[gnso-gac-closed-generics] Separate, second comment period needed [short paper]

Tue May 30 14:32:40 UTC 2023

Hi Melissa and All,

Last week, we had a robust discussion of a second separate comment 
period and why, for Closed Generics, it is especially needed - and not 
just for extra time.  Greg, Alan and I worked on this analysis over the 
(US) holiday weekend - pulling together concerns that we heard from 
ALAC, GAC and GNSO members with additional research.  We share this 
analysis below (and attached- same doc).

Best regards, Kathy

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

*Meaningful Public Comment in the Closed Generic gTLD Application and 
Evaluation Process:*

*The Need for a Special Closed Generic Public Comment Period*

There is a unique and critical need for a Closed Generic public comment 
period that is designed to provide /_meaningful public comment_. /On 
this complicated issues involving the fitness of a given Closed Generic 
application -- one that has taken us months to wrestle with -- the 
questions and analysis will be complex and difficult, including concepts 
of genericness, anti-competitiveness, nexus, public interest goals and 
public interest harms.

While the SubPro Working Group (WG) confirmed the need for a public 
comment period covering a number of different types of analysis, the WG 
did not, and could not, consider the special needs for public comment on 
Closed Generics applications. It was premature. Our Closed Generics 
Framework did not yet exist and our work had not yet been done. Our work 
and the Framework clearly point to the need for a separate public 
comment period – one that cannot start on reveal day.Both the time and 
circumstances would not allow for the type of meaningful public comment 
needed here.

/Here, _meaningful public comment_ means a public comment that (a) can 
take advantage of and build upon the input of Governments, their Early 
Warnings, and their guidance on public interest, competition and 
antitrust policy and trademark issues, and (b)allows sufficient time for 
industries, businesses and other organizations to gather, discuss, 
prepare, socialize and sign off on joint comments and concerns by 
countries, regions and groups of all sorts (both ad hoc and formal), as 
well as comments from individual and entities. /

/
/

/We are renewing and explaining our_call for a second Closed Generics 
Public Comment Period of 60 days, to follow soon after the close of GAC 
Early Warnings_.We provide background and discuss key concepts such as 
meaningful public comment, the special role of government guidance, the 
value of organized industry input, and the need for webpage-driven 
requests –all to create a highly substantive meaningful comment period 
to complement the Closed Generics Evaluation process set forth in our 
Framework./

_
_

_Background_:

Some have claimed that the need for Closed Generic comments is the same 
as that for Community Priority applications, for which the WG considered 
and did not adopt a later public comment period. However, the work of 
our Closed Generics Small Team over these past few months has shown that 
Closed Generics gTLD applications are very different; they raise hard 
and unique issues of great import that have racked our collective 
brains: public interest goals, competition and antitrust policies, and 
trademark law, among many others.

During the first round, in 2012, Closed Generic applications received 
*93 GAC Early Warnings, and later, a special section of the 2013 Beijing 
GAC Communique*; further, the ICANN Board process initiated this Small 
Team with unprecedented representation of GAC, GNSO and ALAC.Nothing 
like this took place with applications seeking Community Priority 
Evaluation. Closed Generics gTLD applications raise especially 
complicated public policy and public interest issues that clearly merit 
a special Closed Generics comment period well after the scramble of 
Reveal Day, particularly one coming after GAC Early Warnings.

_
_

_The special role of government guidance_

Government guidance is, and has always been, key to the understanding of 
Closed Generics. The 84 Early Warnings from Australia and 9 from Germany 
in 2012, albeit brief, raised key competition concerns, e.g.,

“_Competition_: Symantec Corporation is seeking exclusive access to a 
common generic string (.antivirus)that relates to a broad market 
sector.” [Australian GAC]

Competition, trademark law and public interest issues fall within the 
purview of national governments. As governments seek fair competition, 
create policies to support new and emerging businesses, and work to 
further the public interest, their role in understanding, examining and 
analyzing the new round of closed generic gTLD applications will be key.

