[gnso-gac-closed-generics] Closed Generics - Please Review and Respond

Jeff Neuman jeff at jjnsolutions.com
Mon Jun 5 11:24:33 UTC 2023 

In response to Greg’s suggestions:


  *    I can live with his suggestions on the Affiliates discussion because it does not change the definition.
  *   But on the second public comment period, I disagree on the addition of a second public comment period just on Closed Generics, but that has been my position all along.  And I very much disagree with. Second comment period that also gets extended if ICANN extends the main public comment period.  Again, the ripple effect of delays we are introducing in other aspects of the program (which must be considered) is not only too much for a “framework”, but also goes against the work of policy groups that have preceded it.  It is one thing to state that comments on closed generics may need longer, but to also state that that period cannot run concurrent with other periods is a step way too far.  Except for paid consultants, how many commenters (other than governments who have their own period) really commented on multiple aspects of the program?  We should not be setting those kinds of rules on the fly without a true analysis.  Basing it on the view of paid consultants from the last round does not count as a thorough analysis.

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________________________________
From: gnso-gac-closed-generics <gnso-gac-closed-generics-bounces at icann.org> on behalf of Greg Shatan [NARALO] <gregshatanalac at gmail.com>
Sent: Monday, June 5, 2023 3:37:41 AM
To: Melissa Peters Allgood <melissa.allgood at icann.org>
Cc: gnso-gac-closed-generics at icann.org <gnso-gac-closed-generics at icann.org>
Subject: Re: [gnso-gac-closed-generics] Closed Generics - Please Review and Respond

Melissa and all,

My responses are in burnt sienna below.

Greg

On Thu, Jun 1, 2023 at 2:36 PM Melissa Peters Allgood <melissa.allgood at icann.org<mailto:melissa.allgood at icann.org>> wrote:

Hello all,



First, I’d like to thank each of you for your hard work yesterday. Your willingness to hear one another and find a compromise was on full display. I recognize that many of you don’t love where your work landed, but you worked hard to find a path that all can live with. Truly the MSM at work.



Below you will find our attempt to capture the agreement in principle that was reached.



Definitions - Staff proposed agreement in principle based on 31 May call:



  *   For purposes of the Facilitated Dialogue on Closed Generic gTLDs, it was necessary for the group to have a shared understanding of concepts relevant to closed generic gTLDs. Bearing in mind relevant definitions found in the Base gTLD Registry Agreement, Section 2.9(c) (“Affiliate”) and Specification 11, Section 3(d) (“Generic String”), the group agreed not to change any existing definitions, but acknowledged that there are likely other entities beyond “Affiliates” that would benefit from exclusive operation of a closed generic gTLD with the registry. A future policy group should consider incorporating this concept in its work.
     *   For purposes of this discussion, the group views a “closed generic gTLD” as a “gTLD with exclusive registry access”, understood to be a gTLD string that is a generic word or term under which domains are registered exclusively by the registry operator, its affiliates, and possibly other relevant entities as determined by subsequent policy work.



Please respond if you can live with this compromise. If you cannot, please offer a detailed way forward.

I cannot live with this, nor does it seem like much of a compromise.  I am fine with leaving the contractual definition of "Affiliate" intact, but it is too narrow for our purposes. Leaving everything beyond capital-A "Affiliates" out of the mix, other than a vague and squishy "and possibly other relevant entities as determined by subsequent policy work" misses the point.  I agree with Alan G. that we don't want to get bogged down with drafting minutiae, but we need to leave sufficient instructions so our intent is clear.  Similarly, stating that "A future policy group should consider incorporating this concept in its work" is far too weak.  This is a necessary concept, as many of our examples have demonstrated.  Here's how I would redraft the bullets (though I tend to agree with Jeff that the second bullet may be surplusage, redundant, repetitive and adds nothing new):


  *   For purposes of the Facilitated Dialogue on Closed Generic gTLDs, it was necessary for the group to have a shared understanding of concepts relevant to closed generic gTLDs. The group recognized the existing definitions found in the Base gTLD Registry Agreement, including Section 2.9(c) (“Affiliate”) and Specification 11, Section 3(d) (“Generic String”).  The group agreed that there are other several relationships and entities beyond the narrow definition of  “Affiliates” that must be included as potential registrants in a Closed Generic gTLD, depending on the operational model of the gTLD.  Specifically, the group identified (a) members of a trade association, where the trade association is the registry operator, (b) independent chapters that are members of a larger federation or organization (e.g., Red Cross, Big Brothers & Big SIsters), where that federation/organization [or a third party?] is the registry operator, (c) members of a consortium of similar organizations, where the consortium or a third party is the registry operator . The policy group that takes up the Closed Generics issue may identify additional relationships and entities.
     *   For purposes of this discussion, the group views a “closed generic gTLD” as a “gTLD with exclusive registry access”, understood to be a gTLD string that is a generic word or term under which domains are registered exclusively by the registry operator, its affiliates, and other relevant entities including those above as well as others determined by subsequent policy work.





