[Gnso-newgtld-wg-wt3] Notes and Action Items: New gTLD Subsequent Procedures PDP WG - Track 3 - 12 December 2017

[Emily Barabas]

Dear Work Track members,

Please find below notes and action items from the call today. These high-level notes are designed to help Work Track members navigate through the content of the call and are not a substitute for the chat transcript or the recording. You can find the chat transcript and call recording here:  https://community.icann.org/x/RQxyB.

Kind regards,
Emily


Notes/Action Items:

1.  Welcome & Review of Agenda

2.  Updates to SOI
- no updates

3.  Plenary Update
- Call yesterday (Monday) focused on TLD types. WG members received "homework" regarding proposed additional TLD types
- Additional homework: propose use case scenarios to apply to the Predictability Framework, one of the other overarching issues.

4.  Review of Work Plan for WT3 through March 2018
- The plan is to present sections of the report from this WT to the Plenary on March 9.

5.  Conclude Review of CC2 on “Community” Applications
- 3.3.4 - Were the rights of communities infringed by the New gTLD Program?
- RySG, BRG, and Afilias did not believe that the rights of communities were infringed.
- Freedom of association and freedom of speech are referenced in this question. There has been some discussion that community applications should serve the public interest, but we should also consider that freedom of association is in the public interest. ICANN should not be making judgements about content.

Chat excerpt:
Jim Prendergast: Does anyone have any idea on when the Review of CPE will be completed?  I would think that should inform this work.
Alan Greenberg (ALAC): I asked Manal about the status of the GAC paper on Community applications. She said that the paper had been discussed but not approved - yet. BUt she noted that her recollection is that the paper is mostly factual not opinion.
Jamie Baxter | dotgay: @Jim .. there has still been no further announcement or publishing of the FTI findings since scope 1 & 2 have been delived to ICANN. Not sure what the delay is or what the planned timing is of this being released. I concur that it is most important for ICANN to get this out for further discussion by this group and others.
Cheryl Langdon-Orr (CLO - PDP Co-Chair): thanks Alan
Jim Prendergast: @jamie - its takign forever.  Been well over a year since the board asked for it
Jon Nevett: i agree with Anne -- one person's terrorists is another person's freedom fighter
Jamie Baxter | dotgay: @Jim ... problem noted and we are just as confused and concerned
Cheryl Langdon-Orr (CLO - PDP Co-Chair): well noted Jim, perhaps we can ask staff to follow up on the credit status....
Jon Nevett: .pot could it go to medical marijuana growers in California?  Or are they drug dealers?
Jamie Baxter | dotgay: CPE cost is also linked to predictability for applicants
Anne Aikman-Scalese: great example Jon -  does it depend on the governing law of the community's jurisdiction?  Colorado, CA and others okay

- 3.3.5 - Are there other aspects of the New gTLD Program related to communities that should be considered in a more holistic fashion?
- vTLD Consortium and NABP supported communities having registration policies requiring verification that registrants are members of the community.
- RySG and Afilias addressed potential implications of the model for subsequent procedures.
- We may have skipped over discussion during the last call regarding costs. The actual cost ended up being double the estimated cost. If there is information published in the AGB regarding estimated costs, this information needs to be more accurate. if the information in the AGB ends up being far from actual costs, ICANN should chip in to cover the costs.
- If community applications are going to be given priority or receive other incentives, it is important to be able to review and have certain assurances about the business or management model going forward. You don't want ICANN to do granular content oversight, but if a registry is getting priority, some assurances are common sense as there are risks of gaming. There should be a way to confirm the community is legitimate and that the community registry will run differently than a generic registry.
- There have been concerns about gaming with community applications. A structure with some level of verification would attract those who are seeking to represent a bona fide community.
- Staff clarification on system for the 2012 round -- Registration requirements that applicants put into their application were included in Spec 12 of the agreement, regardless of whether CPE applies. If an application was presented as a community application and there was no contention and therefore no CPE, the claim to being a community application was taken at face value.
- Support expressed for having evaluation criteria for all community applicants, not just those that are in contention.
- In the last round, if there was no contention, the application was not evaluated under CPE, but there were also no special privileges to be gained by the designation. If we decide for the next round that the rules will be different for communities and extra benefits are provided for these TLDs, then there could be additional requirements. But if the rules stay the same, it is unnecessary to add requirements.

