[gnso-gac-closed-generics] ** UPDATE **Re: Closed Generics Asynchronous Work
jeff at jjnsolutions.com
jeff at jjnsolutions.com
Fri May 12 18:04:53 UTC 2023
Melissa,
Please find enclosed my responses in Orange. I wanted to use a
different color :)
>
>
>
>
>CONTINUING DISCUSSIONS FROM 10 MAY CALL
>
>
>
> Objective/Subjective
>
>Please review the language below, modified based upon your 10 May
>discussions (split into two distinct points):
>
>“The evaluation process and criteria must be clear, predictable, and
>objective to the greatest extend possible. The evaluation must be
>predictable such that a potential applicant can reasonably assess their
>likelihood of qualifying for a closed generic gTLD, with the
>understanding that evaluation panelists will use their professional
>judgement when evaluating applications. This judgement must be within
>predictable parameters and well-justified.”
>
>
>
>“The evaluation panel must determine whether each individual closed
>generic gTLD application sufficiently meets the criteria to pass
>Initial Evaluation. In the event that the evaluation panel receives
>more than one application for the same closed generic string, and
>determines that each application meets the criteria to pass Initial
>Evaluation, then the standard procedures of string contention
>resolution apply. “
>
>
>
>Questions:
>
>Do you disagree with moving the above language to the Closed Generics
>Framework v3 document [docs.google.com]
><https://urldefense.com/v3/__https:/docs.google.com/document/d/1u0Nb9_CJ-6R_ZF4bt9wbkzxLhMKu64aKY_vzS3QixgQ/edit__;!!PtGJab4!8oQ2k6nPnKSIEiJZdJTiLYPsSMb-WQu_u-WME1c11qDSSkEM0Y6-9MPrm81afrgySNruLZdXeZ6Yn0-nvW2AV7nKDJt6-yG7abxG7w$>?
I agree with the language and therefore support its inclusion.
>
>
>
>
>If yes, why?
>
>
>
>
>ADDITIONAL RED LINES NEEDING MORE WORK
>
>
>
>Possible Threat/Risk Duplication
>
>The following has been identified as a red line area of disagreement:
>
>“Should the applicant also be asked to identify sector(s) of the public
>that may be disadvantaged by its operation of a closed gTLD and provide
>information about how it intends to address the issue?”
>
>
>
>Broadly agreed language found in the Closed Generics Framework v3 9.k
>[docs.google.com]
><https://urldefense.com/v3/__https:/docs.google.com/document/d/1u0Nb9_CJ-6R_ZF4bt9wbkzxLhMKu64aKY_vzS3QixgQ/edit__;!!PtGJab4!8oQ2k6nPnKSIEiJZdJTiLYPsSMb-WQu_u-WME1c11qDSSkEM0Y6-9MPrm81afrgySNruLZdXeZ6Yn0-nvW2AV7nKDJt6-yG7abxG7w$>
>
>“Identify any threats or risks that could reasonably be posed if the
>closed generic gTLD is delegated, and specify the specific mitigating
>actions that the applicant plans to take to minimize these threats and
>risks.”
>
>
>
>Questions: Is the red line area of disagreement duplicative of the
>broadly agreed language
>
>
>
>
>If not, how is the red line area of disagreement a distinct issue
>
> I am not sure if this is duplicative or not, but I oppose this entire
>line of questioning for the following reasons:
>
1. This question calls for speculation on the part of the applicant for
which there is no basis in fact. We do not know that there are any
risks in having closed generics. This is a premise supported by those
who have concerns over Closed Generics.
2. How do you evaluate something like this? Are you assessing whether
the Applicant can somehow come up with risks (which it does not agree
with) and then crafting mitigation plans to something it never believed
was a risk in the first place?
3. How do you score something like this? Is it how well an applicant
can read the minds of the evaluators as to what risks they assume there
may be and what those evaluators believe would mitigate those
speculative risks.
4 I do not believe in asking questions of an Applicant for which there
is no right or wrong answer of for which there is no ability to score or
evaluate. It would be one thing if there were "technical risks" or
"business continuity risks" (which are already asked about in an
application). But to ask about "risks" that are theoretical at best
does not support the predictability of the process nor would it place an
applicant in a position of reasonably assessing whether it would pass
such evaluation.
>
>
>Possible Duplication re: Explaining the Generic Term
>
>The following has been identified as a red line area of disagreement:
>
>“Specify how the string operates as a generic term in the context of
>the applicant’s business/activity.”
