[Gnso-newgtld-wg] Updated Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 10 December 2019
julie.hedlund at icann.org
Wed Dec 11 15:23:25 UTC 2019
Dear Working Group members,
Please see below the updated notes with clarifications from Justine Chew as highlighted in yellow below in the section on Background Screening. These also have been posted on the wiki.
Notes and Action Items:
Limited Appeals Mechanism: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit#gid=0
ACTION ITEM 1: Send to the list whether there was a standard amount of time for the applicant to get the required documentation.
ACTION ITEM 2: Put the question in brackets [consider: loser pays?] with a question mark (done). WG should consider whether loser pays model if no issues were found in the background screening (text in red).
Limited Public Interest Objection and Community Objection -- Independent Objector:
ACTION ITEM 3: Work on a formula to limit ALAC appeals without getting ICANN or the Ombudsman involved in making a determination. Send the links to the ALAC’s objection and appeals process.
1. Updates to Statements of Interest: No updates provided.
2. Limited Appeals Mechanism: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit#gid=0
-- Changed title of column B to “Outcome that Might Warrant Challenge” from “Outcome that Might Warrant Appeal”
-- Also replaced “Appeal” with “Challenge” in columns E and F: “Arbiter of Challenge” and “Likely Results of Successful Challenge”.
-- Filled in details from the Work Track 5 Final Report.
-- The three types of outcomes that we can foresee challenges would be the first instance would be if a term is designated as a geographic name, this may be something that the applicants may not have wanted.
First type of challenge:
-- The arbiter of such a challenge like the others would although this topic still under discussion, and I think we will still need to complete that as to whether it's okay for the existing evaluator as a as a company or organization can review that challenge or whether we would need to mandate a separate complete entity to look at these types of challenges.
-- So that is still an issue. But regardless of the arbiter of the challenge, if there's a successful challenge then that would mean that the decision of the Geographic Names panel would be reversed and the cost would be borne by the applicant for this challenge, and there's still a question that will need to discuss overall as to whether a successful challenge should result in a partial refund.
-- Well, a couple different things right in the objections that we'll talk about appeals for objections, we have a loser pays model for them and we'll go through that and but for evaluations because evaluators come at a significant cost to ICANN, and ultimately are paid by through the application fees if there is a successful appeal there technically is no loser because it's not one party challenging another party. And so the ability to provide full refunds or even partial refunds are hindered a bit because it would be tough in theory, to find an evaluator that would be willing to take on this role, only to then have to either do the appeal for free or willing to refund money as a result.
-- So, though, that's still not off the table. And in fact, a number of evaluators when there were a few challenges that were ordered by ICANN. There weren't that many. But were there were some challenges that was funded by either ICANN or the evaluators themselves. So the applicant was not forced to pay a fee. But again, that was really rare that there was a reevaluation and really only came about because of a reconsideration request or something or an accountability mechanism that order.
Second type of challenge:
-- By the applicant where they wanted it to be designated a geographic name or you could have a challenge by perhaps a government or public authority, where they had expected it to be designated as a geographic name same arbiter issues that we were talking about before.
-- And if there were a successful appeal by either one success successful challenge by either of those two parties, then the name the decision that the outcome would be to designated as a geographic string and then the question is, who would bear the cost and like the previous one. The cost would be borne by the applicant if it was the one that challenged or the government or public authority if they were the ones that challenged and we start the question of partial refund.
Third type of challenge:
-- Would be a definition of relevant governments are disputed or there's some other deficiency in documentation. So this is, again, if a name is doesn't need as a geographic name and it requires either consent or non-objection from the relevant government then a letter is required. According to the guidebook and this is the case where the evaluation panel finds that the either the consent or not objection was deficient or that there was consent or not objection from a non-relevant government. So the two potential parties that are affected would be the applicant again and same as the last one relevant government of public authority and they would be parties, the parties would standing the likely result if a challenge is successful, would be to either approve of the letter of consent or non-objection, which was initially not proved or to revise the finding that it did not receive a letter of consent or not objection.
-- The cost will be borne by the challenging party and we would still have to see whether it be possible to do a partial refund. If the party that bears the cost succeeds.
-- Question: So what in a case like that, where the applicant didn't think it was a geographic name and the geographic panel in the first instance agrees with them and then a government entity or relevant government or public authority files a an appeal because it's presented a challenge and say the government then prevails on that. Will the applicant be given a chance to amend their application and get whatever they need to get to have the application move forward because that sounds to me like if the applicant doesn't think it is and the geographic panel, at least in the first instance, doesn't think it is that it's a close call or they just screwed.
-- Answer: It would seem that the applicants who did not think that it was a geographic name should have a period of time to then get that letter of non-objection or consent.
-- The way that the Geographic Names evaluation took place in the 2012 round: Every single name or every single string that was applied for was evaluated to determine whether or not it was geographic name or not. And so in the instance where the applicant did not designated as a geographic name, but the panel did determine if it is a geographic name. The applicant would get some time to get the required documentation.
