I agree with the concerns raised about the refund level for applications that get flagged as high risk for name collisions, but I also have a broader concern about the changes to the refund percentages and thresholds. For example, it’s not clear to me why an application that receives a GAC Early warning is no longer eligible for an 80% refund. Also, there are a range of legitimate reasons why an applicant might want to withdraw their application at an early stage, other than due to gaming or having come to a private resolution (which is now prohibited anyway), one of which is that the applicant finds out they are in contention with other applications. If this happened in the 2012 round the applicant could choose to withdraw (rather than go through the additional cost and pain of trying to win the contention set) and get a 70% refund, but if they did the same now they could only get a 35% refund. I’m not sure what the basis is for making these changes and eliminating the higher refund thresholds. Kind regards, Ashley Ashley Roberts Head of New TLD Consultancy Com Laude T +44 (0) 20 7421 8250 Ext 264 [cid:image001.png@01DB7897.2DBDF460] <https://comlaude.com/> Follow us on LinkedIn<https://t-uk.xink.io/Tracking/Index/pRkAAGVfAADD_RQA0> and YouTube<https://t-uk.xink.io/Tracking/Index/bhkAAGVfAADD_RQA0> From: Anne ICANN via SubPro-IRT <subpro-irt@icann.org> Sent: 06 February 2025 02:04 To: Jeff Neuman <jeff@jjnsolutions.com> Cc: subpro-irt@icann.org Subject: [SubPro-IRT] Re: Refunds for Changes to Program and because of Name Collisions This was Council's response to Question Set #6 from ODP staff re the force of Implementation Guidance: Hopefully this Response from Council is helpful generally on the topic of variation from Implementation Guidance. "In short, implementation guidance remains a strong recommendation as opposed to a requirement. As referenced in the Preamble to the Sub Pro Final Report, ICANN should specify any “circumstances where there may be valid reasons not to take such guidance exactly as described…” In such circumstances, Council believes that consultation with the IRT, the Guidance Process Team, or the Council itself (e.g. via a request for GNSO Input) is in order prior to the adoption of alternatives to the specified Implementation Guidance. In all cases, the implementation should be accomplished in a manner that achieves the objectives laid out in the implementation guidance even if the mechanism of implementation differs slightly from that contained in the final report." Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Wed, Feb 5, 2025 at 6:46 PM Anne ICANN <anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com>> wrote: Just a note that in the ODP (Operational Design Phase), ICANN staff asked the GNSO Council for a clarification of what was meant in the SubPro Final Report with respect to ICANN's obligations in relation to Implementation Guidance. The Council provided a response which stated that in the event ICANN was unable to implement as specified in Implementation Guidance, Org would need to come back to Council and explain why. Please see the written correspondence between the ODP staff and GNSO Council in this regard. I think it may have been the 4th Request out of the ODP staff? Jeff was the liaison to the ODP at the time and sent the correspondence that was approved by Council. Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Wed, Feb 5, 2025 at 6:51 AM Jeff Neuman via SubPro-IRT <subpro-irt@icann.org<mailto:subpro-irt@icann.org>> wrote: Marika, Thank you for your response, but there is a huge gulf between not implementing a recommendation "exactly as written" and treating the implementation guidance as if it didnt exist at all (which is what has been proposed). The implementation guidance called for a 100% refund. Your implementation called for essentially nothing to be refunded except what would ordinarily be refunded at that particular point in time for a normal withdrawal. Can it really be said that you have made "all efforts to achieve the purpose behind the recommended action as expressed in the rationale"? Lets look at this a little deeper: * A string may be identified as "high risk" in the initial assessment. This would be during the "String Evaluation phase" in the Applicant's journey before a Temporary Delegation, before objections, before contention set evaluation, and before the "Applicant Evaluation" (Section 2.10)(Before background screening, before financial and operational evaluation, registry services provider selection, geographic names evaluation, reserved names evaluation, etc." It would be before any "Name Collision High Risk Mitigation Plan Evaluation" (Which itself is and incredible $100,000 - $150,000). Its before the review of any Registry Commitments, Brand Eligibility, Variant Eligibility and before Contracting and of course Delegation. 