[gnso-gac-closed-generics] SubPro and Closed Generics (Predictability)

[Jeff Neuman]

On a recent call, I mentioned that it is essential that we do not come up with anything that contradicts or is inconsistent with the outputs of SubPro.  More specifically, here I want to cover several SubPro recommendations that refer to having clear, transparent, objective criteria all set out PRIOR to applicants applying for any gTLD.


I.                      APPLICATION CRITERIA


  1.  Affirmation 1.2: The Working Group affirms Principle A from the 2007 policy and recommends that the New gTLD Program must continue to be administered "in an ongoing, orderly, timely and predictable way."
     *   Rationale for 1.2:  A major theme that was repeatedly raised throughout the life cycle of this PDP was the need for balanced predictability for all parties involved. It is on this basis that the desire for an "orderly, timely and predictable" New gTLD Program is universally supported.
  2.  Affirmation 27.1: The Working Group affirms several Principles and Recommendations from the 2007 policy relative to Applicant Reviews:
     *   Principle D: "A set of technical criteria must be used for assessing a new gTLD registry applicant to minimize the risk of harming the operational stability, security and global interoperability of the Internet."
     *   Principle E: "A set of capability criteria for a new gTLD registry applicant must be used to provide an assurance that an applicant has the capability to meet its obligations under the terms of ICANN's registry agreement."
     *   Recommendation 1: "ICANN must implement a process that allows the introduction of new top-level domains. The evaluation and selection procedures for new gTLD registries should respect the principles of fairness, transparency and non-discrimination. All applicants for a new gTLD registry should therefore be evaluated against transparent and predictable criteria, fully available to the applicants prior to the initiation of the process. Normally, therefore, no subsequent additional selection criteria should be used in the selection process."   (Emphasis Added)
     *   Recommendation 9: "There must be a clear and pre-published application process using objective and measurable criteria." (Emphasis Added)

II.           DISPUTE RESOLUTION

  1.  Affirmation with Modification 31.2: Recommendation 12 from 2007 states: "Dispute resolution and challenge processes must be established prior to the start of the process." Consistent with Implementation Guidance 31.12 below, the Working Group affirms Recommendation 12 with the following modification in italicized text: "Dispute resolution and challenge processes must be established prior to the start of the process, the details of which must be published in the Applicant Guidebook."
     *   Rationale:  The Working Group modified Recommendation 12 from 2007 to clarify that the details of dispute resolution and challenge processes must be published in the Applicant Guidebook. This modification updates the recommendation to be consistent with the implementation guidance under this topic.
  2.  Implementation Guidance 31.12: All criteria and/or processes to be used by panelists for the filing of, response to, and evaluation of each formal objection should be included in the Applicant Guidebook.

III. COMMUNITY APPLICATIONS


  1.  Recommendation 34.13: The Community Priority Evaluation (CPE) process must be efficient, transparent and predictable. Implementation Guidance 34.14: To support predictability, the CPE guidelines, or as amended, should be considered a part of the policy adopted by the Working Group.


  1.  Recommendation 34.16: All Community Priority Evaluation procedures (including any supplemental dispute provider rules) must be developed and published before the opening of the application submission period and must be readily and publicly available.



****Why is Community relevant to Closed Generics? Because it was the closest thing in the 2012 round that matches what we are discussing - namely - a scoring process for qualifying as a closed generic.  Therefore, I believe it is applicable here.


Why am I bringing these up?
These specific recommendations all make it clear that SubPro wanted to ensure that applicants could in advance know all of the criteria by which they would be measured against and that no new criteria be added or modified after the submission of their applications.  Although much of the time in SubPro focused on Community Applications and "Sensitive / Regulated Strings", the point was clear.  The ICANN community should not be able to create Ad Hoc reasons by which an application should not proceed once the application is submitted.

For example, we shouldn't be in a position where we create criteria for Closed Generics that consist of A, B, C and D and they are published in Applicant Guidebook.  These recommendations were intended to mitigate the possibility of the community seeing the applications and then lobbying ICANN to reject applications that meet criteria A, B, C and D, but not a new ad hoc criteria E (that was unknown to anyone prior to the application process).  This doesn't just include the criteria themselves, but how they are interpreted by Panelists (as you can see from the Dispute Resolution section and the Community Section)

I hope this helps.


[cid:image001.png at 01D94C93.44E14DE0]
Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E: jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>
http://jjnsolutions.com


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