[Gnso-newgtld-wg] [Ext] RE: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Aikman-Scalese, Anne AAikman at lrrc.com
Wed Oct 17 00:10:50 UTC 2018


Jeff – I am personally not too concerned but we do need to understand that when ICANN makes a determination, it can result in years of administrative processes such as Request for Reconsideration and Independent Review Panel.  I’m not sure that Contracted Parties really want that determination to be “up in the air” for extended periods of time.  It appears that delay is considered deathly in the gTLD launch process – application fees are on file etc.  So I am not sure this is a “detail” of what is being proposed.  (I apologize for complicating this but I think we have to ask a question as to how the “finding” should be determined.)  In the end, an Objection process may be faster than an ICANN process based on what we saw in 2012.
Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office


520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

[cid:image003.png at 01D46573.2E6D0C90]

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 2000

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>




From: Jeff Neuman [mailto:jeff.neuman at comlaude.com]
Sent: Tuesday, October 16, 2018 9:56 AM
To: Justine Chew; Aikman-Scalese, Anne; steve.chan at icann.org
Cc: gnso-newgtld-wg at icann.org
Subject: RE: [Gnso-newgtld-wg] [Ext] RE: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Thanks Justine and Anne.  I don’t mind asking a question on who people believe should be responsible for making the determination, but the assumption in the drafting of that option was that it would be ICANN that would make the determination.

I was a little hesitant to write this e-mail because I can already hear the next question:  “What criteria would ICANN use to make that determination….”  That takes us down a rabbit hole which we may not need to go down at this point since we are just seeking input on the principle now.  If the principle has traction, then we can work more on the details.

Jeff Neuman
Senior Vice President

Com Laude | Valideus
1751 Pinnacle Drive
Suite 600, McLean
VA 22102, USA

D: +1.703.635.7514
T: +44 (0) 20 7421 8250
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
www.comlaude.com<http://www.comlaude.com>

Liability cannot be accepted for statements made which are clearly the sender’s own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc.

From: Justine Chew <justine.chew at gmail.com<mailto:justine.chew at gmail.com>>
Sent: Tuesday, October 16, 2018 11:13 AM
To: AAikman at lrrc.com<mailto:AAikman at lrrc.com>; steve.chan at icann.org<mailto:steve.chan at icann.org>
Cc: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] [Ext] RE: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Thanks Steve and good question Anne.

In response, I propose we consider extending the relevant question in the ensuing part e as follows (in blue):

  *   Do you believe instead that there are practical ways to allow some forms of private resolution but disallow others, as indicated in option 3 above? What would be the acceptable or non-acceptable forms of private resolution and why? Who should determine whether parties in a contention set have or have not engaged in non-acceptable forms of private resolution and how would such a determination be established?
Or something along these lines.

Justine Chew
-----

On Tue, 16 Oct 2018 at 22:31, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
This looks good Steve – just a question – does our draft say  in what manner would parties be “found” to have engaged in non-acceptable forms of private resolution?  Is it an Objection process or a Complaint process.  Who makes the “finding”?
Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office


520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

[cid:image001.png at 01D46522.30993F30]

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 2000

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>




From: Steve Chan [mailto:steve.chan at icann.org<mailto:steve.chan at icann.org>]
Sent: Monday, October 15, 2018 4:44 PM
To: Aikman-Scalese, Anne; 'Justine Chew'; Jeff Neuman
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] [Ext] RE: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Apologies, I hit a shortcut on my keyboard to send the email below prematurely!

Here is the sentence:

If parties are found to have engaged in non-acceptable forms of private resolution, that will result in (a) the application not being allowed to proceed – if a Registry Agreement was not signed by the time it is discovered, or (b) forfeiture of the registry (if after a Registry Agreement is signed).

The use of “not being allowed to proceed” should be consistent with both of the Applicant Guidebook and the Current Application Status page. Also, “agreement” and “contract” have both been replaced with Registry Agreement.

Best,
Steve



From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> on behalf of Steve Chan <steve.chan at icann.org<mailto:steve.chan at icann.org>>
Date: Monday, October 15, 2018 at 4:39 PM
To: "Aikman-Scalese, Anne" <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>, 'Justine Chew' <justine.chew at gmail.com<mailto:justine.chew at gmail.com>>, Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>
Cc: "gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Subject: Re: [Gnso-newgtld-wg] [Ext] RE: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Dear Anne, Justine, Jeff, all,

Based on your suggestions, the sentence has been amended as such:


From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> on behalf of "Aikman-Scalese, Anne" <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>
Date: Friday, October 12, 2018 at 3:09 PM
To: 'Justine Chew' <justine.chew at gmail.com<mailto:justine.chew at gmail.com>>, Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>
Cc: "gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Subject: Re: [Gnso-newgtld-wg] [Ext] RE: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

We may want to check the terms used in the new gTLD “status” pages for strings in contention.  Language should likely be consistent with what is posted there by icann.org if possible.

