[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 30 April 2019

Wed May 1 02:08:25 UTC 2019

Anne

For clarification, I did not remove any text in my reply.  If you look back, my reply was to your first email (that did not have the citations), not to your e-mail to Kathy, which did have the citations.

First of all I appreciate the discussion on the word "generally".  Truth is I drafted that language off-the cuff to be illustrative and not as definitive language to use.  But it sounds like the concept of stating that this new entity (whatever we call it) will follow those rules helps to clarify certain things.  That's progress!

Comparing the ePDP on the Temp Spec to this is like apples and oranges.  It doesn't relate.  The ePDP did not come out of the launch of a program derived from a process that was started by the GNSO and implemented by an IRT.  The ePDP was a response to proposed mechanisms created by ICANN staff to respond to an external legal situation.  The GNSO Council then believed this mechanism involved a change to previous Consensus Policies and then launched the ePDP.

In this case, we have our PDP which will be followed by implementation of the policies derived from this Working Group and implemented by ICANN staff with the help of an IRT.  Then the new gTLD program will launch.  Once it launches, if there is truly a proposed change that would implicate policy, then the GNSO can (and should) initiate the normal GNSO processes as the Council deems appropriate.  The Standing New gTLD Advisory Group (formerly "standing IRT") would not have a role.  This would clearly be the case if ICANN wanted to change material portions of the legal agreement, or change a rule like allowing/not allowing closed generics, etc.

But for the more minor changes, the ones that do not implicate policy or even implementation (but rather implicate execution), the GNSO processes do not address these situations and they can be way to bureaucratic to handle.  For example,take ICANN's decision to change Digital Archery to a Random Drawing, or it changes the mechanics of the Pre-delegation testing.  There was NO policy or even implementation process that was impacted and therefore arguably No role for the GNSO.  But there were no processes to deal with those changes at all and ICANN therefore shot from the hip.  It announced the changes, but did not solicit feedback from the impacted parties.  It was a disaster from a predictability standpoint.  The Predictability Framework attempts to deal with this a create a predictable process where none exists.

I know you are arguing that the GNSO processes do account for these, but I and much of the community disagree with your view.  We cannot invoke an ePDP or even GNSO input process for these types of issues.  We cannot just tell ICANN they cant do anything that deviates at all even if circumstances necessitate changes. But we do need to have a predictable framework to deal with these.

 Lets hear from others please.

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<mailto:jeff.neuman at comlaude.com>
www.comlaude.com<http://www.comlaude.com/>

[cid:8c56ffb7-b601-42fd-8c04-bcd200476cdf]

________________________________
From: Aikman-Scalese, Anne <AAikman at lrrc.com>
Sent: Tuesday, April 30, 2019 9:39 PM
To: Jeff Neuman; Julie Hedlund; gnso-newgtld-wg at icann.org
Subject: RE: Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 30 April 2019

Jeff,  please don’t delete portions of my comments or cites to text from the Operating Procedures when you reply to my input.  When you do, that makes things difficult for those who are only reading from the latest message and scrolling down.  Thank you in advance for respecting this request.

It is helpful that you suggest that the newly named entity would abide by the same GNSO  rules and procedures as an IRT.  Not sure why your statement is conditioned upon the word “generally” or why you would call it anything other than a “Post-Launch IRT”.   The word “generally” leaves too much wiggle room when the WG solicited public comment on a “Standing IRT”.  If you call it a “Post-Launch Standing IRT”, you eliminate ALL confusion and you don’t’ have to use the word “generally” or go out for more public comment if you have Consensus.  (You also don’t have to create a new ICANN acronym that no one understands unless they have been on this Working Group.)

Regarding our disagreement as to the time frame for applicability of the GNSO Annexes, I don’t see any references to “pre-launch” and “post-launch” in the Consensus Policy Implementation Framework (CPIF) or any references to new issues that arise post-launch.   The only reference in the CPIF is to “Policy Effective Date”.  The new recommendation in the Initial Report would modify the CPIF because it would provide for a Standing IRT post-launch.   Please note the CPIF states the IRT has to be briefed on the GNSO Input and GNSO Guidance processes and this same briefing should be required for  any Post-Launch IRT in order to ensure GNSO oversight is in place post-launch.  (Thus my conclusion that there is too much wiggle room in your use of the word  “generally”.)

