[gnso-gac-closed-generics] Closed Generics Asynchronous Work and Updates

Wed May 31 15:24:37 UTC 2023

Dear all,

Please find attached the collective responses from GAC representatives. Individual names are retained in the document, with the understanding that the document shows aligned views for GAC members.

Thank you,

Kind regards,

Benedetta

From: gnso-gac-closed-generics <gnso-gac-closed-generics-bounces at icann.org> on behalf of Sophie Hey <sophie.hey at comlaude.com>
Date: Wednesday, 31 May 2023 at 12:20
To: Jeff Neuman <jeff at jjnsolutions.com>, John McElwaine <john.mcelwaine at nelsonmullins.com>, Melissa Peters Allgood <melissa.allgood at icann.org>, "gnso-gac-closed-generics at icann.org" <gnso-gac-closed-generics at icann.org>
Subject: Re: [gnso-gac-closed-generics] Closed Generics Asynchronous Work and Updates

I have provided my answers below in-line in blue.

Sophie Hey
she/her
Policy Advisor
Com Laude
T +44 (0) 20 7421 8250
Ext 252

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From: gnso-gac-closed-generics <gnso-gac-closed-generics-bounces at icann.org> On Behalf Of jeff at jjnsolutions.com
Sent: Monday, May 29, 2023 7:49 PM
To: John McElwaine <john.mcelwaine at nelsonmullins.com>; Melissa Peters Allgood <melissa.allgood at icann.org>; gnso-gac-closed-generics at icann.org
Subject: Re: [gnso-gac-closed-generics] Closed Generics Asynchronous Work and Updates

My responses below John's in Purple.....

[cid:image002.png at 01D993E4.C5DE0A30]

------ Original Message ------

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?”

Broadly-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.

 John:  I can live with this compromise provided that it is not part of the evaluation of whether the applied-for TLD serves a public interest.  I do not believe that evaluators will be qualified to make this determination, nor do I believe that such an evaluation will be a predictable process.  In addition, as some have said, we are allowing the applicant dictate the threats and risks upon which they may be evaluated.  Instead, the mitigation action should be proposed by Applicant and included as post-delegation requirements. If the application is approved, I am fine with the “actions” being adjusted or supplemented by public comments or by an evaluation panel.
Jeff - I am only good with the version in v3 above, not with adding anything about disadvantaged communities or how to mitigate it or anything like that.   I believe that asking any questions that cannot be evaluated is not something we should be engaging in.  This is not an academic exercise, but rather the proposed business of an applicant.  Applicants are not experts in politics, ecnomics, and should not be expected to engage in an acedemic exercise of who in theory "could possibly" be impacted in manners outside of their control.  IN the agreed language we are already asking appicants to identify all risks and how they are going to mitigate against those risks.  What is also clear to me is that anyone that does not want th applicant have the TLD can in public comment set forth the whole parade of horribles that in theory could happen.  And the evaluators can then assess whether (a) the comments have identfied actual likely risks, and (b) whether the applicant has or can address those risks (by asking Clarifying questions).

FInally, "risks" can include any risks including whether there will be a party disafvantaged by the delegation (though i can't really imagine how).  Bottom line, I can live with the Broadly agreed language, but not the Compromise.

Sophie: seeing the comments from John and Jeff above, and considering the compromise language, I am proposing the following language:

  *   Detail the mitigation actions the applicant commits to take in response to: any self-identified risks or threats, and/or risks or threats identified in public comment. The threats or risks will not form part of the evaluation of whether a closed generic gTLD will serve a public interest goal.
  *   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 gTLD.

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.

     *   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.

John:  I support the Proposed Language with the following revision to the last bullet:

  *   The group discussed where the term “affiliates” may benefit from the inclusion of entities with common charters or governing documents.  The group also discussed that an expansion of the term “affiliates” could harm innovation and unintentionally create new policy by covering Community TLD applications and open-but-restricted TLDs.  No decision was taken on this matter as it is beyond the scope of this group.

 Jeff:  I am not a fan of the proposed language.  But can we change to:

  *   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 not make any changes to the definition, but rather discuss examples where the term 'affiliates' in that definition may benefit from the inclusion of entities with common charters or boerning documents.  Future policy discussion may want to incorporate this concept in their work. 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.

     *   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.

Sophie: I can live with the proposed compromise language with John’s proposed edit.

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.

 John:  I thought that it was made apparent that a second comment period was unnecessary under the current structure but that some advocating for this point felt that it was needed to allow for additional time.  As such, I support the ability for a party alleging harm (i.e., standing) for a closed generic TLD to request an extension of time, with the period of that extension decided upon in the policy-making group .
Jeff - Agree with John that at most we may have agreed that if necessary additional time could be requested, but that request needs to be reasonable and may not be used to extend other deadlines.

And on this note, there already is flexibility in the applicant guidebook to extend the comment period in general (for all types of applications) should it be necessary.  I do not see the difference between why we would extend for Closed Generics, and not for Communities, string similarity, etc.
Please see my response on the other thread. I have proposed language as a way forward.

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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