Guardrails to prevent auction games by applicants enhanced with disclosure requirements
Hi All, Below are the Guardrails (Sections 1, 2 A and B) which have been circulated before (no changes to those). As discussed on our call, I have enhanced the Guardrails with a proposed disclosure framework (new Section 2 C). As you can see, I have embraced the calls for early and public disclosure of private auction prices, parties, etc. You will note that I have not added in a disclosure requirement for non-auction private resolutions, for example, Joint Venture arrangements, settlement agreements, etc. These forms of private resolutions were not raised as a possible issue of concern by the Board in its letter and raise all sorts of concerns over business plans, trade secrets, etc. Any final version of a disclosure solutions needs to be tailored to the Board’s actual concerns and I encourage the WG to resist a general fishing expedition mechanism. I realize that there are still questions that need to be answered regarding the Guardrails + Early Disclosure proposal and I look forward to working with you all on our next call towards ironing out the remaining details and getting this issue wrapped up for the final report. Have a great night and talk to you all soon. Best, Paul ________ 1. The applicant has a bona fide intention to run the registry if awarded. The “examiners” would be able to issue additional questions if it appears that the business plan is rudimentary or if there is evidence that the applicant does not really have the needed intent. Applicants would be able to supplement the record to assure “examiners.” 2. The application is not being submitted solely for the purpose of being able to participate in private auctions. So, how would these terms be policed? A. If an applicant does not actually launch the registry if awarded or sells it in the aftermarket within 2 years of delegation, that will be noted for purposes of any future rounds and could create a rebuttal presumption of non-intent for that applicant. B. If an applicant only “sells” applications in private auctions and does not actually proceed with any to contracting, that will be noted for purposes of any future rounds and could create a rebuttal presumption that the applicant is only participating in the new gTLD program to speculate on registries. C. The applicants must adhere to the following disclosure framework: Private Auction Disclosure Framework (1) At the end of a private auction, the following information will be provided to ICANN within 72 hours by the “winner” of the private auction: · The name and contact information of the parties that participated in the auction. · The dollar amount paid by the “winner” of the auction. · Any other information that participants in an ICANN auction of last resort are required to disclose. (2) At the end of a private auction, the following information will be provided to ICANN within 72 hours by the “loser” of the private auction: · Any material concessions, other than withdrawal of the application, made by the loser of the auction. · Any other information that participants in an ICANN auction of last resort are required to disclose. (3) Within 72 hours, ICANN may disclose the above information in accordance in accordance with its obligations under data privacy laws and competition laws. Protections for Disclosing Applicants · The “winner” of the private auction is not required to disclose any proprietary information such as trade secrets, business plans, financial records, or personal information of officers and directors that has not already been publically disclosed in the underlying registry application. · ICANN must not use this information to adjust registry prices or in its negotiations with the “winner” of the private auction over proposed changes to the baseline registry agreement for the relevant registry. · There will be no disclosure requirements for non-auction private resolutions, for example, Joint Venture arrangements, settlement agreements, etc. To receive regular COVID-19 updates from Taft, subscribe here<https://www.taftlaw.com/general/subscribe>. For additional resources, visit Taft's COVID-19 Resource Toolkit<https://www.taftlaw.com/general/coronavirus-covid-19-resource-toolkit>. This message may contain information that is attorney-client privileged, attorney work product or otherwise confidential. If you are not an intended recipient, use and disclosure of this message are prohibited. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments.
Comments inline.
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<>1. The applicant has a bona fide intention to run the registry if awarded. The “examiners” would be able to issue additional questions if it appears that the business plan is rudimentary or if there is evidence that the applicant does not really have the needed intent. Applicants would be able to supplement the record to assure “examiners.”
No, they won't. You are thinking of the 2012 financial evaluation, but the SubPro financial evaluation was decided so those plans would not be submitted to ICANN, only certified and that certification send to ICANN. Note that even in 2012 ICANN said they didn't evaluate business plans.
2. The application is not being submitted solely for the purpose of being able to participate in private auctions.
So, how would these terms be policed?
A. If an applicant does not actually launch the registry if awarded or sells it in the aftermarket within 2 years of delegation, that will be noted for purposes of any future rounds and could create a rebuttal presumption of non-intent for that applicant.
I can tell from experience that this criteria doesn't indicate that. It's been many years after delegation and the two TLDs my employer got still haven't launched, due to lack of local sales channels. Just look them up, .bom and .final. They were not in contention, but they could have been.
B. If an applicant only “sells” applications in private auctions and does not actually proceed with any to contracting, that will be noted for purposes of any future rounds and could create a rebuttal presumption that the applicant is only participating in the new gTLD program to speculate on registries.
That might also not indicate gaming, could be just a light funded applicant that happened to think of the same TLDs as mammoth companies.
C. The applicants must adhere to the following disclosure framework:
Private Auction Disclosure Framework
(1) At the end of a private auction, the following information will be provided to ICANN within 72 hours by the “winner” of the private auction:
· The name and contact information of the parties that participated in the auction. · The dollar amount paid by the “winner” of the auction. · Any other information that participants in an ICANN auction of last resort are required to disclose.
(2) At the end of a private auction, the following information will be provided to ICANN within 72 hours by the “loser” of the private auction:
· Any material concessions, other than withdrawal of the application, made by the loser of the auction. · Any other information that participants in an ICANN auction of last resort are required to disclose.
(3) Within 72 hours, ICANN may disclose the above information in accordance in accordance with its obligations under data privacy laws and competition laws.
This would make information available during the round, and while we can't say when a round ended, a fixed time embargo would be in order, IMHO. The idea is that the information becomes available for later analysis and policy making, or immediate referral to competition authorities.
Protections for Disclosing Applicants
· The “winner” of the private auction is not required to disclose any proprietary information such as trade secrets, business plans, financial records, or personal information of officers and directors that has not already been publically disclosed in the underlying registry application. · ICANN must not use this information to adjust registry prices or in its negotiations with the “winner” of the private auction over proposed changes to the baseline registry agreement for the relevant registry. · There will be no disclosure requirements for non-auction private resolutions, for example, Joint Venture arrangements, settlement agreements, etc.
This has one problem which is the case of a 2-way contention set the financial settlement information wouldn't be available, which is the same money-to-withdrawal mechanism as a private auction and should be equally disclosed. And even for non-financial arrangements, the winner would be at least required to inform ICANN that a non-financial arrangement has been reached. Also, changing the applicant to a joint venture requires disclosure to ICANN both in 2012 round and SubPro, since there is a change in the application. And this still must be disclosed, otherwise ICANN wouldn't be able to correctly perform due diligence. Rubens
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participants (2)
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McGrady, Paul D. -
Rubens Kuhl