[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 09 March 2019

Aikman-Scalese, Anne AAikman at lrrc.com
Mon Mar 11 19:33:38 UTC 2019

Thanks Jamie.  These are good thoughts which further demonstrate the need for public comment on these specific issues.

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Jamie Baxter
Sent: Monday, March 11, 2019 9:04 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 - 09 March 2019

My apologies to the group for not being able to join the March 2 session on Subsequent Procedures in Kobe.

After review of the Adobe record, I would like to respond to a few points made and offer some additional insights that do not appear to be part of the current dialogue considerations.

A.   “Closure of a round”

It was suggested in the Adobe chat during the discussions on concepts for round closure, that a “time limit” be put on resolving contention (reason unclear). Given that contention resolution is simply an end place, and may occur at several places in the process and/or at a much later place in contentions involving community applicants, I think this suggestion:

a.    runs contrary to an applicant’s right to engage in accountability mechanisms, including reconsideration requests, CEP, IRP, (and hopefully the new appeals process), and

b.   it seems to minimize or lack acknowledgement that delays in resolving contention has largely existed at the pace of ICANN (org & Board)

    1. extending ICANN’s response times beyond published response schedules, with ICANN often referencing a rationale outside of an applicant’s control such as Board/Board committee meeting schedules and/or ICANN personnel availability, and

    2. enlisting additional (and often lengthy) reports and investigations to address unforeseen issues and concerns throughout the ongoing round

The key point that I am making here is that if any policy or predictability of that policy involving “closure of a round” is to be achieved, all stakeholders and roles involved in achieving that need to be fully understood and held to account - including ICANN org & Board.

My personal opinion is that in the 2012 round, ICANN either took or imposed “time-related” liberties that may ultimately continue to drag down any policy or predictability of policy on round closure going forward. Their role and ability/willingness to align with policy goals on round closure must be part of the discussion.

B.   Limited Appeals Mechanism

I would completely disagree with any assertion coming from the in person meeting that the current offerings of ICANN accountability mechanisms is sufficient to address cases where third party evaluators simply got something wrong.

I agree with both Jeff Neuman’s spoken comments (unfair and/or inconsistent decisions) and the Adobe chat comment of Anne Aikman-Scalese (Board not being responsible for appeals, instead leaning on experts) on issues and methods for inserting an appeals mechanism. Greg Satan has perfectly articulated the problem and clear reason why an appeal process on substance is necessary – process may be right, but substantive outcome was completely wrong. Any marginalized population can attest to an experience where a well-intended process has let them down or left them behind because of misunderstandings or bias, and where the lack of redress has simply added to their marginalization.

It is important to course correct substantive errors early in the process (i.e. as they occur). This ensures applicants are treated more fairly, avoids unwarranted stigma about an application, and it prevents the Board from being forced into a corner of defending a third party outcome that seemingly tows the line procedurally, but which they believe or may believe is substantively flawed.


-------- Original Message --------
Subject: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent
Procedures PDP WG - 09 March 2019
From: Julie Hedlund <julie.hedlund at icann.org<mailto:julie.hedlund at icann.org>>
Date: Sat, March 09, 2019 7:26 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 meetings at ICANN64 in Kobe on 09 March 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/2019-03-09+ICANN64+Kobe+-+New+gTLD+Subsequent+Procedures+PDP.

Please also see the attached referenced slides.

Kind regards,
Julie Hedlund, Policy Director

Notes and Action Items:

Sessions 1 and 2:

1. Intro and Current Status:

-- Timeline: Will probably have a very narrow additional public comment period.
-- Question: Will the comment period and analysis of 4 months realistic?  Answer: We think it is realistic.
-- Important for the next public comment period to be very targeted.
-- Need to weigh the benefits – would need to be substantive issues.
-- Any future public comment period (and any after the Initial Report) are not required – but if we do one it will be a decision by the WG.  There also needs to be a benefit to outweigh the costs.

2. Open WG topics:

a. ‘Closure’ of a Round:

i. What are the elements of the New gTLD Program that may be impacted by defining “the Closure of a Round”?  Do these elements truly depend on “Closing the Round” or are there other potential triggers for these elements?
ii. What milestones are needed to start the next round?
iii. What milestones are needed to distribute excess funds, if applicable?
iv. Should an applicant be required to withdraw their application(s) upon a final action being taken that impacts such application(s)? If so, what events would trigger the required withdrawal of such applications?
v. If applications are either still pending in one of the stages of the new gTLD Program, or if the time period for which an accountability mechanism or appeal can be filed before subsequent procedures begin, should applicants be able to apply for that/those string(s) in such subsequent procedures?  If no, should that/those string be “reserved”? If yes, what would be the impact on the process for those new applications?
vi. If a string was rejected (or alternatively all applications for a particular string are rejected), should there be anything preventing an applicant from applying for the same string

