[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 08 August 2019

[Aikman-Scalese, Anne]

Hi Jamie.  I certainly support your ideas on this and the reasoning is sound.  Would you be able to draft a “high level agreement” statement to which we can all react?

Separately, on the issue of policy with respect to applications still pending from previous rounds, I am hopeful that Susan’s draft will cover the issue of priority being afforded to those applications where new gTLD policy has changed.

There are several areas that, to my mind, could be affected by giving priority to applications that were made in prior rounds when, in fact, the policies have changed and the policy considerations may be the very reason a prior application is “on hold”.  Some examples appear below:

1. Geo Names.   Although I don’t know if there are still any outstanding or pending geo name applications, we could have some under the new policies from Work Track 5 but if Geo Name policy changes subsequent to this PDP for some reason, are we still saying we are giving priority to applicants who filed earlier but did not include newly-required policy in their commitments in their applications?  Are we saying we want to give them a priority chance to do that – or are we saying they don’t have to comply with any new policy?

2. Name Collisions – I believe we have applicants for .HOME, .CORP, and .MAIL  who have not withdrawn their applications even though the status is listed as “Not Approved”.  The issue here is name collision policy and the SSAC is working on this with the Name Collision Analysis Project.  Are we saying that those applications still get priority even though they don’t, as filed, take into account any new name collision policy that is currently being developed?  Or are we saying those applicants would have “first dibs” on coming into compliance with new Name Collisions policy?  Does the priority we will provide to prior applicants include applications that are listed as “Not Approved”?  Or is a “Not Approved” application not covered by the high level agreement on which we are seeking consensus?

3. Closed Generics – I don’t know if there are any outstanding applications for Closed Generics or if they have all been withdrawn.  I assume that an application that is withdrawn is an application that will not get priority status.  However, it’s possible that our current PDP work could result in further policy recommendations that would permit Closed Generics under certain conditions, e.g. the GAC Advice previously given that these be operated “in the Public Interest”.  If Closed Generic applications are permitted in the next round, but then Closed Generic policy is subsequently modified via PDP or EPDP, will previous applications still pending (not withdrawn) be given priority even if they don’t meet the new policy?   Will those previous applications still pending be given a chance to come up (or even down) to the new policy requirements by amending their applications?

The above considerations are reasons that I asked that the draft high level agreement being proposed cover possible policy changes that occur while prior round applications are still pending.  I’m sure my examples above are not exhaustive in this regard.  The fundamental questions here are
1) Which prior round applications are afforded priority? Does this include applications listed as “Not Approved” if these applications have not been withdrawn?  (There are several of these.)
2) Will prior round applications have to meet new policy to get priority or do they get to proceed under old policy?  (Should ICANN Legal be consulted  as to any litigation risks here?)
3) Will prior round applications be provided an opportunity to amend applications to comply with new policy considerations on issues that may have been holding up their prior applications?
Thank you.
Anne

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Jamie Baxter
Sent: Friday, August 9, 2019 7:03 AM
To: Julie Hedlund <julie.hedlund at icann.org>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 08 August 2019

[EXTERNAL]
________________________________
To follow on from Thursday’s conversation of prioritizing Community applications, I would offer the following.

Results of implementation decisions from the 2012 round resulted in all Community applications in contention being forced to endure one of the longest paths to contention resolution, regardless of how low their prioritization number was in the lottery draw. Without changes, this will absolutely happen again in subsequent procedures.

A core reason for Community applications in contention enduring long delays en route to contention resolution was the implementation decision to hold all Community Priority Evaluations (CPE) until the entire contention set was through initial evaluation. With some contention sets having more than half a dozen applicants, or even a single applicant at the end of the prioritization queuing, this immediately forced community applicants into unexpected delays to reach resolution (CPE or otherwise). Contention sets without Community applicants did not endure the same long delays of CPE results before moving to contention resolution.

We now know that CPE was not fully designed or ready for prime time at the start of the 2012 round (fact, not opinion), with many decisions about CPE procedures and evaluators happening well after reveal day and into the initial evaluation stage. This may have been why ICANN choose to place CPE at the end of the 2012 round, however I would like to think we are in a better place going into subsequent procedures to avoid the same mistakes.

