[Gnso-newgtld-wg-wt2] Actions/Discussion Notes: Work Track 2 SubTeam Meeting 06 October

[Julie Hedlund]

Dear Sub Team Members,

 

Please see below the action items and discussion notes captured by staff from the meeting on 06 October.  These high-level notes are designed to help Work Track Sub Team members navigate through the content of the call and are not a substitute for the recording.   See the recording on the meetings page at: https://community.icann.org/display/NGSPP/Work+Track+2+Meetings.

 

Best regards,

Julie

 

Julie Hedlund, Policy Director

 

Action Items/Discussion Notes 06 October

 

1.  Terms and Conditions of Applying for a TLD: Discussion around adding this topic

 

Action Items: 

1.       Staff will provide a first cut of the comments on module 6 of the AGB.

2.       Staff will look at the Requests for Reconsideration from the 2012 round, and IRPs from the 2012 round.

 

Discussion Notes:

 

Questions:

·         Is this in the scope of the PDP WG?

·         Does this belong in WT2?

·         Is this a policy aspect or an implementation of ICANN or hybrid

·         What reference material is there -- AGB Module 6: https://newgtlds.icann.org/en/applicants/agb/terms.

·         In the event of tackling this subject, what recommendations could be made from a policy standpoint?

·         Are the Terms and Conditions for described in the AGB enforceable?

 

Jeff Neuman:

·         Became an issue recently when addressed in the court case involving .africa -- alleged fraudulent or willfull misconduct.

·         Serious questions raised whether the broad waiver or release of any and all claims is enforceable.

·         Case is on appeal.

·         Broad release seems to not be favored in California courts.

·         How to allow applicants to exercise their right to judicial review?

·         Jim Prendergast: I would also ask - did the community have input into the T&Cs or the ability to suggest changes to them?  Seems like everyone was focused on modules 1-5.  I’m not sure anyone every commented on module 6.

·         Jeff Neuman: Everyone could provide input but not sure how much ICANN accepted.

 

Michael Flemming:

·         Seems to be an implementation aspect.

·         Need to look back at comments and how they were dealt with.

·         Rubens Kuhl: Re: whether in scope -- the list in the charter is a starting point and the WG can supplement the list provided the topic is directly related to new gTLD subsequent procedures, which it is.

·         Berry Cobb: Another vector for the group to monitor/consider is the changes to Request for Reconsideration and eventual release of the updated IRP as a result of the CCWG Accountability work.  It did not specifically touch upon what these mean for subsequent rounds/procedures, but it will be changing in the future.

·         Michael Flemming: Do we need to change the charter?

·         Jeff Neuman: I don't think we need to go back to the Council for permission or to change the charter.

·         Michael Flemming: Take into consideration Requests for Reconsideration.  We agree that this is in scope and we can add it to our issues.

·         Steve Chan: It is part of AGB so it is in scope.  Not necessary to send anything to Council.

·         Jeff Neuman:  We shouldn't engage in legal drafting of what we think the Terms and Conditions should be, but look at the policy.

·         Rubens Kuhl: What we could say at a policy level would be "Have T's&C's to reduce ICANN liability to the minimum level allowed by ICANN Bylaws, California law and US law". 

·         Steve Chan: Look at comments received to the AGB and interpretation of those comments.

·         Rubens Kuhl: Also Requests for Reconsideration from the 2012 round and lawsuits.

·         Rubens Kuhl: Two stress tests I suggest to T&C is the TAS issues that occurred, (1) freezing the application process (2) data leak.

 

2. Base Registry Agreement: Continued high level discussion and what we have been discussing over the mailing list.

 

Action Items:

1.       Sub Team members should provide additional pros and cons.

2.       Michael Flemming will send an email to the list asking for a volunteers to set up a sub team from this WT sub team for anyone who thinks there should be a separate agreement for a category.  The sub team would go through the registry agreement provision-by-provision and say this is why we need a new brand agreement, because these provisions don't apply to the brand.

 

Discussion Notes:

 

Questions:

·         Does a single base agreement make sense for all types of registries?

·         Do we as a group support the notion of having separate agreements for separate categories? For categories -- see: the Google Doc at https://docs.google.com/spreadsheets/d/1mA_hTUhLhJSsfcmoQwREtUqxykZ5KfJffzJAAhEvNlA/edit#gid=0.

·         Rubens Kuhl: I would also add "Sponsored TLDs", which although being a twin brother of Community TLDs, have different regulatory framework. 

·         Raymond Zylstra - Neustar: Question - Is reviewing 'categories' part of this WT? Or is it just if a single agreement makes sense?

·         Jeff Neuman: Overall categories is being considered in the full PDP WG.

 

Pros and Cons re Single Base Agreement: See the Google Doc at https://docs.google.com/document/d/1k1HrFIjwzupuJqr33WmGmBUD45SQ5Cv1-vNP7ZRztPk/edit (pros are for a single base agreement; cons are why it is good to have different agreements)

 

·         Raymond Zylstra - Neustar: Another Consideration: 1 Size Fits All vs. 2 Sizes Fits All – Introducing version(s) of the Registry Agreement may just change the problem. Within categories of TLDs there will still be differing business models.

·         Kristina Rosette (Amazon Registry): I have a clarifying question:  Does "different base agreement" mean (a) a completely different base agreement for every category; (b) a standard base agreement with additional specifications that differ (like Specification 13); or (c) something else entirely?  (If the answer is (c), please elaborate). Thanks.

·         Jeff Neuman: I don't think we are making a determination yet.

·         Michael Flemming: One idea is to have one agreement and then how it deviates for each category.

·         Rubens Kuhl: Note that we already have two different agreements at the 2012-round, and it's not based on specifications... it's the governmental and standard versions of the agreement.  Spec 9 - Code of Conduct (not applied for exclusive use TLDs and for Brand TLDs) Spec 12 - Community TLDs  Spec 13-Brand TLDs. 

·         Jeff Neuman: Proposal -- Dealing with this issue in the abstract, which is hard to do.  Set up a sub team from this WT sub team for anyone who thinks there should be a separate agreement for a category and go through the registry agreement provision-by-provision and say this is why we need a new brand agreement, because these provisions don't apply to the brand.

·         Michael Flemming: Have them make their case.

·         Jeff Neuman: Looking for specific areas that you feel don't apply to your category or group, or additional provisions that should be in there.

·         Raymond Zylstra - Neustar: Question ‘What is the outcome of the ‘Scope of Work’? What is it that we working towards delivering?’

·         Michael Flemming: Make the recommendation of whether or not there should be category-based agreements.  Should come back to this discussion by a certain date.

·         Gg Levine (NABP): Wouldn't it be simpler to keep single base agreement and then fine-tune specs per catagory? Multiple specs might apply to applicants.. Doesn't make sense to have separate agreements.

·         Michael Flemming: I can send an email concerning Jeff's proposal.

·         Jeff Neuman: See if there is a volunteer from this group to move this forward.  Give people 5 days to say if they want to participate.  Schedule a call.

·         Michael Flemming: Rather allow 2 weeks.

·         Jeff Neuman: I can reach out to Martin/Cecilia (from the BRG) and relay this conversation.

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