round. Cheers Jamie From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > on behalf of Steve Chan <steve.chan@icann.org <mailto:steve.chan@icann.org> > Date: Friday, August 7, 2020 at 11:36 AM To: "gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> " <gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> > Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgD... <https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgD...> . Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: <mailto:steve.chan@icann.org> steve.chan@icann.org Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: <https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMG...> https://learn.icann.org/ Follow @GNSO on Twitter: <https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNS...> https://twitter.com/ICANN_GNSO Transcripts and recordings of GNSO Working Group and Council events are located on the <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...> GNSO Master Calendar _____ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

Attached is my feedback on bona fide intent to operate the registry. Please note that I am on vacation with my kids in Colorado so will not be able to attend the call tomorrow. 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 trac@gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Steve Chan Sent: Friday, August 7, 2020 11:36 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://urldefense.com/v3/__https://docs.google.com/document/d/17oV-BTJGtm2Q... <https://urldefense.com/v3/__https:/docs.google.com/document/d/17oV-BTJGtm2Q6...> * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://urldefense.com/v3/__https://community.icann.org/display/NGSPP/g.*Dra... <https://urldefense.com/v3/__https:/community.icann.org/display/NGSPP/g.*Draf...> * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://urldefense.com/v3/__https://docs.google.com/document/d/1S4aOGxln9b93... <https://urldefense.com/v3/__https:/docs.google.com/document/d/1S4aOGxln9b93E...>. Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://urldefense.com/v3/__https://docs.google.com/document/d/1ShY7lL07QrFK... <https://urldefense.com/v3/__https:/docs.google.com/document/d/1ShY7lL07QrFKI...>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: steve.chan@icann.org<mailto:steve.chan@icann.org> Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://urldefense.com/v3/__https://learn.icann.org/__;!!DUT_TFPxUQ!WN2Kra0W... <https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMG...> Follow @GNSO on Twitter: https://urldefense.com/v3/__https://twitter.com/ICANN_GNSO__;!!DUT_TFPxUQ!WN... <https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNS...> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...> ---------------------------------------------------------------------- If you are not an intended recipient of confidential and privileged information in this email, please delete it, notify us immediately at postmaster@gtlaw.com, and do not use or disseminate the information.

Paul we have not discussed this edit yet but for the benefit of the entre mailing list and not just the small handful on the calls, I’ll explain here and again in a few hours. The full section of the document reads as follows * Evaluators [and ICANN] must be able to ask clarifying questions to any applicant it believes may not be submitting an application with a bona fide intent. Evaluators [and ICANN] shall use, but are not limited to, the “Factors” described below in their consideration of whether an application was submitted absent bona fide intent. These “Factors” will be taken into consideration and weighed against all of other facts and circumstances surrounding the impacted Applicants and Applications. The existence of any one or all of the “Factors” may not themselves be conclusive of an application made lacking a bona fide use intent. * Applicants may mark portions of any such responses as “confidential” if the responses include proprietary business information and such portions will not be shared or communicated by the Evaluator. The rationale behind my suggested edits is simple. Evaluators have the ability to gather information from applicants as it relates to intent. The evaluators make an initial determination but after they are done, the evaluators disappear. They are not ICANN employees. They are an external firm on a contract. Once they complete their job, it is up to ICANN to continue to oversee the program and ensure compliance. Since many of the factors that will be used to measure intent are well after evaluation, it is critical that ICANN have the information gathered during the evaluation to ensure compliance. My edit is meant to ensure that ICANN has all of the information it needs to properly oversee this program. As currently drafted, the language does the opposite - restricting information significantly hampers ICANN’s ability to oversee this program. Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: McGrady, Paul D. <PMcGrady@taftlaw.com> Sent: Saturday, August 15, 2020 7:34 AM To: Jim Prendergast <jim@GALWAYSG.COM>; Steve Chan <steve.chan@icann.org>; gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi All, I thought a brief note reacting to Jim’s proposed changes make sense. Sorry that I was not able to do so prior to our last call (these comments from Jim came in while I was dropping my son off at university for his freshman year). Even so, these weren’t discussed on our last call, so I think it is still timely in advance of this Monday’s call. Jim suggests we strike: “and such portions will not be shared or communicated by the Evaluator.” As discussed often on prior calls, this change would set up the disclosure of sensitive information since there is no confidentiality provision in the Terms & Conditions and no ability to enforce it against ICANN who famously works hard at being un-suable. This will have a chilling effect on application submission and is just bad governance. At one point I believe I suggested disclosure to Evaluator and those within ICANN with a “need to know” but that was rejected by a small group of disclosure maximalists. The text must be restored or we need to find a solution other than ICANN being able to spill all the sensitive beans with no consequences. As for Jim’s other changes, they consist of adding “some of” or “some in”, etc. to a few rationales. I hope that this is being done for historic record capturing and is not a set up to wreck a consensus call. We all have to keep in mind that the status quo is private auctions without all the interference that this compromise imposes. If, at the end of the day, those pushing for interference won’t support the compromise, there is no reason to keep going down this road as the status quo works quite well. So, hopefully, the record keeping is the reason behind Jim’s insertions. Best to all, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jim Prendergast Sent: Wednesday, August 12, 2020 1:45 PM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Attached is my feedback on the draft report on Auctions. Thanks Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Steve Chan Sent: Friday, August 7, 2020 11:36 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: steve.chan@icann.org<mailto:steve.chan@icann.org> Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=o7Auz997kA-HPv9PHJCjFVZw7Pgo8krw4MxfqCwBrIU&e=> Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNSO&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=kWw4fQPNjw2lVKy1UjTxS2F0BmjEAzaDFWNmsYywbmE&e=> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...>

