[Gnso-newgtld-wg] Revisions to sections on GAC Advice -- PLEASE DO NOT GAG THE GAC

Fri May 1 13:43:42 UTC 2020

Dear all

I would like to recall the discussions we had during ICANN 67, where various GAC Members expressed opposition to “straightjacket” GAC Advice, and which were summarized from the GAC point of view in the corresponding GAC Communique, as follows:

“GAC Early Warning/GAC Advice
The GAC notes that the current recommendations of the Sub Pro PDP WG contrast to some extent
from GAC input on its Initial Report, since, inter alia, it is considering removing in future editions of
the Applicant Guidebook that GAC Consensus Advice on an application “ will create a strong
presumption for the ICANN Board that the application should not be approved ”. Additionally, GAC
Members expressed the need for further discussion of draft PDP WG recommendations regarding:
the scope of the rationale of GAC Advice; and proposing that “ GAC Advice issued after the
application period has begun must apply to individual strings only , based on the merits and details
of the applications for that string, not on groups or classes of applications .”
Sub Pro PDP WG discussions on this topic noted that, with the intent to take into account the concerns expressed by GAC participants, alternative language will be drafted possibly referring recommendations back to the new ICANN Bylaws. The GAC noted the need for further discussion within the GAC and with the PDP WG.”

As was decided in ICANN 67 the GAC has undertaken a consultation of the GAC Membership regarding this and the other high priority topics discussed in ICANN 67.

A compilation of all individual GAC Members and Observers views will be shared with you early next week.

Best regards

Jorge

Von: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> Im Auftrag von Alexander Schubert
Gesendet: Freitag, 1. Mai 2020 15:26
An: gnso-newgtld-wg at icann.org
Betreff: Re: [Gnso-newgtld-wg] Revisions to sections on GAC Advice -- PLEASE DO NOT GAG THE GAC

Dear group,

Because not everybody here is necessarily “fluent” in regards to the topic we are talking about, here an ICANN link to GAC advice: newgtlds.icann.org/en/applicants/gac-advice

The way we are building “consensus” in this group here seems to be (I over-simplify): if there is no opposition but some support then we have consensus. So if folks do not understand the implications of the proposed suggestion, they won’t have objections: which implies consensus. So in my mind and  in all fairness, folks should be able to gauge what the real life impact of the suggested policy would be.

For example in the last round GAC advised to not allow “generic string based” closed gTLDs to move forward. As a result the applicants had to choose between terminating the application or revert to open registries. Nobody really assumed that kind of “predatory behavior” (my personal view and choice of words) by industry leaders. The issue of closed generics was being discussed during the policy development that lead to the 2012 AGB – but in my mind lobbyists successfully avoided clear guidance in the AGB. In the end GAC had to step up – when in reality this should have been clarified by the GNSO and before the finalization of the AGB. So in this respect we might simply listen to GAC already now – instead having to wait for them stepping in after the applications have been submitted.

If any such situation (e.g. abuse of closed generics) would occur again – then the currently suggested policy would essentially gag GAC, or rather gag the Board to fix it.

In that respect I would like to voice objection to such language. We know what GAC has advised – and we chose to ignore it:

·       “Protect geo names” (we did not: no additional protections have been implemented)

·       “Do not allow generic industry keyword term based closed new gTLDs” (at least in the last round, and the circumstances that lead to such advise haven’t changed at all in my mind)
The failure is not with GAC – the failure is us not factoring in their advice. Actually: we tried, but in my mind a certain grouping here made sure that consensus was denied. Time after time again.

My take: Either we factor GAC’s advise in (we seemingly try to avoid that) – or we live with the possibility that GAC will issue similar advise yet again. It’s just an “advise” – not a death penalty. Please do not gag the GAC by restraining the board. It’s about as helpful as welding shut the security valve of a pressure cooker. With so many who seem to heartedly oppose the GAC I think it’s just fair if there is also a voice that supports GAC – and is thankful for their guidance.

Thank you GAC for preventing the worst. Sorry that we ignored all your advice. And no way that your voice will be silenced: directly or indirectly.

Thanks,

Alexander

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of McGrady, Paul D.
Sent: Friday, May 01, 2020 2:57 PM
To: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>; Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>; Cheryl Langdon-Orr (cheryl at hovtek.com.au<mailto:cheryl at hovtek.com.au>) <cheryl at hovtek.com.au<mailto:cheryl at hovtek.com.au>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Revisions to sections on GAC Advice - Current Status?

Hi All,

I have not been able to connect with Greg on this as hoped.  Even so, I submit the following change which I believes deals with concerns some have raised that we cannot tie the ICANN Board’s hands but at the same time want to create a sense of urgency-leading-to-predictability in relationship to when the GAC gives advice:

 [ In the event that GAC Consensus Advice is issued after the application period has begun and the GAC Consensus Advice applies to categories, groups or classes of applications or string types, the ICANN Board should take into account the circumstances resulting in such timing and the detrimental effect of such timing when considering such GAC Consensus Advice which should result in a strong presumption against the Board adopting such late GAC Consensus Advice.]

I hope this balance is acceptable to the WG.  This is an area of failure for the community in the last round and I think it would be really unfortunate if we set ourselves up for failure again by not addressing it in the new AGB.

Jeff/Cheryl, will one of you please confirm receipt and that this will be on our agenda for discussion in the appropriate WG call?  Thanks!

Best,
Paul

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From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Sent: Tuesday, April 28, 2020 4:37 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>
Cc: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>; Cheryl Langdon-Orr (cheryl at hovtek.com.au<mailto:cheryl at hovtek.com.au>) <cheryl at hovtek.com.au<mailto:cheryl at hovtek.com.au>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>; McGrady, Paul D. <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>
Subject: Re: Revisions to sections on GAC Advice - Current Status?

Sorry to have missed last night's witching hour call and sorry this is not done.  You can blame me, not Paul.  i will look at the last bit of language in play this evening and hammer something out with Paul.

On Tue, Apr 28, 2020 at 5:03 PM Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
[cid:image001.gif at 01D61FCF.47E8AA90]
Jeff and Cheryl (and Paul McGrady),
Jeff, you said that if there were any proposed changes to the GAC Advice language, we should get those in by May 1.

However, the last time the WG looked at this, Paul had inserted a number of redline changes into the document.  So which version are you expecting us to use when you ask for proposals to be made no later than May 1?  And are these alternate proposals supposed to come in the form of redlines to the WG document in the same manner that Paul used?

I had understood that Paul was doing some redrafting of his numerous edits.  Or was there another small group that was supposed to be convened on this point?

I don’t see any way we can cancel the discussion on the language covering GAC Advice, even though you suggested at the top of the last call that we might.

Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

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