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office


520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

[cid:image003.png at 01D4623D.7CF22C80]

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 2000

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>




From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Justine Chew
Sent: Thursday, October 11, 2018 7:21 PM
To: Jeff Neuman
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] [Ext] RE: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Thanks for your reply, Jeff.

Just on my first question, yes, I don't disagree with your explanation, but I did want to, if possible, establish the intent to the consequence of being found to have engaged in non-acceptable forms of private resolution. Post AGB, additional statuses for applications were introduced during implementation phase, for eg. "Not Approved".

As mentioned before, "withdrawing" implies to me a choice by the applicant, and in fact the "withdrawn" status explicitly states so at
https://newgtlds.icann.org/en/applicants/advisories/application-contention-set-14mar14-en. Hence I was concerned about the ramification around choice by the applicant, not to mention any 'rights' as to refunds.

I wonder if the term "non-approval" might be an appropriate alternative to "withdrawing", although I'm not sure if "non-approval" will then raise further complications to the AGB as drafted.

Justine Chew
-----


On Fri, 12 Oct 2018 at 02:34, Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>> wrote:
Thanks Justine.

Your questions are good ones.  On the first one, I believe ICANN only uses the terms “withdrawn” or “shall not proceed” in the Guidebook.   I don’t believe the word termination is used in connection with an application.  So, that is why that term was selected.

On the second question the agreement/contract is the ICANN Registry Agreement and I agree with you that we should make it more clear in both parts of that sentence.


Jeff Neuman
Senior Vice President

Com Laude | Valideus
1751 Pinnacle Drive
Suite 600, McLean
VA 22102, USA

D: +1.703.635.7514
T: +44 (0) 20 7421 8250
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
www.comlaude.com<http://www.comlaude.com>

Liability cannot be accepted for statements made which are clearly the sender’s own and not made on behalf of Com Laude USA or Valideus USA. This message is intended solely for the addressee and may contain confidential information. If you have received this message in error, please send it back to us, and immediately and permanently delete it. Do not use, copy or disclose the information contained in this message or in any attachment.Com Laude USA and Valideus are trading names of Consonum, Inc.

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Justine Chew
Sent: Thursday, October 11, 2018 8:45 AM
To: steve.chan at icann.org<mailto:steve.chan at icann.org>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] [Ext] RE: Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Could I get some clarity on the proposed text/language regarding the third option as highlighted in yellow below please.

  *   A third option a Working Group Member proposed was allowing certain types of private resolutions, but disallowing others. For example, as discussed in several sections of the Initial Report and in this Supplemental Initial Report, many Working Group members favored allowing applicants in a contention set to change their applied-for-string if that change is mutually agreed by the members of the contention set and the newly changes strings (a) were reasonably related to the original applications and (b) did not move the applicants’ newly selected strings into a different contention set. Under this option, the Working Group member proposed that changes would need to be approved by ICANN.   Another Working Group member noted that under this option, any proposed newly selected string that ICANN intended to approve would need to be (a) subject to name collision risk assessment, (b) put out for public comment and (c) open to established Objection procedures.  If parties are found to have engaged in non-acceptable forms of private resolution, that will result in (a) withdrawing of an application – if an agreement was not signed by the time it is discovered, or (b) forfeiture of the registry (if after a contract is signed). Some members of the Working Group, however, were not comfortable in putting ICANN in a position of approving (or disapproving) mechanisms of private resolution.
1) If parties are found to have engaged in non-acceptable forms of private resolution, that will result in withdrawing of an application. Should it not result in a termination or dismissal of an application? "Withdrawing" implies that the applicant has a choice, or is that what was intended by author of this text and/or WG?

2) Is the term "agreement" in part (a) meant to be the same thing as the term "contract" in part (b)? Can we be specific about what agreement or contract these are meant to be?

Thanks,

Justine Chew
-----

On Thu, 11 Oct 2018 at 07:58, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
Probably “in addition”.
Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office


520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________


Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 2000

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>




From: Steve Chan [mailto:steve.chan at icann.org<mailto:steve.chan at icann.org>]
Sent: Tuesday, October 09, 2018 9:22 PM
To: Aikman-Scalese, Anne; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Ext] RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Dear Anne, apologies, the email below was sitting unsent. Below is confirmation that your suggestion was integrated, but also a questions/suggestion for your and the WG’s consideration.