In reality in almost all contention sets the applicants viewed their application as a “financial asset”. There was absolutely not the slightest allegiance to these strings; they were just a commodity. Nobody is forming JVs over commodities. Either I can keep my string and try to make money – or I give it away and want to be compensated for not being able to make money! (Of course not talking about me, Alexander: the strings that I am proposing are all public interest, non-profits anyway: my communities have allegiance to their strings; the applications aren’t an asset: they are their digital identity: irreplaceable by cash. They do not want cash – they want their string!) The board’s concern was that folks apply not because they want to run a gTLD – but to (sometimes partly) make profit by losing (some) auctions. How would any of the suggested measures prevent that? How would it impact their “business model” if they had to disclose that they got a monetary compensation for withdrawing their application? Even if we forced them to specify the amount: so what? How is that in any way form or shape going to disencourage the behavior the board is concerned about? Why would the care if the world knew how much they earned? I guess the non-disclosure agreements were primarily pushed by the auction house: not to hide how much money was made – but rather to hide how less. And yes: We might have cases where the applicant absolutely really wanted to run the registry – but got simply outbid. And yes: this might happen with 5 strings. There is a saying in German: The bear said: “Please wash me; but do not make me wet!” I think the board says: “Wash the bear” – but the bear doesn’t want to get wet. And we try to please both. That obviously doesn’t work. Either the bear stays dry – then he isn’t washed. Or we indeed wash him: he will get wet (and very angry). We can’t please both. Do I have an answer? Not a simple one. Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Montag, 17. August 2020 17:46 To: Jim Prendergast <jim@GALWAYSG.COM>; McGrady, Paul D. <PMcGrady@taftlaw.com>; Steve Chan <steve.chan@icann.org>; gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review I think the “nut” we are trying to “crack” is the degree to which the required information in any private resolution may exceed the information that is normally required to fill out a new gTLD application to begin with. Certainly disclosure of the new ownership construct and the fact of and type of compensation paid or to be paid in future (but not the amount) to any applicant who is withdrawing an application for the same string and/or participating in the new business combination or joint venture seems appropriate to address the Board’s concerns re “making a market in TLDs”. I think it would be appropriate to specify the following: 1. “X, Y, and Z applicants have formed DELTA business organization to apply jointly to operate the TLD. No buy-out provisions are contained in the commitment to form the new applicant for the string.” 2. “Compensation in the form of ________________________(e.g. money, shares, control, royalties, seats on the Board of Directors, Managing Member status of an LLC, etc.) has been accorded to the following parties in connection with their commitment to withdraw their TLD applications for the same string: X – form of compensation if any Y – form of compensation if any Z – form of compensation if any” Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Jim Prendergast Sent: Monday, August 17, 2020 6:16 AM To: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com> >; Steve Chan <steve.chan@icann.org <mailto:steve.chan@icann.org> >; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review [EXTERNAL] _____ Paul we have not discussed this edit yet but for the benefit of the entre mailing list and not just the small handful on the calls, I’ll explain here and again in a few hours. The full section of the document reads as follows * Evaluators [and ICANN] must be able to ask clarifying questions to any applicant it believes may not be submitting an application with a bona fide intent. Evaluators [and ICANN] shall use, but are not limited to, the “Factors” described below in their consideration of whether an application was submitted absent bona fide intent. These “Factors” will be taken into consideration and weighed against all of other facts and circumstances surrounding the impacted Applicants and Applications. The existence of any one or all of the “Factors” may not themselves be conclusive of an application made lacking a bona fide use intent. * Applicants may mark portions of any such responses as “confidential” if the responses include proprietary business information and such portions will not be shared or communicated by the Evaluator. The rationale behind my suggested edits is simple. Evaluators have the ability to gather information from applicants as it relates to intent. The evaluators make an initial determination but after they are done, the evaluators disappear. They are not ICANN employees. They are an external firm on a contract. Once they complete their job, it is up to ICANN to continue to oversee the program and ensure compliance. Since many of the factors that will be used to measure intent are well after evaluation, it is critical that ICANN have the information gathered during the evaluation to ensure compliance. My edit is meant to ensure that ICANN has all of the information it needs to properly oversee this program. As currently drafted, the language does the opposite - restricting information significantly hampers ICANN’s ability to oversee this program. Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: McGrady, Paul D. <PMcGrady@taftlaw.com <mailto:PMcGrady@taftlaw.com> > Sent: Saturday, August 15, 2020 7:34 AM To: Jim Prendergast <jim@GALWAYSG.COM <mailto:jim@GALWAYSG.COM> >; Steve Chan <steve.chan@icann.org <mailto:steve.chan@icann.org> >; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi All, I thought a brief note reacting to Jim’s proposed changes make sense. Sorry that I was not able to do so prior to our last call (these comments from Jim came in while I was dropping my son off at university for his freshman year). Even so, these weren’t discussed on our last call, so I think it is still timely in advance of this Monday’s call. Jim suggests we strike: “and such portions will not be shared or communicated by the Evaluator.” As discussed often on prior calls, this change would set up the disclosure of sensitive information since there is no confidentiality provision in the Terms & Conditions and no ability to enforce it against ICANN who famously works hard at being un-suable. This will have a chilling effect on application submission and is just bad governance. At one point I believe I suggested disclosure to Evaluator and those within ICANN with a “need to know” but that was rejected by a small group of disclosure maximalists. The text must be restored or we need to find a solution other than ICANN being able to spill all the sensitive beans with no consequences. As for Jim’s other changes, they consist of adding “some of” or “some in”, etc. to a few rationales. I hope that this is being done for historic record capturing and is not a set up to wreck a consensus call. We all have to keep in mind that the status quo is private auctions without all the interference that this compromise imposes. If, at the end of the day, those pushing for interference won’t support the compromise, there is no reason to keep going down this road as the status quo works quite well. So, hopefully, the record keeping is the reason behind Jim’s insertions. Best to all, Paul To receive regular COVID-19 updates from Taft, <https://www.taftlaw.com/general/subscribe> subscribe here. For additional resources, visit Taft's COVID-19 <https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit> Resource Toolkit. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Jim Prendergast Sent: Wednesday, August 12, 2020 1:45 PM To: Steve Chan <steve.chan@icann.org <mailto:steve.chan@icann.org> >; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Attached is my feedback on the draft report on Auctions. Thanks Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > On Behalf Of Steve Chan Sent: Friday, August 7, 2020 11:36 AM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgD... <https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgD...> . Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: steve.chan@icann.org <mailto:steve.chan@icann.org> Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/ <https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMG...> Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO <https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNS...> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...> _____ 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.

