[Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Mon Aug 17 20:04:05 UTC 2020

In reality in almost all contention sets the applicants viewed their application as a “financial asset”. There was absolutely not the slightest allegiance to these strings; they were just a commodity. Nobody is forming JVs over commodities. Either I can keep my string and try to make money – or I give it away and want to be compensated for not being able to make money! (Of course not talking about me, Alexander: the strings that I am proposing are all public interest, non-profits anyway: my communities have allegiance to their strings; the applications aren’t an asset: they are their digital identity: irreplaceable by cash. They do not want cash – they want their string!)

The board’s concern was that folks apply not because they want to run a gTLD – but to (sometimes partly) make profit by losing (some) auctions. How would any of the suggested measures prevent that? How would it impact their “business model” if they had to disclose that they got a monetary compensation for withdrawing their application? Even if we forced them to specify the amount: so what? How is that in any way form or shape going to disencourage the behavior the board is concerned about? Why would the care if the world knew how much they earned? I guess the non-disclosure agreements were primarily pushed by the auction house: not to hide how much money was made – but rather to hide how less.

And yes: We might have cases where the applicant absolutely really wanted to run the registry – but got simply outbid. And yes: this might happen with 5 strings. 

There is a saying in German: 
        The bear said: “Please wash me; but do not make me wet!”

I think the board says: “Wash the bear” – but the bear doesn’t want to get wet. And we try to please both. That obviously doesn’t work. Either the bear stays dry – then he isn’t washed. Or we indeed wash him: he will get wet (and very angry). We can’t please both.

Do I have an answer? Not a simple one. 

Alexander

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Aikman-Scalese, Anne
Sent: Montag, 17. August 2020 17:46
To: Jim Prendergast <jim at GALWAYSG.COM>; McGrady, Paul D. <PMcGrady at taftlaw.com>; Steve Chan <steve.chan at icann.org>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

I think the “nut” we are trying to “crack” is the degree to which the required information in any private resolution may exceed the information that is normally required to fill out a new gTLD application to begin with.  Certainly disclosure of the new ownership construct and the fact of and type of compensation paid or to be paid in future (but not the amount) to any applicant who is withdrawing an application for the same string and/or participating in the new business combination or joint venture seems appropriate to address the Board’s concerns re “making a market in TLDs”.  I think it would be appropriate to specify the following:

1. “X, Y, and Z applicants have formed DELTA business organization to apply jointly to operate the TLD.  No buy-out provisions are contained in the commitment to form the new applicant for the string.”

2. “Compensation in the form of ________________________(e.g. money, shares, control, royalties, seats on the Board of Directors, Managing Member status of an LLC, etc.) has been accorded to the following parties in connection with their commitment to withdraw their TLD applications for the same string: 

X – form of compensation if any  

Y – form of compensation if any 

Z – form of compensation if any”  

Anne

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org <mailto:gnso-newgtld-wg-bounces at icann.org> > On Behalf Of Jim Prendergast
Sent: Monday, August 17, 2020 6:16 AM
To: McGrady, Paul D. <PMcGrady at taftlaw.com <mailto:PMcGrady at taftlaw.com> >; Steve Chan <steve.chan at icann.org <mailto:steve.chan at icann.org> >; gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> 
Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

[EXTERNAL]

  _____  

Paul we have not discussed this edit yet but for the benefit of the entre mailing list and not just the small handful on the calls, I’ll explain here and again in a few hours. 

The full section of the document reads as follows

*	Evaluators [and ICANN] must be able to ask clarifying questions to any applicant it believes may not be submitting an application with a bona fide intent. Evaluators [and ICANN] shall use, but are not limited to, the “Factors” described below in their consideration of whether an application was submitted absent bona fide intent. These “Factors” will be taken into consideration and weighed against all of other facts and circumstances surrounding the impacted Applicants and Applications. The existence of any one or all of the “Factors” may not themselves be conclusive of an application made lacking a bona fide use intent.
*	Applicants may mark portions of any such responses as “confidential” if the responses include proprietary business information and such portions will not be shared or communicated by the Evaluator. 

The rationale behind my suggested edits is simple.

Evaluators have the ability to gather information from applicants as it relates to intent.  The evaluators make an initial determination but after they are done, the evaluators disappear.  They are not ICANN employees.  They are an external firm on a contract.  Once they complete their job, it is up to ICANN to continue to oversee the program and ensure compliance.  Since many of the factors that will be used to measure intent are well after evaluation, it is critical that ICANN have the information gathered during the evaluation to ensure compliance.  