Obviously the GNSO Annexes for further Council work apply at any time, including post-launch. Otherwise, how could GNSO have possibly initiated and conducted an EPDP on the Temp Spec when that Annex came out of the same recommendations?  In this regard, please note that the three processes specifically refer to “new issues”.    Hopefully you are not suggesting that GNSO Council loses its oversight authority or ability to avail itself of these Input and Guidance processes after an application window opens?

See again the highlighted language below from GNSO Guidance and GNSO Input Annexes which states, for example,  as to GNSO Input that a “ GIP MAY BE INITIATED BY THE GNSO COUNCIL AT ANY TIME IT CONSIDERS APPROPRIATE”.    - PLEASE DON’T DELETE THIS LANGUAGE OR THE HIGHLIGHTED PORTION OF THE TEXT FROM THE MANUALS WHEN YOU REPLY:

GNSO Input Process Manual - https://gnso.icann.org/sites/default/files/file/field-file-attach/annex-3-input-process-manual-18jun18-en.pdf

GNSO Input Process (GIP) Introduction:   A GIP is the process through which the GNSO provides input on matters that may not involve gTLD policy, for example in response to a request from the ICANN Board or in response to a public comment forum as further described in this GIP Manual. Any such requests should include as much information as possible. A GIP may be initiated by the GNSO Council at any time it considers appropriate, for example, when a request for GNSO input is received from the ICANN Board or other entity that does not involve the creation of new obligations for ICANN contracted parties and does not relate to a topic otherwise suitable for a GNSO Policy Development Process or GNSO Guidance Process, for example providing GNSO Input to a public comment forum.

GNSO Guidance Manual - https://gnso.icann.org/sites/default/files/file/field-file-attach/annex-5-ggp-manual-18jun18-en.pdf

GNSO Guidance Process Manual1.GGP Manual –Introduction:  These guidelines and processes supplement the requirements for GGPs described in Annex D of the ICANN Bylaws [include link]. A GGP may be initiated by the GNSO Council when a request for input relating to gTLDs (either a new issue or in relation to previous policy recommendations) has been received from the ICANN Board or a gTLD issue has been identified by the GNSO Council that would benefit from GNSO Guidance, and it has determined that the intended outcome of the GGP is not expected to create new “Consensus Policy” recommendations including, but not limited to, any new contractual obligations for contracted parties (in which case a PDP would need to be initiated). However, the GGP may provide interpretation or assist in providing clarity with regards to the implementation of GNSO policy recommendations. The GGP should not be used as a tool to reopen a previously explored policy issue only because a constituency or stakeholder group was not satisfied with outcome of a previously held process on the same policy issue, unless the circumstances have changed and/or new information is available

Anne

Anne

From: Jeff Neuman [mailto:jeff.neuman at comlaude.com]
Sent: Tuesday, April 30, 2019 5:50 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com>; Julie Hedlund <julie.hedlund at icann.org>; gnso-newgtld-wg at icann.org
Subject: Re: Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 30 April 2019

[EXTERNAL]

________________________________

Please see my comments in red below.

From: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>

[Anne] Initial Report and Public Comment. The Initial Report recommended a "Standing IRT". There is a common understanding in the ICANN community about what an IRT does, how it is constituted, and what its powers are and are not.  The documentation in GNSO procedures lays out the rules re IRT, including the composition of such a team which requires broad representation across the community.  These understandings are codified in the GNSO Council Operating Procedures and in the Consensus Policy Implementation Framework. If the proposed body is renamed, this would require additional public comment which would include the need to specify how such a body would be constituted and what is powers would be.

[Jeff] I do not agree that simply changing the name of the body would require additional public comment.  In fact we could state in the report something to the effect of:  "Because of the confusion caused between the term we used in the Initial Report, and how that term is generally used to describe a team responsible for the implementation of GNSO policies, we have changed the name to the "Standing New gTLD Advisory Group" (SNAG).  Though we have changed the name, this new group should abide by the same rules and procedures generally applicable to Implementation Review Teams as set forth in existing GNSO Procedures".