HI Paul. The Factors are an outcome of an attempt to compromise on private resolution. We allow for creative private resolution with the conditions that include “a bona fide (“good faith”) intention to operate the gTLD. Applicants must affirmatively attest to a bona fide intention to operate the TLDs for any and all applications that they submit.” We have to account for the fact that some applicants will apply for TLDs without a bona fide intent to operate the TLD. Which I think you are describing when you write “there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed.” Let me provide an example that might better illustrate my concern. Savvy gambler “J” comes along and applies for lots of generic/brand TLDs “orange” is one example. He convinces the defensive brand applicant to resolve the contention not at private auction but through a deal where he gets a thousand cases of Orange’s product every year for life. We haven’t come to agreement to require all material terms of an arrangement to be made public. Therefore, the suggested language to add to the Factors for evaluators/ ICANN to consider if a bona fide intent to operate the TLD is If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs. I don’t think the factors are “bright line” (savvy gambler J will win one TLD to avoid scrutiny) …. but the “bona fide intent” is… and that might be where your issue around defensive applications needs to be addressed. Regarding my addition of “some” here: “By requiring all applicants to agree to the bona fide use clause, some of the Working Group believes that the Board’s primary concerns are mitigated and that private resolutions (including private auctions) as a mechanism to resolve string contention, can be permitted.” Is meant to reflect that not everyone believes the clause actually resolves the boards concerns. It’s a compromise the WG is recommending, but it may not actually mitigate the board’s concerns that applicants will participate to profit. Hope that helps. And congrats on the last bird leaving the nest. Elaine Pruis Senior Director Naming Operations and Policy epruis@verisign.com<mailto:epruis@verisign.com> 703.948.4672 [signature_1482981386] From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of "McGrady, Paul D." <PMcGrady@taftlaw.com> Date: Saturday, August 15, 2020 at 7:47 AM To: Jim Prendergast <jim@GALWAYSG.COM>, Steve Chan <steve.chan@icann.org>, "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi All, Responding now to Elaine’s comments. I admit that I don’t fully understand what Elaine is asking for here: Adding bullet point Recommendation xx (Rationale 2), The non-exhaustive list of “Factors” If ICANN isn’t privy to the material terms of settlements, some resolutions could purposely lose without any money changing hands or business combinations being made. Captures possible “paid (not necessarily in cash) to go away” settlements. * If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs. Maybe Elaine can expound on the next call? I don’t think we want to set up a bright line factor that indicates you are didn’t have a bona fide good faith intent just because you resolved contention sets by non-auction and didn’t end up continuing your applications. Since the AGB doesn’t provide for any meaningful rights protection mechanisms for brand owners (and we haven’t really improved the situation much), there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed. Why would we want to preclude those brand owners from future rounds? We don’t, and that is the problem with bright line factors like this one. But, maybe I am missing Elaine’s point or maybe she can refine this in such a way that it more narrowly addresses what her concerns may be. Also, Elaine also includes “some of” language in her comments. As below with Jim’s, I do hope that this language isn’t being introduced in order to wreck a consensus call later (for the reasons mentioned below). Best, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: McGrady, Paul D. Sent: Saturday, August 15, 2020 6:34 AM To: 'Jim Prendergast' <jim@GALWAYSG.COM>; Steve Chan <steve.chan@icann.org>; gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi All, I thought a brief note reacting to Jim’s proposed changes make sense. Sorry that I was not able to do so prior to our last call (these comments from Jim came in while I was dropping my son off at university for his freshman year). Even so, these weren’t discussed on our last call, so I think it is still timely in advance of this Monday’s call. Jim suggests we strike: “and such portions will not be shared or communicated by the Evaluator.” As discussed often on prior calls, this change would set up the disclosure of sensitive information since there is no confidentiality provision in the Terms & Conditions and no ability to enforce it against ICANN who famously works hard at being un-suable. This will have a chilling effect on application submission and is just bad governance. At one point I believe I suggested disclosure to Evaluator and those within ICANN with a “need to know” but that was rejected by a small group of disclosure maximalists. The text must be restored or we need to find a solution other than ICANN being able to spill all the sensitive beans with no consequences. As for Jim’s other changes, they consist of adding “some of” or “some in”, etc. to a few rationales. I hope that this is being done for historic record capturing and is not a set up to wreck a consensus call. We all have to keep in mind that the status quo is private auctions without all the interference that this compromise imposes. If, at the end of the day, those pushing for interference won’t support the compromise, there is no reason to keep going down this road as the status quo works quite well. So, hopefully, the record keeping is the reason behind Jim’s insertions. Best to all, Paul From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jim Prendergast Sent: Wednesday, August 12, 2020 1:45 PM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Attached is my feedback on the draft report on Auctions. Thanks Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Steve Chan Sent: Friday, August 7, 2020 11:36 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report<https://secure-web.cisco.com/1-aQs02VYJdhP_82zrWTH3mxZPgVXLwPMLV5DUeHW3IKyQYKvY8BKAoH7bYc6_pVqqLyrP-awt0GP9LC2ig_-dDKzwiK_Ivr9puAFqbO-jPt7d9tg-xBEkngBwOUG5l-g2fQh3fTyM_PXGHnbSZupVdTk3jLlx4hd4Q1_Iin2Azhz0JH1trgj5fVQ5IAbLqoRo8e3f_QEEoolmsXWcHcaYhZrtgrEKip-GkFAHNbR41jeezZuX75r9lk90PYpksJ6-BiMyfeQk6OLNDSFozRkUA/https%3A%2F%2Fcommunity.icann.org%2Fdisplay%2FNGSPP%2Fg.%2BDraft%2BFinal%2BReport> * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP.... Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: steve.chan@icann.org<mailto:steve.chan@icann.org> Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=o7Auz997kA-HPv9PHJCjFVZw7Pgo8krw4MxfqCwBrIU&e=> Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNSO&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=kWw4fQPNjw2lVKy1UjTxS2F0BmjEAzaDFWNmsYywbmE&e=> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...>

