[Ccpdp-rm] NOTES | ccPDP3-RM | 7 October 2020 (20:00 UTC)

Wed Oct 7 21:12:01 UTC 2020

Hello all,

Please find included below the high level notes from today’s ccPDP3-RM meeting, held on 7 October at 20 UTC
Best regards,
Joke Braeken

ACTION ITEMS

AI#1

Staff to write the elements regarding the discussion around standing, for review by the group.

NOTES

  1.  Welcome and roll call

Welcome by Chair Stephen Deerhake.

To consult the recording and a copy of the materials used, go to https://community.icann.org/x/ggjQC

2.                  Administrative announcements, if any

Originally 2 policy documents foreseen:

Part 1: ccPDP3- retirement | part 2: ccPDP3-review mechanism

Proposal by ccPDP3-ret is to carve out the work by that group from the overall pdp.

Mechanism : ccpdp3-ret needs to submit a final policy document. Comments received did not require substantive changes to the language of the interim report. To be addressed at ICANN69. Changes in terminology by ISO maintenance agency, that require minor updates to the document.

Issue Manager needs to submit a final report to Council requesting a carve out. ccNSO Council needs to agree with the carve-out. Adopted by council and submitted to the Board. Vote by membership prior to council approval.

3.                  Decision points table/spreadsheet

3.1 Additional question to include retirement

We forgot an appeal. If an exceptionally reserved ccTLD changes status, IFO can decide whether they need to retire the ccTLD. If the IFO recommends to proceed, that decision can be appealed. Added to the table, in yellow.

Peter: only for cases that are currently grandfathered, correct? Please make it more explicit in column 2

Eberhard: if an exceptionally reserved code for which a cctld corresponds (.ac) were to go to the main list. What would happen with the ccTLD manager? Does that manager continue? To be used as a stress test.

Bernie: our edge case was slightly different. Moving to full list => retirement policies do not apply. However if there is an exceptionally reserved code used by a ccTLD renders a geo location, and then delegated to another geo location, what do we do? Thin edge case. Bernie to discuss with Jaap. There are mechanisms to deal with that technically.

Eberhard: mentions it from the aspect of appealability.

Nick: grandfathered (.uk) or otherwise recognised exceptionally reserved (.eu).

Bernie: policy makes no distinction

Peter: did not mean to make a distinction between .eu, .uk and .ac. What should not be covered: .su

Eberhard: what matters is if it is appealable. Distinction between grandfather and .eu: board resolution in place.

Jaap: grandfather means that it was just in the root when ICANN took over. No documented wider history. For .eu there was a specific board decision. No need to put further interpretation in it

KimD: grandfather is more specific. There is a definition on the iana website. Interpretation they use operationally

Language -> ICANN codified the rules under which future exceptionally reserved delegations may be considered in 2000 in Resolution 00.74. Certain domains were delegated on the basis of being “exceptionally reserved” by the ISO 3166 Maintenance Agency prior to this date. These domains were “.UK”, “.AC”, “.GG” and “.JE”. Of these, “.GG” and “.JE” are now listed in the ISO 3166-1 standard and therefore qualify normally. The remaining two domains that are grandfathered under their original eligibility are “.UK” and “.AC”.

Peter: a one off

Kim: It’s guidance that has now been applied for over 20 years, and is referenced routinely when we receive applications that pertain to these codes, so its hard to say it is a one-off. But it is well within the remit of the ccNSO to develop superseding policy.

4.                  Review mechanism decision points

Issue list of things we need to do. One of the biggest things is standing. Who can use the appeals mechanism under the circumstances?

Nigel liked the IRP definition of who can use the IRP. Anyone who has been harmed. Bernie is uncertain to that. Too wide.

IRP is not a court. Can find that icann has failed e.g. to follow the bylaws in the decision that is being appealed.. It cannot prescribe what icann should do as a result of that. Technically, it does not apply to ccTLDs. ombudsman and reconsideration requests are available to anyone.

1.1.1.

It shouldn’t be because you made an application, you can appeal. We try to avoid silly situations. If you are completely unqualified, there is no reason why you should be able to appeal. Will also be important in the 2nd case. If the delegation is granted, who can appeal the delegation approval?

Eberhard: who will be the arbiter saying you are qualified or not.

Bernie: support or non objection of a government

Either we can decide that there are box-ticks of who is available or not, or there are more interesting considerations. Those managing the appeals system should be independent, and given the elements to look at.

Comment by Eberhard and summary by Bernie:

Only who can appeal an approval of a delegation before it is delegated, would be someone who applied.

Allan: is there value in dealing with the easier cases, before we go into the more difficult cases? We talked about applicants. We need to consider governments and discuss those.

Bernie: the simple ones are really clear. Revocation for instance. On retirement is the cctld that is exceptionally reserved that can appeal.

Eberhard. Don’t go for the easy ones first, if they depend from each other. Start in a logical manner.

Only applicants should be able to appeal. Live case: western sahara. 2 parties that wanted the ccTLD. Good had valid applications. IFO had to make a decision. Second party who did not get the ccTLD should be able to apply.

Peter Koch: consequence of Eberhard his suggestion is that pro forma application is a wild card for an appeal

Bernie: if we go with that, there will be pro forma applications, if there are no other conditions

Eberhard: RF5191 quote. (faint audio) Eberhard refers to discussions at ICANN in New Delhi. We do not need to increase our mandate.

Bernie: IFO definition of significantly interested party. Part of the concerns with the applicants: when they apply. Timelines are critical. When is the application made? Application before decision is made: is it then still appealable

Eberhard: if one party has support of the interested parties and the other not.

Bernie: no appeals after delegation. Timeframe after a decision has been taken, and the delegation? What is the window for appeal?

When we talk about delegation, the processes are very long. Year or more. If the ifo has been working for 8 months on a delegation file, and there is no second applicant, and they are about to make the decision soon, since the final info required has been sent it, and then someone puts in an application. Are we starting the process for IFO to evaluate the application again?

Eberhard: ifo to write that once the process has started applications should come in by x deadline.

Failure to accept is separate issue. Losing applicants: ifo could tell them that the applicant x was selected. The other applicant has x time to appeal

Bernie: more interesting is transfer.

Eberhard: there is no such thing as a third party here.

Bernie: conceptually same thing as delegation. Applicants can appeal a negative decision.

Third case: retirement

1.1.6: awaits ccpdp4. Idn cctld who was not granted can appeal the decision

If we stick to this, we went through all the standing case. To be written up, but that would cover standing.

Decision to go 15 min over time.

Allan: Bernie should be asked to write it up. Separate comment: understand that the role of gvt is circumscribed. If there is no appeal for gvt, why is that the case. How to explain the gvt why they would not have standing. Credible argument needed.

Eberhard: no preemptive obedience to governments needed.  Cctld matter, not a gvt matter.

Bernie: gvt implication is from the outset. Significantly interested party and ifo’s responsibility to consider that. Gvt has an overwhelming say before the process even starts

Allan: Bernie made my point. We need to take the time to explain to gvt.

Maarten: question. We discussed revocation. But how would that work here? Who has standing? Especially the decision to revocate.

Eberhard: revocation is interpreted by ifo as substantial misconduct.

Bernie agrees

5.                  AOB

None

6.                  Next meetings

No meetings in October for ccPDP3-RM, however at ICANN69: ccPDP-RET | Oct 15 | 14:00-15:00 UTC

4 November (04:00 UTC)

18 November (12:00 UTC)

7.                  Closure

Thank you all

Joke Braeken
ccNSO Policy Advisor
joke.braeken at icann.org

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