Dear Working Group members, Please see below the notes from the meeting on 13 August at 20:00 UTC. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2020-08-13+New+gTLD+Subsequent+Pro.... Kind regards, Julie Notes and Action Items: Actions: 1. Comments on the Draft Final Report Public Comment Survey: ACTION ITEM: Provide a draft PDF for WG members to see during the meeting on 17 August. 2. Predictability Framework: Possible Policy Level - New Proposals that May Have Policy Implication E. Description: These are new mechanisms that may be considered to be within the remit of policy development. Examples include: -- The development of a new contract specification (e.g., public interest commitments); ACTION ITEM: Leadership team to consider if there is a way to include this example as something that does not require involvement of the SPIRT because it is clearly policy. Consider a footnote in this section. 3. Predictability: a. SPIRT: Conflicts of Interests: ACTION ITEM: Update the document with new text from Kathy Kleiman and suggested edits from Anne Aikman-Scalese. b. Closed Generics: Proposals: ACTION ITEM: Add links to proposals with titles and authors. Leadership to look at moving it closer to beginning of deliberations section. MT8.1: Marc Tractenberg proposed edits to the previous paragraph (in bold). Rationale: "The proposed wording limits comments to the three proposals. It should also solicit other proposals from the community, if any" ACTION ITEM: Adjust the text so that we aren’t directly asking for new proposals. 4. Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction): a. Recommendations and/or implementation guidelines Affirmation xx with modification (Rationale 1): ACTION ITEM: Add suggested text in brackets. Re: Recommendation xx (Rationale 2): ACTION ITEM: Adopt with additional text deleted. Re: “All contention sets resolved through private resolution shall adhere to the transparency requirements set forth in the Transparency Section [Contention Resolution Transparency Requirements] in the relevant recommendation.” ACTION ITEM: Adopt text in brackets. Re: Recommendation xx (Rationale 2): Applications must be submitted with a bona fide (“good faith”) intention to operate the gTLD. Applicants must affirmatively attest to a bona fide use [intent] clause for any and all applications that they submit. ACTION ITEM: Add the new text: “Applicants must affirmatively attest to a bona fide intention to operate the gTLD..” Re: “clause for any and all applications that they submit.” CT9.2: Christa Taylor proposed removing "any and." Rationale: "All covers everything." ACTION ITEM: Add the suggested text. Re: “Evaluators [and ICANN] must be able to ask clarifying questions to any applicant it believes may not be submitting an application with a bona fide intent. Evaluators [and ICANN]...” ACTION ITEM: Add the text in brackets. 5. Comments on the Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding): https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... ACTION ITEM: WG members should review the questions highlighted in the above document. Notes: 1. Updates to Statements of Interest: No updates provided. 2. Comments on the Draft Final Report -- Preamble (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report Public Comment Survey: -- If the WG finalizes the language of the draft Final Report Change Analysis on 13 August then a PDF could be ready to send by 17 August. ACTION ITEM: Provide a draft PDF for WG members to see during the meeting on 17 August. What is the WG doing during the Public Comment Period: -- Getting a head start on some areas still under discussion. -- Leadership will send a list of topics. Preamble: -- Trying to avoid getting the same comments as on the Initial and Supplemental reports. -- “Respondents are discouraged from repeating input that has been provided in previous public comment periods, as this feedback has been extensively discussed and taken into account in the development of the draft Final Report.” -- Includes a list of New gTLD Subsequent Procedures Initial Report -- Topics are renumbered, but in order, starting at number one, to simplify. Discussion: -- WG members reserve the right to reiterate comments made before if they have not been taken into account. -- There is a strong interdependence between WT5 and Closed Generics: We have never discussed how "Closed Generics" (outside of Brand Spec-13) would be governed in regards to Geo terms. We always said either a string is protected by only being used by a brand - or it was open for registration. With Closed Generics all these assurances are suddenly evaporate into air. So if we allowed closed generics we have to go back to WT5. -- We will come back to this issue. 