[gnso-gac-closed-generics] **SECOND UPDATE **Re: Closed Generics Asynchronous Work

Melissa Peters Allgood melissa.allgood at icann.org
Mon May 15 11:40:30 UTC 2023 

Hi all –

Kathy has rightly pointed out an error on the staff side. Regarding the following portion of Objective/Subjective below, please remove “Initial Evaluation” and replace with “Closed Generics Evaluation” for purposes of responding to this email.

“The evaluation panel must determine whether each individual closed generic gTLD application sufficiently meets the criteria to pass Initial Evaluation Closed Generics 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. “

Thank you and see you all soon,
Melissa


From: Kathy Kleiman <Kathy at KathyKleiman.com>
Date: Sunday, May 14, 2023 at 10:28 PM
To: "gnso-gac-closed-generics at icann.org" <gnso-gac-closed-generics at icann.org>, Melissa Peters Allgood <melissa.allgood at icann.org>
Subject: [Ext] Re: [gnso-gac-closed-generics] ** UPDATE **Re: Closed Generics Asynchronous Work [later]


Hi Melissa and All,

My responses are in purple below.

Best, Kathy
On 5/12/2023 11:49 AM, Melissa Peters Allgood wrote:
Hello again,

Regarding Use Requirement red line detailed below, I encourage all to review section c. on Pg 191-192 of 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!6EISBDk4EKKWjeSYpNy-o-8WqVxo-oHGRTxxgFkMvEDO-f1gZ4EH5GJFUy1W2jiB07ozwr5PVV01wNna0nhL2in-XCMe8w$> for those who want further context for SubPro deliberations on this point.

Thank you,
Melissa

From: gnso-gac-closed-generics <gnso-gac-closed-generics-bounces at icann.org><mailto:gnso-gac-closed-generics-bounces at icann.org> on behalf of Melissa Peters Allgood <melissa.allgood at icann.org><mailto:melissa.allgood at icann.org>
Date: Thursday, May 11, 2023 at 7:00 PM
To: "gnso-gac-closed-generics at icann.org"<mailto:gnso-gac-closed-generics at icann.org> <gnso-gac-closed-generics at icann.org><mailto:gnso-gac-closed-generics at icann.org>
Subject: [gnso-gac-closed-generics] Closed Generics Asynchronous Work

Hello all,

As promised, this email is intended to move our red line discussions forward asynchronously. Please review each red line section highlighted in yellow and respond to the corresponding questions highlighted in green.  Please respond as soon as possible so that we may continue to plan focused discussions for upcoming calls.

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:

  1.  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$>?



  1.  If yes, why?



>>  This language is better, but I still think using the word "objective" is misleading for those reading this description. Elements of our closed generic application evaluation are done by experts and their judgment is relied on. This meets the expert/US government contracting definition of subjective and matches the type of expert evaluation that is part of our shared Framework. I would delete objective - I think many challenges will be filed based on a misunderstanding of it.

Greg's US government contracting definition [italics added]:

"2M01 Distinguishing Objective from Subjective Selection Criteria" [U.S. Dept of Labor, Office of Federal Contract Compliance Programs]
"The contractor’s selection criteria fall into two broad categories: “objective criteria” and “subjective criteria.”
a. Objective Criteria. The central characteristic of an objective criterion is that it can be independently verified. With objective criteria, different people measuring the criteria will reach the same results because they are clearly defined or quantifiable in nature. For example, whether or not the individual earned a certain diploma or degree is an independently verifiable fact.
b. Subjective Criteria. Subjective criteria require judgment in their application. Therefore, people can differ in opinion on whether a particular candidate possesses and meets such a criterion. For example, two selecting officials may easily have differing opinions on whether a candidate “has good leadership skills.” In this example, if disparities exist in the application of the subjective criteria between groups, the CO would gather information to determine if the contractor applied the subjective criteria based on bias or stereotypes. An example of this might be a statement made by hiring official that men commonly display leadership qualities that women do not."

>> These Dept of Labor definitions exist for a reason, to set expectations and understandings, and I think we have the same reason. Best to delete "objective" because it does not feel accurate.

>> Also, I'm not sure "Initial Evaluation" is the right wording in the 2nd paragraph.  First, it is the first time we use this term in the Framework (and not everyone reading the Framework in the GNSO and GAC is familiar with the SubPro  Final Report (that appears to be the origin). Second, Initial Evaluation is a that is not defined in the SubPro Final Report, so it's a good idea for us to define it when we use it.  Third, I'm not sure we are talking about initial Evaluation at all (which many of us think is the initial evaluation of a new gTLD application for Technical, Operational and Financial ability to run a registry.

