[gnso-rpm-wg] URS Phase Two Proposal: Charter Analysis

Tue May 8 13:59:19 UTC 2018

Thanks Brian.

SubPro is somewhat different in that its Charter does not assign specific tasks to two separate phases. But we can get into the weeds on tomorrow’s call.

Best, Philip

Philip S. Corwin

Policy Counsel

VeriSign, Inc.

12061 Bluemont Way
Reston, VA 20190

703-948-4648/Direct

571-342-7489/Cell

"Luck is the residue of design" -- Branch Rickey

From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of BECKHAM, Brian
Sent: Tuesday, May 08, 2018 9:57 AM
To: Julie Hedlund <julie.hedlund at icann.org>; gnso-rpm-wg at icann.org
Subject: [EXTERNAL] Re: [gnso-rpm-wg] URS Phase Two Proposal: Charter Analysis

Thanks Julie, and Phil and Kathy for this thorough report.

I would personally find Jeff Neumann’s views on any reasonable expectations from the SubPro WG (in particular on the distinction made below on possible recommendations for pre-launch RPMs) especially valuable to help our WG consider a course of action on the URS.

Kind regards,

Brian

From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Julie Hedlund
Sent: Tuesday, May 08, 2018 3:11 PM
To: gnso-rpm-wg at icann.org<mailto:gnso-rpm-wg at icann.org>
Subject: [gnso-rpm-wg] URS Phase Two Proposal: Charter Analysis

Dear Working Group members,

One of the action items from the Working Group call on 02 May was, “Staff will determine what if any flexibility the charter allows for how URS is addressed, without requiring a change to the charter.”

Accordingly, the RPM Working Group support staff and Co-Chairs conducted an in-depth analysis of the RPM PDP Working Group Charter<https://community.icann.org/display/RARPMRIAGPWG/WG+Charter?preview=/58729944/58730036/Charter%20for%20RPM%20PDP_final.pdf> and determined that while Phase One “will focus on a review of all the RPMs that were developed for the New gTLD Program” (including the URS), we may have flexibility within Phase One to publish for public comment as an Initial Report a set of preliminary recommendations for the pre-launch RPMs (TMCH, Sunrise, Claims and TM-PDDRP)= so long as that Initial Report opines on the effectiveness of the URS and whether it is “fit for purpose.” Absent any charter change, we note that the Working Group may elect to defer some policy recommendations on the URS to Phase Two and further note that there is no need to decide at this point in time which URS policy issues will be deferred to Phase Two; this is a decision we can make towards the end of our Phase One discussions.

The Co-Chairs note that the Charter is very specific as regards what work must occur in and the deliverables from Phase One (the 2012 New gTLD Program RPMs) and what is the focus of Phase Two (UDRP):

“(a) A Two-Phased Approach: This PDP Working Group is being chartered to conduct a review of all RPMs in all gTLDs in two phases: Phase One will focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the UDRP.   By the completion of its work, the Working Group will be expected to have also considered the overarching issue as to whether or not all the RPMs collectively fulfill the purposes for which they were created, or whether additional policy recommendations are needed, including to clarify and unify the policy goals.  At a minimum, in each Phase of this PDP, the Working Group is expected to first assess the effectiveness of the relevant RPM(s), for which the Working Group should seek the input of experienced online dispute resolution providers and other subject matter experts, as may be appropriate.” (Emphasis added)

The charter also includes specific deliverables, timeframes, and instructions for the end of Phase One:

“Deliverables & Timeframes: In addition to the PDP deliverables prescribed in the ICANN Bylaws and the PDP Manual, the Working Group shall provide a first Initial Report to the GNSO Council at the conclusion of Phase One of the PDP. The Report shall be put out for public comment and also inform the GNSO Council about the progress of the Working Group. At a minimum, the Report shall outline the Working Group’s progress and any preliminary recommendations it may have developed with regard to its work in Phase One. The first Initial Report shall also highlight any relevant findings, information or issues that may have emerged during Phase One and any issues or recommendations that the Group believes should be considered by the PDP Working Group on New gTLD Subsequent Procedures, and/or that the Working Group considers relevant to its work in Phase Two.

Phase Two of the PDP Working Group shall focus primarily on the review of the UDRP. However, during this Phase the Working Group is also expected to review its first Initial Report, taking into account public comments received, and/or feedback submitted from the New gTLD Subsequent Rounds PDP or other ongoing efforts. Before concluding its work the Working Group shall take into account any relevant developments from the New gTLD Subsequent Rounds PDP WG and/or other relevant ICANN review or policy development work. The Working Group’s second Initial Report shall be completed and published for public comment, as per the PDP Manual. The Working Group shall then review all comments, complete its Final Report and submit it, as per the PDP Manual, to the GNSO Council for its consideration and further action.” (Emphasis added)

As such, the Co-Chairs and staff believe that moving the URS entirely to Phase Two will require a Charter amendment. That said, as noted above there may be flexibility within Phase One to consider deferral of select URS policy issues so long as the Initial Report assesses its overall effectiveness – as long as the principal focus and work on the URS is conducted in Phase One.

For example, an actual overall Phase One Initial Report can be published that speaks to the more general, overarching question of whether the 2012 New gTLD RPMs fulfill their collective purpose and assessing their effectiveness; and whether changes need to made to these New gTLD RPMs before they are incorporated into future rounds of New gTLDs. Additionally, and for URS in particular, Phase One recommendations can reveal additional policy issues or findings that should be considered in Phase Two. All of the above would, however, still “count” as Phase One of the PDP.

Again, so long as the URS is a principal focus of Phase One, and so long as the Initial Report opines on its effectiveness and “fitness for purpose,” we appear to have flexibility in regard to deferring select URS policy recommendations to Phase Two. For example, the Initial Report could contain recommendations for addressing administrative and operational issues for the URS identified in Phase One while deferring recommendations on policy issues on which the WG cannot reach consensus, or ones that the WG believes are intertwined with dispute resolution policy matters and should be addressed with its Phase Two review of the UDRP. There is no need to categorize those issues at this time, as they can await our receipt of answers to questions directed to Providers and Practitioners and subsequent analysis thereof.

Taking this route would negate any need to ask Council to consider any Charter modification, as well as avoid an internal debate regarding what levels of support and opposition justify such a rare request.

In summary, the Co-Chairs and staff believe that there is flexibility within Phase One itself that may allow the Working Group to go forward with certain RPM recommendations without having to bundle all the 2012 New gTLD RPMs in one report.  Thus, the Co-Chairs and staff suggest that instead of focusing on what goes in Phase One vs Phase Two and what level of consensus is required for a Charter change, the Working Group discussion should center on completing and publishing its reviews of the TMCH, Sunrise, Claims,  TM-PDDRP and URS, while recognizing that we have flexibility on the URS review and can defer for now any decisions on what URS policy recommendations will be contained in the Phase One Initial Report and the Phase Two Report to follow.

Thank you and best regards,

Philip and Kathy

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