Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
Dear Anne, Jeff, all, Below, please find the link to our working list of remaining applications. We have consulted with GDD to try and make this list as accurate as possible: https://drive.google.com/a/icann.org/file/d/1R2TgxELfg8uNODJ9akAU8mfBEIIHC0W... Note that two strings have been removed from this list because they are in the Transition to Delegation phase (.LLP and .CPA). Best, Steve From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of "Aikman-Scalese, Anne" <AAikman@lrrc.com> Date: Thursday, September 5, 2019 at 11:47 AM To: Jeff Neuman <jeff.neuman@comlaude.com>, Susan Payne <susan.payne@valideus.com> Cc: "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Jeff – You had said you were waiting on GDD approval of the list. Can we have the link to that? Re second question, hard to evaluate a proposal to prohibit new applications for the same strings when we don’t know which applications we are discussing. From: Jeff Neuman <jeff.neuman@comlaude.com> Sent: Thursday, September 5, 2019 11:02 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Susan Payne <susan.payne@valideus.com> Cc: gnso-newgtld-wg@icann.org Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] Anne, I am not sure what you mean by the “GDD approved list of strings that may still be in play from 2012”? We have published a status chart of where everything from 2012, which will need one update (if it has not been already), as I understand .llp may be signed now. I am also not clear on what you mean by concurrent evaluation of these proposals. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com From: Aikman-Scalese, Anne <AAikman@lrrc.com> Sent: Thursday, September 5, 2019 1:52 PM To: Jeff Neuman <jeff.neuman@comlaude.com>; Susan Payne <susan.payne@valideus.com> Cc: gnso-newgtld-wg@icann.org Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Thanks Jeff. I was under the impression that since there was no consensus evident on Proposal 1, Susan would be drafting proposal 2 for consideration. Separately, I don’t see how any WG member can reflect properly on either proposal without the GDD approved list of strings that may still be in play from 2012. Will that be coming in time for concurrent evaluation of these proposals? Anne From: Jeff Neuman <jeff.neuman@comlaude.com> Sent: Wednesday, September 4, 2019 12:10 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Susan Payne <susan.payne@valideus.com> Cc: gnso-newgtld-wg@icann.org Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] Anne, During the call that Susan is referring to Susan volunteered to draft some language to flesh out her proposal. And although it did not seem to have a huge amount of support on that call, she was asked to send the proposal around to the list to see if it has traction. As you have pointed out, decisions are not generally made with just one phone call. Discussions can and should happen on the mailing list. Susan has responded with her proposal on the list and we can see which version has support. The options are: Prohibit Applications for strings where the applications are still pending (for whatever reason) – As per Susan’s proposal; or Allow applications in for those strings, but do not process them any further than the reveal stage, unless and/or until the applications from the previous round that match those strings have had their final disposition. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 3, 2019 7:09 PM To: Susan Payne <susan.payne@valideus.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Susan – sorry for the confusion but based on Jeff’s request, I had understood you were “fleshing out” the part that the WG might be able to agree on – which was that prior round applications should be “completed” prior to subsequent round applications for the same string being considered. I’m pretty sure the recording will confirm this. Anne From: Susan Payne <susan.payne@valideus.com> Sent: Tuesday, September 3, 2019 4:06 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] Anne, This is based on the comments that my company and INTA had made. I was asked on the call, including by you, to flesh this out so that the group could see what such a proposal would look like, and whether it would garner sufficient support. Here it is. Sent from my iPad On 3 Sep 2019, at 17:57, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote: Hi Susan. This is a bit confusing. I recall that Jeff noted there was no high level agreement for this proposition. Rather he stated there could be high level agreement that strings from prior rounds must complete application evaluation prior to consideration of subsequent round applications for the same string. He has since confirmed that in a post to the list. How did we get to a proposal for “no applications for the same string?” Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> On Behalf Of Susan Payne Sent: Tuesday, September 3, 2019 3:54 PM To: gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] All During a call a couple of weeks ago, when we were discussing application prioritisation, I volunteered to circulate for consideration a proposal to prohibit allowing applications in a later application window where the string has previously been applied for and not yet been delegated. Although it had originally been proposed that this might extend to confusingly similar strings, having reflected on the discussion during the call I accept that this would probably be unrealistic, since confusing similarity needs to be determined as part of the TLD evaluation process. I have therefore limited this proposal to exact match strings, as follows: This proposal assumes that we will have at least one further application round/open window for submission of applications, and possibly that there may be a number of such future open windows during which applications may be submitted, followed by some closed period when applications are not received, before the next application window opens (I will use the phrase “application submission period”). Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to: One or more of the applications has not yet completed evaluation; One or more of the applications is still the subject of an objection process The contention set has not yet been resolved; There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application; Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running; The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied: If the TLD string is delegated to one of the earlier applicants, then that string will remain unavailable for later applicants; If all of the earlier applications are finally rejected, then (provided that a decision has not been made by the Board to permanently refuse that string) the TLD string will once again become available for application: from the next application submission period, provided that this allows a minimum of 3 months notice before the application submission period opens; or, If the next application submission period opens in less than 3 months, then the subsequent application submission period. Rationale We know that, many years after the 2012 application submission period closed, there are still a handful of applications for TLD strings which remain unresolved, generally due to delays caused by recourse to ICANNs accountability mechanisms. Whilst we all hope that in subsequent procedures we will have fewer of the challenges that we saw in the 2012 round, it is reasonable to assume that some will still occur. In any event, if subsequent procedures take the form of a series of discrete application submission periods, with known, finite, periods between them, then it is conceivable that applications from one application submission period may still be being processed when then next application submission period opens. If the period between application submission periods is reasonably short (12 months has been discussed, for example) we could conceivably see the added complication of applications for the same string being queued up across multiple windows. Whilst a later applicant who applied unsuccessfully for a TLD, which was eventually allocated to an applicant from a prior application submission period, could expect to recover their application fee, there is a cost to putting together an application in excess of the ICANN fee, and this would not be recoverable. The later applicant could also have their application fee tied up for months or even years, pending the outcome of the earlier application(s). Some have argued that this is the choice of the later applicant, that they can check whether there are prior “live” applications and decide accordingly whether they still want to apply. I believe this does a disservice to potential applicants, particularly those who are not so familiar with all of the history of prior applications and who may not appreciate that in many cases they would have no realistic prospect of being allocated the TLD string that ICANN has allowed them to apply for. Blocking the TLD from application, until such time as the previous applications are resolved, seems a much fairer approach. Susan Payne Head of Legal Policy Valideus The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. 