We are going to pick up the discussion today right on this section. And we did review your comment with the full group on the last call and you can raise again. I think it is important to have examples that can be looked at in some way that can be used by ICANN to show evidence of a lack of good faith intent (or lack of a bona fide intent to operate a registry). I believe not having any factors will set up the same scenario as you have laid out below where those that disagree will argue that the factors applied by ICANN were not indicative factors. At least with some factors stated up front, if these are the factors applied by ICANN, we will have created at least SOME predictability, albeit acknowledged that it is subjective. Without listing the examples, people will argue that the factors applied created unpredictability because they were not known in advance. We can make arguments both ways I guess is the point. Lets let these factors go out for public comment and see what we get back. Perhaps even asking a question about what the community believes would be indicia of a lack of bona fide intent. Remember at the end of the day, we are trying to get a compromise where we both allow private resolution of contention sets via auctions, but balance the Board’s (and other groups’) distrust and dislike of private resolution where applicants financially benefit from not getting the TLDs. We MUST close this discussion today (at least for purposes of the draft final report). Thanks. [cid:image001.png@01D6747D.F156A610] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Saturday, August 15, 2020 1:29 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review I wasn’t able to attend the last call because I am in Colorado with my kids on vacation and was on the back of a horse so I don’t know if my objections were raised on the call so just in case I will reiterate them here. It’s fine to want to compromise but compromise doesn’t always result in a good solution. These factors are not good proxies for determining whether an application was submitted with a bona fide good faith intent to operate the registries. Any one of them could occur for other reasons than a lack of bona fide good faith intent to operate the registry. If the evaluators can take anything into account then fine, let them – but we should not be specifying factors that they “may” consider which are not good proxies for this determination. The effect of this will be obvious – these factors will be given more weight. If they won’t then there is no need to specify them. Use of these factors will only result in bona fide intent becoming the new CPE and years of disputes and fights from applicants who end up on the wrong side of the bona fide intent determination or from others when applicants end up on the right side of the determination and the others don’t like it. Please let’s move away from solutions that are not workable and certain to cause disputes later. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac@gtlaw.com<mailto:trac@gtlaw.com> | www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Saturday, August 15, 2020 6:34 AM To: PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>; jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>; steve.chan@icann.org<mailto:steve.chan@icann.org>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review *EXTERNAL TO GT* HI Paul. The Factors are an outcome of an attempt to compromise on private resolution. We allow for creative private resolution with the conditions that include “a bona fide (“good faith”) intention to operate the gTLD. Applicants must affirmatively attest to a bona fide intention to operate the TLDs for any and all applications that they submit.” We have to account for the fact that some applicants will apply for TLDs without a bona fide intent to operate the TLD. Which I think you are describing when you write “there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed.” Let me provide an example that might better illustrate my concern. Savvy gambler “J” comes along and applies for lots of generic/brand TLDs “orange” is one example. He convinces the defensive brand applicant to resolve the contention not at private auction but through a deal where he gets a thousand cases of Orange’s product every year for life. We haven’t come to agreement to require all material terms of an arrangement to be made public. Therefore, the suggested language to add to the Factors for evaluators/ ICANN to consider if a bona fide intent to operate the TLD is If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs. I don’t think the factors are “bright line” (savvy gambler J will win one TLD to avoid scrutiny) …. but the “bona fide intent” is… and that might be where your issue around defensive applications needs to be addressed. Regarding my addition of “some” here: “By requiring all applicants to agree to the bona fide use clause, some of the Working Group believes that the Board’s primary concerns are mitigated and that private resolutions (including private auctions) as a mechanism to resolve string contention, can be permitted.” Is meant to reflect that not everyone believes the clause actually resolves the boards concerns. It’s a compromise the WG is recommending, but it may not actually mitigate the board’s concerns that applicants will participate to profit. Hope that helps. And congrats on the last bird leaving the nest. Elaine Pruis Senior Director Naming Operations and Policy epruis@verisign.com<mailto:epruis@verisign.com> 703.948.4672 [signature_1482981386] From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "McGrady, Paul D." <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Date: Saturday, August 15, 2020 at 7:47 AM To: Jim Prendergast <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi All, Responding now to Elaine’s comments. I admit that I don’t fully understand what Elaine is asking for here: Adding bullet point Recommendation xx (Rationale 2), The non-exhaustive list of “Factors” If ICANN isn’t privy to the material terms of settlements, some resolutions could purposely lose without any money changing hands or business combinations being made. Captures possible “paid (not necessarily in cash) to go away” settlements. * If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs. Maybe Elaine can expound on the next call? I don’t think we want to set up a bright line factor that indicates you are didn’t have a bona fide good faith intent just because you resolved contention sets by non-auction and didn’t end up continuing your applications. Since the AGB doesn’t provide for any meaningful rights protection mechanisms for brand owners (and we haven’t really improved the situation much), there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed. Why would we want to preclude those brand owners from future rounds? We don’t, and that is the problem with bright line factors like this one. But, maybe I am missing Elaine’s point or maybe she can refine this in such a way that it more narrowly addresses what her concerns may be. Also, Elaine also includes “some of” language in her comments. As below with Jim’s, I do hope that this language isn’t being introduced in order to wreck a consensus call later (for the reasons mentioned below). Best, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://urldefense.com/v3/__https:/www.taftlaw.com/general/subscribe__;!!DUT...>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://urldefense.com/v3/__https:/www.taftlaw.com/general/coronavirus-covid...>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: McGrady, Paul D. Sent: Saturday, August 15, 2020 6:34 AM To: 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>; Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi All, I thought a brief note reacting to Jim’s proposed changes make sense. Sorry that I was not able to do so prior to our last call (these comments from Jim came in while I was dropping my son off at university for his freshman year). Even so, these weren’t discussed on our last call, so I think it is still timely in advance of this Monday’s call. Jim suggests we strike: “and such portions will not be shared or communicated by the Evaluator.” As discussed often on prior calls, this change would set up the disclosure of sensitive information since there is no confidentiality provision in the Terms & Conditions and no ability to enforce it against ICANN who famously works hard at being un-suable. This will have a chilling effect on application submission and is just bad governance. At one point I believe I suggested disclosure to Evaluator and those within ICANN with a “need to know” but that was rejected by a small group of disclosure maximalists. The text must be restored or we need to find a solution other than ICANN being able to spill all the sensitive beans with no consequences. As for Jim’s other changes, they consist of adding “some of” or “some in”, etc. to a few rationales. I hope that this is being done for historic record capturing and is not a set up to wreck a consensus call. We all have to keep in mind that the status quo is private auctions without all the interference that this compromise imposes. If, at the end of the day, those pushing for interference won’t support the compromise, there is no reason to keep going down this road as the status quo works quite well. So, hopefully, the record keeping is the reason behind Jim’s insertions. Best to all, Paul From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jim Prendergast Sent: Wednesday, August 12, 2020 1:45 PM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Attached is my feedback on the draft report on Auctions. Thanks Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Steve Chan Sent: Friday, August 7, 2020 11:36 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1KgsjZc/edit<https://urldefense.com/v3/__https:/docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1KgsjZc/edit__;!!DUT_TFPxUQ!VE3_jL_NGyUGFLOqdQD_sCmVi4bUw0AhMAZK5UldLpqXDb1I_5dw0YA2YubcJ9vIyRI$> * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report<https://urldefense.com/v3/__https:/secure-web.cisco.com/1-aQs02VYJdhP_82zrWTH3mxZPgVXLwPMLV5DUeHW3IKyQYKvY8BKAoH7bYc6_pVqqLyrP-awt0GP9LC2ig_-dDKzwiK_Ivr9puAFqbO-jPt7d9tg-xBEkngBwOUG5l-g2fQh3fTyM_PXGHnbSZupVdTk3jLlx4hd4Q1_Iin2Azhz0JH1trgj5fVQ5IAbLqoRo8e3f_QEEoolmsXWcHcaYhZrtgrEKip-GkFAHNbR41jeezZuX75r9lk90PYpksJ6-BiMyfeQk6OLNDSFozRkUA/https*3A*2F*2Fcommunity.icann.org*2Fdisplay*2FNGSPP*2Fg.*2BDraft*2BFinal*2BReport__;JSUlJSUlJSUl!!DUT_TFPxUQ!VE3_jL_NGyUGFLOqdQD_sCmVi4bUw0AhMAZK5UldLpqXDb1I_5dw0YA2YubccPs3zNA$> * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlPCS8/edit?usp=sharing<https://urldefense.com/v3/__https:/docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlPCS8/edit?usp=sharing__;!!DUT_TFPxUQ!VE3_jL_NGyUGFLOqdQD_sCmVi4bUw0AhMAZK5UldLpqXDb1I_5dw0YA2YubcvMIFRyg$>. Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://urldefense.com/v3/__https:/docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit__;!!DUT_TFPxUQ!VE3_jL_NGyUGFLOqdQD_sCmVi4bUw0AhMAZK5UldLpqXDb1I_5dw0YA2YubcVFuuQFY$>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
 Policy Director, GNSO Support Internet Corporation for Assigned Names and Numbers (ICANN) 12025 Waterfront Drive, Suite 300 Los Angeles, CA 90094-2536
 Email: steve.chan@icann.org<mailto:steve.chan@icann.org> Skype: steve.chan55 Mobile: +1.310.339.4410 Find out more about the GNSO by visiting: https://learn.icann.org/<https://urldefense.proofpoint.com/v2/url?u=https-3A__learn.icann.org_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=o7Auz997kA-HPv9PHJCjFVZw7Pgo8krw4MxfqCwBrIU&e=> Follow @GNSO on Twitter: https://twitter.com/ICANN_GNSO<https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_ICANN-5FGNSO&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=DRa2dXAvSFpCIgmkXhFzL7ar9Qfqa0AIgn-H4xR2EBk&m=jLNFXvpu9gNdUeHi-G6sjWNCF9w4_AwhzzUDFZy2elE&s=kWw4fQPNjw2lVKy1UjTxS2F0BmjEAzaDFWNmsYywbmE&e=> Transcripts and recordings of GNSO Working Group and Council events are located on the GNSO Master Calendar <https://urldefense.proofpoint.com/v2/url?u=https-3A__gnso.icann.org_en_group...> ________________________________ 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 the information.