As the guidance of governments was uniquely important in the first 
round, via Early Warnings, so too will it be needed in future rounds. In 
the Small Team, we have shared our concerns that future Closed Generic 
gTLD applications may be difficult to read, unpack and interpret. As 
Governments were guides in the First Round, they will be guides in 
upcoming rounds – round that will come faster and likely with many more 
applications.

_
_

_Value of Organized Industry Input _

A Closed Generic Public Comment Period, closely following the close of 
GAC Early Warnings, will allow industries, businesses, associations, 
noncommercial groups, and associations to gather together – to share 
information with members via regular channels of communication, to 
convene and discuss, circulate and sign joint comments.This 
collaboration proved very helpful in the first round and the input it 
achieved was meaningful – including from, for example:

The International Publishers Association, European and International 
Booksellers Federation, Federation of European Publishers, The 
Börsenverein des Deutschen Buchhandels e.V., Verleger-Verband SBVV, The 
Booksellers Association of The UK & Ireland Ltd, the Australian and New 
Zealand Association of Antiquarian Booksellers Association and many more.

This input, with time to organize, was well-discussed, well-reasoned, 
and well-supported. Meaningful public comment from businesses and 
industries is not a rushed process.

Our first round history shows such meaningful comment comes best /after/ 
the guidance of the governments /and /with the time to prepare and 
organize. Future booksellers, hotels, disaster relief organizations, and 
other commercial and noncommercial groups, will thank us.//

_
_

_Timing:_

The Closed Generic Public Comment should follow a short time after the 
close of Early Warnings and be open for a period of 60 days. This period 
will allow industries, businesses and NGOs, as appropriate, to gather, 
discuss, and sign comments together.

As Jeff, Sophie and others have pointed out, there is the possibility 
that any application may face Objections, and such applications will 
then be delayed for many months (as this formal, arbitration-like 
proceeding is extensive and expensive).

Adding a short 60 day Second Comment Period on Closed Generics following 
Early Warnings for the public, with an appropriate response time for 
applicants, , will not add greatly to application processing time, but 
it will greatly enhance groups’ abilities to prepare and participate and 
will also aid the credibility of the entire process. After the 60 day 
period, and meaningful response period for applicants, this process will 
move on to the Evaluation panels, who will have a full and well-reasoned 
record. It’s a clean, simple solution.A rushed and hectic single comment 
period for all things will be neither clean nor simple; most 
importantly, it is unlikely to be truly _meaningful_.

_
_

_Closed Generics Microsite:_

For this Closed Generic Comment Period, ICANN should help businesses, 
industries, and noncommercial organizations find those Closed Generic 
applications that impact them – a daunting task if there are hundreds 
(or even thousands) of closed generic applications.

Accordingly, for the Closed Generic Microsite, ICANN should:

+ Create a page listing all the rules and evaluation criteria for Closed 
Generics – not as written for applicants (e.g., in the Applicant 
Guidebook), but written for the public seeking to understand Closed 
Generic gTLDs and how to prepare meaningful comment (with knowledge of 
the evaluation factors) in this evaluation process.

2)+ Provide a good semantic search tool for searching the potentially 
thousands of closed generic applications by members of the public, so 
small businesses, NGOs and others can easily find all new gTLD 
applications with closed generic strings that impact their business or 
industry. For example, for the aviation industries, such a search tool 
should find .airport, .runway, and .airplanes. This type of tool is 
special, but not infrequent in our data-based world.

3)+ Present a homepage showing all Closed Generic gTLD applications as 
part of a table visible with each new gTLD string, the Applicant, 
translation of string to English if an Internationalized Domain Name, 
and country of origin.You should not have to search the closed generic 
string, to see all Closed Generic gTLD applications at this summary level.

4)+ Share clear information about deadlines, easy input by the 
commenter, easy review by the public and applicant, and a link to any 
response the applicant may submit.(Consistent with other aspects of our 
work, if additional features are made available for the initial comment 
period, then they should be added to this Closed Generics comment 
website as well.)