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Many thanks Steve. This list is extremely helpful. Some items on this list demonstrate why it is important to consider the effect of a ban on new applications for the same string in light of policy changes occurring in the present policy-making process. \ Since the next call is on name collisions, I’ll take up that example. You will see .HOME, .CORP, and .MAIL applications on the list which have not been withdrawn and are “Not Approved” by the Board. Susan’s draft language prohibits applications for these strings in the next round which new applications might be made under the new name collision framework policy guidelines being developed now. The basis for the status of these applications as “Not Approved” is the Board’s resolution related to name collisions policy. If we adopt a policy that no one else can apply for these strings, then how can that be reconciled with the fact that there is a Name Collision Analysis Project as well as Sub Pro work on name collision policy.? Jeff said 2012 applications are judged and evaluations are completed based on the policy that applied at the time of the application in 2012. But Susan’s language says we absolutely prohibit new applications for .HOME, .CORP, and .MAIL. So that means no applicant can take the risk that its willingness to comply with new policy will be successful since its application is absolutely blocked. That would appear to give undue bargaining power to any applicants who may not like the terms of any new name collisions policy adopted by the Board. (In other words, prior applicants block new name collision policy from being adopted, that is, unless they update their applications to agree to accept new name collision policy recommendations.) Susan’s draft language appears below. Items in red are my suggested edits * Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and * The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to: * One or more of the applications has not yet completed evaluation; * One or more of the applications is still the subject of an objection process * The contention set has not yet been resolved; * There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application; * Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running; * The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied: Thank you, Anne From: Steve Chan <steve.chan@icann.org> Sent: Thursday, September 5, 2019 12:54 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Jeff Neuman <jeff.neuman@comlaude.com>; Susan Payne <susan.payne@valideus.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Dear Anne, Jeff, all, Below, please find the link to our working list of remaining applications. We have consulted with GDD to try and make this list as accurate as possible: https://drive.google.com/a/icann.org/file/d/1R2TgxELfg8uNODJ9akAU8mfBEIIHC0W... Note that two strings have been removed from this list because they are in the Transition to Delegation phase (.LLP and .CPA). Best, Steve From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Thursday, September 5, 2019 at 11:47 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.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] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Jeff – You had said you were waiting on GDD approval of the list. Can we have the link to that? Re second question, hard to evaluate a proposal to prohibit new applications for the same strings when we don’t know which applications we are discussing. From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Sent: Thursday, September 5, 2019 11:02 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, I am not sure what you mean by the “GDD approved list of strings that may still be in play from 2012”? We have published a status chart of where everything from 2012, which will need one update (if it has not been already), as I understand .llp may be signed now. I am also not clear on what you mean by concurrent evaluation of these proposals. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, September 5, 2019 1:52 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Thanks Jeff. I was under the impression that since there was no consensus evident on Proposal 1, Susan would be drafting proposal 2 for consideration. Separately, I don’t see how any WG member can reflect properly on either proposal without the GDD approved list of strings that may still be in play from 2012. Will that be coming in time for concurrent evaluation of these proposals? Anne From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Sent: Wednesday, September 4, 2019 12:10 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, During the call that Susan is referring to Susan volunteered to draft some language to flesh out her proposal. And although it did not seem to have a huge amount of support on that call, she was asked to send the proposal around to the list to see if it has traction. As you have pointed out, decisions are not generally made with just one phone call. Discussions can and should happen on the mailing list. Susan has responded with her proposal on the list and we can see which version has support. The options are: 1. Prohibit Applications for strings where the applications are still pending (for whatever reason) – As per Susan’s proposal; or 2. Allow applications in for those strings, but do not process them any further than the reveal stage, unless and/or until the applications from the previous round that match those strings have had their final disposition. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 3, 2019 7:09 PM To: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Susan – sorry for the confusion but based on Jeff’s request, I had understood you were “fleshing out” the part that the WG might be able to agree on – which was that prior round applications should be “completed” prior to subsequent round applications for the same string being considered. I’m pretty sure the recording will confirm this. Anne From: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Sent: Tuesday, September 3, 2019 4:06 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, This is based on the comments that my company and INTA had made. I was asked on the call, including by you, to flesh this out so that the group could see what such a proposal would look like, and whether it would garner sufficient support. Here it is. Sent from my iPad On 3 Sep 2019, at 17:57, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Hi Susan. This is a bit confusing. I recall that Jeff noted there was no high level agreement for this proposition. Rather he stated there could be high level agreement that strings from prior rounds must complete application evaluation prior to consideration of subsequent round applications for the same string. He has since confirmed that in a post to the list. How did we get to a proposal for “no applications for the same string?” Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Susan Payne Sent: Tuesday, September 3, 2019 3:54 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ All During a call a couple of weeks ago, when we were discussing application prioritisation, I volunteered to circulate for consideration a proposal to prohibit allowing applications in a later application window where the string has previously been applied for and not yet been delegated. Although it had originally been proposed that this might extend to confusingly similar strings, having reflected on the discussion during the call I accept that this would probably be unrealistic, since confusing similarity needs to be determined as part of the TLD evaluation process. I have therefore limited this proposal to exact match strings, as follows: * This proposal assumes that we will have at least one further application round/open window for submission of applications, and possibly that there may be a number of such future open windows during which applications may be submitted, followed by some closed period when applications are not received, before the next application window opens (I will use the phrase “application submission period”). * Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and * The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to: * One or more of the applications has not yet completed evaluation; * One or more of the applications is still the subject of an objection process * The contention set has not yet been resolved; * There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application; * Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running; * The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied: * If the TLD string is delegated to one of the earlier applicants, then that string will remain unavailable for later applicants; * If all of the earlier applications are finally rejected, then (provided that a decision has not been made by the Board to permanently refuse that string) the TLD string will once again become available for application: * from the next application submission period, provided that this allows a minimum of 3 months notice before the application submission period opens; or, * If the next application submission period opens in less than 3 months, then the subsequent application submission period. Rationale We know that, many years after the 2012 application submission period closed, there are still a handful of applications for TLD strings which remain unresolved, generally due to delays caused by recourse to ICANNs accountability mechanisms. Whilst we all hope that in subsequent procedures we will have fewer of the challenges that we saw in the 2012 round, it is reasonable to assume that some will still occur. In any event, if subsequent procedures take the form of a series of discrete application submission periods, with known, finite, periods between them, then it is conceivable that applications from one application submission period may still be being processed when then next application submission period opens. If the period between application submission periods is reasonably short (12 months has been discussed, for example) we could conceivably see the added complication of applications for the same string being queued up across multiple windows. Whilst a later applicant who applied unsuccessfully for a TLD, which was eventually allocated to an applicant from a prior application submission period, could expect to recover their application fee, there is a cost to putting together an application in excess of the ICANN fee, and this would not be recoverable. The later applicant could also have their application fee tied up for months or even years, pending the outcome of the earlier application(s). Some have argued that this is the choice of the later applicant, that they can check whether there are prior “live” applications and decide accordingly whether they still want to apply. I believe this does a disservice to potential applicants, particularly those who are not so familiar with all of the history of prior applications and who may not appreciate that in many cases they would have no realistic prospect of being allocated the TLD string that ICANN has allowed them to apply for. Blocking the TLD from application, until such time as the previous applications are resolved, seems a much fairer approach. Susan Payne Head of Legal Policy Valideus ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. 