Dear Working Group members, Please see below the notes from the meeting on 05 December 2019. 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/2019-12-05+New+gTLD+Subsequent+Pro.... Kind regards, Julie Julie Hedlund, Policy Director Notes and Action Items: Actions: ACTION ITEM 1: Staff will update the Limited New Appeals Processes spreadsheet based on today’s WG discussion at: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fI... Notes: 1. Review Agenda/Statements of Interest: No updates provided. 2. Limited Appeals Mechanism https://docs.google.com/document/d/1pw98QzloHsVaM22VjYy95G-QmHULKbB2gPTSdzQl... What is the Issue we are Trying To Address? -- Are dispute resolution and challenge processes provide adequate redress options or if additional redress options specific to the program are needed. -- The Working Group believes that the accountability mechanisms set forth in the ICANN Bylaws (“Accountability Mechanisms) were inadequate in resolving issues that applicants or the wider community experienced during the 2012 round of the New gTLD Program. -- Although there have been significant changes to the Accountability Mechanisms as a result of the work done in conjunction with the IANA Transition, the Working Group still views them as insufficient to serve as the sole mechanism for redress within the New gTLD Program. Policy Goals / What the WG is Seeking to Accomplish The following from the 2007 policy continue to be appropriate: -- Recommendation 12: “Dispute resolution and challenge processes must be established prior to the start of the process.” -- Implementation Guideline R: “Once formal objections or disputes are accepted for review there will be a cooling off period to allow parties to resolve the dispute or objection before review by the panel is initiated.” -- Dispute resolution and challenge processes should be transparent, fair and cost effective and panelists, evaluators, and the Independent Objector must be free from conflicts of interests. -- Applicants and other impacted parties should have a challenge process to seek redress to errors in processes and/or outcomes, specific to the New gTLD Program. -- Any challenge processes must not conflict with, or impinge access to, Accountability Mechanisms under the ICANN Bylaws. -- Any challenge process must have measures to prevent frivolous usage. What are we Proposing? -- The WG proposes a limited substantive appeals process for certain types of actions or inactions that are inconsistent with the Applicant Guidebook. In general, the appeals process could be used to challenge evaluation results and/or objection panel determinations where those results or determinations are inconsistent with the provisions in the Applicant Guidebook. -- The new substantive appeal mechanism must not be a substitute for, nor act as a replacement for, the Accountability Mechanisms in the ICANN Bylaws that may be invoked to determine whether ICANN (staff or Board) violated the Bylaws by making (or not making) a certain decision. -- The substantive appeals process could apply to the following: Evaluation Elements [challenges] 1. Background Screening 2. String Similarity 3. DNS Stability 4. Geographic Names 5. Technical / Operational Evaluation 6. Financial Evaluation 7. Registry Services 8. Applicant Support 9. Community Priority Evaluation Objections [appeals] 1. String Confusion 2. Legal Rights Objection 3. Limited Public Interest 4. Community Objection 5. Conflict of Interest of Panelists Comments from Kathy: Recommend changing names for clarity: Challenges to Evaluation Elements could be called “Challenges” Appeals of Objections should be called “Appeals” One is more an administrative process, one is an arbitration process, and changes to name will make the process differences clearer. -- Confused about the different types of proceedings. Evaluations are between the applicant and the evaluation panel. The appeal is a more traditional judicial type of appeal. Using the same terminology for everything seemed confusing. Outline of Additional Recommendations: Discussion: -- Not intending to replace or do anything inconsistent with any of the accountability mechanisms in the ICANN Bylaws. -- Comment added by Kathy Kleiman: Where the appeal will be heard would be the same institution that heard the underlying objection, except for conflicts of interest. Consider making it clear that the recourse against Evaluations is a challenge to evaluation elements while in respect of objections the recourse is an appeal. -- Have a final decision for everything except for a conflict of interest. -- By adding “Challenges” and “Appeals” to the descriptions above shouldn’t limit who can bring challenges (such as third parties for background screening) or appeals. An applicant who is successful in an appeal from an Evaluation Challenge should not have to bear the costs of that appeal. -- I'm confused by this line. We are using appeal and challenge in the same sentence. Now that we are bucketing things, is this still accurate? All challenges and appeals except for the Conflict of Interest appeals have a “Clearly Erroneous” standard. Conflict of Interests should be reviewed under a “De Novo” Standard. -- Clearly erroneous favors ICANN, not applicants. Everyone cool with that? Not sure I am. -- Might want to flesh out what we mean by “clearly erroneous” -- such as reasoning arbitrary or a finding was not supported by substantial evidence. Cornell Law says, “Clearly Erroneous means: A standard of review in civil appellate proceedings. Under this standard, an appeals court must accept the lower court's findings of fact unless the appellate court is definitely and firmly convinced that a mistake has been made. In other words, it is not enough that the appellate court may have weighed the evidence and reached a different conclusion; the lower court's decision will only be reversed if it is implausible in light of all the evidence." Seems very high standard indeed.
https://www.law.cornell.edu/wex/clearly_erroneous -- Suggested further standard for "clearly erroneous" - (a) arbitrary reasoning and/or (b) any element of the evaluation or Objection finding is not supported by substantial evidence.
 -- What are the chances of a panelist from the same provider calling his colleague's decision "implausible"? Thought: approaches nil. -- It is my understanding that in legitimate arbitration forums there is always a process for handling conflict of interest issues. -- Other options are "arbitrary and capricious" and "substantial evidence". -- I think we should chart out what the various standards of review actually are. This seems to me like we have just thrown a dart across the room and hit "clearly erroneous" Limited New gTLD Appeals Processes: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fI... Background Screening: -- Need to add members of the contention set as potential affected parties. Make even more broad -- third parties that could show some potential direct impact on them if the background screening is botched. -- Justine Chew: On Background screening, please refer to my email to WG of 21 Sep 2019. DNS Stability: -- Question: Should a backend provider have a right to appeal? Answer: This refers to the string itself, not to the operation. Not an issue with the backend or frontend provider. Technical Operations: -- Question: Should you be able to amend your application if the backend provider has a problem? Answer: Yes it makes to provide a challenge mechanism for the registry backend provider that is applying for pre-approval and fails. It would make sense the applicant could challenge the results on behalf of the backend provider. Financial -- Existing Evaluator Entity - Different individual Evaluator? -- Who would be an arbiter of a failure? Don’t think it would be at the same financial house. -- Who would have the expertise for an appeals mechanism? -- Have to consider the potential costs of having another evaluator. -- Selection of provider should include a question on whether the provider has an appeals procedure in place. I am now wondering the need to reconsider implications of that. -- Don't think we should rush through Column E. An appeal to someone's buddy down the hall is not a meaningful appeal. -- CPE and evaluation challenges are likely to require an independent evaluator. So, then ICANN would need to hire two firms. Ramping up two different providers could be very resource intensive. Think about the impact on costs and complexity. Or maybe ICANN could be the arbiter. -- ICANN being the arbiter puts ICANN much closer to content regulation since content is at the heart of Community proposed purpose. -- Flag as a potential issue and for others where there might need to be multiple providers. -- Support - Evaluation Challenges should be considered by an Alternate Qualified Provider.