[Gnso-newgtld-wg-wt3] - PICDRP Panelists Feedback

[Steve Chan]

Dear WT3 Members,

 

Staff has recently received comments/input from two members of the PICDRP (or, Public Interest Commitment Dispute Resolution Procedure) Standing Panel. For those that are not familiar, the procedure is intended to address complaints that a Registry may not be complying with the Public Interest Commitments(s) in Specification 11 of their Registry Agreement. You can read more about the procedure here: https://www.icann.org/resources/pages/picdrp-2014-01-09-en

 

The Standing Panel performed their first PICDRP evaluation in relation to the .FEEDBACK registry – you can review the decision here: https://www.icann.org/uploads/compliance_notice/attachment/911/serad-to-westerdal-16mar17.pdf

 

While the PICDRP is within scope for this WT, it has yet to be discussed. Once the WT does begin its deliberations, this input may prove useful. Note, there may be a need to coordinate with WT2 if it is determined that the PICDRP and the requirements in the Registry Agreement need to be better aligned. 

 

Finally, I would note that both panelists have indicated their willingness to participate in future discussions or provide additional input as deemed helpful.

 

Input received from David JA Cairns:

 

“Dear Steve,

 

I write as a member of the PICDRP Standing Panel, and a member of the Panel that recently provided the first evaluation under the PICDRP in relation to the .FEEDBACK gTLD. Valerie Heng has suggested that you might find comments from the members of the Panel useful for Policy development.

 

Our decision (which is publicly available on the ICANN website) was based on paragraph 3.c of Specification 11, which is concerned with transparency in establishing and adhering to registration policies. The Complainant (‘Reporter’ in the language of the PICDRP) presented the Panel with voluminous evidence of allegedly objectionable conduct by the Registry Operator which the Reporter sought to connect to paragraph 3 of Specification 11. Sometimes the connection was tenuous, and in fact raised issues of the contractual compliance of the Registry Operator with its Registry Agreement with ICANN outside the scope of the PICDRP, or possible civil wrongs. In short, the Reporter sought to ‘stretch’ the PICDRP procedure to address conduct it was not in fact designed to address. This suggests two observations to me:

 

1.Paragraph 2 of Specification 11 envisages specific public interest commitments made by each Registry Operator in relation to their gTLD. In the .FEEDBACK gTLD Registry Agreement there were no specific commitments. Unless there are specific commitments tailored for each registry agreement, or the general commitments in paragraph 3 are elaborated to include a broader range of objectionable behavior (such as deceptive marketing and abuse of trademark rights as alleged in our case), then there will be frustration that the PICDRP procedure is ineffective or simply not ‘fit for purpose’ . in short, the PICDRP purports to be a dispute resolution mechanism available to defend the public interest but really only addresses a very limited range of public interest concerns.

 

2. Another option is to issue some guidance to potential complainants so that they can distinguish between complaints that are properly addressed to a PICDRP Panel, and complaints that should properly be addressed either directly to ICANN or to the courts. There is no point presenting a complaint to a PICDRP Panel where the Panel is powerless to address the issues raised.

 

I hope these comments are useful to you.

 

Yours sincerely,

David JA Cairns”

 

Input received from Scott Austin

 

“Steve:

 

David and I had discussed this previously and we agreed that given some of the concerns we confronted in reaching our decision we should be consistent among the members of the panel with our suggestions. I write to register my concurrence with David’s points and observations, and would also add that our course was one of “judicial restraint”, albeit after persuading my fellow panelists (and exercising presiding panelist privilege) to request additional time and make inquiry with ICANN for clarification of scope, as noted in the decision. Without our agreement to that approach and the resulting clarification, the decision could have cut a much broader (and possibly unintended) swath, broadly interpreting 3a. or even leaping the bounds of Specification 11 to other Specifications to address the wrongs complained of in the complaint.  

It may be in the best interest of the PICDRP process and ICANN’s effective and consistent implementation of same to open a dialogue with the full list of PICDRP panelists to identify best practices or policy element clarifications to meet the goals of the process from ICANN’s perspective, and discuss whether  expansion of the scope of Section 3a. to cover Registries or developing incentives for gTLD applicants to submit self-imposed PICS anticipated by Paragraph 2 of Specification 11 should be a matter of policy change and decision focus going forward.

 

Best regards,

Scott”

 

 

 

 

Best,

Steve

 

 

Steven Chan


Sr. Policy Manager



 

ICANN

12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536


steve.chan at icann.org

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