Why would that not solve the issue?

[Anne] Effect on Existing GNSO Procedures and ICANN ByLaws.  Once you apply a new name to this proposed new body designed specifically to address implementation issues post-launch, you have an animal that is not recognized in the Consensus Policy Implementation Framework nor in the GNSO Input, Guidance, and EPDP processes and is thus not incorporated into the language of those processes.  Therefore, you will either have created a need for massive redrafting (including redrafting of the ICANN ByLaws) OR you will have removed that new body from the application of those processes. Jeff says there is no intention to change the applicability of the GNSO Input, Guidance, and EPDP process post-launch so it does not really make sense to name a new type of team that would require significant changes to existing procedures (and maybe even the ByLaws.) Thus, a "name change" for this body creates more questions than it answers.

[Jeff]  Applying the same language above would fix all of this. We are not modifying any existing process.

[Anne] Prior Work of the Policy and Implementation WG.  This has been a long-standing issue in Sub Pro since Leadership initially took the position that the GNSO Input, Guidance, and EPDP processes do not apply after launch.  This is categorically not true.

[Jeff]  I know this has been your argument all along, but the documentation does not support your view.  See https://www.icann.org/policy/implementation and https://www.icann.org/uploads/ckeditor/CPIF_v2.0_2019CLEAN.pdf.  These all show that the IRT's work is prior to the Policy Effective Date.  For the new gTLD process, that would be the day that the application window launches.  I don't see anything that supports your view.

[Anne] The Policy and Implementation Working Group examined numerous examples of issues that arose “post-launch” in the 2012 round.   We ultimately concluded it is fruitless to try to characterize issues as either “policy” or “implementation” since one person’s policy is another’s implementation and vice versa. The mechanisms that were developed after  the 2012 round to address these issues were specifically developed to apply WHENEVER the issue arise and to keep control of the issues at GNSO Council in a very transparent manner. It would be a massive change of policy to offer a new construct that either (1) causes the results of that PDP to have to be amended or (2) creates a new body that operates outside the established procedures already adopted by the Board and the GNSO.

[Jeff] I dont disagree that distinguishing between policy and implementation is difficult.  But this Predictability Framework does not change anything regarding transparency or any existing process.

[Anne] If everyone is anxious to simply clarify the time period in which the Team will operate, why not just call the teams the “Pre-launch IRT” and the “Post-launch IRT”.  Much simpler and more predictable – and requires a lot less redrafting.

[Jeff] For the reasons above, I do not share the view that calling something a Pre-Launch or a Post Launch IRT will clear up the confusion or require much re-drafting.

Lets see what others in the group think.

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<mailto:jeff.neuman at comlaude.com>
www.comlaude.com<http://www.comlaude.com/>

[cid:image001.jpg at 01D4FF7E.A2B7E570]

________________________________

From: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>
Sent: Tuesday, April 30, 2019 5:36 PM
To: Julie Hedlund; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Cc: Jeff Neuman
Subject: RE: Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 30 April 2019

Regarding yesterday's call and the attempt to measure consensus on the recommendation for a “Standing IRT”, changing the name of that recommended body actually creates more confusion rather than less.  The reasons are:

Initial Report and Public Comment. The Initial Report recommended a "Standing IRT". There is a common understanding in the ICANN community about what an IRT does, how it is constituted, and what its powers are and are not.  The documentation in GNSO procedures lays out the rules re IRT, including the composition of such a team which requires broad representation across the community.  These understandings are codified in the GNSO Council Operating Procedures and in the Consensus Policy Implementation Framework. If the proposed body is renamed, this would require additional public comment which would include the need to specify how such a body would be constituted and what is powers would be.

Effect on Existing GNSO Procedures and ICANN ByLaws.  Once you apply a new name to this proposed new body designed specifically to address implementation issues post-launch, you have an animal that is not recognized in the Consensus Policy Implementation Framework nor in the GNSO Input, Guidance, and EPDP processes and is thus not incorporated into the language of those processes.  Therefore, you will either have created a need for massive redrafting (including redrafting of the ICANN ByLaws) OR you will have removed that new body from the application of those processes. Jeff says there is no intention to change the applicability of the GNSO Input, Guidance, and EPDP process post-launch so it does not really make sense to name a new type of team that would require significant changes to existing procedures (and maybe even the ByLaws.) Thus, a "name change" for this body creates more questions than it answers.