Chat excerpt:
Jon Nevett: Spec 12 requirements are in the contract
Jon Nevett: community applicants are now going through a process to see how to change their Spec 12 requirements if they want to tweak them
Jeff Neuman: @Jon is correct.  There is no process yet for changing Spec 12.  But there needs to be
Jim Prendergast: Shoudl also note that those community applicants who were not in contention and didnt have to go through CPE are still bound by the promises made in Q20 of application.
Jamie Baxter | dotgay: @Jim .. that is also my understanding
Steve Chan: @Jim, thanks, that's essentially what I was trying to convey in my comment

6.  Review of CC2 on “Objections”
- 3.1.1
- INTA, Nominet, RySG, BRG, and Afilias believe that the existing recommendation do not need to be revised.
- RySg, BRG, and Afilias recommended clarifying "a significant portion of the community" in Recommendation 20.
- ALAC suggested changing recommendation 2.
- The concern regarding language of recommendation 20 is important and needs to be looked at more closely. There is a potential to misunderstand what a "significant portion" means.
- Agree that there is some clarification needed. Where there is some type of organization related to a community, the organization will have officers or directors that are authorized to act. If there is a determination made by that organization and authority is conferred upon them, do they at that point in time represent a significant portion of the community? For a community that is not established in a corporate form, there may be a legitimate basis for representing a significant part of a community where the applicant is stepping into a void, and there is evidence that the community would flock to the TLD once established. Panelists likely need more guidance on this issue.
- How do you count a community that is invisible? Can you rely on organizations that are visible? Or do you require the community to make itself visible? It needs to be more predictable. Applicants can interpret the text differently as it is currently written.

Chat excerpt:
Jon Nevett: how you define the community is another issue -- depends on the string that is applied for -- does the American Bar Association apply for .ABA as a community or .LAW as a community?
Gg Levine (NABP): @Jon: I would think they could apply for either name as a community
Jon Nevett: Right, but the review might be different as to level of support, etc.

3.1.2
- Jannik Skou, BC, RySG, BRG, and Afilias suggested string confusion needs to be improved.
- Jannik Skou and ALAC suggested that Legal Rights Objections need to be improved.
-  RySG, BRG, and Afilias suggested that Community Objections need to be improved.
- BC suggested developing a process to appeal decisions.
- RySG, BRG, and Afilias suggested specific procedural improvements to the objections process.
- Where the AGB is vague, there should be more flexibility on the evaluation side. Otherwise the AGB needs to be clear.
-The panel should be able to remediate a decision. This is important for predictability. The panelists should not take loose interpretations and then apply them rigidly without communicating this to others.

Chat excerpt:
Jamie Baxter | dotgay: @Alan .. +1
Jon Nevett: Alan +1
Phil Buckingham: Alan  + 1
Greg Shatan: Alan +1, +1

-One possible change:  there could be an intervening step in the process in the objections process for parties to work out issues.
- The panelists would have to allow the application to be changed in the case of mediation.
- One way that we allowed for changes in applications in the 2012 round was PICs. We are talking about community applications serving the public interest. Could the change in the applications as a result of mediation be reflected in PICs?
- PICs were only used “on the fly” in the last round because they were introduced late in the process. In subsequent procedures this may not be the case, as they will already be an established mechanism.
- A big issue for the entire application process is whether and how applications can be changed after they are submitted. This should be addressed directly. If the goal is to be flexible and maximize the number of successful applications, there needs to be an opportunity to change applications. The other side of the issue is gaming. The topic of whether and how applications can be changed should be considered carefully by the Working Group.

Chat excerpt:
Susan Payne: +1 Greg
Donna Austin, Neustar: @Greg, would that include new letters of support for an application that come in after the closing date for applications?
Greg Shatan: @Donna, my gut reaction is yes.

- 3.1.3
- The RySG, BRG, and Afilias had concerns with the standing requirements for Recommendation 20.
- When we talk about standing, it's important to establish standing before the objection moves forward. Otherwise community applicants must defend against objections that do not have standing.
- 3.1.4
-BC, RySG, BRG, and Afilias pointed to inconsistencies.
- If all examples of inconsistencies are examples of singular/plural issues and we are addressing that issue with a specific rule, then that concern about inconsistency is addressed
- INTA provided additional suggestions on this topic
-3.1.5
- dotgay provided evidence of gaming.
- dotgay, RySG, and Afilias made suggestions to reduce gaming.
- There is evidence that some parties worked to derail community applications. Recommendations in CC2 feedback should be considered carefully to prevent similar actions from occurring in subsequent procedures.

Chat excerpt:
Donna Austin, Neustar: what's the status of ICANN's review of CPE? isn't that looking at inconsistencies?
Jim Prendergast: @donna - no one knows - been over a year.
Jim Prendergast: Jamie probably has the best read as he is directly impacted
Donna Austin, Neustar: @Jim, what was the SLA for finishing?
Jamie Baxter | dotgay: it would be great if staff could help in providing an update on the status of the CPE investigation and the FTI findings that ICANN has been holding onto for several weeks now.
Jamie Baxter | dotgay: for the record it has been 1 year and 4 months since the Board directed the CEO to launch the CPE investigation

- Proposal from the registries on string similarity got traction on previous calls. The document will be addressed in the new year on upcoming calls.

Emily Barabas | Senior Policy Specialist
ICANN | Internet Corporation for Assigned Names and Numbers
Email: emily.barabas at icann.org | Phone: +31 (0)6 84507976

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