1 Nov Redline: ASP Terms & Conditions
Greetings IRT members, As promised, we are sharing the latest redline of the ASP Terms & Conditions based upon our discussion and the IRT's feedback during IRT Meeting #81.<https://community.icann.org/pages/viewpage.action?pageId=370442276> I'll speak to the rationale for these changes further in our next meeting (aiming for Meeting #85 if the schedule permits) but in the meantime I wanted to share a few informal, explanatory points upfront with respect to Section 4, in particular: * In order to maintain ICANN’s status as non-profit organization, it must be organized and operated exclusively for charitable purposes or other exempt purposes under the law. This is included in ICANN’s Articles of Incorporation. https://www.icann.org/resources/pages/governance/articles-en * As you can see in our Articles of Incorporation, there’s also language about ICANN not being organized for the private gain of any person. * If ICANN were to engage in any substantial activity that did not sufficiently further an exempt purpose, then it could put our non-profit status at risk. For example, it could be risky for ICANN to provide more than incidental private benefit (e.g., non-fair market value transitions transactions that have a significant purpose of benefiting a private individual or entity rather than furthering exempt purposes, or which are not reasonable in amount). * We included the language in Section 4 as a backstop to guard against the organizational parameters of how ICANN is set-up and to make sure that we are taking these parameters into account in the Applicant Support Program. * We acknowledge that this might be an unlikely scenario (e.g., that an ASP applicant is able to raise an additional tens of millions of dollars but is still seeking a discount of registry fees), but we also want to make sure that we are respecting that the ASP acts consistently with how ICANN is organized. Section 9 has been updated to reflect the emphasis the IRT suggested on change of control. Lastly, we recognize that we're all working hard to strike the right balance here. At the same time, we are up against the launch deadline of 19 November so we are aiming to finalize the ASP Terms & Conditions as soon as possible so that it does not risk delay to our start date. Many thanks in advance for your review and input on this proposed final draft. If you are able to share questions or comments on-list in advance, that may help to inform our discussion. We look forward to discussing with you all next week. Kind regards, Kristy, on behalf of the ASP Project Team
Hi Kristy - I'm still having trouble with this sentence in Para 4 ICANN is under no obligation to award assistance via the Applicant Support Program. Don't we mean there is no obligation prior to qualifying for the program? Certainly once the Applicant qualifies there will be an award letter which obligates ICANN in accordance with these applicable terms and conditions. The sentence as drafted makes it sound as though there is no obligation to reduce the new gTLD application fee even if the Applicant qualifies for ASP. Can we get this fixed somehow? (I think it's important for investors.) Separately, in the meeting discussion we talked about the importance of letting ASP applicants and those who qualify know in advance what could result in disqualification and what checkpoints might arise and when. There does not appear to be anything in this latest draft that addresses that discussion. Can we confirm that the checks will simply be on the original eligibility criteria? Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com On Fri, Nov 1, 2024 at 4:37 PM Kristy Buckley via SubPro-IRT < subpro-irt@icann.org> wrote:
Greetings IRT members,
As promised, we are sharing the latest redline of the ASP Terms & Conditions based upon our discussion and the IRT's feedback during IRT Meeting #81. <https://community.icann.org/pages/viewpage.action?pageId=370442276>
I'll speak to the rationale for these changes further in our next meeting (aiming for Meeting #85 if the schedule permits) but in the meantime I wanted to share a few informal, explanatory points upfront with respect to Section 4, in particular:
- In order to maintain ICANN’s status as non-profit organization, it must be organized and operated exclusively for charitable purposes or other exempt purposes under the law. This is included in ICANN’s Articles of Incorporation. https://www.icann.org/resources/pages/governance/articles-en - As you can see in our Articles of Incorporation, there’s also language about ICANN not being organized for the private gain of any person. - If ICANN were to engage in any substantial activity that did not sufficiently further an exempt purpose, then it could put our non-profit status at risk. For example, it could be risky for ICANN to provide more than incidental private benefit (e.g., non-fair market value transitions transactions that have a significant purpose of benefiting a private individual or entity rather than furthering exempt purposes, or which are not reasonable in amount). - We included the language in Section 4 as a backstop to guard against the organizational parameters of how ICANN is set-up and to make sure that we are taking these parameters into account in the Applicant Support Program. - We acknowledge that this might be an unlikely scenario (e.g., that an ASP applicant is able to raise an additional tens of millions of dollars but is still seeking a discount of registry fees), but we also want to make sure that we are respecting that the ASP acts consistently with how ICANN is organized.