Thanks Jeff. I understand the goal of compromise but as I have said, sometimes bad compromise is worse than no compromise and we are splitting the baby here. Unfortunately I also have a conflict during today’s call but I think I made my point as clearly as I could and will just trust that it will be discussed today and am OK sending the factors out to comment for now to see what others in the community think. When they are presented to the community I ask that they be presented as potential factors and that it be made clear that some in the WG are concerned about whether they are good proxies for determining bona fide intent and that in addition to commenting on these potential factors the community should feel free to submit other factors that they believe would be good proxies. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac@gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Jeff Neuman [mailto:jeff@jjnsolutions.com] Sent: Monday, August 17, 2020 9:05 AM To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com> Cc: gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review We are going to pick up the discussion today right on this section. And we did review your comment with the full group on the last call and you can raise again. I think it is important to have examples that can be looked at in some way that can be used by ICANN to show evidence of a lack of good faith intent (or lack of a bona fide intent to operate a registry). I believe not having any factors will set up the same scenario as you have laid out below where those that disagree will argue that the factors applied by ICANN were not indicative factors. At least with some factors stated up front, if these are the factors applied by ICANN, we will have created at least SOME predictability, albeit acknowledged that it is subjective. Without listing the examples, people will argue that the factors applied created unpredictability because they were not known in advance. We can make arguments both ways I guess is the point. Lets let these factors go out for public comment and see what we get back. Perhaps even asking a question about what the community believes would be indicia of a lack of bona fide intent. Remember at the end of the day, we are trying to get a compromise where we both allow private resolution of contention sets via auctions, but balance the Board’s (and other groups’) distrust and dislike of private resolution where applicants financially benefit from not getting the TLDs. We MUST close this discussion today (at least for purposes of the draft final report). Thanks. [cid:image001.png@01D67479.28A4C480] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> https://urldefense.com/v3/__http://jjnsolutions.com__;!!DUT_TFPxUQ!R3Wulj-Ui... From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Marc Trachtenberg via Gnso-newgtld-wg Sent: Saturday, August 15, 2020 1:29 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review I wasn’t able to attend the last call because I am in Colorado with my kids on vacation and was on the back of a horse so I don’t know if my objections were raised on the call so just in case I will reiterate them here. It’s fine to want to compromise but compromise doesn’t always result in a good solution. These factors are not good proxies for determining whether an application was submitted with a bona fide good faith intent to operate the registries. Any one of them could occur for other reasons than a lack of bona fide good faith intent to operate the registry. If the evaluators can take anything into account then fine, let them – but we should not be specifying factors that they “may” consider which are not good proxies for this determination. The effect of this will be obvious – these factors will be given more weight. If they won’t then there is no need to specify them. Use of these factors will only result in bona fide intent becoming the new CPE and years of disputes and fights from applicants who end up on the wrong side of the bona fide intent determination or from others when applicants end up on the right side of the determination and the others don’t like it. Please let’s move away from solutions that are not workable and certain to cause disputes later. Marc H. Trachtenberg Shareholder Greenberg Traurig, LLP | 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601 Tel 312.456.1020 Mobile 773.677.3305 trac@gtlaw.com<mailto:trac@gtlaw.com> | http://www.gtlaw.com<http://www.gtlaw.com/> [Greenberg Traurig] From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Pruis, Elaine via Gnso-newgtld-wg Sent: Saturday, August 15, 2020 6:34 AM To: PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>; jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>; steve.chan@icann.org<mailto:steve.chan@icann.org>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review *EXTERNAL TO GT* HI Paul. The Factors are an outcome of an attempt to compromise on private resolution. We allow for creative private resolution with the conditions that include “a bona fide (“good faith”) intention to operate the gTLD. Applicants must affirmatively attest to a bona fide intention to operate the TLDs for any and all applications that they submit.” We have to account for the fact that some applicants will apply for TLDs without a bona fide intent to operate the TLD. Which I think you are describing when you write “there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed.” Let me provide an example that might better illustrate my concern. Savvy gambler “J” comes along and applies for lots of generic/brand TLDs “orange” is one example. He convinces the defensive brand applicant to resolve the contention not at private auction but through a deal where he gets a thousand cases of Orange’s product every year for life. We haven’t come to agreement to require all material terms of an arrangement to be made public. Therefore, the suggested language to add to the Factors for evaluators/ ICANN to consider if a bona fide intent to operate the TLD is If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs. I don’t think the factors are “bright line” (savvy gambler J will win one TLD to avoid scrutiny) …. but the “bona fide intent” is… and that might be where your issue around defensive applications needs to be addressed. Regarding my addition of “some” here: “By requiring all applicants to agree to the bona fide use clause, some of the Working Group believes that the Board’s primary concerns are mitigated and that private resolutions (including private auctions) as a mechanism to resolve string contention, can be permitted.” Is meant to reflect that not everyone believes the clause actually resolves the boards concerns. It’s a compromise the WG is recommending, but it may not actually mitigate the board’s concerns that applicants will participate to profit. Hope that helps. And congrats on the last bird leaving the nest. Elaine Pruis Senior Director Naming Operations and Policy epruis@verisign.com<mailto:epruis@verisign.com> 703.948.4672 [signature_1482981386] From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "McGrady, Paul D." <PMcGrady@taftlaw.com<mailto:PMcGrady@taftlaw.com>> Date: Saturday, August 15, 2020 at 7:47 AM To: Jim Prendergast <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>, Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>, "gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>" <gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org>> Subject: [EXTERNAL] Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi All, Responding now to Elaine’s comments. I admit that I don’t fully understand what Elaine is asking for here: Adding bullet point Recommendation xx (Rationale 2), The non-exhaustive list of “Factors” If ICANN isn’t privy to the material terms of settlements, some resolutions could purposely lose without any money changing hands or business combinations being made. Captures possible “paid (not necessarily in cash) to go away” settlements. * If an applicant with multiple applications resolves contention sets by means other than private auctions and does not win any TLDs. Maybe Elaine can expound on the next call? I don’t think we want to set up a bright line factor that indicates you are didn’t have a bona fide good faith intent just because you resolved contention sets by non-auction and didn’t end up continuing your applications. Since the AGB doesn’t provide for any meaningful rights protection mechanisms for brand owners (and we haven’t really improved the situation much), there will still be defensive applications filed by brand owners that are likely to be withdrawn once non-infringement assurances are confirmed. Why would we want to preclude those brand owners from future rounds? We don’t, and that is the problem with bright line factors like this one. But, maybe I am missing Elaine’s point or maybe she can refine this in such a way that it more narrowly addresses what her concerns may be. Also, Elaine also includes “some of” language in her comments. As below with Jim’s, I do hope that this language isn’t being introduced in order to wreck a consensus call later (for the reasons mentioned below). Best, Paul To receive regular COVID-19 updates from Taft, subscribe here<https://urldefense.com/v3/__https:/www.taftlaw.com/general/subscribe__;!!DUT...>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://urldefense.com/v3/__https:/www.taftlaw.com/general/coronavirus-covid...>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: McGrady, Paul D. Sent: Saturday, August 15, 2020 6:34 AM To: 'Jim Prendergast' <jim@GALWAYSG.COM<mailto:jim@GALWAYSG.COM>>; Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi All, I thought a brief note reacting to Jim’s proposed changes make sense. Sorry that I was not able to do so prior to our last call (these comments from Jim came in while I was dropping my son off at university for his freshman year). Even so, these weren’t discussed on our last call, so I think it is still timely in advance of this Monday’s call. Jim suggests we strike: “and such portions will not be shared or communicated by the Evaluator.” As discussed often on prior calls, this change would set up the disclosure of sensitive information since there is no confidentiality provision in the Terms & Conditions and no ability to enforce it against ICANN who famously works hard at being un-suable. This will have a chilling effect on application submission and is just bad governance. At one point I believe I suggested disclosure to Evaluator and those within ICANN with a “need to know” but that was rejected by a small group of disclosure maximalists. The text must be restored or we need to find a solution other than ICANN being able to spill all the sensitive beans with no consequences. As for Jim’s other changes, they consist of adding “some of” or “some in”, etc. to a few rationales. I hope that this is being done for historic record capturing and is not a set up to wreck a consensus call. We all have to keep in mind that the status quo is private auctions without all the interference that this compromise imposes. If, at the end of the day, those pushing for interference won’t support the compromise, there is no reason to keep going down this road as the status quo works quite well. So, hopefully, the record keeping is the reason behind Jim’s insertions. Best to all, Paul From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Jim Prendergast Sent: Wednesday, August 12, 2020 1:45 PM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Attached is my feedback on the draft report on Auctions. Thanks Jim Prendergast The Galway Strategy Group +1 202-285-3699 From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Steve Chan Sent: Friday, August 7, 2020 11:36 AM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Dear WG Members, As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. * For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) * Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://urldefense.com/v3/__https://docs.google.com/document/d/17oV-BTJGtm2Q... <https://urldefense.com/v3/__https:/docs.google.com/document/d/17oV-BTJGtm2Q6...> * Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://urldefense.com/v3/__https://community.icann.org/display/NGSPP/g.*Dra... <https://urldefense.com/v3/__https:/secure-web.cisco.com/1-aQs02VYJdhP_82zrWT...> * Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://urldefense.com/v3/__https://docs.google.com/document/d/1S4aOGxln9b93... <https://urldefense.com/v3/__https:/docs.google.com/document/d/1S4aOGxln9b93E...>. Feedback form is attached. * NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://urldefense.com/v3/__https://docs.google.com/document/d/1ShY7lL07QrFK... <https://urldefense.com/v3/__https:/docs.google.com/document/d/1ShY7lL07QrFKI...>. Again, feedback form is attached. Please let us know if you have any questions or concerns. Best, Steve Steven Chan
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Cannot live with rationale. Agree with (b) Donna’s comment . We cannot have a situation ( as happened last time) whereby only one applicant refused to go to a private auction and thereby forced an ICANN last resort takes all auction. Have Added a time limit when it needs to be done.