-- If somebody applies for something that's on a clear list of words that people aren't allowed to use and they don't designate it and they don't submit the proper papers from the appropriate government then the geographic panel bounces it out.
ACTION: Send to the list whether there was a standard amount of time for the applicant to get the required documentation.
Row 18: RSP Pre-Approval:
-- Added since the last WG meeting.
-- So this is where the registry service provider is in the is applying in the for pre-approval in the pre-approval process. If it somehow fails the evaluation and therefore would be unable to much other words, it says, unable to participate in the program. I think if it fails pre approval. It's unable to get pre approval, but it still could participate in the regular evaluation process.
-- We'll have to think that through because I think the current recommendation is to do a pre-approval process prior to the beginning of each round and so because you are pre-approved for that particular round but not necessarily pre-approved for future rounds. And so I think that that makes sense. But when we review the pre-approval program will have to just make sure that we keep this in mind.
-- Question: In context of the background screening, whether that covered the criteria for applicant eligibility, which is stated in the AGB s.1.2.1. So the first question was does background screening cover eligibility checks? And assuming that it does, which to my understanding of the AGB, the answer would be yes, then that's where third parties would come in. Going back to the ALAC feedback that was given to through our response in terms of setting higher standards for applicants where we brought to light again two incidences of background screening failures. For example, one of the applicants clearly failed on account of the UDRP decision element, but the applicant didn't fail the background screening, despite having more than three UDRP decisions against that applicant. So in that situation would that provide grounds for third party to raise a challenge on the background screening outcome?
-- Answer: It makes sense to allow third-party challenges for cybersquatting and UDRP.
-- Question: In follow through, the second question, in that case, who bears the costs?
-- Answer: On the one hand, it was something that the background evaluator should have found, and then to make a third party pay for that kind of challenges. It seems to be difficult, but perhaps that's kind of a loser pays model because it is one party against another party, in a sense, like the objections. Let’s think about whether it makes sense that that will could be a loser pays kind of model -- give it some more thought.
-- So that's a way to deal with both frivolous challenges and frivolous defenses and not put the evaluators in the line of fire.
ACTION: Put this question in brackets [consider: loser pays?] with a question mark (done). WG should consider whether loser pays model if no issues were found in the background screening (text in red).
-- Time period: Suggesting 15 days to file (noted in red text). Don’t know if that’s the right amount of time. Helpful to get comments on the email list.
-- Another option: 15 days to signal your intent to appeal and then giving another 15 days or something like that to pay file to the appeal. That’s also another possibility to have a certain time period to give your Notice of Intent to appeal and then an additional time period to actually file that appeal that is certainly a feasible option as well.
Limited Public Interest Objection and Community Objection:
-- Added “Loser Pays (The IO must have adequate budget to pay an unsuccessful appeal)”. Must be filed within 15 days.
-- Same for Community Objection.
-- Considering whether ICANN should fund appeals to the objections – essentially paying twice for the objection. So, if ALAC loses an objection and then appeals, ICANN would fund in both cases.
-- A compromise could be that if ALAC could convince ICANN that it would likely win on appeal then ICANN would fund the appeal. But that would put ICANN in the position of picking winners and losers, rather than an appeals panel.
-- Alternatively we could consider a limit on the number of appeals ALAC could file, to try to make it predictable and limited.
-- LPIO and CO, the ALAC has made it clear that "Loser Pays (No ICANN Reimbursement)" is NOT FEASIBLE where the ALAC loses the appeal. That would effectively restrict the ALAC from considering filing any appeal. I think the same applies to IO.
-- I think we are trying to find a way for ALAC to have what it needs. Doesn't sound like ALAC went wild last time (unlike arguably the IO - sorry, I know that is settled but the track record wasn't fabulous)
-- For 2012, the ALAC had a stringent process for determining which strings it thought should be objected to.
-- The ALAC objections/appeals have to be adequately funded. Let's work on a formula to get there, but try to avoid seeking ICANN, IO, or Ombs second guessing
-- From the 2012 AGB: Guidebook 3.3.2: Funding from ICANN for objection filing fees, as well as for advance payment of costs (see subsection 3.4.7 below) is available to the At-Large Advisory Committee (ALAC). Funding for ALAC objection filing and dispute resolution fees is contingent on publication by ALAC of its approved process for considering and making objections. At a minimum, the process for objecting to a gTLD application will require: bottom-up development of potential objections, discussion and approval of objections at the Regional At-Large Organization (RALO) level, and a process for consideration and approval of the objection by the At-Large Advisory Committee.
-- There's definitely a resource or could be a resource constraint. So we do need to think of some balance between those. And whether that's some sort of formula or other type of mechanism.
-- Third party could not pick up ALAC’s option to appeal.
ACTION: Work on a formula to limit ALAC appeals without getting ICANN or the Ombudsman involved in making a determination. Send the links to the ALAC’s objection and appeals process.
For the next WG meeting: Predictability Framework: https://docs.google.com/document/d/12_x8zYR9r6zXqfA7dmoosSPH12NmcyJ-2FEjecGrBh4/edit#heading=h.7kd5yr7uelh2
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