[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 30 July at 20:00 UTC

[Julie Hedlund]

Dear Working Group members,

Please see below the notes from the meeting on 30 July at 20:00 UTC. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2020-07-30+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie

Notes and Action Items:

Actions:

Package 6 and 7 “Can’t Live With” Comments
2.3.2 Registry Voluntary Commitments (RVCs) / Public Interest Commitments (PICs)
Recommendation xx (rationale 4):
ACTION ITEM: Delete “and/or” and change to “or”.  Accept [whether formal or informal,]. Add string contention resolution to the list, and for Application Change Requests.  Check that where we talk about objections that we are being clear and consistent.

2.6.1 Application Queuing
Recommendation xx:
ACTION ITEM: In the first bullet point: Change to “If there are 125 or more applications”.  Add bracketed text.

Notes:

1. Updates to Statements of Interest: No updates provided.

2. Package 6 and 7 “Can’t Live With” Comments – Additional Items:https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLuQuo/edit?usp=sharing [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLuQuo/edit?usp=sharing__;!!PtGJab4!vTYOgwvZIMih6cg6FPcSy2UFevncnvZNdT3_JgmxazduhSLWY6g7BCWl3SckwoGP19JHbRjKYQ$>

2.8.1 Objections
Recommendation xx (rationale 2): ICANN org must document the types of changes which are required to be posted for public comment and which are not required to be posted for public comment. The following is a non-exhaustive list of changes that must require public comment:

  *   The addition of Registry Voluntary Commitments in response to public comments, objections, GAC Consensus Advice, or GAC Early Warnings
-- Comment: Final Check: Anne Aikman-Scalese suggests inserting", whether formal or informal," after the word "objections." Rationale: This was a different package number but the change to Package 6 to insert “formal” before “objection” throughout the Objections section requires amendment to the section in Application Change Request.

2.3.2 Registry Voluntary Commitments (RVCs) / Public Interest Commitments (PICs)
Recommendation xx (rationale 4): ICANN must allow applicants to submit Registry Voluntary Commitments (RVCs)(previously called voluntary PICs) in subsequent rounds in their applications and/or to respond to public comments, objections, [whether formal or informal, ]GAC Early Warnings, and/or GAC Consensus Advice. Applicants must be able to submit RVCs at any time prior to the execution of a Registry Agreement; provided, however, that all RVCs submitted after the application submission date shall be considered Application Changes and be subject to the recommendation set forth in Section xx Application Changes Requests, including, but not limited to, public comment in accordance with ICANN’s standard procedures and timeframes.

Discussion:
-- If we put “formal objections” in then we would need a catch-all phrase.
-- Don’t want a change done arbitrarily.  Want to be able to follow a process of early warnings, responses, etc.  Not to allow changes outside of the formal process.
-- Builds the case that ICANN can no longer accept those late opposition letters after formal objections are closed.
-- But this language allows ICANN to accept opposition (i.e. informal objection) and it could force further application change and public comment.
-- This language allows ICANN to accept late opposition after formal objections are concluded (and prior to CPE), which is yet another moment in the process when community applicants many be required to submit changes or RVCs in order to overcome that informal objection
-- This does not help with building predictability into the process for community applicants and any informal objection must be submitted to ICANN within the public comment period stated in the AGB, with no late submissions accepted.
-- Shouldn’t be restricting the ability of applicants to work out issues that don’t fall into one of the formal processes by filing a voluntary commitment.
-- Organization X may just contact the applicant before the public comment period expires and get an RVC before filing an Objection.
-- Before the execution of RA there is no registry, only an applicant.

-- We are saying that from a registry perspective the applicant can file a voluntary commitment prior to the execution of a Registry Agreement.
-- State that the RVCs will go out for public comment again.  Delete “and/or” and change to “or”.
-- Already says that RVCs will go out for public comment.
-- An applicant doesn’t have to do an RVC.
-- But to protect CPE points (which were distributed in a very stingy manner in 2012) an applicant will be forced to address it. Why not just force the informal opposition to come in during the Public Comment period.

ACTION ITEM: Delete “and/or” and change to “or”.  Accept [whether formal or informal,]. Add string contention resolution to the list, and for Application Change Requests.  Check that where we talk about objections that we are being clear and consistent.