My edit is meant to ensure that ICANN has all of the information it needs to properly oversee this program.  As currently drafted, the language does the opposite - restricting information significantly hampers ICANN’s ability to oversee this program.  

Jim Prendergast

The Galway Strategy Group

+1 202-285-3699

From: McGrady, Paul D. <PMcGrady at taftlaw.com <mailto:PMcGrady at taftlaw.com> > 
Sent: Saturday, August 15, 2020 7:34 AM
To: Jim Prendergast <jim at GALWAYSG.COM <mailto:jim at GALWAYSG.COM> >; Steve Chan <steve.chan at icann.org <mailto:steve.chan at icann.org> >; gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> 
Subject: RE: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Hi All,

I thought a brief note reacting to Jim’s proposed changes make sense.  Sorry that I was not able to do so prior to our last call (these comments from Jim came in while I was dropping my son off at university for his freshman year).  Even so, these weren’t discussed on our last call, so I think it is still timely in advance of this Monday’s call.

Jim suggests we strike:  “and such portions will not be shared or communicated by the Evaluator.” As discussed often on prior calls, this change would set up the disclosure of sensitive information since there is no confidentiality provision in the Terms & Conditions and no ability to enforce it against ICANN who famously works hard at being un-suable.  This will have a chilling effect on application submission and is just bad governance.  At one point I believe I suggested disclosure to Evaluator and those within ICANN with a “need to know” but that was rejected by a small group of disclosure maximalists.  The text must be restored or we need to find a solution other than ICANN being able to spill all the sensitive beans with no consequences.  

As for Jim’s other changes, they consist of adding “some of” or “some in”, etc. to a few rationales.  I hope that this is being done for historic record capturing and is not a set up to wreck a consensus call.  We all have to keep in mind that the status quo is private auctions without all the interference that this compromise imposes.  If, at the end of the day, those pushing for interference won’t support the compromise, there is no reason to keep going down this road as the status quo works quite well.  So, hopefully, the record keeping is the reason behind Jim’s insertions.  

Best to all,

Paul

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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org <mailto:gnso-newgtld-wg-bounces at icann.org> > On Behalf Of Jim Prendergast
Sent: Wednesday, August 12, 2020 1:45 PM
To: Steve Chan <steve.chan at icann.org <mailto:steve.chan at icann.org> >; gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> 
Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Attached is my feedback on the draft report on Auctions.

Thanks

Jim Prendergast

The Galway Strategy Group

+1 202-285-3699

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org <mailto:gnso-newgtld-wg-bounces at icann.org> > On Behalf Of Steve Chan
Sent: Friday, August 7, 2020 11:36 AM
To: gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> 
Subject: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Dear WG Members,

As discussed and agreed on the 6 August WG call, we have compiled a consolidated list of materials for you all to review in advance of seeking to finalize the draft Final Report for public comment, as early as 13 August 2020. 

*	For review and feedback no later than Thursday, 13 August (and for discussion on the WG call that same day) 

*	Draft Final Report Change Analysis (which will be leveraged for the public comment proceeding):https://docs.google.com/document/d/17oV-BTJGtm2Q6w15qxqtsvRZg6PuW9WHGPOG1KgsjZc/edit
*	Draft Final Report (minus Predictability Framework and Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction)) attached and available here, on an ongoing basis as the document is updated: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report

*	Per Emily’s email, comments on the Predictability Framework and the one new additional paragraph in the Closed Generics are due 11 August at 23:59 UTC. Review here: https://docs.google.com/document/d/1S4aOGxln9b93E_j3eF-dm0E6M8-VYToD8U9AkPlPCS8/edit?usp=sharing. Feedback form is attached.

*	NEW! - The new draft report section on Auctions: Mechanisms of Last Resort & Private Resolution of Contention Sets (Including Private Auction), comments due 12 August at 23:59 UTC – https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit# <https://docs.google.com/document/d/1ShY7lL07QrFKIDZybdGceXXvb_hmKGHI3qE9bxgDQOo/edit> . Again, feedback form is attached. 

Please let us know if you have any questions or concerns.

Best,

Steve

Steven Chan

Policy Director, GNSO Support

Internet Corporation for Assigned Names and Numbers (ICANN) 

12025 Waterfront Drive, Suite 300

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