>
>
>
>Broadly agreed language found in Closed Generics Framework v3 9.e.
>[docs.google.com]
><https://urldefense.com/v3/__https:/docs.google.com/document/d/1u0Nb9_CJ-6R_ZF4bt9wbkzxLhMKu64aKY_vzS3QixgQ/edit__;!!PtGJab4!8oQ2k6nPnKSIEiJZdJTiLYPsSMb-WQu_u-WME1c11qDSSkEM0Y6-9MPrm81afrgySNruLZdXeZ6Yn0-nvW2AV7nKDJt6-yG7abxG7w$>
>
>"Demonstrate the nexus (i.e. strong connection) between the applicant,
>the closed generic term being applied for, the public interest goal(s)
>specified in the application, and the applicant's intended use of the
>gTLD. The applicant must provide clear and concrete rationale for why
>the identified public interest goal(s) are best served through the
>operation of a closed generic gTLD."
>
>
>
>Broadly agreed language found in Closed Generics Framework v3 9.h.
>[docs.google.com]
><https://urldefense.com/v3/__https:/docs.google.com/document/d/1u0Nb9_CJ-6R_ZF4bt9wbkzxLhMKu64aKY_vzS3QixgQ/edit__;!!PtGJab4!8oQ2k6nPnKSIEiJZdJTiLYPsSMb-WQu_u-WME1c11qDSSkEM0Y6-9MPrm81afrgySNruLZdXeZ6Yn0-nvW2AV7nKDJt6-yG7abxG7w$>
>“Explain what types of goods, services, groups, organizations,
>products, things, etc. are described by the generic term for which the
>applicant is applying.”
>
>
>
>Questions:
>
>Is the red line area of disagreement duplicative of the broadly agreed
>9.e. and/or 9.h. language?
>
>
>If not, how is the red line area of disagreement a distinct issue?
>
>
>I am good with 3.9(e) and 3.9(h). But I am not ok with specifying how
>a string is generic especially when one could just go to a dictionary
>to get the answer. So yes I believe this is duplicative at best and
>irrelevant at worst.
>
>
>
> Consumer Expectations
>
>The following has been identified as a red line area of disagreement:
>
>“Consumer expectations are a factor for consideration. The consumer
>needs to know their rights and responsibilities. Consumers need a fair
>way to redress issues, consumers have a responsibility to choose the
>right product, and consumers have an obligation to understand the terms
>and conditions.”
>
>
>
>Questions:
>
>Is this concept most appropriately addressed during post-delegation
>review?
>
>
>Does the following staff-proposed language address this point?
>“Pertaining to the registry’s commitment that the closed generic gTLD
>will not be used for fraudulent activity, the post-delegation review
>should consider whether the closed generic gTLD is being used to
>mislead end users of its domain names.”
>
>
>
>If the staff proposed language does not address this point, how does
>the red line area of disagreement fit into the framework?
>
>
This is a hard redline no for me. An Applicant should only be assessed
based on factors within its control and not for the feelings of
unrelated third parties. For example, yes you can assess whether the
Applicant lived up to its commitments in an objective way. That is
fine.
And with respect to "Fraud". SubPro Final Report Recommendation 36.4
states: "Recommendation 36.4: ICANN must add a contractual provision
stating that the registry operator will not engage in fraudulent or
deceptive practices. In the event that ICANN receives an order from a
court that a registry has engaged in fraudulent or deceptive practices,
ICANN may issue a notice of breach for such practices and allow the
registry to cure such breach in accordance with the Registry Agreement."
This was a recommendation unanimously adopted by the Council and already
adopted by the ICANN Board. There is no need for any of this.
>
>
>
>
>Requirement to Consult Competitors Prior to Submission of an
>Application
>
>The following has been identified as a red line area of disagreement:
>
>“The application must show that significantly "interested parties,"
>including competitors, have been consulted and engaged for input prior
>to submission of the application.”
>
>
>
>Broadly agreed language in Closed Generics v3 9.f.1 and 2
>[docs.google.com]
><https://urldefense.com/v3/__https:/docs.google.com/document/d/1u0Nb9_CJ-6R_ZF4bt9wbkzxLhMKu64aKY_vzS3QixgQ/edit__;!!PtGJab4!8oQ2k6nPnKSIEiJZdJTiLYPsSMb-WQu_u-WME1c11qDSSkEM0Y6-9MPrm81afrgySNruLZdXeZ6Yn0-nvW2AV7nKDJt6-yG7abxG7w$>
>reads:
>
>“Demonstrate the requirement of representativeness OR of non
>anti-competitive behavior.