Section 9 has been updated to reflect the emphasis the IRT suggested on change of control.
Lastly, we recognize that we're all working hard to strike the right balance here. At the same time, we are up against the launch deadline of 19 November so we are aiming to finalize the ASP Terms & Conditions as soon as possible so that it does not risk delay to our start date.
Many thanks in advance for your review and input on this proposed final draft. If you are able to share questions or comments on-list in advance, that may help to inform our discussion. We look forward to discussing with you all next week.
Kind regards,
Kristy, on behalf of the ASP Project Team
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P.S. I'm having trouble editing the document but also wanted to add a suggestion that the following language be modified as well. We say the program is not intended for those who are affiliated with current players in the market. "Are affiliated with" should be changed to the actual Affiliate definition contained in the ICANN contractual language or else referred to as "controlled by or under common control with" those players. In the prep session, ICANN personnel stated we are depending on the private sector to educate ASP applicants and qualifiers as to risks and costs of running a registry. If we want to involve the private sector in this very important role, we have to be very careful not to totally exclude that involvement via the Terms and Conditions language. We are setting up a paradox if we think that gTLD operations can be taught to ASP applicants without any "affiliation" whatsoever with players in the new gTLD space. What exactly is ICANN expecting here that will lead to successful new ASP new gTLDs? Again, the emphasis has to be on not permitting such entities to control the ASP Applicant or the ASP qualified new gTLD. So a vague reference to "are affiliated with" is not appropriate. Do we not realize that some big entities may have "Corporate Responsibility and Diversity" goals in connection with ASP Applicants that would not involve controlling them or gaming but would be very beneficial to the Applicant and the success of the program generally? ICANN should be encouraging that involvement, not discouraging it, again, as long as there is no controlling interest or change of control, Anne The Applicant Support Program is not intended to provide support to applying entities that were created by, are affiliated with existing gTLD Registry Operators or prospective applicants to the New gTLD Program that would not meet the criteria of the Applicant Support Program, or have sufficient ongoing funding or investment from other sources. Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com On Sat, Nov 2, 2024 at 5:18 PM Anne ICANN <anneicanngnso@gmail.com> wrote:
Hi Kristy - I'm still having trouble with this sentence in Para 4
ICANN is under no obligation to award assistance via the Applicant Support Program.
Don't we mean there is no obligation prior to qualifying for the program? Certainly once the Applicant qualifies there will be an award letter which obligates ICANN in accordance with these applicable terms and conditions. The sentence as drafted makes it sound as though there is no obligation to reduce the new gTLD application fee even if the Applicant qualifies for ASP. Can we get this fixed somehow? (I think it's important for investors.)
Separately, in the meeting discussion we talked about the importance of letting ASP applicants and those who qualify know in advance what could result in disqualification and what checkpoints might arise and when. There does not appear to be anything in this latest draft that addresses that discussion. Can we confirm that the checks will simply be on the original eligibility criteria?
Thank you, Anne
Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com
On Fri, Nov 1, 2024 at 4:37 PM Kristy Buckley via SubPro-IRT < subpro-irt@icann.org> wrote:
Greetings IRT members,
As promised, we are sharing the latest redline of the ASP Terms & Conditions based upon our discussion and the IRT's feedback during IRT Meeting #81. <https://community.icann.org/pages/viewpage.action?pageId=370442276>
I'll speak to the rationale for these changes further in our next meeting (aiming for Meeting #85 if the schedule permits) but in the meantime I wanted to share a few informal, explanatory points upfront with respect to Section 4, in particular:
- In order to maintain ICANN’s status as non-profit organization, it must be organized and operated exclusively for charitable purposes or other exempt purposes under the law. This is included in ICANN’s Articles of Incorporation. https://www.icann.org/resources/pages/governance/articles-en - As you can see in our Articles of Incorporation, there’s also language about ICANN not being organized for the private gain of any person. - If ICANN were to engage in any substantial activity that did not sufficiently further an exempt purpose, then it could put our non-profit status at risk. For example, it could be risky for ICANN to provide more than incidental private benefit (e.g., non-fair market value transitions transactions that have a significant purpose of benefiting a private individual or entity rather than furthering exempt purposes, or which are not reasonable in amount). - We included the language in Section 4 as a backstop to guard against the organizational parameters of how ICANN is set-up and to make sure that we are taking these parameters into account in the Applicant Support Program. - We acknowledge that this might be an unlikely scenario (e.g., that an ASP applicant is able to raise an additional tens of millions of dollars but is still seeking a discount of registry fees), but we also want to make sure that we are respecting that the ASP acts consistently with how ICANN is organized.