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Anne, For some reason I don’t see anything in red so I cant see your changes. That said, .home, .corp and .mail are one off unique situations and we will not be discussing those examples on the next call. We have no idea what the NCAP is going to do with respect to those strings if anything at all. We also don’t know if they will create a new name collision framework. As you know from being on the list, we don’t even know if there is an applicant to do Phase 1 of the NCAP Study. And we have no idea if that work will finish in the next year, two years, five years, etc. Right now, the Board resolution prevents .corp, .home and .mail from ever being delegated (unless the Board by resolution reverses its decision). So, regardless of what we do, we cannot impact the Board Resolution. So the status quo is that no one can apply for those strings in future rounds. If the Board reverses its decision pursuant to the work of the NCAP, I am sure at that time, it will consider what should be done with those 3 strings at that time. If we adopt Susan’s position (and I am not saying we should or should not), with respect to those strings we are just adopting the status quo. In summary, we should not be discussing .corp, .home and .mail on the next call except as an example to illustrate a point that there may be some strings that are recommended to not proceed based on a Name Collision review. Our sole mission is to look ahead. And by looking ahead, it does make sense that if there is a determination that applications should not be approved because of issues with the string itself that there be no future applications for that string unless there is an explicit path forward on how such an application can be approved. Because we expect this to be incredibly rare, we would expect ICANN to decide at that time how to treat that string moving forward. Lets not let the extreme edge cases prevent us from setting policy which will handle 99.75% of the cases. (3 strings out of 1200 is 0.25%). Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Aikman-Scalese, Anne <AAikman@lrrc.com> Sent: Thursday, September 5, 2019 6:43 PM To: Steve Chan <steve.chan@icann.org>; Jeff Neuman <jeff.neuman@comlaude.com>; Susan Payne <susan.payne@valideus.com> Cc: gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Many thanks Steve. This list is extremely helpful. Some items on this list demonstrate why it is important to consider the effect of a ban on new applications for the same string in light of policy changes occurring in the present policy-making process. \ Since the next call is on name collisions, I’ll take up that example. You will see .HOME, .CORP, and .MAIL applications on the list which have not been withdrawn and are “Not Approved” by the Board. Susan’s draft language prohibits applications for these strings in the next round which new applications might be made under the new name collision framework policy guidelines being developed now. The basis for the status of these applications as “Not Approved” is the Board’s resolution related to name collisions policy. If we adopt a policy that no one else can apply for these strings, then how can that be reconciled with the fact that there is a Name Collision Analysis Project as well as Sub Pro work on name collision policy.? Jeff said 2012 applications are judged and evaluations are completed based on the policy that applied at the time of the application in 2012. But Susan’s language says we absolutely prohibit new applications for .HOME, .CORP, and .MAIL. So that means no applicant can take the risk that its willingness to comply with new policy will be successful since its application is absolutely blocked. That would appear to give undue bargaining power to any applicants who may not like the terms of any new name collisions policy adopted by the Board. (In other words, prior applicants block new name collision policy from being adopted, that is, unless they update their applications to agree to accept new name collision policy recommendations.) Susan’s draft language appears below. Items in red are my suggested edits * Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and * The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to: * One or more of the applications has not yet completed evaluation; * One or more of the applications is still the subject of an objection process * The contention set has not yet been resolved; * There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application; * Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running; * The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied: Thank you, Anne From: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Sent: Thursday, September 5, 2019 12:54 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Dear Anne, Jeff, all, Below, please find the link to our working list of remaining applications. We have consulted with GDD to try and make this list as accurate as possible: https://drive.google.com/a/icann.org/file/d/1R2TgxELfg8uNODJ9akAU8mfBEIIHC0W... Note that two strings have been removed from this list because they are in the Transition to Delegation phase (.LLP and .CPA). Best, Steve From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Thursday, September 5, 2019 at 11:47 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.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] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Jeff – You had said you were waiting on GDD approval of the list. Can we have the link to that? Re second question, hard to evaluate a proposal to prohibit new applications for the same strings when we don’t know which applications we are discussing. From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Sent: Thursday, September 5, 2019 11:02 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, I am not sure what you mean by the “GDD approved list of strings that may still be in play from 2012”? We have published a status chart of where everything from 2012, which will need one update (if it has not been already), as I understand .llp may be signed now. I am also not clear on what you mean by concurrent evaluation of these proposals. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, September 5, 2019 1:52 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Thanks Jeff. I was under the impression that since there was no consensus evident on Proposal 1, Susan would be drafting proposal 2 for consideration. Separately, I don’t see how any WG member can reflect properly on either proposal without the GDD approved list of strings that may still be in play from 2012. Will that be coming in time for concurrent evaluation of these proposals? Anne From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Sent: Wednesday, September 4, 2019 12:10 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, During the call that Susan is referring to Susan volunteered to draft some language to flesh out her proposal. And although it did not seem to have a huge amount of support on that call, she was asked to send the proposal around to the list to see if it has traction. As you have pointed out, decisions are not generally made with just one phone call. Discussions can and should happen on the mailing list. Susan has responded with her proposal on the list and we can see which version has support. The options are: 1. Prohibit Applications for strings where the applications are still pending (for whatever reason) – As per Susan’s proposal; or 2. Allow applications in for those strings, but do not process them any further than the reveal stage, unless and/or until the applications from the previous round that match those strings have had their final disposition. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 3, 2019 7:09 PM To: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Susan – sorry for the confusion but based on Jeff’s request, I had understood you were “fleshing out” the part that the WG might be able to agree on – which was that prior round applications should be “completed” prior to subsequent round applications for the same string being considered. I’m pretty sure the recording will confirm this. Anne From: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Sent: Tuesday, September 3, 2019 4:06 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, This is based on the comments that my company and INTA had made. I was asked on the call, including by you, to flesh this out so that the group could see what such a proposal would look like, and whether it would garner sufficient support. Here it is. Sent from my iPad On 3 Sep 2019, at 17:57, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Hi Susan. This is a bit confusing. I recall that Jeff noted there was no high level agreement for this proposition. Rather he stated there could be high level agreement that strings from prior rounds must complete application evaluation prior to consideration of subsequent round applications for the same string. He has since confirmed that in a post to the list. How did we get to a proposal for “no applications for the same string?” Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Susan Payne Sent: Tuesday, September 3, 2019 3:54 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ All During a call a couple of weeks ago, when we were discussing application prioritisation, I volunteered to circulate for consideration a proposal to prohibit allowing applications in a later application window where the string has previously been applied for and not yet been delegated. Although it had originally been proposed that this might extend to confusingly similar strings, having reflected on the discussion during the call I accept that this would probably be unrealistic, since confusing similarity needs to be determined as part of the TLD evaluation process. I have therefore limited this proposal to exact match strings, as follows: * This proposal assumes that we will have at least one further application round/open window for submission of applications, and possibly that there may be a number of such future open windows during which applications may be submitted, followed by some closed period when applications are not received, before the next application window opens (I will use the phrase “application submission period”). * Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and * The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to: * One or more of the applications has not yet completed evaluation; * One or more of the applications is still the subject of an objection process * The contention set has not yet been resolved; * There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application; * Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running; * The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied: * If the TLD string is delegated to one of the earlier applicants, then that string will remain unavailable for later applicants; * If all of the earlier applications are finally rejected, then (provided that a decision has not been made by the Board to permanently refuse that string) the TLD string will once again become available for application: * from the next application submission period, provided that this allows a minimum of 3 months notice before the application submission period opens; or, * If the next application submission period opens in less than 3 months, then the subsequent application submission period. Rationale We know that, many years after the 2012 application submission period closed, there are still a handful of applications for TLD strings which remain unresolved, generally due to delays caused by recourse to ICANNs accountability mechanisms. Whilst we all hope that in subsequent procedures we will have fewer of the challenges that we saw in the 2012 round, it is reasonable to assume that some will still occur. In any event, if subsequent procedures take the form of a series of discrete application submission periods, with known, finite, periods between them, then it is conceivable that applications from one application submission period may still be being processed when then next application submission period opens. If the period between application submission periods is reasonably short (12 months has been discussed, for example) we could conceivably see the added complication of applications for the same string being queued up across multiple windows. Whilst a later applicant who applied unsuccessfully for a TLD, which was eventually allocated to an applicant from a prior application submission period, could expect to recover their application fee, there is a cost to putting together an application in excess of the ICANN fee, and this would not be recoverable. The later applicant could also have their application fee tied up for months or even years, pending the outcome of the earlier application(s). Some have argued that this is the choice of the later applicant, that they can check whether there are prior “live” applications and decide accordingly whether they still want to apply. I believe this does a disservice to potential applicants, particularly those who are not so familiar with all of the history of prior applications and who may not appreciate that in many cases they would have no realistic prospect of being allocated the TLD string that ICANN has allowed them to apply for. Blocking the TLD from application, until such time as the previous applications are resolved, seems a much fairer approach. Susan Payne Head of Legal Policy Valideus ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. 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The Com Laude Group includes Nom-IQ Limited t/a Com Laude, a company registered in England and Wales with company number 5047655 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Valideus Limited, a company registered in England and Wales with company number 06181291 and registered office at 28-30 Little Russell Street, London, WC1A 2HN England; Demys Limited, a company registered in Scotland with company number SC197176, having its registered office at 33 Melville Street, Edinburgh, Lothian, EH3 7JF Scotland; Consonum, Inc. dba Com Laude USA and Valideus USA, headquartered at 1751 Pinnacle Drive, Suite 600, McLean, VA 22102, USA; Com Laude (Japan) Corporation, a company registered in Japan having its registered office at Suite 319,1-3-21 Shinkawa, Chuo-ku, Tokyo, 104-0033, Japan. 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Jeff, While I understand that you would prefer not to discuss the .HOME, .CORP, and .MAIL strings, the example is given in part because there is a general rule proposed in relation to ALL future TLD rounds. The point is far more general than your summary would indicate – it’s the issue of how new policy development may affect evaluation of prior round applications which were rejected on policy grounds. If you ban all new applications for the same string in subsequent rounds, you put a “block” on applicants who are willing to comply with new policy, regardless of the reason for the denial of delegation of the initial applications. This violates the new gTLD Principle of Applicant Freedom of Expression. In the case of .HOME, .CORP, and .MAIL, the draft language that is proposed by Susan would not only bar third party applicants for any of these three strings who may want to comply with new policy on name collisions developed by the NCAP, but would also apply to other cases going forward in future rounds that have not been anticipated. I disagree with your reading of the Board resolution re .HOME, .CORP, and .MAIL. It does not say applications are forbidden in future rounds. Further, Cherine specifically advised the SSAC NCAP in a public meeting that the Board was waiting for its advice with respect to these strings.) Here is the text of the Board resolution (highlights are mine): “Whereas, the ICANN Board does not intend to delegate the strings .CORP, .HOME, and .MAIL in the 2012 round of the New gTLD Program. Whereas, the Board considered that the applicants were not aware before the application window that the strings .CORP, .HOME, and .MAIL would be identified as high-risk, and that the delegations of such high-risk strings would be deferred indefinitely. Resolved (2018.02.04.12), the Board directs the President and CEO, or his designee(s), that the applications for .CORP, .HOME, and .MAIL should not proceed and, to account for the unforeseen impact to application processing, the Board directs the President and CEO to, upon withdrawal of the remaining applications for .CORP, .HOME, and .MAIL, provide the applicants a full refund of the New gTLD Program application fee of $185,000.” Regarding the Monday call, certainly the .HOME, .CORP, and .MAIL strings are very much involved in the issue of Name Collision policy being developed by this Working Group. As mentioned, the JAS Final Report contained a recommendation against these strings. (See attached.) While Sub Pro Leadership has always taken the view that Controlled Interruption is an adequate remedy for all name collision issues and that applicants should be able to propose individual name collision mitigation plans to ICANN org, that is not a good reason to ban WG discussion of these strings or the status of these applications which have not been withdrawn: .HOME, CORP, and .MAIL Applications not Withdrawn as of 6 Sept 2019 .HOME Contention Set – Charleston Road Registry Inc. (Google) and Dot Home LLC are not withdrawn even though “Not Approved”. Several other .HOME applications were withdrawn. See https://gtldresult.icann.org/applicationstatus/contentionsetdiagram/42 .CORP Contention Set – Charleston Road Registry Inc. (Google) and DOTCORP Limited applications are not withdrawn. See https://gtldresult.icann.org/applicationstatus/contentionsetdiagram/86 .MAIL Contention Set – Charleston Road Registry Inc. (Google), GMO Registry, Inc., and Amazon EU S.a.r.l are not withdrawn. See https://gtldresult.icann.org/applicationstatus/contentionsetdiagram/55 Anne From: Jeff Neuman <jeff.neuman@comlaude.com> Sent: Friday, September 6, 2019 6:58 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; Steve Chan <steve.chan@icann.org>; Susan Payne <susan.payne@valideus.com> Cc: gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, For