3. Comments on the Predictability Framework and the one new additional paragraph in the Closed Generics: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlP... Can’t Live With Comments: -- Re: “The GNSO Council shall be responsible for oversight of the SPIRT” and -- Re: “All recommendations are subject to the review and oversight of the GNSO Council, who maintains the discretion on whether or not to adopt the recommendations.” -- Re: SPIRIT Role CW8.1: Christopher Wilkinson proposes Deleting references to GNSO Council throughout and replacing with alternative decisional entity. Rationale: "GNSO Council is not credible as arbitrator in this context (a) committed in principle to their 2007 and 2012 policies which have never been endorsed by the PDP, (b) dominated by incumbent interests and ( c) perceived conflicts of interest. Inappropriate for any one of the SO/AC to rule over a multi-stakeholder entity." CW8.2: Christopher Wilkinson proposes deleting references to GNSO Council throughout and replacing with alternative decisional entity. Rationale: "GNSO Council is not credible as arbitrator in this context (a) committed in principle to their 2007 and 2012 policies which have never been endorsed by the PDP, (b) dominated by incumbent interests and ( c) perceived conflicts of interest. Inappropriate for any one of the SO/AC to rule over a multi-stakeholder entity." CW8.3: Christopher Wilkinson states "complete redraft required." Rationale: "The purpose appears to be to denigrate and emasculate any input from any SO/AC other than GNSO. This is not acceptable." Discussion: -- As this is a PDP the GNSO Council is the decisional authority. -- As to Predictability Framework, the GNSO Council powers referred to in the intro to that section are contained in the ByLaws of ICANN. -- Changing the decision-making structure of the GNSO is out of scope for the PDP WG. -- This concern can be filed as a public comment. Possible Policy Level - New Proposals that May Have Policy Implication E. Description: These are new mechanisms that may be considered to be within the remit of policy development. Examples include: -- The development of a new contract specification (e.g., public interest commitments); KK8.1: Kathy Kleiman proposed replacing this highlighted example with "The development of changes to the rights protections mechanisms which protect trademark owners in the new gTLD process);" Rationale: "I don’t recognize this example: The development of a new contract specification (e.g., public interest commitments); I thought the example we had used of a clear policy issue throughout our discussions was an intellectual property change" Discussion: -- Didn’t include this example (RPMs) because it was so clearly policy. -- A change to the RPMs Policy would go straight to the GNSO, not to the SPIRT. -- Find a way to put that example in the text. ACTION ITEM: Leadership team to consider if there is a way to include this example as something that does not require involvement of the SPIRT because it is clearly policy. Consider a footnote in this section. SPIRT: Conflicts of Interest: [New text proposed by Kathy Kleiman in addition to the two bullets above]: In the issue of full transparency to other members of the SPIRT and to the public, members of the SPIRT agree to disclose on a regular and ongoing basis that an issue being debated and discussed [addressed] by the SPIRT involves an application of which a SPIRT member has a direct interest, including as applicant, and/or through their firm, company or client. This disclosure shall be open, transparent and on the public report of the SPIRT meeting, and a “Statement of Involvement or Direct Interest” should start every SPIRT meeting.] KK8.2: Kathy Kleiman suggests adding new text (bracketed below). Of the highlighted bullets, she states "This does not reflect the clear agreement of the group. What we agreed is that SPIRT members are likely to be making decisions on matters that impact a) their own applications or b) their firms’ applications, their clients’ applications or other applications in which [as to which] they have a direct interest. We discussed and agreed that the SPIRT member herself/himself is in the best position to know that this direct interest is taking place – and to disclosure *on a regular and ongoing basis.