Under the current implementation guidance, a Standard applicants choice to not be in the prioritization draw could also become a gaming tactic used to further delay Community applicants from learning the results of CPE. Are we comfortable with that?

What is dysfunctional about this implementation decision is that it takes the longest and most expensive route for the entire contention set to reach decisions on CPE. CPE is actually the quickest way to resolve a contention set, and a positive CPE result could spare Standard applicants in the contention set any expense for initial evaluation. CPE should be at the front of the process and not at the end, which means prioritizing Community applicants during initial evaluation is important.

Concern was expressed by Paul McGrady on the call about giving priority to “so-called communities,” however if that is the concern it seems even more prudent that you get to the bottom of CPE decisions early in the process and not at the end. There is no advantage actually offered or given to anyone if a Community applicant cannot pass CPE, however it does help answer a key contention resolution question upfront before thousands of dollars are spent on the initial evaluation of Standards in the contention set, or thousands of dollars are handed over to ICANN’s litigation fund from applicants that have no chance to proceed because of a successful CPE in their contention set. Are we comfortable spending money that does not need to be spent?

I’ve tried to look at this issue from the viewpoint of a Standard applicant as well. I would like to think that if my Standard application was in contention with a Community applicant that it would be helpful to know if they succeed in CPE before my application fee gets wasted on an initial evaluation that will have no meaning.

Having heard the concerns and comments, my suggestion would be that Community applicants in contention be prioritized during initial evaluation so that they can elect to start CPE as early as possible. This would also put a requirement on the Community applicant to commit to the CPE costs upfront in order to take part in the prioritization drawing. If their initial evaluation is successful they will immediately begin CPE.

Standard applicants could choose to delay their initial evaluation pending CPE results, or elect to proceed as per their prioritization number knowing evaluation costs against their application fee will begin to accumulate and be un-recoupable. In the event of an unsuccessful CPE, Standard applicants could elect to merge into the initial evaluation schedule in accordance with their prioritization number. This does give options to Standard applicants, but it also helps de-prioritize initial evaluations that have no urgency attached to them. Urgency does exist with Community applicants in contention because of the lengthy CPE process that still needs to follow. I will remind everyone that CPE has taken up to 9 months in the past, whereas initial evaluation was a much shorter time period.

I also believe that this helps reduce gaming, both from applicants trying to use the community path to their advantage and those trying to derail applicants on the community path. If CPE can be resolved up front then much time, resources and money is saved, but if CPE is unsuccessful then it is at least known upfront and gives no further priority to the Community applicant on the alternative route to contention resolution.

Let’s be sure to remember that the 2012 round was made up along the way with respect to Community applicants and CPE (fact, not opinion), and it didn’t actually benefit any type of application in the end. Standard applicants in the contention set waited just as long to get resolve in contention resolution, but everyone could get some benefit (time & cost) from prioritizing Community applicants and moving CPE to a much earlier place in the proceedings.

Thanks for hearing me out on this topic.
Jamie

-------- Original Message --------
Subject: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent
Procedures PDP WG - 08 August 2019
From: Julie Hedlund <julie.hedlund at icann.org<mailto:julie.hedlund at icann.org>>
Date: Thu, August 08, 2019 6:09 pm
To: "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>>
Dear Working Group members,

Please see below the notes from the meeting today, 08 August 2019. These high-level notes are designed to help WG members navigate through the content of the call and are not a substitute for the recording, transcript, or the chat, which will be posted at: https://community.icann.org/display/NGSPP/2019-08-08+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie
Julie Hedlund, Policy Director

Notes and Action Items:

Actions:

Proposal: Make priority numbers transferable between applications in an applicant portfolio:
ACTION ITEM: See whether there is enough support to keep this as a recommendation.  Christa Taylor and Paul McGrady will work on language.

Proposal: Priority processing for certain strings:
ACTION ITEM: Explore further the proposal to have community applications be prioritized.  Jamie Baxter to propose language in a separate thread.

Proposal: Prioritization of applications in the next round over those in subsequent rounds/windows:
ACTION ITEM: Susan Payne to send the proposal to the list to see if there is support.

Proposal: Change to the applied-for string to a closely related string to avoid contention. Re-evaluation would be required. There would be possible additional costs to applicant:
ACTION ITEM: Jeff to write up a proposal.