some reason I don’t see anything in red so I cant see your changes. That said, .home, .corp and .mail are one off unique situations and we will not be discussing those examples on the next call. We have no idea what the NCAP is going to do with respect to those strings if anything at all. We also don’t know if they will create a new name collision framework. As you know from being on the list, we don’t even know if there is an applicant to do Phase 1 of the NCAP Study. And we have no idea if that work will finish in the next year, two years, five years, etc. Right now, the Board resolution prevents .corp, .home and .mail from ever being delegated (unless the Board by resolution reverses its decision). So, regardless of what we do, we cannot impact the Board Resolution. So the status quo is that no one can apply for those strings in future rounds. If the Board reverses its decision pursuant to the work of the NCAP, I am sure at that time, it will consider what should be done with those 3 strings at that time. If we adopt Susan’s position (and I am not saying we should or should not), with respect to those strings we are just adopting the status quo. In summary, we should not be discussing .corp, .home and .mail on the next call except as an example to illustrate a point that there may be some strings that are recommended to not proceed based on a Name Collision review. Our sole mission is to look ahead. And by looking ahead, it does make sense that if there is a determination that applications should not be approved because of issues with the string itself that there be no future applications for that string unless there is an explicit path forward on how such an application can be approved. Because we expect this to be incredibly rare, we would expect ICANN to decide at that time how to treat that string moving forward. Lets not let the extreme edge cases prevent us from setting policy which will handle 99.75% of the cases. (3 strings out of 1200 is 0.25%). Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, September 5, 2019 6:43 PM To: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Many thanks Steve. This list is extremely helpful. Some items on this list demonstrate why it is important to consider the effect of a ban on new applications for the same string in light of policy changes occurring in the present policy-making process. \ Since the next call is on name collisions, I’ll take up that example. You will see .HOME, .CORP, and .MAIL applications on the list which have not been withdrawn and are “Not Approved” by the Board. Susan’s draft language prohibits applications for these strings in the next round which new applications might be made under the new name collision framework policy guidelines being developed now. The basis for the status of these applications as “Not Approved” is the Board’s resolution related to name collisions policy. If we adopt a policy that no one else can apply for these strings, then how can that be reconciled with the fact that there is a Name Collision Analysis Project as well as Sub Pro work on name collision policy.? Jeff said 2012 applications are judged and evaluations are completed based on the policy that applied at the time of the application in 2012. But Susan’s language says we absolutely prohibit new applications for .HOME, .CORP, and .MAIL. So that means no applicant can take the risk that its willingness to comply with new policy will be successful since its application is absolutely blocked. That would appear to give undue bargaining power to any applicants who may not like the terms of any new name collisions policy adopted by the Board. (In other words, prior applicants block new name collision policy from being adopted, that is, unless they update their applications to agree to accept new name collision policy recommendations.) Susan’s draft language appears below. Items in red are my suggested edits * Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and * The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to: * One or more of the applications has not yet completed evaluation; * One or more of the applications is still the subject of an objection process * The contention set has not yet been resolved; * There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application; * Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running; * The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied: Thank you, Anne From: Steve Chan <steve.chan@icann.org<mailto:steve.chan@icann.org>> Sent: Thursday, September 5, 2019 12:54 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Dear Anne, Jeff, all, Below, please find the link to our working list of remaining applications. We have consulted with GDD to try and make this list as accurate as possible: https://drive.google.com/a/icann.org/file/d/1R2TgxELfg8uNODJ9akAU8mfBEIIHC0W... Note that two strings have been removed from this list because they are in the Transition to Delegation phase (.LLP and .CPA). Best, Steve From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> on behalf of "Aikman-Scalese, Anne" <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Date: Thursday, September 5, 2019 at 11:47 AM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>, Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.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] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Jeff – You had said you were waiting on GDD approval of the list. Can we have the link to that? Re second question, hard to evaluate a proposal to prohibit new applications for the same strings when we don’t know which applications we are discussing. From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Sent: Thursday, September 5, 2019 11:02 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, I am not sure what you mean by the “GDD approved list of strings that may still be in play from 2012”? We have published a status chart of where everything from 2012, which will need one update (if it has not been already), as I understand .llp may be signed now. I am also not clear on what you mean by concurrent evaluation of these proposals. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Sent: Thursday, September 5, 2019 1:52 PM To: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Thanks Jeff. I was under the impression that since there was no consensus evident on Proposal 1, Susan would be drafting proposal 2 for consideration. Separately, I don’t see how any WG member can reflect properly on either proposal without the GDD approved list of strings that may still be in play from 2012. Will that be coming in time for concurrent evaluation of these proposals? Anne From: Jeff Neuman <jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com>> Sent: Wednesday, September 4, 2019 12:10 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, During the call that Susan is referring to Susan volunteered to draft some language to flesh out her proposal. And although it did not seem to have a huge amount of support on that call, she was asked to send the proposal around to the list to see if it has traction. As you have pointed out, decisions are not generally made with just one phone call. Discussions can and should happen on the mailing list. Susan has responded with her proposal on the list and we can see which version has support. The options are: 1. Prohibit Applications for strings where the applications are still pending (for whatever reason) – As per Susan’s proposal; or 2. Allow applications in for those strings, but do not process them any further than the reveal stage, unless and/or until the applications from the previous round that match those strings have had their final disposition. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: jeff.neuman@comlaude.com<mailto:jeff.neuman@comlaude.com> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 3, 2019 7:09 PM To: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Susan – sorry for the confusion but based on Jeff’s request, I had understood you were “fleshing out” the part that the WG might be able to agree on – which was that prior round applications should be “completed” prior to subsequent round applications for the same string being considered. I’m pretty sure the recording will confirm this. Anne From: Susan Payne <susan.payne@valideus.com<mailto:susan.payne@valideus.com>> Sent: Tuesday, September 3, 2019 4:06 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> Cc: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: Re: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ Anne, This is based on the comments that my company and INTA had made. I was asked on the call, including by you, to flesh this out so that the group could see what such a proposal would look like, and whether it would garner sufficient support. Here it is. Sent from my iPad On 3 Sep 2019, at 17:57, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Hi Susan. This is a bit confusing. I recall that Jeff noted there was no high level agreement for this proposition. Rather he stated there could be high level agreement that strings from prior rounds must complete application evaluation prior to consideration of subsequent round applications for the same string. He has since confirmed that in a post to the list. How did we get to a proposal for “no applications for the same string?” Anne From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org<mailto:gnso-newgtld-wg-bounces@icann.org>> On Behalf Of Susan Payne Sent: Tuesday, September 3, 2019 3:54 PM To: gnso-newgtld-wg@icann.org<mailto:gnso-newgtld-wg@icann.org> Subject: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] ________________________________ All During a call a couple