* Note: we further agreed that recusal is not a requirement, but disclosure on a regular and going basis is (as agreed by the WG)." Discussion: -- Concept is what we discussed. -- Don’t created a new “Statement of Involvement or Direct Interest” document. -- Take on Anne Aikman-Scalese’s edits. ACTION ITEM: Update the document with new text from Kathy Kleiman and suggested edits from Anne Aikman-Scalese. Closed Generics: KK8.3: Kathy Kleiman proposed moving this paragraph higher and adding to (in clear bullet points), the three - titles, - authors, and - links to the 3 new proposals on Closed Generics discussion. Rationale: "Where are the three proposals? Shouldn’t we be listing them out, with their titles and authors, and links, to give comments an incentive and interest to find them? This new paragraph is five pages down in the Closed Generic discussion. In light of all the work that it reflects, and the hope we have for it providing some solid input into the WG for next steps – isn’t this much too far down? (A bit like burying the magic key in a place that no one will find it?)" ACTION ITEM: Add links to proposals with titles and authors. Leadership to look at moving it closer to beginning of deliberations section. Closed Generics: Proposals: ACTION ITEM: Add links to proposals with titles and authors. Leadership to look at moving it closer to beginning of deliberations section. MT8.1: Marc Tractenberg proposed edits to the previous paragraph (in bold). Rationale: "The proposed wording limits comments to the three proposals. It should also solicit other proposals from the community, if any" New text in Bold from Marc: “as well as any other proposals members of the community may with respect to the availability of closed generic strings.Any feedback is appreciated. The Working Group is particularly interested to hear from the community about which proposals, if any, they believe warrant further consideration by the Working Group, and why or if there are any other proposals that members of the community may have with respect to the availability of closed generic strings.” Discussion: -- Now we are asking for new proposals. Would appear to change the paragraph. -- See if there’s a way to reword it so that we aren’t directly asking for new proposals. ACTION ITEM: Adjust the text so that we aren’t directly asking for new proposals. Re: “Establish an objections process modelled on community objections.” MC8.1: Marc Tractenberg proposed removing this sentence. Rationale: "This language does not accurately capture our proposal/option. We proposed an option with no additional conditions for closed generics but did not propose that there should be any objections process based on community application objections" Re: “Divergent views were expressed on these options...” CW8.4: Christopher Wilkinson suggests adding: "One member stated that the extreme privatisation of generic words in any language (such as in ‘closed generics’ as currently defined) would not be acceptable internationally. Furthermore, the current composition of the PDP is not representative of the interests of languages and scripts, world-wide, other than English." Rationale: "The report is incomplete." Re: “Some Working Group members felt that it may not be possible to define the public interest, but it may be possible to entrust an entity to judge whether a proposed Closed Generic is or is not in the public interest.” MC8.2: Marc Tractenberg proposed editing the highlighted text to read: "Some Working Group members felt that it is not possible to define the public interest in any way that can be meangfully applied to new gTLDs. Some other Working Group members believed that it may be possible to entrust an entity to judge whether a proposed Closed Generic is or is not in the public interest." Rationale: "You have not captured the view of some working group members including myself, Kurt, Mike, and Paul (and even Alex to some extent) that it simply is not possible to define the public interest. We did not say and do not agree that it would be possible to entrust an entity to judge whether a proposed Closed Generic is or is not in the public interest and we do not agree this is possible" Discussion: -- Make it clear with Marc concerning Option 4. 4. Comments on the new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction): https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit#<https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit> a. Recommendations and/or implementation guidelines Affirmation xx with modification (Rationale 1): Re: “The revision to part i) specifies that any private resolution of contention must be in accordance with the Application Guidebook and supporting documents, including the Application Change request process [and Terms and Conditions].” JP9.1: Jim Prendergast proposed adding the bracketed text. Rationale: "We’ve made several updates to what will be included in the Ts&Cs regarding disclosure and this should be referenced here." Discussion: -- Addition is clearer. ACTION ITEM: Add suggested text in brackets. Re: Recommendation xx (Rationale 2): Consistent with the Application Change processes set forth under Topic 20: Application Change Requests, the Applicant