-- Question: What’s a round and what’s an application?  What do we mean by “rounds”?
-- Could do it by application windows – Next window closes X amount of time after the close of the previous window; it’s a rolling process.
-- Question: What does “closure” mean and what does it symbolize?  Could look at various elements and their disposition, such as auctions.
-- Closure could be when X percent are delegated.
-- Read out from the chat: Anne Aikman-Scalese (IPC): COMMENT: These questions regarding "Closure" of a Round are good ones and demonstrate that this is one of those topics that deserves public comment.  COMMENT
-- There is the issue of variables – could we look at combining a fixed date and passing a certain stage, whichever is sooner.  If you haven’t passed 50% of a certain stage then you don’t move on.
-- It depends on whether we are talking about rounds or ongoing.
-- What happens if we decide that X is a threshold, what happens to those who didn’t make it?  You would have to set the rules before anyone applies.
-- One trigger event – find solution for ending accountability mechanisms as these could hold up future applications.
-- Anne Aikman-Scalese (IPC): QUESTION:  Should the opening of a new application window be dependent on ICANN org's estimate of how long it will take with its existing workload to complete the work on the outstanding applications?  QUESTION
-- Needs to be some way to make sure that an applicant is actively moving towards a goal.
-- On the question of whether to have a reason for forced withdrawal – should have to say why it should matter.
-- Could alert an applicant that they have X amount of time unless you can document why you haven’t withdrawn.

b. Limited Appeals Mechanisms, what still needs to be resolved?

i. In the Initial Report we recommended the creation of a limited appeals mechanism be developed which is wholly separate from Accountability Mechanisms under the Bylaws. The comments we received to the Initial Report seemed to support this recommendation.
ii. More specifically, we see support in general for:
1) Allowing both substantive and procedural challenges
a) Identify specific program elements (evaluation, objections, CAPE, etc.?).
b) Confirm if it this intended to apply to inconsistent application of the AGB?
c) Confirm if it this intended to apply to outcomes that an applicant simply does not agree with?
d) See comments from Jamie Baxter, ALAC, RySG, Valideus, Council of Europe
2) Standing for appeals being granted to directly aggrieved parties (applicants, either directly or indirectly affected (e.g., string contention))

Questions for Consideration:
a. Any additional limitations? Any additional criteria for qualifying standing?
3) A quick look mechanism to limit frivolous challenges
a. What is the outcome/repercussion if an appeal is found to be frivolous?
4. A Limit of one appeal per applicant relating to a particular cause of action/facts and circumstances giving rise to the appeal.
5. Establishing a loser pays model
6. Allowing the remedy to determined by what is being appealed
a) When should remedies be identified?
7) A 3rd-party to be the arbiter of the appeals process
a) How would the mechanism be paid for? Should it be built into application fees for instance?
8. Ensuring that utilizing the limited appeals process will not limit access to Accountability Mechanisms.

-- Allow appeals for those who don’t get to be a community and/or those who don’t think the other should be a community; or a third party that doesn’t think a community application should have been awarded.  Example is .hotel.  Could be anyone in contention for a string as well as anyone who has objections.
-- Or maybe have both appeals and objections, or don’t call this an appeals mechanism, since they don’t call for the same type of procedure.  Even in the case of an appeal there is the question of whether third parties can join as amici or challengers.
-- If you have a one-sided appeal it raises an issue.
-- There was no appeal mechanism in the 2012 round, but they could file an accountability mechanism.
-- WG agreed in the Initial Report agreed that there should be a limited appeal mechanism.
-- Having a limited appeal – to look at all aspects of appeals – would enhance accountability.
-- Could allow appeals from third parties (non-affiliated).  Would this be more of an objection?  There might be communities that might not have the money to front an objection.
-- Anne Aikman-Scalese (IPC): COMMENT: It may help to distinguish between a decision made by ICANN versus a decision made by a designated Panel outside ICANN -e.g. WIPO, ICC, etc.  COMMENT
-- Anne Aikman-Scalese (IPC): COMMENT:  I don' t think one appeals panel would be qualified to evaluate all types of appeals - For example, Legal Rights Objection  is different from ICANN's evaluation of financial qualification of the applicant.  COMMENT
-- Could try to mind map this out to help to connect the question to a response, depending on the context.
-- Different types of processes that might be appealed. Might want to consider the recommendation to outsource, as in 2012 round.
-- Grounds for the appeal: need to decide them and make them somewhat limited.  If we establish a clear appeals level then you would get one appeal per level.
-- Grounds could be that the rules weren’t followed; next question is who is named in that appeal.  You aren’t challenging someone, you are appealing the decision to an appellate authority.
-- Make a mandatory requirement for panelists to reveal their affiliations and sign off on knowledge of ICANN rules.
-- Don’t mix limited appeals with accountability mechanisms.  Have one accountability mechanism dedicated to the community at large, one to applicants and those associated with applications could be the new appeal mechanisms.
-- Apply new limited appeal mechanism to next round of gTLDs, but any appeal of a technical evaluation would go to ICANN.
-- Don’t want to duplicate an existing Accountability Mechanism, such as an IRP; need to look at the gap and see what needs a challenge mechanism.  Avoid then deciding that we need a challenge to the challenge.
-- Isolate the appeal from the decision body.
-- There may be differences between a challenge of an ICANN decision and from a third party.  Don’t know which decisions ICANN will take on and which it will outsource in the subsequent gTLD procedures.
-- Re: IRP – under the Bylaws of 2016 there is a new IRP.  The decisions will take binding precedent.  New IRP covers appeals of expert panel decisions.  IRP tends to be a bit formal and has tended to be expensive.
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