[Gnso-newgtld-wg-wt3] Subsequent Procedures WT3 (Objections) Action Items

Fri Dec 16 10:16:30 UTC 2016

The following is my personal opinion and not as one of the co-chairs:

Although the ALAC was provided with funding to file LPI objections and Community based objections, Alan argued on the call that the fact that they could not meet the standing requirements meant that the offer of funding was rendered essentially useless.  I agree with Alan in that respect, which is why I believe that such funding should NOT be made available for subsequent application windows or ALAC objections.  If the ALAC has any objections, just like the comments of any other SO or constituency, they can be addressed during the public comment periods.

At my previous employer, I was involved in defending Dot Health LLC against the ALAC complaint regarding .health (on Community Objection Grounds).  I observed on the ALAC mailing lists lobbying efforts from consultants that worked for the World Health Organization to get this objection filed.  The WHO was not able to convince its own organizational members to file the dispute, so it pursued this other avenue through the ALAC in order to hide behind the ALAC umbrella and receive funding from ICANN.  The ALAC also noticed that the Independent Objector filed on Public Interest grounds, so it therefore opted to pursue on Community Objection Grounds.  A copy of the decision is here:  http://www.iccwbo.org/Data/Documents/Business-Services/Dispute-Resolution-Services/Expertise/ICANN-New-gTLD-Dispute-Resolution/EXP_504_ICANN_121_Expert-Determination/

The ALAC argued that because they speak for individual users of the Internet, and they were given funding from ICANN, the standing requirement shouldn't apply to them.  They argued that because the .health string was being pursued by a commercial entity, there was no way that the commercial entity could be trusted to administer the registry.  They provided no back-up to their claims and wrote a brief based on personal opinions with no corroborating facts, expert opinions or other evidence of their claims.  The ALAC lost the complaint and ICANN was forced to pay the entire costs of the proceeding.  Although Dot Health LLC was able to recover some of its portion of the filing fee, it nonetheless spent tens of   thousands  of dollars in actual time and money to prepare the defense.  These dollars were never recouped.  At the moment I cannot find the ALAC complaint, but an article on it is here:  http://www.internetnews.me/2013/02/16/alac-to-submit-objection-against-health/   The complaint was filed against 4 of the 5 applicants for .health at a filing fee near $200,000 a pop (costing ICANN close to a million dollars in filing fees alone).  ICANN itself had no role in reviewing the complaint, but was forced to bear the costs despite the fact that I believe if ICANN staff had a role in reviewing the complaint, they would have recommended that it not be filed without supporting evidence and without a basis to meet the standing requirements.

Again this is my personal opinion.  Please treat as such.

Jeffrey J. Neuman
Senior Vice President |Valideus USA | Com Laude USA
1751 Pinnacle Drive, Suite 600
Mclean, VA 22102, United States
E: jeff.neuman at valideus.com<mailto:jeff.neuman at valideus.com> or jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
T: +1.703.635.7514
M: +1.202.549.5079
@Jintlaw

From: gnso-newgtld-wg-wt3-bounces at icann.org [mailto:gnso-newgtld-wg-wt3-bounces at icann.org] On Behalf Of Karen Day
Sent: Thursday, December 15, 2016 4:33 PM
To: 'gnso-newgtld-wg-wt3 at icann.org' <gnso-newgtld-wg-wt3 at icann.org>
Subject: [Gnso-newgtld-wg-wt3] Subsequent Procedures WT3 (Objections) Action Items

Dear All,

As we discussed during our last call we are going to make concerted effort to conduct some of our business via the list to try to avoid having to either lengthen or make more frequent our calls.  To that end, here are this week's list of items that we need your feedback on - hopefully prior to our next scheduled call on 20DEC16.

1.     Recap and positioning on Limited Public Interest Objections:

Is the content & function for purpose of policy stated in AGB 3.2.2.3 and 3.5.3 adequate as written or does the language need adjusting for clarification or correction?

One issue that was raised on the call was that although the ALAC was given funding by ICANN to submit LPI objections they were denied standing in the case they did file.  Does this ambiguity need to be eliminated by granting the ALAC standing or otherwise?

A second issue that was raised was with regard to the use of the term "generally" in the definition (3.2.1) of LPI Objections.  " The applied for gTLD string is contrary to generally accepted legal norms of morality and public order that are recognized under principals of international law."   Can this be better written to define what is generally accepted without going so far as to require a principal to be "universally" accepted?

If you feel that the language of these or other LPI related sections (other than those relating to fees or the IO which we will tackle later) needs clarification please specify for the groups consideration which section needs changing and make a proposal of how you feel it should be changed.   Again, silence will be taken that you ascribe to the 'Neuman Rule' that the language isn't broken so we don't need to fix it.

2.     Legal Rights Objections - AGB 3.2.2.2 and 3.5.2 / Principal G - Recommendation 3; See Wiki:  https://community.icann.org/display/NGSPP/4.4.3+Objections

Please review the following three documents (all found on the WT3 wiki page linked above to prepare for our discussions on this topic:

            Objections Statistics with links to results for LRO cases.

            WIPO Final Report on LRO

            INTA Report - The ICANN LRO: Statistics and Takeaways

As several of you were heavily involved in LROs from the 2012 round, it would be appreciated if you could share your experiences and suggestions for changes with the group via the list.

We look forward to hearing from you all soon.

Best regards,

Karen & Robin

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