Guidebook (AGB) must reflect that applicants will be permitted to creatively resolve contention sets in a multitude of manners, including but not limited to business combinations or other forms of joint ventures and private resolutions (including private auctions). All private resolutions reached by means of forming business combinations or other joint ventures resulting in the withdrawal of one or more applications are likely to result in material changes to the surviving application and to the extent they do, must follow the Application Change processes set forth under Topic 20 as all material changes require; material changes may require reevaluation of some or all of the new resulting application. JP9.2: Jim Prendergast proposed deleting the highlighted text. Rationale: "Material changes may not always be the result in a private resolution settlement. The terms of a business combination may not meet the requirements for terms of “material changes”. Also, the use of the words “likely” and “to the extent they do” don’t present a value add to this statement. They actually introduce an opportunity for applicants to subjectively determine if they must follow the application change process." Discussion: -- Think there is already a safeguard there. -- We already say, “as all material changes require”. -- WG wanted that this would go through the change request anyway. ACTION ITEM: Adopt with additional text deleted. Re: “All contention sets resolved through private resolution shall adhere to the transparency requirements set forth in the Transparency Section [Contention Resolution Transparency Requirements] in the relevant recommendation.” CT9.1: Christa Taylor proposed changing "Transparency Section" to "Contention Resolution Transparency Requirements." Rationale: "Update reference." ACTION ITEM: Adopt text in brackets. Re: Recommendation xx (Rationale 2): Applications must be submitted with a bona fide (“good faith”) intention to operate the gTLD. Applicants must affirmatively attest to a bona fide use [intent] clause for any and all applications that they submit. JC9.1: Justine Chew proposed replacing "use" with "intent" here and elsewhere. Rationale: "Query: The first sentence refers to “bona fide” intention to operate the gTLD while in the next sentence refers to “bona fide use”. We have proceeded to try to describe what “bona fide” is not but have we been defined what “use” is? In the TLD Rollout section, didn’t we say that we don’t have an agreed definition of “use”?" ACTION ITEM: Add the new text: “Applicants must affirmatively attest to a bona fide intention to operate the gTLD..” Re: “clause for any and all applications that they submit.” CT9.2: Christa Taylor proposed removing "any and." Rationale: "All covers everything.” ACTION ITEM: Accept the change. Re: “Evaluators [and ICANN] must be able to ask clarifying questions to any applicant it believes may not be submitting an application with a bona fide intent. Evaluators [and ICANN]...” JP9.3: Jim Prendergast proposed adding "and ICANN" in two places. Rationale: "Referencing the “Factors”, each of these factors are post-evaluation or post-delegation. Requiring the evaluators to consider these factors to determine bona fide intent is pointless and irrelevant. These factors, as written, are suited for ICANN’s consideration post-evaluation/ delegation. Need consistency in the document as to who should consider these factors. At a minimum, ICANN should be involved in the process from the beginning, not just outside evaluators." Discussion: -- Jim’s changes make sense. -- Re: “intention to operate the gTLD” versus “use” – not sure there is a difference. -- Re: “lacking a bona fide use intent.” Need to consider better wording. -- intention to operate the gTLD ACTION ITEM: Add the text in brackets. Start here for the meeting on Monday: Re: “Applicants may mark portions of any such responses as “confidential” if the responses include proprietary business information and such portions will not be shared or communicated by the Evaluator.” JP9.4: Jim Prendergast proposed deleting the highlighted text. Rationale: "Similar to my previous point, evaluators are temporary hires. Once the evaluators are done evaluating, what information does ICANN have in order to be able to enforce bona fide intent long-term? If the “Factors” are a suspicion that the applicant didn’t meet that intent, and the evaluators are gone, who is going to raise that concern if ICANN hasn’t seen those concerns." And at the “The non-exhaustive list of “Factors”” 5. Comments on the Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding): https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1Kgs... ACTION ITEM: WG members should review the questions highlighted in the above document.