of weeks ago, when we were discussing application prioritisation, I volunteered to circulate for consideration a proposal to prohibit allowing applications in a later application window where the string has previously been applied for and not yet been delegated. Although it had originally been proposed that this might extend to confusingly similar strings, having reflected on the discussion during the call I accept that this would probably be unrealistic, since confusing similarity needs to be determined as part of the TLD evaluation process. I have therefore limited this proposal to exact match strings, as follows: * This proposal assumes that we will have at least one further application round/open window for submission of applications, and possibly that there may be a number of such future open windows during which applications may be submitted, followed by some closed period when applications are not received, before the next application window opens (I will use the phrase “application submission period”). * Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and * The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to: * One or more of the applications has not yet completed evaluation; * One or more of the applications is still the subject of an objection process * The contention set has not yet been resolved; * There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application; * Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running; * The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied: * If the TLD string is delegated to one of the earlier applicants, then that string will remain unavailable for later applicants; * If all of the earlier applications are finally rejected, then (provided that a decision has not been made by the Board to permanently refuse that string) the TLD string will once again become available for application: * from the next application submission period, provided that this allows a minimum of 3 months notice before the application submission period opens; or, * If the next application submission period opens in less than 3 months, then the subsequent application submission period. Rationale We know that, many years after the 2012 application submission period closed, there are still a handful of applications for TLD strings which remain unresolved, generally due to delays caused by recourse to ICANNs accountability mechanisms. Whilst we all hope that in subsequent procedures we will have fewer of the challenges that we saw in the 2012 round, it is reasonable to assume that some will still occur. In any event, if subsequent procedures take the form of a series of discrete application submission periods, with known, finite, periods between them, then it is conceivable that applications from one application submission period may still be being processed when then next application submission period opens. If the period between application submission periods is reasonably short (12 months has been discussed, for example) we could conceivably see the added complication of applications for the same string being queued up across multiple windows. Whilst a later applicant who applied unsuccessfully for a TLD, which was eventually allocated to an applicant from a prior application submission period, could expect to recover their application fee, there is a cost to putting together an application in excess of the ICANN fee, and this would not be recoverable. The later applicant could also have their application fee tied up for months or even years, pending the outcome of the earlier application(s). Some have argued that this is the choice of the later applicant, that they can check whether there are prior “live” applications and decide accordingly whether they still want to apply. I believe this does a disservice to potential applicants, particularly those who are not so familiar with all of the history of prior applications and who may not appreciate that in many cases they would have no realistic prospect of being allocated the TLD string that ICANN has allowed them to apply for. Blocking the TLD from application, until such time as the previous applications are resolved, seems a much fairer approach. Susan Payne Head of Legal Policy Valideus ________________________________ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. 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Regarding the Monday call, certainly the .HOME, .CORP, and .MAIL strings are very much involved in the issue of Name Collision policy being developed by this Working Group. As mentioned, the JAS Final Report contained a recommendation against these strings. (See attached.) While Sub Pro Leadership has always taken the view that Controlled Interruption is an adequate remedy for all name collision issues and that applicants should be able to propose individual name collision mitigation plans to ICANN org, that is not a good reason to ban WG discussion of these strings or the status of these applications which have not been withdrawn:
Not speaking as SubPro leadership but as GNSO Councillor, any mention to the .HOME/.CORP/.MAIL name collision issue in the SubPor final report will make it receive a down vote, referring it back to the WG. Going out the group charter is a strong no-no for the Council in its role as PDP manager, a view that has been consistently shared by all SGs. Rubens
Hi Anne, hi Jeff, to give this a more practical approach: * ICANN should maintain a public list that shows: o Delegated strings (unavailable) o Strings that are in some way shape or form still processing and might be delegated in the future: (unavailable till resolved) * In an accountability process (.hotel) * upcoming auction (.merck) * contracting (probably .music) o Strings that won’t delegate – apply on your own risk - explain what the risk is (.home, .mail, etc.) The list should be permanently maintained and accurate. A link to the list should be provided in the AGB. The list should only show STRINGS (not applicants). I also noticed there is a number of applications which have conducted the ICANN auction – but they aren’t withdrawn. For example L’Oreal hasn’t withdrawn “.salon” – even when the TLD is delegated and they could cash in US $37,000. This raises the question why ICANN doesn’t automatically refund if the TLD is delegated to another party? At least we seem to need policy that once a TLD is delegated to another party: ICANN withdraws (cancels?) automatically and refunds. If ICANN can’t do it today (for lack of policy) then we should create such policy. We should generally avoid to have ANY “not withdrawn” applications unless these are somehow processing in some way. See .idn, .tata, .thai, .africa, .salon, shop ! Thanks, Alexander From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Friday, September 06, 2019 9:50 PM To: Jeff Neuman <jeff.neuman@comlaude.com>; Steve Chan <steve.chan@icann.org>; Susan Payne <susan.payne@valideus.com> Cc: gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Jeff, While I understand that you would prefer not to discuss the .HOME, .CORP, and .MAIL strings, the example is given in part because there is a general rule proposed in relation to ALL future TLD rounds. The point is far more general than your summary would indicate – it’s the issue of how new policy development may affect evaluation of prior round applications which were rejected on policy grounds. If you ban all new applications for the same string in subsequent rounds, you put a “block” on applicants who are willing to comply with new policy, regardless of the reason for the denial of delegation of the initial applications. This violates the new gTLD Principle of Applicant Freedom of Expression. In the case of .HOME, .CORP, and .MAIL, the draft language that is proposed by Susan would not only bar third party applicants for any of these three strings who may want to comply with new policy on name collisions developed by the NCAP, but would also apply to other cases going forward in future rounds that have not been anticipated. I disagree with your reading of the Board resolution re .HOME, .CORP, and .MAIL. It does not say applications are forbidden in future rounds. Further, Cherine specifically advised the SSAC NCAP in a public meeting that the Board was waiting for its advice with respect to these strings.) Here is the text of the Board resolution (highlights are mine): “Whereas, the ICANN Board does not intend to delegate the strings .CORP, .HOME, and .MAIL in the 2012 round of the New gTLD Program. Whereas, the Board considered that the applicants were not aware before the application window that the strings .CORP, .HOME, and .MAIL would be identified as high-risk, and that the delegations of such high-risk strings would be deferred indefinitely. Resolved (2018.02.04.12), the Board directs the President and CEO, or his designee(s), that the applications for .CORP, .HOME, and .MAIL should not proceed and, to account for the unforeseen impact to application processing, the Board directs the President and CEO to, upon withdrawal of the remaining applications for .CORP, .HOME, and .MAIL, provide the applicants a full refund of the New gTLD Program application fee of $185,000.” Regarding the Monday call, certainly the .HOME, .CORP, and .MAIL strings are very much involved in the issue of Name Collision policy being developed by this Working Group. As mentioned, the JAS Final Report contained a recommendation against these strings. (See attached.) While Sub Pro Leadership has always taken the view that Controlled Interruption is an adequate remedy for all name collision issues and that applicants should be able to propose individual name collision mitigation plans to ICANN org, that is not a good reason to ban WG