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:004f84b2-c4db-401d-88e5-6a2d5e9c0b3c] ________________________________ From: Marika Konings <marika.konings@icann.org> Sent: Wednesday, February 5, 2025 6:38 AM To: Jeff Neuman <jeff@jjnsolutions.com>; subpro-irt@icann.org <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> Reply-To: Jeff Neuman <jeff@jjnsolutions.com> Date: Wednesday, 5 February 2025 at 05:27 To: "subpro-irt@icann.org" <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:image001.png@01DB77CA.E6AE3FC0]