The Closed Generic microsite can also post and generate notifications to 
commenters when applicants make changes to their closed generic gTLD 
applications after the comment period ends.

Conclusion:

/
/

/Meaningful public comment/, especially for the world community, is a 
process with which ICANN has struggled for years. We generally speak and 
write to our own ICANN Community, but not the larger public. Similarly, 
we tend to seek comment primarily from our own ICANN Community and not 
from the larger public. In the case of Closed Generics, this will be 
utterly insufficient; hearing from governments and the larger public is 
a requirement and must be built into our Framework. Thus, we need to do 
everything we reasonably can to support meaningful public comment– 
including a Closed Generic Comment Period to follow Early Warnings. 
Government input on these competition, public trust and public interest 
issues will be key on these complex and far-reaching issues, and a guide 
for businesses and industries who follow.

In closing, we note that in seeking definitions of “effective 
consultation” and “meaningful public comment,” we found the/Code of 
Practice on Consultation/ of HM Government, UK useful and provide its 
short foreword in our appendix.

Thank you for your review and consideration of these critical points.

*
*

**

*APPENDIX*

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

Specification 1:

UK guide for effective consultation and meaningful input

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

*HM Government*

/Code of Practice on Consultation/

FOREWORD

“This Government is committed to effective consultation; consultation 
which is targeted at, and easily accessible to, those with a clear 
interest in the policy in question. Effective consultation brings to 
light valuable information which the Government can use to design 
effective solutions. Put simply, effective consultation allows the 
Government to make informed decisions on matters of policy, to improve 
the delivery of public services, and to improve the accountability of 
public bodies.

The Government has had a Code of Practice on Consultation since 2000 
setting out how consultation exercises are best run and what people can 
expect from the Government when it has decided to run a formal 
consultation exercise.

This third version of the Code is itself the result of listening to 
those who regularly respond to Government consultations. This Code 
should help improve the transparency, responsiveness and accessibility 
of consultations, and help in reducing the burden of engaging in 
Government policy development.

As part of the Government’s commitment to effective consultation, we 
will continue to monitor how we consult and we appreciate feedback on 
how we can improve.”