Mandating any form of private settlement before last resort is adding a new set of goals to the new gTLD program: profiting from losing. Contrary to other public interest resources we are keeping the option for private settlement, but turning it into an obligation is a total deviation of program objectives. If one applicant doesn't want private settlements of any kind, it's their prerogative. Rubens

All, I wanted to reply to a particular thread on the E-mail list that we did not get to yesterday during our call. I think we have a couple of issues here all stemming from misunderstandings (which could be a text issue that we can fix). 1. I believe Donna read the original text in a way that it was not intended (but again that could be a drafting issue); and 2. I believe Phil B. misread Donna’s comment to mean something I don’t think Donna intended; and 3. Rubens and Justine commented on Phil’s misreading of Donna’s comment. So, let me try to add some clarity. 1. On Donna’s original point. The language states: “At the end of the String Evaluation period, Applicants in contention sets will be informed of the number of other applications in their contention set, but no other information regarding the other applications will be shared. Any applicants that wish to compete for their applied-for string in an ICANN Auction of Last Resort must submit a sealed bid for each relevant application (“Last Resort Sealed Bids”). * Donna took that to mean that to mean that Applicants could force other applicants to resolve their contention sets through private auctions (even if one applicant did not want to). * That was not the intent. An ICANN Auction of Last Resort is voluntary as well. You cannot force an applicant to participate in an ICANN Auction. The Intent of that sentence was that an applicant after finding out that there were other applicants for the string could decide that it wanted to withdraw it application. Or if it were a community based applicant, it could decide to stay in until CPE, but if it didn’t qualify, not compete in an ICANN Auction (meaning essentially it would be withdrawing its application at that point). * Donna’s proposed new language, however, states: “All applicants in a contention set will be required to submit a sealed bid for each application in a contention set at this time. This sealed bid will only become relevant if the contention set is resolved through an ICANN Auction of Last Resort. (“Last Resort Sealed Bids”). i. This doesn’t work either because it does not allow for applicants to withdraw and/or does not let a community applicant have the option of going through CPE and then, only if not successful, withdrawing. ii. Sure an applicant can submit a sealed bid of $1.00 which essentially would be like withdrawing anyway, but there still should be a choice. * Therefore, my proposal would be to keep the language as is, but add a bullet point to Recommendation CC (Rationale 2); that makes it clear that a contention set may only be ultimately resolved through private resolution if ALL applicants in the contention set agree. If one party does not agree, the contention set will go to an ICANN Auction of Last Resort. Does this make sense? I hope it clears some things up. If not, I am sure we will discuss on Monday anyway. Thanks. Jeff [cid:image001.png@01D67164.28442070] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Justine Chew Sent: Wednesday, August 12, 2020 11:23 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review I fully support Rubens' position on this. Justine ----- On Thu, 13 Aug 2020, 10:46 Rubens Kuhl, <rubensk@nic.br<mailto:rubensk@nic.br>> wrote: Cannot live with rationale. Agree with (b) Donna’s comment . We cannot have a situation ( as happened last time) whereby only one applicant refused to go to a private auction and thereby forced an ICANN last resort takes all auction. Have Added a time limit when it needs to be done. Mandating any form of private settlement before last resort is adding a new set of goals to the new gTLD program: profiting from losing. Contrary to other public interest resources we are keeping the option for private settlement, but turning it into an obligation is a total deviation of program objectives. If one applicant doesn't want private settlements of any kind, it's their prerogative. Rubens _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

If applicant didn't submit a sealed bid in the allowed timeframe, we can assign 0 to its bid value. If the applicant is the only survivor of the contention set, it gets the TLD, even with a 0 bid. If more than one applicant didn't submit a bid, then all should be terminated, the TLD not allocated in that procedure and the TLD made available in a subsequent procedure. Rubens

On 14 Aug 2020, at 19:16, Donna@registry.godaddy wrote:

Sorry for setting hares racing—my comments inline below—I think this is a drafting issue:

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Friday, August 14, 2020 12:20 PM To: Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

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All,

I wanted to reply to a particular thread on the E-mail list that we did not get to yesterday during our call.

I think we have a couple of issues here all stemming from misunderstandings (which could be a text issue that we can fix).

I believe Donna read the original text in a way that it was not intended (but again that could be a drafting issue); and I believe Phil B. misread Donna’s comment to mean something I don’t think Donna intended; and Rubens and Justine commented on Phil’s misreading of Donna’s comment.

So, let me try to add some clarity.

On Donna’s original point. The language states: “At the end of the String Evaluation period, Applicants in contention sets will be informed of the number of other applications in their contention set, but no other information regarding the other applications will be shared. Any applicants that wish to compete for their applied-for string in an ICANN Auction of Last Resort must submit a sealed bid for each relevant application (“Last Resort Sealed Bids”). Donna took that to mean that to mean that Applicants could force other applicants to resolve their contention sets through private auctions (even if one applicant did not want to). DA: No I didn’t take it to mean that at all. My point was, as noted in my issues document:

If it’s only applicants that wish to compete for their applied-for string in an ICANN Auction of Last Resort that submit a sealed bid at this point in the process, at what point would applicants who intend to resolve the contention set through private resolution, but end up in a contention set resolution via an ICANN Auction of Last Resort submit their sealed bid?

It was my understanding that if one applicant in the contention set opts for the ICANN Auction of Last Resort that negates the preference for private resolution of all the other applicants in the contention set.

For example: you have six applicants that have applied for the same string. Two submit sealed bids because they want to compete for the string in an ICANN Auction of Last Resort. Four don’t submit a sealed bid because they prefer private resolution. At what point will the ‘four’ be informed that the contention set will be resolved via an ICANN Auction of Last Resort (because If one party does not agree, the contention set will go to an ICANN Auction of Last Resort) and they will need to submit a sealed bid if they wish to continue?

That was not the intent. An ICANN Auction of Last Resort is voluntary as well. You cannot force an applicant to participate in an ICANN Auction. The Intent of that sentence was that an applicant after finding out that there were other applicants for the string could decide that it wanted to withdraw it application. Or if it were a community based applicant, it could decide to stay in until CPE, but if it didn’t qualify, not compete in an ICANN Auction (meaning essentially it would be withdrawing its application at that point). DA: If that’s the intent of the sentence then it needs to explicitly say that.

Donna’s proposed new language, however, states: “All applicants in a contention set will be required to submit a sealed bid for each application in a contention set at this time. This sealed bid will only become relevant if the contention set is resolved through an ICANN Auction of Last Resort. (“Last Resort Sealed Bids”). i. This doesn’t work either because it does not allow for applicants to withdraw and/or does not let a community applicant have the option of going through CPE and then, only if not successful, withdrawing. ii. Sure an applicant can submit a sealed bid of $1.00 which essentially would be like withdrawing anyway, but there still should be a choice. Therefore, my proposal would be to keep the language as is, but add a bullet point to Recommendation CC (Rationale 2); that makes it clear that a contention set may only be ultimately resolved through private resolution if ALL applicants in the contention set agree. If one party does not agree, the contention set will go to an ICANN Auction of Last Resort. DA: But that doesn’t address my concern about at what point applicants that did not submit a sealed bid will be required to do so?

