[council] Revised ALAC-GAC-GNSO Chair's Joint Letter

Fri Sep 29 17:34:17 UTC 2023

Hi John

I appreciate that there is a need to strike a delicate balance here, since the basis on which the three chairs agreed to draw the work of the discussion group to a close was as set out in the Chairs letter to that group.  The difficulty is that, as Advisory Committees, the GAC and ALAC can make such a request to the Board, the GNSO Council cannot since, as Kurt says, we do not develop the policy.

Do you think the ALAC and GAC could accept a revision to that numbered paragraph 2 which better reflects the different statuses and remits of the three groups, and therefore which doesn't relegate this to a footnote?  Something along the lines of:

  1.  unless and until there is community-developed consensus policy in the future on the topic, the GAC and ALAC request that the Board maintain the position that any applications in the next and future rounds of new gTLDs seeking to impose exclusive registry access for "generic strings" to a single person or entity and/or that person's or entity's Affiliates (as defined in Section 2.9(c) of the Registry Agreement) should not proceed.  The GNSO Council understands the positions of its Advisory Committee colleagues but does not have the remit to join in that request.  As you know, the GNSO makes policy for gTLDs through a consensus-based bottom-up multistakeholder policy development process, the result of which was the suite of recommendations in the SubPro Final Report.  On the issue of "closed generics" SubPro was unable to reach consensus, both on a policy position for future Rounds and on what constitutes the status quo position.  Council does not have the authority to unilaterally set that aside by making a policy recommendation of this nature, outside the processes under its Operating Procedures.

If not, I think perhaps the GNSO does need to send its own letter.

If a form of this letter is sent by the GNSO (whether joint or our own), could I ask that paragraph 5 be revised please.  It currently refers to restricted TLDs continuing to be permissible where the string is not generic, but this conflates two issues (restricted TLDs and closed generics).  There are many examples of restricted TLDs, with registrant eligibility requirements, for terms which would likely be considered "generic" as defined.  A number are arguably even required to operate in this manner in order to meet GAC Category 1 Safeguards Advice relating to sensitive and highly regulated strings. These are not closed generics.  This has been misunderstood by some participants throughout the debate on this topic and should not be carried over into the letter to the Board.  My proposed amendment would be:

For clarity, as noted in our letter to the dialogue participants, our intention is not to prevent or restrict applications for gTLDs that applicants intend to operate in a restricted manner, i.e. where third party registrants are limited to those who meet specific eligibility qualifications, irrespective of whether where the string in question is not a "generic" one as currently defined in the Registry Agreement.

 An alternative would be to use the wording on this aspect from the Chairs letter to the Discussion Group, since this does not purport to limit restricted-eligibility TLDs to those which are not generic terms.

Thanks so much.
Susan

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From: council <council-bounces at gnso.icann.org> On Behalf Of kurt kjpritz.com via council
Sent: Wednesday, September 27, 2023 1:10 AM
To: John McElwaine <john.mcelwaine at nelsonmullins.com>
Cc: GNSO Council <council at gnso.icann.org>
Subject: Re: [council] Revised ALAC-GAC-GNSO Chair's Joint Letter

Thanks John,

Given the tight time frame and the need for a discussion, this email will come across as more of a "blurt" rather than a carefully thought-through letter.

Current situation / recent developments:

1. The SubPro WG discussed this issue over several years. There were three possible areas of consensus: to allow unrestricted delegation to closed generics, to allow restricted delegation of close generics, to ban delegation of closed generics. The WG final report indicates that no consensus was reached, that there could not be a return to the status quo because there was no consensus regarding that, and that the Board was to decide the issue.

2. The Board kicked the issue back to the GNSO and GAC with the guidance that a solution framework must only consider restricted of closed generics. The effort failed to produce a result.

3. The draft letter being considered indicates that closed generics should be banned.

Recommendation:

The GNSO Council should not sign this letter. It should either:

1. Send its own letter, similar to that already drafted by us but adding a paragraph explaining that the GAC-ALAC letter overturns the results of the multi-stakeholder process, or

2. Revise the proposed jointly issued letter to state that the GAC-GNSO discussion failed to develop a framework, and that this issue should not delay the next round, with no other comment.

Rationale:

1. The GAC-ALAC letter alters the SubPro Final Report that made no recommendation and stating that there was no agreement on status quo. The letter does this without using any of the approved methodologies for amending policy recommendations.

2. The Final Report recommends that subsequent policy work, "should also involve experts in the areas of competition law, public policy, and economics ... [, and] be performed by those ... that are not associated with any past, present, or expectations of future work in connection with new gTLD applications or objections to new gTLD applications." The GAC-ALAC letter creates this subsequent policy without following the requirement to consult with others.

3. The  Board-Facilitated Process for a GAC - GNSO Council Dialogue on Closed Generics: A Framing Paper prepared by ICANN<https://gnso.icann.org/sites/default/files/policy/2022/correspondence/gnso-council-et-al-to-fouqaurt-08mar22-en.pdf> states on p.6: "Should the dialogue not result in a mutually agreed framework, it may be presumed that the Board will need to decide on what the most appropriate action is, within the Bylaws-defined roles and respective remits of the Board, GAC and GNSO." The GAC-ALAC letter ignores this and creates its own desired policy solution.

4. Relegating the GNSO position to a footnote demotes the identification and significance of this issue and effectively surrenders the result of several years of community volunteer time and policy discussion. A better result would be to relegate the entire issue to a footnote, i.e., remove there point from the body of the letter and add a footnote to the effect that the GNSO intention is to return the issue to the Board as stated in the SubPro Final Report and the charter for the facilitated discussion, while the GAC and ALAC prefers to alter the policy recommendation and continue the closed generics ban.

Thanks for taking the time to read this. I'd be happy to engage in a dialogue.

Regards to all,

Kurt

On 27 Sep 2023, at 8:21 am, Paul McGrady via council <council at gnso.icann.org<mailto:council at gnso.icann.org>> wrote:

Thanks John.

Sorry to be "that guy" but the footnote makes it sounds like we debated the substance of the issue at the Council meeting.  I think a more precise footnote would be:

"The chair of the GNSO Council must remain neutral on this request. This topic was discussed at the Council's August meeting and the Council noted that it could not support for this request since Policy is not made by the Council initially but rather through its PDP process."

Best,
Paul

From: council <council-bounces at gnso.icann.org<mailto:council-bounces at gnso.icann.org>> On Behalf Of John McElwaine via council
Sent: Tuesday, September 26, 2023 3:27 PM
To: GNSO Council <council at gnso.icann.org<mailto:council at gnso.icann.org>>
Subject: [council] Revised ALAC-GAC-GNSO Chair's Joint Letter

Dear Councilors,

Sebastien, Nico Caballero and Jonathan Zuck had a call last week to discuss the joint ALAC-GAC-GNSO Chairs' letter to the Board regarding the Facilitated Dialogue.  Both the ALAC and GAC wanted to state that the status quo should be requested in the second bullet point.  That said, the ALAC and GAC understood that the GNSO chair needs to remain neutral on this topic.  We have attached a version of the letter reflecting this in the footnote.  Keep in mind that this is a joint letter and primarily meant to communicate that work on the Facilitate Dialogue has reached an end but should not in any way delay the next round of new gTLDs.  As this letter has been with Council for some time, we would ask that we have your comments, if any, by Thursday (9/28) at 20:00 UTC.

Thanks,

John

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