[Gnso-newgtld-wg] Closed Generics and the 2012 Round

Wed Aug 28 01:51:12 UTC 2019

Heather, 

Formally ICANN changed AGB and RAin 2012 (Pic spec, for example), after the fees were paid. 

But anyway, we should not mix rules from the different sets. 

⁣Maxim Alzoba

On 28 Aug 2019, 08:35, at 08:35, Heather Forrest <haforrestesq at gmail.com> wrote:
>Anne, all,
>
>It seems to me that basic principles of contract law apply here to keep
>us
>out of the weeds. ICANN's legal framework depends, in its entirety, on
>contract after all. Applicants who applied in 2012 under the AGB
>contractually agreed, by submitting an application, to the AGB and the
>base
>RA that was incorporated in it. Those applicants did not apply under a
>future AGB, or a future RA to reflect that future AGB.
>
>Whether a party on a 2012-era contract can adopt (in the case of those
>not
>yet contracted) the new RA or rescind current RA and adopt new RA (for
>those already completed contracting) is a separate question. I agree
>with
>Jeff that this separate question is not within the scope of the SubPro
>charter.
>
>Best wishes,
>
>Heather
>
>On Tue, Aug 27, 2019 at 5:50 AM Aikman-Scalese, Anne <AAikman at lrrc.com>
>wrote:
>
>> Hi Jeff – Do we have Susan’s draft language on your first point yet? 
>(You
>> may recall that there were even discussions about PROHIBITING new
>> applications for the same string as some still pending from 2012
>–that was
>> not agreed so Susan is working on a statement that 2012 string
>application
>> processing must be complete before any new application for that
>string
>> would be considered.  HOWEVER – again here is the “rub” – When you
>say 2012
>> string applications have to be “completed”, what are you saying about
>the
>> policy that applies to those?    What if the pending strings from
>2012
>> don’t meet current new gTLD policy but they did not violate that
>policy as
>> of the time of application?  We can only skirt this issue for so
>long.  Are
>> 2012 strings going to be allowed to update to current gTLD policy in
>order
>> to get authorization to proceed or not?  Or are you saying GNSO
>Council
>> will have to launch another PDP for that purpose?
>>
>>
>>
>> *From:* Jeff Neuman <jeff.neuman at comlaude.com>
>> *Sent:* Monday, August 26, 2019 12:43 PM
>> *To:* Aikman-Scalese, Anne <AAikman at lrrc.com>;
>gnso-newgtld-wg at icann.org
>> *Subject:* RE: Closed Generics and the 2012 Round
>>
>>
>>
>> *[EXTERNAL]*
>> ------------------------------
>>
>> Anne,
>>
>>
>>
>> Where has it been proposed that applications from 2012 get priority? 
>I am
>> not aware of any recommendation that we have made that gives
>“priority” to
>> any applicants from 2012.  We did recommend that any applications
>that were
>> still outstanding for a string that is applied from in a subsequent
>round
>> be completed.
>>
>>
>>
>> With respect to Exclusive Generics, the Board resolution on this
>matter
>> stated that any applications that wanted to maintain their “exclusive
>> generic” status would be “deferred to the next round of the New gTLD
>> Program, subject to rules developed for the next round…”   They did
>not
>> state that any of those applications would get priority.  However,
>there
>> were no applications that were deferred from the last round.
>>
>>
>>
>> If we did allow some form of Exclusive Generic in the next round,
>then
>> those rules would only apply to new applicants for TLDs.  Discussing
>what
>> happens to TLDs from 2012 that wanted to be Exclusive Generics, but
>ended
>> up opening their TLDs because of the Board Resolution is not within
>the
>> topics contained within our Charter.  So yes if we wanted to discuss
>that
>> issue we would need an amendment to our charter to allow us to tackle
>that
>> subject.  The GNSO could then either grant our request or farm that
>issue
>> out to a separate group.  That is within their discretion.
>>
>>
>>
>> This is no different than any other changes we recommend where
>applicants
>> from the past round would want the same things.  For example, if we
>accept
>> changes to the code of conduct, the COI, reserved names, agreement,
>etc.,
>> the existing registries would not get the benefit of those changes
>unless
>> the changes go through a PDP that has jurisdiction over those issues.
>  All
>> Applications / TLDs are treated according the to rules for the round
>in
>> which they applied.  This is true regardless of whether they have
>launched
>> yet or not.
>>
>>
>>
>> I hope this clears things up.
>>
>>
>>
>>
>>
>>
>>
>> *Jeff Neuman*
>>
>> Senior Vice President
>>
>> *Com Laude | Valideus*
>>
>> D: +1.703.635.7514
>>
>> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
>>
>>
>>
>> *From:* Aikman-Scalese, Anne <AAikman at lrrc.com>
>> *Sent:* Monday, August 26, 2019 2:55 PM
>> *To:* Jeff Neuman <jeff.neuman at comlaude.com>;
>gnso-newgtld-wg at icann.org
>> *Subject:* RE: Closed Generics and the 2012 Round
>>
>>
>>
>> Thanks Jeff.  Your reasoning below is not consistent with what has
>been
>> proposed in relation to giving priority to applications from the 2012
>round
>> that have not been withdrawn.  (How is it that this “priority” is in
>scope
>> for our WG but nothing else re 2012 applicants is in scope?   AND if
>I
>> applied for a Closed Generic and didn’t get it in 2012, why should I
>have
>> to require another PDP authorization from GNSO Council in order to be