>
>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.
>This criterion can be fulfilled, for example, by the applicant being
>an umbrella organization of the industry in question.
>For “non anti-behavior”, applicants must commit that its use of this
>closed generic gTLD will be consistent with principles of competitive
>neutrality, non-discrimination and transparency. This commitment must
>be reflected in the registry operator’s contract with ICANN, which may
>be in the form of a Code of Conduct or as part of a specification to
>the extent that one is developed to govern a registry operator’s use of
>a closed generic gTLD.”
>
>
>Questions:
>
>Would the “interested parties” red line language above apply to all
>closed generic gTLD applicants or just those who choose the
>“representativeness” track?
> Do you disagree with including the red line language under the
>“representativeness” requirement?
>
>
> I have a hard redline on this one too. You should NEVER be
>responsible for giving away your business strategies to competitors
>even for representativeness. Why would anyone disclose anything to
>comeptitors about their application? This is especially the case where
>a competitor in order to prevent the applicant from getting the string
>can file a competing application to force the string into string
>contention causing the original applicant to have to spend potentially
>millions of dollars. This to me is a NON-STARTER.
>
>Use requirement
>
>The following has been identified as a red line area of disagreement:
>
>“The applicant must begin operating its closed generic gTLD (if
>approved) in the intended manner [within a set time frame].”
>
>
>
>During our 10 May call, there was broad agreement with this concept,
>but concerns about the bracketed text as well as ensuring the approach
>aligned with the work of SubPro were noted.
>
>
>
>Here is relevant information from the SubPro Final Report
>[gnso.icann.org]
><https://urldefense.com/v3/__https:/gnso.icann.org/sites/default/files/file/field-file-attach/final-report-newgtld-subsequent-procedures-pdp-02feb21-en.pdf__;!!PtGJab4!8oQ2k6nPnKSIEiJZdJTiLYPsSMb-WQu_u-WME1c11qDSSkEM0Y6-9MPrm81afrgySNruLZdXeZ6Yn0-nvW2AV7nKDJt6-yGCmmKfaw$>
>(page 191):
>
>Affirmation 40.1: The Working Group affirms Implementation Guideline I
>from 2007, which states: “An applicant granted a TLD string must use it
>within a fixed timeframe which will be specified in the application
>process.”
>Affirmation 40.2: The Working Group supports maintaining the timeframes
>set forth in the 2012 Applicant Guidebook and base Registry Agreement;
>namely (i) that successful applicants continue to have nine (9) months
>following the date of being notified that it successfully completed the
>evaluation process to enter into a Registry Agreement, and (ii) that
>registry operators must complete all testing procedures for delegation
>of the TLD into the root zone within twelve (12) months of the
>Effective Date of the Registry Agreement. In addition, extensions to
>those time frames should continue to be available according to the same
>terms and conditions as they were allowed during the 2012 round.
>Rationale for Affirmations 40.1 and 40.2:
>
>Although some members of the Working Group were in favor of trying to
>further define what it means to “use” a TLD, the Working Group
>ultimately affirms the existing definition for “use” of a gTLD (namely,
>delegation into the root and meeting all other contractual commitments
>with respect to required content) . It believes that as was the case in
>the 2012 round, there should be a specified timeframe in which the gTLD
>should be used. Further the Working Group believes that the timeframes
>for gTLD rollout from the 2012 round continue to be appropriate in
>subsequent rounds. ....
>
>
>Questions:
>
>Bearing in mind the relevant information from the SubPro Final Report,
>does the following suffice:
>“The applicant must begin operating its closed generic gTLD (if
>approved) in the intended manner.”
>
>
>
>If not, why not and what do you propose?
>
I can live with the above language as it is consistent with SubPro and
does not impose timelines on the Applicant which may or may not have any
basis in reality.
>
>
>
>Anti-Competitive Concerns vs. Exclusive Closed Nature of Generic gTLD
>
>The following has been identified as a red line area of disagreement:
>“Evaluators should balance anti-competition concerns against the
>exclusive nature of a closed generic gTLD. For example, the stated
>public interest goal should outweigh what the anti-competitive risk
>might be.”