2.6.1 Application Queuing
Recommendation xx: All applications must be processed on a rolling basis, based on assigned priority numbers. [While the 2012 AGB prescribed batches of 500 applications, ICANN Org noticed during that round that moving through the priority list without splitting the applications into batches was more efficient. The WG affirms that approach by not recommending batches.]
-- Comment from Anne Aikman-Scalese: suggested adding the highlighted sentence. Rationale: While the recommendation text is correct, the rationale misses comparing it to the 2012 AGB, although being exactly the 2012 Implementation. This more of a completeness addition and it’s not crucial to the report.

ACTION ITEM: In the first bullet point: Change to “If there are 125 or more applications”.  Add bracketed text.

2.8.1 Objections
c. New issues raised in deliberations since publication of the Initial Report, if applicable.
Re: “The Working Group determined that because the Working Group agreed upon Category 1 restrictions for regulated strings, there is no need for the objection process.”
-- Final Check: Question from Justine Chew: "My question is what happens if there is an application for a string which is an exact translation of an existing TLD string that is in a highly regulated sector, i.e. one marked for Category 1 restrictions for regulated strings - how is such an applied-for string dealt with?"
-- If an applied for string falls into Category 1 then it will have to live within the restrictions of Category 1.  If a TLD is already a Category 1 then the new applicant is going to be hit with the Category 1 restrictions, but we don’t state that.  Could put in as an example.
-- There is a "safe assumption" that any string that falls into a Cat 1, then the translated string will also be subject to the same Cat 1 restrictions. The "safe assumption" isn't explicit.


2.9.1. Community Applications
c. New issues raised in deliberations since publication of the Initial Report, if applicable.
The Working Group considered proposals for specific changes to the CPE Guidelines from 2012, but did not ultimately recommend any specific changes to the text of the Guidelines. Rather, this should be done by the Implementation Review Team taking into account all of the recommendations and implementation guidance described herein.
-- Final Check: Anne Aikman-Scalese: "Thanks for deleting the reference to the conclusion that the IRT should be the body that determines any needed changes to the CPE Guidelines. However, what was discussed when the “can’t live with” comments were reviewed is that there is a need to specify that the WG is seeking public comment on the CPE Guidelines. We should be specifying at this point in the text that we are seeking that comment and we should provide the link at this same point in the text so that we call attention to the request for public comment on the CPE Guidelines (but not the scoring.)"
-- Hold for discussion on the structure of the report.

3. Review Private Resolutions – Model 5 at: https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZzjHw/edit#heading=h.vggepvpizwpy [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZzjHw/edit*heading=h.vggepvpizwpy__;Iw!!PtGJab4!vTYOgwvZIMih6cg6FPcSy2UFevncnvZNdT3_JgmxazduhSLWY6g7BCWl3SckwoGP19LLdn15bg$> and Auctions: Mechanisms of Last Resort at:  https://docs.google.com/document/d/1kUlmZH8nxWTgfcRluA5FxLheMm4XhhOwkRt7om52aQU/edit?usp=sharing [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1kUlmZH8nxWTgfcRluA5FxLheMm4XhhOwkRt7om52aQU/edit?usp=sharing__;!!PtGJab4!vTYOgwvZIMih6cg6FPcSy2UFevncnvZNdT3_JgmxazduhSLWY6g7BCWl3SckwoGP19LRczqoNQ$>

Other Forms of Private Resolution
All material terms of any arrangement between applicants to privately resolve a contention set (financial or otherwise) must be disclosed to ICANN [and the community];

Discussion:
-- Think of the timing of the disclosures.
-- Need to look at where we talk about not causing delays, but this section doesn’t touch on that.
-- In the event the private resolution triggers a change to the application that would otherwise be necessary to make – Board members, officers, financials, etc.  Those things that ordinarily would have to be disclosed, would have to be disclosed.
-- On the timing: it should be aggressive.
-- There should be a timing circuit breaker – 30 or 40 days?
-- That's if a JV happens. We also need to know if say A withdraws because A settled with B and B remains as the applicant on file for its application.  That is a settlement between A and B – that would be disclosed and that it resulted in A withdrawing.
-- Need to look at what is in the larger section.

Are there any other terms of an arrangement that we think need to be disclosed?
-- Any contractual commitments to a change of ownership or option to buy out any party to the agreement subsequent to contracting.  Need to work out the language.
-- Although the second bullet talks about "material change to the surviving application", what is there is no material change?
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