Section 9 has been updated to reflect the emphasis the IRT suggested on change of control.
Lastly, we recognize that we're all working hard to strike the right balance here. At the same time, we are up against the launch deadline of 19 November so we are aiming to finalize the ASP Terms & Conditions as soon as possible so that it does not risk delay to our start date.
Many thanks in advance for your review and input on this proposed final draft. If you are able to share questions or comments on-list in advance, that may help to inform our discussion. We look forward to discussing with you all next week.
Kind regards,
Kristy, on behalf of the ASP Project Team
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OFFICIAL Good afternoon Thank you, Kristy, for posting mail and for observation of Anne. Would also appreciate some clarification here. Assume that this statement is generic? Why are just applications under ASP targeted here; one can argue all applicants benefit from assistance of one kind or another from ICANN? Best Nigel OFFICIAL From: Anne ICANN via SubPro-IRT <subpro-irt@icann.org> Sent: 03 November 2024 00:19 To: Kristy Buckley <kristy.buckley@icann.org> Cc: subpro-irt@icann.org Subject: [SubPro-IRT] Re: 1 Nov Redline: ASP Terms & Conditions Hi Kristy - I'm still having trouble with this sentence in Para 4 ICANN is under no obligation to award assistance via the Applicant Support Program. Don't we mean there is no obligation prior to qualifying for the program? Certainly once the Applicant qualifies there will be an award letter which obligates ICANN in accordance with these applicable terms and conditions. The sentence as drafted makes it sound as though there is no obligation to reduce the new gTLD application fee even if the Applicant qualifies for ASP. Can we get this fixed somehow? (I think it's important for investors.) Separately, in the meeting discussion we talked about the importance of letting ASP applicants and those who qualify know in advance what could result in disqualification and what checkpoints might arise and when. There does not appear to be anything in this latest draft that addresses that discussion. Can we confirm that the checks will simply be on the original eligibility criteria? Thank you, Anne Anne Aikman-Scalese GNSO Councilor NomCom Non-Voting 2022-2026 anneicanngnso@gmail.com<mailto:anneicanngnso@gmail.com> On Fri, Nov 1, 2024 at 4:37 PM Kristy Buckley via SubPro-IRT <subpro-irt@icann.org<mailto:subpro-irt@icann.org>> wrote: Greetings IRT members, As promised, we are sharing the latest redline of the ASP Terms & Conditions based upon our discussion and the IRT's feedback during IRT Meeting #81.<https://community.icann.org/pages/viewpage.action?pageId=370442276> I'll speak to the rationale for these changes further in our next meeting (aiming for Meeting #85 if the schedule permits) but in the meantime I wanted to share a few informal, explanatory points upfront with respect to Section 4, in particular: * In order to maintain ICANN’s status as non-profit organization, it must be organized and operated exclusively for charitable purposes or other exempt purposes under the law. This is included in ICANN’s Articles of Incorporation. https://www.icann.org/resources/pages/governance/articles-en * As you can see in our Articles of Incorporation, there’s also language about ICANN not being organized for the private gain of any person. * If ICANN were to engage in any substantial activity that did not sufficiently further an exempt purpose, then it could put our non-profit status at risk. For example, it could be risky for ICANN to provide more than incidental private benefit (e.g., non-fair market value transitions transactions that have a significant purpose of benefiting a private individual or entity rather than furthering exempt purposes, or which are not reasonable in amount). * We included the language in Section 4 as a backstop to guard against the organizational parameters of how ICANN is set-up and to make sure that we are taking these parameters into account in the Applicant Support Program. * We acknowledge that this might be an unlikely scenario (e.g., that an ASP applicant is able to raise an additional tens of millions of dollars but is still seeking a discount of registry fees), but we also want to make sure that we are respecting that the ASP acts consistently with how ICANN is organized. Section 9 has been updated to reflect the emphasis the IRT suggested on change of control. Lastly, we recognize that we're all working hard to strike the right balance here. At the same time, we are up against the launch deadline of 19 November so we are aiming to finalize the ASP Terms & Conditions as soon as possible so that it does not risk delay to our start date. Many thanks in advance for your review and input on this proposed final draft. If you are able to share questions or comments on-list in advance, that may help to inform our discussion. We look forward to discussing with you all next week. Kind regards, Kristy, on behalf of the ASP Project Team _______________________________________________ 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.
participants (3)
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Anne ICANN -
Hickson, Nigel (DSIT) -
Kristy Buckley