>> In the SubPro Final Report, there is a reference to other types of Evaluations, e.g., "All applications shall be evaluated and are subject to other application procedures (e.g., Initial Evaluation, Extended Evaluation, Objections, GAC Early Warning/Advice, Community Priority Evaluation). Some of these procedures may affect the composition of contention sets." [emphasis added]  The Closed Generic gTLD evaluation may fall under "Extended Evaluation" or a separate evaluation similar to the "Community Priority Evaluation," which is also an extended/different type of evaluation, as the list from the SubPro Final Report shows. Rather than assuming knowledge, let's not use new terms we and others don't know.


>> Recommend we just remove the issue and write: “The evaluation panel must determine whether each individual closed generic gTLD application sufficiently meets the criteria."

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:

  1.  Is the red line area of disagreement duplicative of the broadly agreed language?


  1.  If not, how is the red line area of disagreement a distinct issue?

>> I think both questions are fair and ask the applicant to think about the public, competitors, and others who might be impacted by this closed generic gTLD. We are giving them more than ample opportunity to "provide information about it intends to address the issue" and "specify mitigating actions that the applicant plans to take to minimize these threats and risks." As shared when these questions were application questions were raised in DC, these questions offer a time for the applicant to look at the proposed closed generic gTLD not just from its own perspective, what it needs and wants, but from a larger public perspective. I think much stronger applications will result from asking these questions.




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:

  1.  Is the red line area of disagreement duplicative of the broadly agreed 9.e. and/or 9.h. language?


  1.  If not, how is the red line area of disagreement a distinct issue?


>> I think the issues are pretty well-covered in the agreed-to language of 3.9e and 3.9h.  I don't see a need to review this further.



 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:

  1.  Is this concept most appropriately addressed during post-delegation review?


  1.  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.”



  1.  If the staff proposed language does not address this point, how does the red line area of disagreement fit into the framework?


>> I have a question for Ronke.  Would you feel this issue was met if we kept the first sentence: "Consumer expectations are a factor for consideration"?  It seems to flow nicely with 3.9(h) discussed in the point above:

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."

 >> As Ronke has urged us, consumer expectations play a major role in closed generics. It is absolutely fair and right to let people know that the evaluations will be considering the perspective, and expectations, of the public, particularly consumers of the closed generic good, product or service (as I think John has also share with us).



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.

1.       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:

  1.  Would the “interested parties” red line language above apply to all closed generic gTLD applicants or just those who choose the “representativeness” track?

>> I think just applicants who choose the representativeness track. It seems to be "part and parcel" of an applicant showing the represent all or a significant part of the business in the industry or grouping related to the closed generic term. As the question notes, there is another track the applicant might choose.

>> I defer to Jorge on this issue.


  1.  Do you disagree with including the red line language under the “representativeness” requirement?

  1.


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):

  1.  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.”
  2.  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:

  1.  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:

  1.  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.”

>> I don't think the definition of "use" in the SubPro Final Report is our definition of use. The SubPro Final Report, if I remember correctly, is a skeletal use - completion of testing, creation of a page for abuse contacts, but not a real roll-out of the New gTLD with domain names in active use.  In contrast, if you get a closed generic gTLD, we (Small Team) want the registry to roll-out a real use of that gTLD -- just as the applicant has laid out in the [now approved and awarded] new gTLD application.

>> Overall, we don't want them to sit on them. We want applicants who are approved for closed generic gTLD to use them...


  1.  If not, why not and what do you propose?


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:

  1.  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.”


  1.  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:

  1.  Is the red line language duplicative of broadly agreed language about “non anti-competitive behavior” discussed above?


  1.  Should the issue addressed by the red line language be rephrased into “threats and risks” as detailed above?


  1.  If you believe the red line language belongs somewhere other than the options above, please explain in detail.


>> I don't understand the question and i think many of us have agreed to the language above. Melissa, perhaps we could discuss this during the next call, get more guidance and send it around again. It seems important, yet it is hard to follow. Tx you!

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:

  1.  Red line discussion: Application Comment/Objections/Evaluation Challenges
  2.  Red line discussion: Scoring System
  3.  Red line discussion: Necessary
  4.  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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