Does this make sense? I hope it clears some things up. If not, I am sure we will discuss on Monday anyway.

Thanks.

Jeff

<image002.png> Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com> http://jjnsolutions.com <http://jjnsolutions.com/>

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Wednesday, August 12, 2020 11:23 PM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

I fully support Rubens' position on this.

Justine -----

On Thu, 13 Aug 2020, 10:46 Rubens Kuhl, <rubensk@nic.br <mailto:rubensk@nic.br>> wrote:

Cannot live with rationale. Agree with (b) Donna’s comment . We cannot have a situation ( as happened last time) whereby only one applicant refused to go to a private auction and thereby forced an ICANN last resort takes all auction. Have Added a time limit when it needs to be done.

Mandating any form of private settlement before last resort is adding a new set of goals to the new gTLD program: profiting from losing. Contrary to other public interest resources we are keeping the option for private settlement, but turning it into an obligation is a total deviation of program objectives.

If one applicant doesn't want private settlements of any kind, it's their prerogative.

Rubens

_______________________________________________ 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> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy <https://www.icann.org/privacy/policy>) and the website Terms of Service (https://www.icann.org/privacy/tos <https://www.icann.org/privacy/tos>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

But the issue is somewhere else, like in establishing a timeframe for the bids. What I mentioned is just the outcome of having a timeframe. If bids are allowed after the timeframe, then there is no timeframe. Rubens

On 14 Aug 2020, at 20:18, Donna@registry.godaddy wrote:

That doesn’t work for me Rubens.

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Rubens Kuhl Sent: Friday, August 14, 2020 3:59 PM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

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If applicant didn't submit a sealed bid in the allowed timeframe, we can assign 0 to its bid value. If the applicant is the only survivor of the contention set, it gets the TLD, even with a 0 bid. If more than one applicant didn't submit a bid, then all should be terminated, the TLD not allocated in that procedure and the TLD made available in a subsequent procedure.

Rubens

On 14 Aug 2020, at 19:16, Donna@registry.godaddy <mailto:Donna@registry.godaddy> wrote:

Sorry for setting hares racing—my comments inline below—I think this is a drafting issue:

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>] On Behalf Of Jeff Neuman Sent: Friday, August 14, 2020 12:20 PM To: Justine Chew <justine.chew@gmail.com <mailto:justine.chew@gmail.com>>; gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

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All,

I wanted to reply to a particular thread on the E-mail list that we did not get to yesterday during our call.

I think we have a couple of issues here all stemming from misunderstandings (which could be a text issue that we can fix).

I believe Donna read the original text in a way that it was not intended (but again that could be a drafting issue); and I believe Phil B. misread Donna’s comment to mean something I don’t think Donna intended; and Rubens and Justine commented on Phil’s misreading of Donna’s comment.

So, let me try to add some clarity.

On Donna’s original point. The language states: “At the end of the String Evaluation period, Applicants in contention sets will be informed of the number of other applications in their contention set, but no other information regarding the other applications will be shared. Any applicants that wish to compete for their applied-for string in an ICANN Auction of Last Resort must submit a sealed bid for each relevant application (“Last Resort Sealed Bids”). Donna took that to mean that to mean that Applicants could force other applicants to resolve their contention sets through private auctions (even if one applicant did not want to). DA: No I didn’t take it to mean that at all. My point was, as noted in my issues document:

If it’s only applicants that wish to compete for their applied-for string in an ICANN Auction of Last Resort that submit a sealed bid at this point in the process, at what point would applicants who intend to resolve the contention set through private resolution, but end up in a contention set resolution via an ICANN Auction of Last Resort submit their sealed bid?

It was my understanding that if one applicant in the contention set opts for the ICANN Auction of Last Resort that negates the preference for private resolution of all the other applicants in the contention set.

For example: you have six applicants that have applied for the same string. Two submit sealed bids because they want to compete for the string in an ICANN Auction of Last Resort. Four don’t submit a sealed bid because they prefer private resolution. At what point will the ‘four’ be informed that the contention set will be resolved via an ICANN Auction of Last Resort (because If one party does not agree, the contention set will go to an ICANN Auction of Last Resort) and they will need to submit a sealed bid if they wish to continue?

That was not the intent. An ICANN Auction of Last Resort is voluntary as well. You cannot force an applicant to participate in an ICANN Auction. The Intent of that sentence was that an applicant after finding out that there were other applicants for the string could decide that it wanted to withdraw it application. Or if it were a community based applicant, it could decide to stay in until CPE, but if it didn’t qualify, not compete in an ICANN Auction (meaning essentially it would be withdrawing its application at that point). DA: If that’s the intent of the sentence then it needs to explicitly say that.

Donna’s proposed new language, however, states: “All applicants in a contention set will be required to submit a sealed bid for each application in a contention set at this time. This sealed bid will only become relevant if the contention set is resolved through an ICANN Auction of Last Resort. (“Last Resort Sealed Bids”). i. This doesn’t work either because it does not allow for applicants to withdraw and/or does not let a community applicant have the option of going through CPE and then, only if not successful, withdrawing. ii. Sure an applicant can submit a sealed bid of $1.00 which essentially would be like withdrawing anyway, but there still should be a choice. Therefore, my proposal would be to keep the language as is, but add a bullet point to Recommendation CC (Rationale 2); that makes it clear that a contention set may only be ultimately resolved through private resolution if ALL applicants in the contention set agree. If one party does not agree, the contention set will go to an ICANN Auction of Last Resort. DA: But that doesn’t address my concern about at what point applicants that did not submit a sealed bid will be required to do so?

Does this make sense? I hope it clears some things up. If not, I am sure we will discuss on Monday anyway.

Thanks.

Jeff

<image002.png> Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com <mailto:jeff@jjnsolutions.com> http://jjnsolutions.com <http://jjnsolutions.com/>

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Wednesday, August 12, 2020 11:23 PM To: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

I fully support Rubens' position on this.

Justine -----

On Thu, 13 Aug 2020, 10:46 Rubens Kuhl, <rubensk@nic.br <mailto:rubensk@nic.br>> wrote:

Cannot live with rationale. Agree with (b) Donna’s comment . We cannot have a situation ( as happened last time) whereby only one applicant refused to go to a private auction and thereby forced an ICANN last resort takes all auction. Have Added a time limit when it needs to be done.

Mandating any form of private settlement before last resort is adding a new set of goals to the new gTLD program: profiting from losing. Contrary to other public interest resources we are keeping the option for private settlement, but turning it into an obligation is a total deviation of program objectives.

If one applicant doesn't want private settlements of any kind, it's their prerogative.

Rubens

_______________________________________________ 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> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy <https://www.icann.org/privacy/policy>) and the website Terms of Service (https://www.icann.org/privacy/tos <https://www.icann.org/privacy/tos>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org <mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg <https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy <https://www.icann.org/privacy/policy>) and the website Terms of Service (https://www.icann.org/privacy/tos <https://www.icann.org/privacy/tos>). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.