discussion of these strings or the status of these applications which have not been withdrawn: .HOME, CORP, and .MAIL Applications not Withdrawn as of 6 Sept 2019 .HOME Contention Set – Charleston Road Registry Inc. (Google) and Dot Home LLC are not withdrawn even though “Not Approved”. Several other .HOME applications were withdrawn. See <https://gtldresult.icann.org/applicationstatus/contentionsetdiagram/42> https://gtldresult.icann.org/applicationstatus/contentionsetdiagram/42 .CORP Contention Set – Charleston Road Registry Inc. (Google) and DOTCORP Limited applications are not withdrawn. See <https://gtldresult.icann.org/applicationstatus/contentionsetdiagram/86> https://gtldresult.icann.org/applicationstatus/contentionsetdiagram/86 .MAIL Contention Set – Charleston Road Registry Inc. (Google), GMO Registry, Inc., and Amazon EU S.a.r.l are not withdrawn. See <https://gtldresult.icann.org/applicationstatus/contentionsetdiagram/55> https://gtldresult.icann.org/applicationstatus/contentionsetdiagram/55 Anne From: Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> > Sent: Friday, September 6, 2019 6:58 AM To: Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> >; Steve Chan <steve.chan@icann.org <mailto:steve.chan@icann.org> >; Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.com> > Cc: gnso-newgtld-wg@icann.org <mailto:gnso-newgtld-wg@icann.org> Subject: RE: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] _____ Anne, For some reason I don’t see anything in red so I cant see your changes. That said, .home, .corp and .mail are one off unique situations and we will not be discussing those examples on the next call. We have no idea what the NCAP is going to do with respect to those strings if anything at all. We also don’t know if they will create a new name collision framework. As you know from being on the list, we don’t even know if there is an applicant to do Phase 1 of the NCAP Study. And we have no idea if that work will finish in the next year, two years, five years, etc. Right now, the Board resolution prevents .corp, .home and .mail from ever being delegated (unless the Board by resolution reverses its decision). So, regardless of what we do, we cannot impact the Board Resolution. So the status quo is that no one can apply for those strings in future rounds. If the Board reverses its decision pursuant to the work of the NCAP, I am sure at that time, it will consider what should be done with those 3 strings at that time. If we adopt Susan’s position (and I am not saying we should or should not), with respect to those strings we are just adopting the status quo. In summary, we should not be discussing .corp, .home and .mail on the next call except as an example to illustrate a point that there may be some strings that are recommended to not proceed based on a Name Collision review. Our sole mission is to look ahead. And by looking ahead, it does make sense that if there is a determination that applications should not be approved because of issues with the string itself that there be no future applications for that string unless there is an explicit path forward on how such an application can be approved. Because we expect this to be incredibly rare, we would expect ICANN to decide at that time how to treat that string moving forward. Lets not let the extreme edge cases prevent us from setting policy which will handle 99.75% of the cases. (3 strings out of 1200 is 0.25%). Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com From: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman@lrrc.com> Sent: Thursday, September 5, 2019 6:43 PM To: Steve Chan < <mailto:steve.chan@icann.org> steve.chan@icann.org>; Jeff Neuman < <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com>; Susan Payne < <mailto:susan.payne@valideus.com> susan.payne@valideus.com> Cc: <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: RE: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Many thanks Steve. This list is extremely helpful. Some items on this list demonstrate why it is important to consider the effect of a ban on new applications for the same string in light of policy changes occurring in the present policy-making process. \ Since the next call is on name collisions, I’ll take up that example. You will see .HOME, .CORP, and .MAIL applications on the list which have not been withdrawn and are “Not Approved” by the Board. Susan’s draft language prohibits applications for these strings in the next round which new applications might be made under the new name collision framework policy guidelines being developed now. The basis for the status of these applications as “Not Approved” is the Board’s resolution related to name collisions policy. If we adopt a policy that no one else can apply for these strings, then how can that be reconciled with the fact that there is a Name Collision Analysis Project as well as Sub Pro work on name collision policy.? Jeff said 2012 applications are judged and evaluations are completed based on the policy that applied at the time of the application in 2012. But Susan’s language says we absolutely prohibit new applications for .HOME, .CORP, and .MAIL. So that means no applicant can take the risk that its willingness to comply with new policy will be successful since its application is absolutely blocked. That would appear to give undue bargaining power to any applicants who may not like the terms of any new name collisions policy adopted by the Board. (In other words, prior applicants block new name collision policy from being adopted, that is, unless they update their applications to agree to accept new name collision policy recommendations.) Susan’s draft language appears below. Items in red are my suggested edits * Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and * The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to: * One or more of the applications has not yet completed evaluation; * One or more of the applications is still the subject of an objection process * The contention set has not yet been resolved; * There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application; * Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running; * The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied: Thank you, Anne From: Steve Chan < <mailto:steve.chan@icann.org> steve.chan@icann.org> Sent: Thursday, September 5, 2019 12:54 PM To: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman@lrrc.com>; Jeff Neuman < <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com>; Susan Payne < <mailto:susan.payne@valideus.com> susan.payne@valideus.com> Cc: <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Dear Anne, Jeff, all, Below, please find the link to our working list of remaining applications. We have consulted with GDD to try and make this list as accurate as possible: <https://drive.google.com/a/icann.org/file/d/1R2TgxELfg8uNODJ9akAU8mfBEIIHC0W...> https://drive.google.com/a/icann.org/file/d/1R2TgxELfg8uNODJ9akAU8mfBEIIHC0W... Note that two strings have been removed from this list because they are in the Transition to Delegation phase (.LLP and .CPA). Best, Steve From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org <mailto:gnso-newgtld-wg-bounces@icann.org> > on behalf of "Aikman-Scalese, Anne" <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > Date: Thursday, September 5, 2019 at 11:47 AM To: Jeff Neuman <jeff.neuman@comlaude.com <mailto:jeff.neuman@comlaude.com> >, Susan Payne <susan.payne@valideus.com <mailto:susan.payne@valideus.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] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Jeff – You had said you were waiting on GDD approval of the list. Can we have the link to that? Re second question, hard to evaluate a proposal to prohibit new applications for the same strings when we don’t know which applications we are discussing. From: Jeff Neuman < <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com> Sent: Thursday, September 5, 2019 11:02 AM To: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman@lrrc.com>; Susan Payne < <mailto:susan.payne@valideus.com> susan.payne@valideus.com> Cc: <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] _____ Anne, I am not sure what you mean by the “GDD approved list of strings that may still be in play from 2012”? We have published a status chart of where everything from 2012, which will need one update (if it has not been already), as I understand .llp may be signed now. I am also not clear on what you mean by concurrent evaluation of these proposals. