[gnso-gac-closed-generics] For feedback - non anti-competitive behaviour language

Kathy Kleiman Kathy at KathyKleiman.com
Sun Apr 16 17:39:21 UTC 2023 

Hi Sophie,

I'm not sure I am following all of your edits, and I would certainly 
like to, especially as Melissa is now asking for an up or down vote.

Could you kindly share with us your version of III(2)(g) as it would 
exist with all of the edits you propose below?  I provide a clean 
version of our current version below.

Also, are you proposing edits to any other section than the current 
III(2)(g)?  If so, could you show us exactly where those edits would be 
and how the section would read?

Best and many tx!!

Kathy

----------------  Current Framework v.2 - Application III(2)(g) 
-----------------------

a.​​[UNDER DISCUSSION] *Demonstrate the requirement of 
representativeness OR of non anti-competitive behavior. *

1.*For “representativeness”,  applicants must demonstrate that the 
applicant represents all or a significant part of the businesses (or has 
their agreement) in the industry or grouping related to the closed 
generic term. *

2.*For “non anti-competitive behavior”, applicants must commit that its 
use of this closed generic gTLD will be consistent with principles of 
competitive neutrality, non-discrimination and transparency. [Now deleted:*

o"Representativeness" may be demonstrated by showing support​ from ​a 
significant part ​OR the whole of that group ​​that considers itself 
described by th​e closed generic​ term. (This criterion can be 
fulfilled, for example, by​ the applicant being​ an umbrella 
organization of the industry in question​.)​

oThe application must show that significantly "interested parties," 
including competitors, have been consulted and engaged for input prior 
to submission of the application.

oShould an applicant need to demonstrate that it has the support of its 
peers/competitors to operate the closed generic gTLD?

---------------------------------------------------------------------------------------------

On 4/14/2023 4:55 AM, Sophie Hey wrote:
>
> Hi all,
>
> I wanted to float some suggestions for feedback for dealing with the 
> language we discussed on Wednesday’s call. For clarity, the purple 
> highlighted text is where I am proposing edits.
>
> Demonstrate the requirement of representativeness OR of non 
> anti-competitive behaviour.
>
>  1. For “representativeness”,  applicants must demonstrate that the
>     applicant represents all or a significant part of the businesses
>     (or has their agreement) in the industry or grouping related to
>     the closed generic term.
>  2. For “non anti-competitive behaviour”, applicants must commit that
>     its use of this closed generic gTLD will be consistent with
>     principles of competitive neutrality, non-discrimination and
>     transparency.
>
> To be clear, I am not objecting to the concept, and I am very much on 
> board with applicants committing they will not use the TLD in a non 
> anti-competitive manner. My concern is the phrasing of “principles of 
> competitive neutrality”. It is too nebulous to have any real meaning 
> for applicants. I am also nervous about using the phrase competitive 
> advantage, as this is a term that does not always indicate 
> anti-competitive behaviour. I have set out some alternative 
> suggestions to the highlighted purple:
>
>  1. Will not be used to engage in: exclusive dealing, collusion,
>     preventing third parties from supplying or offering to supply
>     goods or services, or otherwise controlling, limiting, or
>     restricting the supply of goods or services.
>  2. Substitute the purple section with the principles of competitive
>     neutrality. If this is an option to explore, could GAC
>     participants please share the principles they have in mind?
>
> For the non-discrimination and transparency language, I likewise have 
> two suggestions.
>
>  1. Strike the language completely as it is redundant. The concepts
>     are already in the Base Registry Agreement
>     <https://newgtlds.icann.org/sites/default/files/agreements/agreement-approved-31jul17-en.pdf>
>     in Specification 11 3(c) (see page 98).
>  2. Move non-discrimination and transparency somewhere in the
>     Contracting & Post-Delegation element.
>
> My personal preference is for option 1.
>
> Sophie
>
> Sophie Hey
> she/her
> Policy Advisor
>
> <https://comlaude.com/>
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