1. Can it really be said that at this point in time, ICANN has spent 65% of the amount collected ($147,550.00) on what has been done on the application to date? The purpose is that applicants cannot predict for the most part whether they will be caught up in Name Collision. It is solely up to 1 evaluator based on criteria that we really have yet to see. Even when we do see it, no applicants will likely have the access to the data to actually perform an analysis prior to applying. Even worse is if the data doesn't exist without a temporary delegation which only ICANN is in a position to obtain that data. * And if an applicant only finds out during temporary delegation, that could be during or after the applicant evaluation, which would entitle the applicant to only 20% of the fees back, meaning that ICANN has not only spent at least $181,600 (which of course eats into the 30% contingency fee). To say that one could always appeal to the Board to get a refund is not acceptable. If there is no process to do that in the Applicant Guidebook, and no guidelines to get such an exceptional refund, it will not happen. Plus, that would cost the Applicant even more time and money just to petition the board for such a refund. And if there were a process, would you charge the Applicant extra to do that given there are charges for everything else "conditional?" Normally when there is no formal process and guidance, the standard answer from ICANN Org and the Board is "No." Without that formal process you cannot state honestly that this does not take "away the ability for the Board to make a different determination." * This requires more discussion and should not be treated simply as feedback in my opinion. Sincerely, Jeff [cid:image002.png@01DB7897.2DBDF460] ________________________________ From: Marika Konings <marika.konings@icann.org<mailto:marika.konings@icann.org>> Sent: Wednesday, February 5, 2025 6:38 AM To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>>; subpro-irt@icann.org<mailto:subpro-irt@icann.org> <subpro-irt@icann.org<mailto:subpro-irt@icann.org>> Subject: Re: [SubPro-IRT] Refunds for Changes to Program and because of Name Collisions Thanks, Jeff. We’ll factor this in together with the other feedback received during yesterday’s IRT meeting as we further update the AGB language which we hope to share with the IRT shortly. On implementation guidance 18.5, as explained, we are of the view that there are reasons that now exist, that were not in place when the implementation guidance was originally developed, to not exactly do as worded, but as also noted, this does not take away the ability for the Board to make a different determination in those cases where a gTLD is applied for but later not approved because of risk of name collision. Best regards, Marika From: Jeff Neuman via SubPro-IRT <subpro-irt@icann.org<mailto:subpro-irt@icann.org>> Reply-To: Jeff Neuman <jeff@jjnsolutions.com<mailto:jeff@jjnsolutions.com>> Date: Wednesday, 5 February 2025 at 05:27 To: "subpro-irt@icann.org<mailto:subpro-irt@icann.org>" <subpro-irt@icann.org<mailto:subpro-irt@icann.org>> Subject: [SubPro-IRT] Refunds for Changes to Program and because of Name Collisions All, I spent some time reviewing the SubPro Final Report and the recommendation on refunds and I wanted to draw your attention to the following because it differs from what was discussed earlier today (or yesterday for some of you) when we were discussing that topic. Recommendation 18.4 states (pg 84): "Applicants must be allowed some type of refund if they decide to withdraw an application because substantive changes are made to the Applicant Guidebook or program processes and such changes have, or are reasonably likely to have, a material impact on applicants.117" FN 117 states: "This refund would differ from the normal refund schedule." Implementation Guidance 18.5 states: If the risk of name collisions will be determined after applications are submitted, ICANN should provide a full refund to applicants in cases where a new gTLD is applied for but later is not approved because of risk of name collision. However, the proposal today from ICANN was that the normal refund schedule would apply in both situations. Looking further to the Rationale: In connection with recommendations under Topic 2: Predictability, the Working Group agreed that there should be a clear and consistent framework for handling changes in the New gTLD Program, including changes to the Applicant Guidebook. The Working Group recommends that an applicant must be eligible for some type of refund if they decide to withdraw an application because substantive changes are made to the Applicant Guidebook or program processes and such changes have, or are reasonably likely to have, a material impact on applicants. The Working Group expects that the Implementation Review Team will conduct further work regarding the details of this refund. The Working Group also provided implementation guidance regarding recourse for cases where an applicant applies for a string and that application is later disqualified because of risk of name collision. (page 85 of 400) ON Name Collision (18.5): Understood that this is "Implementation Guidance", but Implementation Guidance means that it was "strongly recommended with a strong presumption that it will be implemented" although it recognizes that reasons may exist to not do exactly as it is worded. But ICANN must "make all efforts to achieve the purpose behind the recommended action as expressed in the rationale." Can we please have a further discussion on this topic? Sincerely, Jeff [cid:image003.png@01DB7897.2DBDF460] _______________________________________________ SubPro-IRT mailing list -- subpro-irt@icann.org<mailto:subpro-irt@icann.org> To unsubscribe send an email to subpro-irt-leave@icann.org<mailto:subpro-irt-leave@icann.org> _______________________________________________ By submitting your personal data, you consent to the processing of your personal data for purposes of subscribing to this mailing list accordance with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and the website Terms of Service (https://www.icann.org/privacy/tos). You can visit the Mailman link above to change your membership status or configuration, including unsubscribing, setting digest-style delivery or disabling delivery altogether (e.g., for a vacation), and so on. ________________________________ The contents of this email and any attachments are confidential to the intended recipient. 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