>
>
>
>Areas for consideration:
>
>If this red line were to only apply to the “non anti-competitive”
>track, it is potentially duplicative of Closed Generics Framework v3
>9.f.2 [docs.google.com]
><https://urldefense.com/v3/__https:/docs.google.com/document/d/1u0Nb9_CJ-6R_ZF4bt9wbkzxLhMKu64aKY_vzS3QixgQ/edit__;!!PtGJab4!8oQ2k6nPnKSIEiJZdJTiLYPsSMb-WQu_u-WME1c11qDSSkEM0Y6-9MPrm81afrgySNruLZdXeZ6Yn0-nvW2AV7nKDJt6-yG7abxG7w$>:
>“Demonstrate the requirement of representativeness OR of non
>anti-competitive behavior…..
>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. This
>commitment must be reflected in the registry operator’s contract with
>ICANN, which may be in the form of a Code of Conduct or as part of a
>specification to the extent that one is developed to govern a registry
>operator’s use of a closed generic gTLD.
>
>· This criterion builds on the requirements that applicants of
>closed generic gTLDs must state their public interest goal(s) and
>intended purpose for the gTLD, and the intended purpose(s) must not be
>to solely exclude other parties from using the gTLD or to serve the
>applicant’s own commercial interests.
>
>· In addition, the group recognizes that the nature of a closed
>generic gTLD involves exclusive registry access to second-level domains
>under that gTLD string. The group affirms that this criterion is
>intended to ensure that an applicant does not misuse its control of a
>closed generic gTLD to undermine the public interest.
>
>· The group also affirms that exclusive registry access and
>single entity control of a closed generic gTLD does not, in and of
>itself, violate the principles of competitive neutrality,
>non-discrimination or transparency.”
>
>
>
>If “anti-competition concerns” identified in the red line text applies
>more broadly to “threats and risks” language found in Closed Generics
>Framework v3 9.k., then this issue could be rephrased as follows:
>“Evaluators should balance the identified threats and risks against the
>proposed mitigating actions and public interest goal(s) of the closed
>generic gTLD. The applicant’s public interest goal(s) and mitigating
>actions should outweigh what the identified threats and risks are.”
>
>
>Questions:
>
>Is the red line language duplicative of broadly agreed language about
>“non anti-competitive behavior” discussed above?
>
>
>Should the issue addressed by the red line language be rephrased into
>“threats and risks” as detailed above?
>
>
>If you believe the red line language belongs somewhere other than the
>options above, please explain in detail.
>
>
>The use of the term "balance" is in direct contrast to the notion of
>objective criteria and predictability. How are applicants supposed to
>know how an evaluator will balance theoretical notions of
>anti-competitiveness. Competition concerns are always assessed in a
>reactionary way, not proactive. One never really knows whether a
>particular application will or will not have an impact on competition
>until after the application has been granted and in operation for some
>period of time. You cannot predict any of this. So I oppose the
>notion of evaluating anti-competitiveness.
>
>
>
>Finally, please continue to review Closed Generics Framework v3.
>[docs.google.com]
><https://urldefense.com/v3/__https:/docs.google.com/document/d/1u0Nb9_CJ-6R_ZF4bt9wbkzxLhMKu64aKY_vzS3QixgQ/edit__;!!PtGJab4!8oQ2k6nPnKSIEiJZdJTiLYPsSMb-WQu_u-WME1c11qDSSkEM0Y6-9MPrm81afrgySNruLZdXeZ6Yn0-nvW2AV7nKDJt6-yG7abxG7w$>
>For those who have raised “notable concerns” for various points
>(captured in the Participant Red Line Table [docs.google.com]
><https://urldefense.com/v3/__https:/docs.google.com/document/d/14Iw5dya1WywzeuVBjBfSYDQ80MT-2wCJNPbeNl4kbzw/edit__;!!PtGJab4!8oQ2k6nPnKSIEiJZdJTiLYPsSMb-WQu_u-WME1c11qDSSkEM0Y6-9MPrm81afrgySNruLZdXeZ6Yn0-nvW2AV7nKDJt6-yFfAWewXQ$>),
>please share your proposed solutions in comments on the Closed Generics
>v3 document. Please refrain from editing directly into this document .
>
>
>
>Our next call is 15 May at 12:30 UTC. Our agenda is as follows:
>
>Red line discussion: Application Comment/Objections/Evaluation
>Challenges
>Red line discussion: Scoring System
>Red line discussion: Necessary
>Additional red line issues, time allowing
>
>
>I recognize I’m asking you to engage in a lot of asynchronous work. We
>are in the final days and our deadline is fast approaching. Thank you
>for sticking with this effort.
>
>
>
>Melissa
>
>
>
>
>
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