Donna, Rubens and Alexander are correct. The intent is that everyone submits a sealed bid at the same time for the ICANN Auction (Before any attempts at Private Resolution). They can try to privately resolve, but if that fails, it goes to ICANN Auction with the previously submitted bids. If someone did not submit a bid during that original time period, then they will have essentially indicated their lack of willingness to participate in an ICANN Auction. This was the “compromise” to continue to allow private resolution in many people’s minds. I understand that you are not in favor of this approach, but you are free to file those comments during the public comment period. Thanks. Sincerely, Jeff [cid:image001.png@01D6747B.DE15AC10] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Alexander Schubert Sent: Saturday, August 15, 2020 5:48 PM To: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Hi Donna, You wrote: For example: you have six applicants that have applied for the same string. Two submit sealed bids because they want to compete for the string in an ICANN Auction of Last Resort. Four don’t submit a sealed bid because they prefer private resolution. At what point will the ‘four’ be informed that the contention set will be resolved via an ICANN Auction of Last Resort (because If one party does not agree, the contention set will go to an ICANN Auction of Last Resort) and they will need to submit a sealed bid if they wish to continue? Short answer: All 6 applicants would have to submit their sealed bids for the auction of last resort together before the application roster reveal. Below a longer explanation why: I think this is a simple misinterpretation on your side. In my mind there is no problem where you see one: In case a contention set is established ICANN calls upon the applicants to resolve contention amongst themselves – and in the event that after the given period of time more than one contention set member is left the “ICANN auction of last resort” is being triggered. That “auction of last resort” is in reality just a simple “reveal” now: ICANN will reveal the highest bidder and the second highest bid amount (the contention set members aren’t actively participating in the auction other than submitting their auction deposit). The sealed bids that are basis for the auction are submitted directly after ICANN reveals the contention to the members: All members are required to submit “auction of last resort” bids. It doesn’t matter whether or not they “prefer private resolution”: you submit a bid for the auction of last resort anyways. Why? Because your preference is irrelevant as soon as at least one member will decide to choose ICANN of last resort. Why do all members have to submit at once – even if they hope a private resolution should settle the matter? Because we want that the bid amounts are assigned before the application roster is being published. That is in reaction to the board concerns of auction proceed shifting, etc. We never said we are actively trying to prevent portfolio applicants (mainly because we don’t now how to do that) but we clearly don’t want to provide them with tools that allow them to gain advantages over single string applicants. Hence the aim to submit all sealed bids before application roster reveal. So you submit a bid for the ICANN auction of last resort – after all the bids were submitted the application roster is being published, you try to settle the matter; if all but one applicants withdraw their applications then an auction of last resort is being prevented; if more than one applicant is still contention set member after the given period, ICANN will move forward and invite all (remaining) applicants to pay their deposits in order to reveal the winner. And that bid has been submitted before the application roster reveal. Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Donna@registry.godaddy<mailto:Donna@registry.godaddy> Sent: Saturday, August 15, 2020 1:17 AM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Sorry for setting hares racing—my comments inline below—I think this is a drafting issue: From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Jeff Neuman Sent: Friday, August 14, 2020 12:20 PM To: Justine Chew <justine.chew@gmail.com<mailto:justine.chew@gmail.com>>; gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review Notice: This email is from an external sender. All, I wanted to reply to a particular thread on the E-mail list that we did not get to yesterday during our call. I think we have a couple of issues here all stemming from misunderstandings (which could be a text issue that we can fix). 1. I believe Donna read the original text in a way that it was not intended (but again that could be a drafting issue); and 2. I believe Phil B. misread Donna’s comment to mean something I don’t think Donna intended; and 3. Rubens and Justine commented on Phil’s misreading of Donna’s comment. So, let me try to add some clarity. 1. On Donna’s original point. The language states: “At the end of the String Evaluation period, Applicants in contention sets will be informed of the number of other applications in their contention set, but no other information regarding the other applications will be shared. Any applicants that wish to compete for their applied-for string in an ICANN Auction of Last Resort must submit a sealed bid for each relevant application (“Last Resort Sealed Bids”). * Donna took that to mean that to mean that Applicants could force other applicants to resolve their contention sets through private auctions (even if one applicant did not want to). DA: No I didn’t take it to mean that at all. My point was, as noted in my issues document: If it’s only applicants that wish to compete for their applied-for string in an ICANN Auction of Last Resort that submit a sealed bid at this point in the process, at what point would applicants who intend to resolve the contention set through private resolution, but end up in a contention set resolution via an ICANN Auction of Last Resort submit their sealed bid? It was my understanding that if one applicant in the contention set opts for the ICANN Auction of Last Resort that negates the preference for private resolution of all the other applicants in the contention set. For example: you have six applicants that have applied for the same string. Two submit sealed bids because they want to compete for the string in an ICANN Auction of Last Resort. Four don’t submit a sealed bid because they prefer private resolution. At what point will the ‘four’ be informed that the contention set will be resolved via an ICANN Auction of Last Resort (because If one party does not agree, the contention set will go to an ICANN Auction of Last Resort) and they will need to submit a sealed bid if they wish to continue? * That was not the intent. An ICANN Auction of Last Resort is voluntary as well. You cannot force an applicant to participate in an ICANN Auction. The Intent of that sentence was that an applicant after finding out that there were other applicants for the string could decide that it wanted to withdraw it application. Or if it were a community based applicant, it could decide to stay in until CPE, but if it didn’t qualify, not compete in an ICANN Auction (meaning essentially it would be withdrawing its application at that point). DA: If that’s the intent of the sentence then it needs to explicitly say that. * Donna’s proposed new language, however, states: “All applicants in a contention set will be required to submit a sealed bid for each application in a contention set at this time. This sealed bid will only become relevant if the contention set is resolved through an ICANN Auction of Last Resort. (“Last Resort Sealed Bids”). i. This doesn’t work either because it does not allow for applicants to withdraw and/or does not let a community applicant have the option of going through CPE and then, only if not successful, withdrawing. ii. Sure an applicant can submit a sealed bid of $1.00 which essentially would be like withdrawing anyway, but there still should be a choice. * Therefore, my proposal would be to keep the language as is, but add a bullet point to Recommendation CC (Rationale 2); that makes it clear that a contention set may only be ultimately resolved through private resolution if ALL applicants in the contention set agree. If one party does not agree, the contention set will go to an ICANN Auction of Last Resort. DA: But that doesn’t address my concern about at what point applicants that did not submit a sealed bid will be required to do so? Does this make sense? I hope it clears some things up. If not, I am sure we will discuss on Monday anyway. Thanks. Jeff [cid:image002.png@01D6747B.DE15AC10] Jeffrey J. Neuman Founder & CEO JJN Solutions, LLC p: +1.202.549.5079 E: jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com> http://jjnsolutions.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Justine Chew Sent: Wednesday, August 12, 2020 11:23 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review I fully support Rubens' position on this. Justine ----- On Thu, 13 Aug 2020, 10:46 Rubens Kuhl, <rubensk@nic.br<mailto:rubensk@nic.br>> wrote: Cannot live with rationale. Agree with (b) Donna’s comment . We cannot have a situation ( as happened last time) whereby only one applicant refused to go to a private auction and thereby forced an ICANN last resort takes all auction. Have Added a time limit when it needs to be done. Mandating any form of private settlement before last resort is adding a new set of goals to the new gTLD program: profiting from losing. Contrary to other public interest resources we are keeping the option for private settlement, but turning it into an obligation is a total deviation of program objectives. If one applicant doesn't want private settlements of any kind, it's their prerogative. Rubens _______________________________________________ Gnso-newgtld-wg mailing list Gnso-newgtld-wg@icann.org<mailto:Gnso-newgtld-wg@icann.org> https://mm.icann.org/mailman/listinfo/gnso-newgtld-wg _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on.