Notes:

1. Welcome and Updates to Statements of Interest: No updates provided.

2. Review of summary document:

a. Application Queuing (continued), beginning on page 2 – See: https://docs.google.com/document/d/1nf8qGP9Y7OYuT0ZvxIgM1fZtNa4Kj8DyhzpmPhEcNGM/edit#<https://docs.google.com/document/d/1nf8qGP9Y7OYuT0ZvxIgM1fZtNa4Kj8DyhzpmPhEcNGM/edit>

Make priority numbers transferable between applications in an applicant portfolio:
-- ICANN Org concern about secondary market for priority numbers
-- So you can't do this if your string is in contention.
-- That sounds sensible and there is broad support for this (only Registrars and 1 individual stated they were against it).

-- See if we can find that there is enough support for this proposal.  Not enough support in the comments to support or not support.
-- Priority numbers transferred with same owner should be fine.  Should not be creating a secondary market in priority numbers.

ACTION ITEM: See whether there is enough support to keep this as a recommendation.  Christa Taylor and Paul McGrady will work on language.

Application Queuing if there is a first-come first-serve process:
-- No consensus on having a first-come, first-served, process.

Priority processing for certain strings:
-- Default would be to keep the default as in 2012.
-- Add a priority to application support applications.
-- Order from the 2012 round: Drawing 1: IDN applications for which a ticket had been purchased
● Drawing 2: Non-IDN applications for which a ticket had been purchased
● Drawing 3: IDN applications for which a ticket had NOT been purchased
● Drawing 4: Non-IDN applications for which a ticket had NOT been purchased

-- Concern that portfolio applications undermine the basic commitment to enhancing competition and choice.
-- Evaluate community applications first since it is generally a longer cycle because of CPE.  There is a larger issue about the expectation that a community application has to endure a longer application evaluation period.
-- Support that IDNs go first.
-- Do not support - As we saw from the last round, so-called community applications are quite controversial.  I think AGB 2012 already gave them enough special rights.
-- There was also discussion on having Applicant Support Applicants going first.
-- IDNs could be treated as communities (people speaking the same language).
-- It seems to me that if CPE occurs early and that application fails CPE, it may clear the way for other applicants for that string and they will get to market sooner.  It makes sense for everyone and the marketplace in general to get to CPE as early as possible.
-- What about an Applicant Support applicant who needs time to raise funds if they are not eligible for AS funds?

-- Only heard 2 individuals supporting the new special treatment for community applications.  Is that enough to keep itu alive?  Seems like we could put that one to rest.
-- ALAC also expressed a preference for giving community applications priority.

ACTION ITEM: Explore further the proposal to have community applications be prioritized.  Jamie Baxter to propose language in a separate thread.

Prioritization of applications in the next round over those in subsequent rounds/windows:
-- COMMENT:  2012 applications are out of scope for this policy process - not in the PDP Charter.  The other issue is that applications made in 2012 may or may not meet the policies adopted for the next round.  In addition, a determination as to what is "confusingly similar' is a matter for the String Confusion Objection, not a matter for preventing an application from being made.  We can't put a "chilling effect" on new applicants.  COMMENT
-- This isn’t a suggestion to change the past round.
-- We still have applications from 2012 pending out there and we need to know how they will be dealt with
.
-- From the Valideus comment: “Although it does not expressly say so, this recomemndation should also apply to any applications from the 2012 round which remain pending - it should not be possible in a later application phase to submit an identical or confusingly similar application which takes precedence over one submitted in an earlier application phase.“
-- COMMENT @ Paul et al - Knowing how to deal with those 2012 applications does not mean there should be a ban on new applications for that same string.  You could say there would be no contention set but you can't say no one can apply for that string.  It violates the Principle of Applicant Freedom of Expression.  That's a long term policy issue for all Subsequent Rounds.  COMMENT
-- Valideus: If there still something from round one unresolved, aren’t we doing a disservice to new applicants who might apply for something that might never be available.
-- COMMENT: Round 2 applicants can decide whether or not they want to take the risk of applying for the same string or not.  COMMENT
COMMENT:  If policies change, the first application could fail.  COMMENT
-- It should be at their own (hopefully informed) risk; you pay yer money and you take your chances.

