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

Heather Forrest haforrestesq at gmail.com
Wed Aug 28 03:43:35 UTC 2019


Thanks, Maxim - I understand that, but amendments to an in-force contract
are not the same as repudiating a contract and asking for a new contract to
apply. The terms of the RA (clause 7.6(a) re "Special Amendment") and the
AGB expressly provided for amendments to both.

AGB Module 6, cl 14: "ICANN reserves the right to make reasonable updates
and changes to this applicant guidebook and to the application process,
including the process for withdrawal of applications, at any time by
posting notice of such updates and changes to the ICANN website, including
as the possible result of new policies that might be adopted or advice to
ICANN from ICANN advisory committees during the course of the application
process.  Applicant acknowledges that ICANN may make such updates and
changes and agrees that its application will be subject to any such updates
and changes. In the event that Applicant has completed and submitted its
application prior to such updates or changes and Applicant can demonstrate
to ICANN that compliance with such updates or changes would present a
material hardship to Applicant, then ICANN will work with Applicant in good
faith to attempt to make reasonable accommodations in order to mitigate any
negative consequences for Applicant to the extent possible consistent with
ICANN's mission to ensure the stable and secure operation of the Internet's
unique identifier systems."

I can anticipate here that someone will say: "But Module 6 cl 14 expressly
anticipates changes to the AGB and gives the 2012 applicant a right to
demonstrate material hardship caused by the 'new' AGB being on more
favourable terms!" I don't think that will be consistent with standard
contract law interpretation in US courts, as only the 2012 applicants
agreed to be contractually bound by the 2012 AGB, while new round
applicants will only have the option of agreeing to whatever the AGB (or
whatever name it has) is at that time, not a choice between old AGB or new
AGB. A strict interpretation of "changes to *this applicant guidebook*"
logically suggests that the 2012 AGB binds applicants who applied in 2012,
because by applying, they consented to the application of the 2012 AGB. A
new AGB, even if technically an amended version of the prior document,
would apply to new applicants in the "next" round, whenever that is.
Articulated another way, I think Jeff's point to now is that the charter of
SubPro PDP instructs us to develop the rules that will apply to applicants
in this "next" round, not to unsuccessful or any other applicants of the
2012 round (who already contractually agreed to a set of rules when they
submitted their application to the TAS). The question of whether the new
AGB/RA that results from SubPro PDP, RPM PDP, CCT Review, etc is to be
applied to 2012 applicants is not within our PDP's scope. That's the
question that would have to go to Council.

Best wishes,

Heather

.

Best wishes,

Heather

On Wed, Aug 28, 2019 at 11:51 AM Maxim Alzoba <m.alzoba at gmail.com> wrote:

> 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, 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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