John Hutton

BERR SoS

July 2008

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/100807/file47158.pdf

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

On 5/29/2023 9:33 AM, Melissa Peters Allgood wrote:
>
> Hello –
>
> Just a quick reminder to reply to this email with your inputs 
> regarding the three red lines detailed below and a request that you 
> review the updated Closed Generics Framework v4 (clean or with edits 
> tracked).
>
> We will take the remaining red line issues at the top of our next call 
> (31 May 2023 at 20:00 UTC) before moving into the v4 document.
>
> My continued thanks for your time and attention to this work.
>
> Melissa
>
> *From: *gnso-gac-closed-generics 
> <gnso-gac-closed-generics-bounces at icann.org> on behalf of Melissa 
> Peters Allgood <melissa.allgood at icann.org>
> *Date: *Friday, May 26, 2023 at 9:33 AM
> *To: *"gnso-gac-closed-generics at icann.org" 
> <gnso-gac-closed-generics at icann.org>
> *Subject: *[gnso-gac-closed-generics] Closed Generics Asynchronous 
> Work and Updates
>
> Hello all,
>
> Below you will find the three outstanding items from the Remaining Red 
> Lines [docs.google.com] 
> <https://urldefense.com/v3/__https:/docs.google.com/document/d/1smLEk84K113gSGEdM4b_o1VR0vMmJk4yIkmkxX4M6Zc/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0pLQlHa_w$> 
> table. Pursuant to your inputs at the end of our 24 May call, staff 
> has taken all other items into the next version of your work. On the 
> google drive you will find two versions of the same document: Closed 
> Generics Framework v4–Edits Tracked [docs.google.com] 
> <https://urldefense.com/v3/__https:/docs.google.com/document/d/1nEy2mQm01ITo-ovxgIVQ0kNIpLqPV4bqVxTKgZb15vQ/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0oqvqfCZw$> 
> and Closed Generics Framework v4–Clean [docs.google.com] 
> <https://urldefense.com/v3/__https:/docs.google.com/document/d/1InSBpBSW-j2aVwsk59t-Hs2LfAhuEKNfiwkFoi3SYxU/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0pEsETsDA$>. 
> We’ve created the clean version for ease of reading and ask the edits 
> tracked version be used for inputs (in comments).
>
> To do:
>
>  1. Each of the three red lines has a request highlighted in green.
>     Please respond to this email with your inputs.
>  2. ReviewClosed Generics Framework v4-Edits Tracked [docs.google.com]
>     <https://urldefense.com/v3/__https:/docs.google.com/document/d/1nEy2mQm01ITo-ovxgIVQ0kNIpLqPV4bqVxTKgZb15vQ/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0oqvqfCZw$>
>     and/or Closed Generics Framework v4–Clean [docs.google.com]
>     <https://urldefense.com/v3/__https:/docs.google.com/document/d/1InSBpBSW-j2aVwsk59t-Hs2LfAhuEKNfiwkFoi3SYxU/edit__;!!PtGJab4!6NMRJYggQOzP4XgdtZ46kDl6kb54--LeBZvpGTNttdcVnqwaSIXt1j1quUD7PqOYaZNNXtYcHc5hJFOwlea_btUYI16Qn0pEsETsDA$>.
>
> */Identifying Disadvantaged Sectors/*
>
> *_Red line language:_*
>
>   * “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?”
>
> *B_roadly-agreed language in v3:_*
>
> “7.l. 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.”
>
> *_Proposal: REPLACE broadly agreed language from v3 7.l with the 
> following compromise:_*
>
>   * Identify sector(s) of the public that may be disadvantaged if the
>     closed generic gTLD is delegated, as well as any threats or risks
>     that could reasonably be posed, and detail the specific mitigating
>     actions that the applicant plans to take to minimize these threats
>     and risks.
>
>   * The applicant must make explicit commitment to the policies, rules
>     or actions that the applicant will agree to take to minimize any
>     threats or risks to the public or anti-competitive impacts by
>     operation of the applied-for closed generic TLD.
>
> Please respond if you can live with this compromise. If you cannot, 
> please offer a way forward.
>
> */Definitions/*
>
> In your asynchronous work, we saw general agreement that having a 
> colloquial definition of “closed generic gTLD” would be helpful, so 
> long as it is clear that this group is not creating policy through 
> such use of such a colloquial definition. The term affiliates was 
> flagged in the Remaining Red Lines document and staff suggests the 
> additional language found in the last sub-bullet as a compromise path 
> forward.
>
> *_Proposed language_**:*
>
>   * “For purposes of the Closed Generics Facilitated Dialogue, 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) and Section 11.3(d), the group agreed to the following
>     colloquial definition of “closed generics.” Please note, this
>     colloquial definition is not intended to impact any associated
>     contractual definitions or control future policy work on this issue.
>
>       o A “closed generic gTLD”, sometimes described as a “gTLD with
>         exclusive registry access”, is understood to be a gTLD
>         representing a string that is a generic word or term under
>         which domains are registered exclusively by the registry
>         operator and its affiliates.”
>
>           + The group discussed examples where the term “affiliates”
>             may benefit from the inclusion of entities with common
>             charters or governing documents, but no decision was taken
>             on this matter as it is beyond the scope of this group.
>
> Please respond if you can live with the compromise. If you cannot, 
> please offer a way forward.
>
> */Public Comment/*
>
> During our 24 May call, the group continued discussion on this point. 
> The group has broadly acknowledged the need for sufficient notice of 
> an application for a closed generic gTLD and sufficient time for 
> response. The group has broadly acknowledged significant delay to the 
> initial evaluation could be problematic. The task before you is to 
> identify a way forward.
>
> Please respond with your proposed way forward on this issue.
>
> I encourage you to continue your efforts to view the remaining work 
> through a solution-oriented lens of collaboration and compromise.
>
> Wishing you a wonderful weekend,
>
> Melissa
>
>
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