--  It is possible to have a list (or a place to go to) to check if an application is still pending (at least we can recommend that)
-- Application status is available here from the 2012 round applications: https://gtldresult.icann.org/applicationstatus/viewstatus
-- At the time the application window is opened, there should be a list readily available that identifies strings that are in some kind of 'pending' status.

-- ACTION ITEM: Susan Payne to send the proposal to the list to see if there is support.

ICANN Org: WG should clarify what is meant by “must have priority over applications submitted in any subsequent rounds/application windows.” For example must all applications in a current round complete contracting prior to any application in a subsequent round being able to sign a Registry Agreement? Note that priority number is also used in other program phases to prioritize applications (i.e., contracting and RST).
-- Didn’t get support for this concern.

b. Application Change Requests (page 5) -- See: https://docs.google.com/document/d/1nf8qGP9Y7OYuT0ZvxIgM1fZtNa4Kj8DyhzpmPhEcNGM/edit#<https://docs.google.com/document/d/1nf8qGP9Y7OYuT0ZvxIgM1fZtNa4Kj8DyhzpmPhEcNGM/edit>

Policy Goals: The framework for considering and responding to change requests should be clear, consistent, fair and predictable.

High-Level Agreement:
-- Part of this is referring to the criteria that ICANN used into 2012 (in the Initial Report).
-- The change request process and criteria are here: https://newgtlds.icann.org/en/applicants/global-support/change-requests
-- Explanation: Is a reasonable explanation provided?
2. Evidence that original submission was in error: Are there indicia to support an
assertion that the change merely corrects an error?
3. Other third parties affected: Does the change affect other third parties
materially?
4. Precedents: Is the change similar to others that have already been approved?
Could the change lead others to request similar changes that could affect third
parties or result in undesirable effects on the program?
5. Fairness to applicants: Would allowing the change be construed as fair to the
general community? Would disallowing the change be construed as unfair?
6. Materiality: Would the change affect the evaluation score or require reevaluation of some or all of the application? Would the change affect string
contention or community priority?
7. Timing: Does the timing interfere with the evaluation process in some way?
-- When drafting in relation to pending applications still outstanding from 2012, could you be sure to cover the issue of possible non-compliance of those applications with new policy adopted subsequent to 2012?  (I previously suggested, as Christopher Wilkinson pointed out on

On this point: If it is allowed that an applicant may change the applied-for string because the original string is in a contention set, the new string should not create a new contention set or enter into another existing contention set.
-- Not sure why this should be in the high-level agreement.
-- It is here because it is conditional.

Outstanding Items - New Ideas/Concerns/Divergence
Suggested change to allow: Change to the applied-for string to a closely related string to avoid contention. Re-evaluation would be required. There would be possible additional costs to applicant:
-- Opposed: Risk of gaming, difficult situation for public and applicant.

Discussion:
-- How would this not be fair?  The issue if it is generic/dictionary terms.
-- Modify the proposal that if you are a brand owner and had a trademark and wanted to change your string with a descriptor.
-- Raises a lot of questions about processes.  There are much more complex examples.
-- ICANN Org concerns: Very careful about change requests to the applied for string in the 2012 round. If an application is allowed to change the applied for string then all the applications would need to be re-evaluated.  Could create additional contention sets.  Very subjective to decide what “closely related” means.
-- changing to something similar will open door to the applications made with intentions of future changes … it is bad from the public being confused during the comments phase
-- COMMENT:  The issue re modification in the .brand realm is that the .brand applicant may not have trademark rights in the modified string. This would have to be put out for public comment. There could be other trademark holders who might object to the modified string as confusingly similar.  COMMENT
-- I agree with the general idea that Kathy has put forward.  I disagree with the idea that it should be limited to brands that are “non-generic terms.”
-- Trademarks are inherently non-generic in their context, so the requirement is a non-sequitor

-- These revised string should still be subject to all the usual objection processes (not sure anyone said otherwise...).
-- If we narrow down the proposal the complications go away.
-- Don't support the proposal and share the concerns raised by Jamie and Trang. I don't believe this is as simple as you make it out to be.
--  There may be some relevant comments to this discussion that were submitted under the topic of auctions of last resort -- there's some overlap in the two subjects and comments on them.

Change to the applied-for string to a closely related string to avoid contention. Re-evaluation would be required. There would be possible additional costs to applicant:
ACTION ITEM: Jeff to write up a proposal.

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