Your suggestion has been added to the working draft, although I wonder if this is more applicable to the section on change requests, where the topic of string changes is talked about more fully? Specifically, it might make sense to add to this block of text in section 1.4.d instead (or in addition?):

Implementation Guidance: Some examples to consider in allowing for a new string to be selected include prepending/appending a new element to the original string or selecting a string that is closely related to the class/sector of the original string. ICANN org must perform a re-evaluation of the new applied-for string in all string related evaluation elements (e.g., DNS Stability, String Contention, etc.) and the application for the new string would be subject to string related objections (e.g., String Confusion Objections, Legal Rights Objections, etc.). The applicant may be responsible for additional, material costs incurred by ICANN due to re-evaluation and the application could be subject to delay.

Best,
Steve

From: "Aikman-Scalese, Anne" <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>
Date: Tuesday, October 9, 2018 at 8:35 AM
To: Steve Chan <steve.chan at icann.org<mailto:steve.chan at icann.org>>, "gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Subject: [Ext] RE: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Thanks Steve.  As mentioned on yesterday’s call, I have comments and language for the last bullet point under 1.2 (d).  After considering this language more carefully,  please see the following change in red:


  *   A third option a Working Group Member proposed was allowing certain types of private resolutions, but disallowing others. For example, as discussed in several sections of the Initial Report and in this Supplemental Initial Report, many Working Group members favored allowing applicants in a contention set to change their applied-for-string if that change is mutually agreed by the members of the contention set and the newly changes strings (a) were reasonably related to the original applications and (b) did not move the applicants’ newly selected strings into a different contention set. Under this option, the Working Group member proposed that changes would need to be approved by ICANN.   Another Working Group member noted that under this option, any proposed newly selected string that ICANN intended to approve would need to be (a) subject to name collision risk assessment, (b) put out for public comment and (c) open to established Objection procedures.  If parties are found to have engaged in non-acceptable forms of private resolution, that will result in (a) withdrawing of an application – if an agreement was not signed by the time it is discovered, or (b) forfeiture of the registry (if after a contract is signed). Some members of the Working Group, however, were not comfortable in putting ICANN in a position of approving (or disapproving) mechanisms of private resolution.



Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office


520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________


Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 2000

Tucson, Arizona 85701-1611

lrrc.com [lrrc.com]<https://urldefense.proofpoint.com/v2/url?u=http-3A__lrrc.com_&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=UAy6fqdE7uFkRCc7uzN4yui8bwTtqofadZHiQEIO1vw&m=MVx0nzP4joDJOrsrpDF6OMtXVUS0lLxK-EifC9k1Grs&s=kRn6INeSNhomMcZYjjR0SnPQrxI8W_TeXJQxYagqzvU&e=>




From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Steve Chan
Sent: Friday, October 05, 2018 2:42 PM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Proposed agenda - New gTLD Subsequent Procedures PDP WG - 8 October 2018 at 15:00 UTC

Dear WG Members,

Please find the proposed agenda for the New gTLD Subsequent Procedures PDP WG meeting scheduled for 8 October 2018 at 15:00 UTC, for 90 minutes.


  1.  Agenda review/SOIs
  2.  Supplemental Report: Review of sections 1.1, 1.2, 1.3, 1.4, and 1.5 continued
  3.  Planning for ICANN63
  4.  AOB

For agenda item 2, please find the latest draft, which accepted all red-lined edits made prior to the 2 October meeting (you can find that draft here: https://community.icann.org/x/4QirBQ). As it was anticipated that changes would be non-trivial, it was believed that accepting red-lines prior to making new proposed edits would improve the readability of this latest draft.

For Item 3, we will further discuss plans for the sessions scheduled for day 1 of ICANN63, Saturday 20 October (see the published schedule here: https://63.schedule.icann.org/meetings [63.schedule.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__63.schedule.icann.org_meetings&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=UAy6fqdE7uFkRCc7uzN4yui8bwTtqofadZHiQEIO1vw&m=MVx0nzP4joDJOrsrpDF6OMtXVUS0lLxK-EifC9k1Grs&s=OwbIxWSvUzEgvtmZSrNRFzGFNaHSTIyaP-H3NDPwC7c&e=>).

Those signed up as Members to this PDP WG should have received meeting information from the SOAC Support team. If you did not receive these participation details or if you would like to send your apologies, please contact the SOAC Support team (gnso-secs at icann.org<mailto:gnso-secs at icann.org>).

Best,
Steve 2


Steven Chan

Policy Director, GNSO Support

ICANN
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