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com From: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman@lrrc.com> Sent: Thursday, September 5, 2019 1:52 PM To: Jeff Neuman < <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com>; Susan Payne < <mailto:susan.payne@valideus.com> susan.payne@valideus.com> Cc: <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Thanks Jeff. I was under the impression that since there was no consensus evident on Proposal 1, Susan would be drafting proposal 2 for consideration. Separately, I don’t see how any WG member can reflect properly on either proposal without the GDD approved list of strings that may still be in play from 2012. Will that be coming in time for concurrent evaluation of these proposals? Anne From: Jeff Neuman < <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com> Sent: Wednesday, September 4, 2019 12:10 PM To: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman@lrrc.com>; Susan Payne < <mailto:susan.payne@valideus.com> susan.payne@valideus.com> Cc: <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] _____ Anne, During the call that Susan is referring to Susan volunteered to draft some language to flesh out her proposal. And although it did not seem to have a huge amount of support on that call, she was asked to send the proposal around to the list to see if it has traction. As you have pointed out, decisions are not generally made with just one phone call. Discussions can and should happen on the mailing list. Susan has responded with her proposal on the list and we can see which version has support. The options are: 1. Prohibit Applications for strings where the applications are still pending (for whatever reason) – As per Susan’s proposal; or 2. Allow applications in for those strings, but do not process them any further than the reveal stage, unless and/or until the applications from the previous round that match those strings have had their final disposition. Jeff Neuman Senior Vice President Com Laude | Valideus D: +1.703.635.7514 E: <mailto:jeff.neuman@comlaude.com> jeff.neuman@comlaude.com From: Gnso-newgtld-wg < <mailto:gnso-newgtld-wg-bounces@icann.org> gnso-newgtld-wg-bounces@icann.org> On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 3, 2019 7:09 PM To: Susan Payne < <mailto:susan.payne@valideus.com> susan.payne@valideus.com> Cc: <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated Susan – sorry for the confusion but based on Jeff’s request, I had understood you were “fleshing out” the part that the WG might be able to agree on – which was that prior round applications should be “completed” prior to subsequent round applications for the same string being considered. I’m pretty sure the recording will confirm this. Anne From: Susan Payne < <mailto:susan.payne@valideus.com> susan.payne@valideus.com> Sent: Tuesday, September 3, 2019 4:06 PM To: Aikman-Scalese, Anne < <mailto:AAikman@lrrc.com> AAikman@lrrc.com> Cc: <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: Re: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] _____ Anne, This is based on the comments that my company and INTA had made. I was asked on the call, including by you, to flesh this out so that the group could see what such a proposal would look like, and whether it would garner sufficient support. Here it is. Sent from my iPad On 3 Sep 2019, at 17:57, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com> > wrote: Hi Susan. This is a bit confusing. I recall that Jeff noted there was no high level agreement for this proposition. Rather he stated there could be high level agreement that strings from prior rounds must complete application evaluation prior to consideration of subsequent round applications for the same string. He has since confirmed that in a post to the list. How did we get to a proposal for “no applications for the same string?” Anne From: Gnso-newgtld-wg < <mailto:gnso-newgtld-wg-bounces@icann.org> gnso-newgtld-wg-bounces@icann.org> On Behalf Of Susan Payne Sent: Tuesday, September 3, 2019 3:54 PM To: <mailto:gnso-newgtld-wg@icann.org> gnso-newgtld-wg@icann.org Subject: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated [EXTERNAL] _____ All During a call a couple of weeks ago, when we were discussing application prioritisation, I volunteered to circulate for consideration a proposal to prohibit allowing applications in a later application window where the string has previously been applied for and not yet been delegated. Although it had originally been proposed that this might extend to confusingly similar strings, having reflected on the discussion during the call I accept that this would probably be unrealistic, since confusing similarity needs to be determined as part of the TLD evaluation process. I have therefore limited this proposal to exact match strings, as follows: * This proposal assumes that we will have at least one further application round/open window for submission of applications, and possibly that there may be a number of such future open windows during which applications may be submitted, followed by some closed period when applications are not received, before the next application window opens (I will use the phrase “application submission period”). * Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and * The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to: * One or more of the applications has not yet completed evaluation; * One or more of the applications is still the subject of an objection process * The contention set has not yet been resolved; * There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application; * Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running; * The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied: * If the TLD string is delegated to one of the earlier applicants, then that string will remain unavailable for later applicants; * If all of the earlier applications are finally rejected, then (provided that a decision has not been made by the Board to permanently refuse that string) the TLD string will once again become available for application: * from the next application submission period, provided that this allows a minimum of 3 months notice before the application submission period opens; or, * If the next application submission period opens in less than 3 months, then the subsequent application submission period. Rationale We know that, many years after the 2012 application submission period closed, there are still a handful of applications for TLD strings which remain unresolved, generally due to delays caused by recourse to ICANNs accountability mechanisms. Whilst we all hope that in subsequent procedures we will have fewer of the challenges that we saw in the 2012 round, it is reasonable to assume that some will still occur. In any event, if subsequent procedures take the form of a series of discrete application submission periods, with known, finite, periods between them, then it is conceivable that applications from one application submission period may still be being processed when then next application submission period opens. If the period between application submission periods is reasonably short (12 months has been discussed, for example) we could conceivably see the added complication of applications for the same string being queued up across multiple windows. Whilst a later applicant who applied unsuccessfully for a TLD, which was eventually allocated to an applicant from a prior application submission period, could expect to recover their application fee, there is a cost to putting together an application in excess of the ICANN fee, and this would not be recoverable. The later applicant could also have their application fee tied up for months or even years, pending the outcome of the earlier application(s). Some have argued that this is the choice of the later applicant, that they can check whether there are prior “live” applications and decide accordingly whether they still want to apply. I believe this does a disservice to potential applicants, particularly those who are not so familiar with all of the history of prior applications and who may not appreciate that in many cases they would have no realistic prospect of being allocated the TLD string that ICANN has allowed them to apply for. Blocking the TLD from application, until such time as the previous applications are resolved, seems a much fairer approach. Susan Payne Head of Legal Policy Valideus _____ The contents of this email and any attachments are confidential to the intended recipient. They may not be disclosed, used by or copied in any way by anyone other than the intended recipient. If you have received this message in error, please return it to the sender (deleting the body of the email and attachments in your reply) and immediately and permanently delete it. Please note that the Com Laude Group does not accept any responsibility for viruses and it is your responsibility to scan or otherwise check this email and any attachments. The Com Laude Group does not accept liability for statements which are clearly the sender's own and not made on behalf of the group or one of its member entities. 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On 6 Sep 2019, at 18:10, Alexander Schubert <alexander@schubert.berlin> wrote:
Hi Anne, hi Jeff,
to give this a more practical approach:
· ICANN should maintain a public list that shows: o Delegated strings (unavailable)
https://www.iana.org/domains/root/db <https://www.iana.org/domains/root/db>
o Strings that are in some way shape or form still processing and might be delegated in the future: (unavailable till resolved) § In an accountability process (.hotel) § upcoming auction (.merck) § contracting (probably .music) o Strings that won’t delegate – apply on your own risk - explain what the risk is (.home, .mail, etc.)
The list should be permanently maintained and accurate. A link to the list should be provided in the AGB. The list should only show STRINGS (not applicants).
I also noticed there is a number of applications which have conducted the ICANN auction – but they aren’t withdrawn. For example L’Oreal hasn’t withdrawn “.salon” – even when the TLD is delegated and they could cash in US $37,000. This raises the question why ICANN doesn’t automatically refund if the TLD is delegated to another party? At least we seem to need policy that once a TLD is delegated to another party: ICANN withdraws (cancels?) automatically and refunds. If ICANN can’t do it today (for lack of policy) then we should create such policy. We should generally avoid to have ANY “not withdrawn” applications unless these are somehow processing in some way. See .idn, .tata, .thai, .africa, .salon, shop !
I believe ICANN Org mentioned that in PIRR (Program Implementation Review Report), and this is indeed an addition that would make sense. Rubens
participants (5)
-
Aikman-Scalese, Anne -
Alexander Schubert -
Jeff Neuman -
Rubens Kuhl -
Steve Chan