Public Comment – staff proposed agreement in principle based on 31 May call:



  *   Applications for closed generics gTLDs should be subject to the same Public Comment period as all other gTLD applications. However, given that closed generic gTLDs are uniquely impactful to the public interest, the group acknowledges there should be more time dedicated to their Public Comments if the number of these applications is considerable. If there are more than 10 closed generic gTLD applications, then the Public Comment period will be extended automatically for 60 days solely for closed generic gTLD application comments. This does not replace ICANN’s discretion to extend the Public Comment period for all applications, and the 60-day extension will apply to the full length of the Public Comment period (extended or otherwise).
     *   In line with Implementation Guidance 13.6 from the New gTLD Subsequent Procedures Final Report <https://gnso.icann.org/sites/default/files/file/field-file-attach/final-report-newgtld-subsequent-procedures-pdp-02feb21-en.pdf> (pg. 244), this implementation should enable the public to easily identify and obtain information about applications for closed generic gTLDs. The group agrees that there must be a centralized space where prospective commenters can go to understand the rules for closed generic gTLDs and view the applications themselves.
     *   Note: In arriving at this compromise approach to Public Comment, the group acknowledges the unique nature inherent to closed generic gTLDs, as well as the need for sufficient time for meaningful Public Comments, and the public’s need to readily find all relevant information about closed generic gTLD applications.



Please respond if you can live with this compromise. If you cannot, please offer a detailed way forward.

 This also misses the mark and does not provide anything close to the result being sought by a significant portion of the group. As such, I can't live with this either. What is needed is not merely the possibility of the hope of the potential of an extension of the initial "reveal day" triggered comments period.  What is needed is a firm commitment to a greater opportunity to comment -- in the form of a second comment period for Closed Generics, to occur after GAC Early Warnings.



The number of Closed Generics is not really relevant to whether a second period is needed (or even the extension of the first period) -- unless we have hundreds of Closed Generics, in which case even more time may be needed.  The issue is not primarily that commenting organizations need time to sort through a plethora of applications; rather, the issue is that commenting organizations will need more time than is granted to consider whether and how to comment on the one, two or a few Closed Generic applications that will be relevant to it/them, to build awareness of the relevant application(s) and get buy-in from potential participants in a comment, and then to develop, write, circulate to what might be a substantial group of co-authors, get back comments, revise, recirculate, and finalize the comments.  Underlying this is a belief that comments on Closed Generics are more like to come from organizations, associations, and groups of like-minded entities based on the very nature of the Closed Generic gTLD.  That is why this treatment is critical and why it is sought.

Proposed revisions:


  *   Applications for closed generics gTLDs will be subject to the same Public Comment period as all other gTLD applications. However, given that closed generic gTLDs are uniquely impactful to the public interest and to the interests of multiple entities that may identify with a string, the group acknowledges there should be more time dedicated to their Public Comments. The Public Comment period will supplemented by an additional 60 day comment period solely for closed generic gTLD application comments, to commence upon the submission of Early Warnings by the GAC and its members. This does not replace ICANN’s discretion to extend the Public Comment period for all applications, and the 60-day extension will apply to the full length of the Public Comment period (extended or otherwise).
     *   In line with Implementation Guidance 13.6 from the New gTLD Subsequent Procedures Final Report <https://gnso.icann.org/sites/default/files/file/field-file-attach/final-report-newgtld-subsequent-procedures-pdp-02feb21-en.pdf> (pg. 244), this implementation should enable the public to easily identify and obtain information about applications for closed generic gTLDs. The group agrees that there must be a centralized space where prospective commenters can go to understand the rules for closed generic gTLDs and view the applications themselves.
     *   Note: In arriving at this compromise approach to Public Comment, the group acknowledges the unique nature inherent to closed generic gTLDs, as well as the need for sufficient time for meaningful Public Comments, and the public’s need to readily find all relevant information about closed generic gTLD applications.





To do:

  1.  Respond to the proposed approach for Definition and Public Comment above
  2.  Review the Closed Generics Framework v4 document (s) – Edits Tracked<https://docs.google.com/document/d/1nEy2mQm01ITo-ovxgIVQ0kNIpLqPV4bqVxTKgZb15vQ/edit> and/or Clean<https://docs.google.com/document/d/1InSBpBSW-j2aVwsk59t-Hs2LfAhuEKNfiwkFoi3SYxU/edit>





Agenda for 5 June 2023 at 12:30 UTC:

  1.  Finalize Definition and Public Comment
  2.  Review preliminary framework (Closed Generics Framework v4)
  3.  Final call to determine if the group can live with the preliminary framework document (Items 1 & 2)
  4.  Discuss Closed Generics sessions at ICANN77







As always, my sincere thanks for all your hard work.



Melissa









Melissa Peters Allgood

Conflict Resolution Specialist

Internet Corporation for Assigned Names and Numbers (ICANN)



Telephone:  +1 202 570 7240

www.icann.org<http://www.icann.org>





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--
Greg Shatan
Chair, NARALO
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