>> treated similarly to new applicants and convert to a Closed Generic? 
>(I
>> believe some open registries that won contention sets in 2012 may not
>have
>> not have actually launched yet.  Why would we say that whether or not
>they
>> can launch as a Closed Generic is up to GNSO Council?)
>>
>> Thank you,
>>
>> Anne
>>
>>
>>
>>
>>
>> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On
>Behalf Of
>> *Jeff Neuman
>> *Sent:* Monday, August 26, 2019 5:27 AM
>> *To:* Jeff Neuman <jeff.neuman at comlaude.com>;
>gnso-newgtld-wg at icann.org
>> *Subject:* Re: [Gnso-newgtld-wg] Closed Generics and the 2012 Round
>>
>>
>>
>> *[EXTERNAL]*
>> ------------------------------
>>
>> Thanks all.  We have already got a number of people signed up for the
>> group.  I expect substantive discussions on this topic to start this
>week.
>> So, it is not too late to join.  But remember that if you join, the
>> expectation is that we will attempt to find a compromise solution
>that we
>> all can live with (if possible).
>>
>>
>>
>> You can view the member list for the small group here:
>>
>https://community.icann.org/display/NGSPP/Members+New+gTLD+%3A+Topic+of+Closed+Generics
>> Please allow a day or two to pass before seeing your name on the list
>if
>> you just volunteered over the weekend or today.
>>
>>
>>
>> We will not be talking about Closed Generics in our next meeting
>tomorrow
>> (late tonight for some of us).
>>
>>
>>
>>
>>
>> *Jeff Neuman*
>>
>> Senior Vice President
>>
>> *Com Laude | Valideus*
>>
>> D: +1.703.635.7514
>>
>> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
>>
>>
>>
>> *From:* Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> *On
>Behalf Of
>> *Jeff Neuman
>> *Sent:* Friday, August 23, 2019 11:01 AM
>> *To:* gnso-newgtld-wg at icann.org
>> *Subject:* [Gnso-newgtld-wg] Closed Generics and the 2012 Round
>>
>>
>>
>> All,
>>
>>
>> There has been a lot of discussion in the past 24 hours or so on the
>> applicability of our work on the 2012 applications.  Some have
>expressed
>> concerns about the “fairness” of establishing a policy or new
>procedures
>> for subsequent rounds when Closed Generics were not allowed in 2012.
>>
>>
>>
>> The applicable Board Resolution covering Closed Generics required the
>2012
>> applicants for Closed Generics to do one of three things.  Applicants
>could
>> have withdrawn their applications completely, signed the then-current
>> Registry Agreement which did not allow Closed Generics, or could have
>> deferred their applications for consideration in a subsequent round. 
> As
>> we covered on the call on Thursday, all of the applicants chose
>either to
>> convert their applications to open TLDs or withdraw their
>applications
>> completely.  There were NO applicants that elected to defer their
>> applications to any future round.
>>
>>
>>
>> Therefore, although in theory we could have had some issues that we
>needed
>> to address involving applicants in the 2012 round, the reality is
>that we
>> do not have any such issues.  To address the arguments about fairness
>of
>> any new policy recommendations on applicants from the previous round,
>all
>> we can say is that we need to focus on what the right policy should
>be
>> first without the consideration of the fairness or unfairness to
>previous
>> applicants from having different rules.  If we as a group determine
>that
>> the right policy is something other than what happened in 2012, then
>it
>> will by up to the GNSO Council to either set up a new group to deal
>with
>> that issue or to refer the issue to this group at a later date.  But
>for
>> now, as some have stated, that issue is out of scope for our group.
>>
>>
>>
>> The reality is that there are many things that this group is
>considering
>> which could produce results that may treat new applicants differently
>than
>> previous round applicants.  Some of those changes may be favorable to
>the
>> new applicants and some less favorable.  The same is true with
>respect to
>> previous applicants.  If we did not make any changes to policy or
>> implementation for fear of the impact on previous or new applicants,
>no
>> changes would ever be made.  The point is that we need to decide what
>is
>> the right thing to do, point out to the GNSO Council the potential
>impacts,
>> and then leave it to the Council on what the next steps should be.
>>
>>
>>
>> Finally, all requests for data or information from ICANN staff or any
>> outside third party should go through the Working Group Leadership
>team. No
>> working group members should request information directly without
>> Leadership’s review. Leadership reviews all outstanding action items,
>> including requests for information, and makes a decision on what is
>> necessary and what is feasible.  We consider all of these requests
>> seriously and weigh the pros and cons of getting that data, including
>time,
>> resources and cost.
>>
>>
>> Thanks for your cooperation and let us know if you have any comments
>or
>> questions.
>>
>>
>>
>>
>>
>>
>>
>> *Jeff Neuman*
>>
>> Senior Vice President
>>
>>
>>
>>
>> *Com Laude | Valideus *1751 Pinnacle Drive
>>
>> Suite 600, McLean
>>
>> VA 22102, USA
>>
>>
>> M: +1.202.549.5079
>>
>> D: +1.703.635.7514
>>
>> E: *jeff.neuman at comlaude.com <jeff.neuman at comlaude.com>*
>> www.comlaude.com
>>
>>
>>
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