Prior Work of the Policy and Implementation WG.  This has been a long-standing issue in Sub Pro since Leadership initially took the position that the GNSO Input, Guidance, and EPDP processes do not apply after launch.  This is categorically not true.  The Policy and Implementation Working Group examined numerous examples of issues that arose “post-launch” in the 2012 round.   We ultimately concluded it is fruitless to try to characterize issues as either “policy” or “implementation” since one person’s policy is another’s implementation and vice versa. The mechanisms that were developed after the 2012 round to address these issues were specifically developed to apply WHENEVER the issue arise and to keep control of the issues at GNSO Council in a very transparent manner. It would be a massive change of policy to offer a new construct that either (1) causes the results of that PDP to have to be amended or (2) creates a new body that operates outside the established procedures already adopted by the Board and the GNSO.

If everyone is anxious to simply clarify the time period in which the Team will operate, why not just call the teams the “Pre-launch IRT” and the “Post-launch IRT”.  Much simpler and more predictable – and requires a lot less redrafting.

Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

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Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Julie Hedlund
Sent: Tuesday, April 30, 2019 8:38 AM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 30 April 2019

[EXTERNAL]

________________________________

Dear Working Group members,

Please see below the notes from the meeting today, 30 April 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/2019-04-30+New+gTLD+Subsequent+Procedures+PDP.

Please also see the referenced document at:  https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXKD-w/edit?usp=sharing.

Kind regards,

Julie

Julie Hedlund, Policy Director

Notes and Action Items:

Action Items:

-- Staff will check on the ICANN Board response to the GAC advice in the Helsinki Communique’ on new gTLDs.

-- WG to come up with a different name for the “standing IRT”.  Maybe “Post Application Advisory Team”.

Notes:

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

2. Review of Summary Documents – (see: https://docs.google.com/document/d/1R4zXTH3hIgfbqoxyqsSp19Bl6J96NNeV7oCgxsXKD-w/edit?usp=sharing)

2.2.1 Continuing Subsequent Procedures

Policy Goals / What the WG is Seeking to Accomplish

-- First bullet: replace “rounds” with “procedures”.

2.2.1.c.1: The Working Group recommends no changes to the existing policy calling for subsequent application rounds introduced in an ongoing, orderly, timely and predictable manner.

-- Support from most commenters

New Ideas/Concepts for Deliberations:

-- GAC Advice and BC: Support for new rounds but no rounds started until reviews (CCT-RT) are complete.  Need to do a cost-benefit analysis before starting new round.

-- WG is taking into consideration the CCT-RT recommendations.

Discussion:

-- Policy does not have a demand component.

-- Action Item: Board response to GAC Advice in the Helskinki Communique’.

-- Note that the CCT-RT did have an economic study done by the Analysis Group, although perhaps not a full cost-benefit analysis.

-- Concerns with maintaining the current policy unless there are objections.

-- Unless there is a consensus on changing precedent we should stay on the same path.

-- Can build on what we have learned, but hard to do analysis on what people might want.

-- If the WG wants to request for an assessment to be done that will have to be approved by the Council.

-- Calling for rounds introduced in an ongoing orderly timely and predictable manner support came from pretty much every group that responded in public comments to the Initial Report.

-- We have some qualifications from the GAC.

2.2.1.e.1: The 2007 Final Report noted that success metrics would be developed around the New gTLD Program. What are some specific metrics that the program should be measured against?

-- Support from most commenters.

New Ideas/Concepts for Deliberations: ALAC, BRG, BC, RySG – New Ideas

Discussion:

-- Good proposals for different types of metrics.

-- Need to define what we mean by success; CCT-RT referred that issue to the SubPro WG.

-- Questions and issues in the CCT-RT could put some of these issues to rest.

-- This WG could come up with a half dozen categories (elements of the program) and develop definitions of success for those – or develop targets, which is a less loaded word.

-- Good conversation to continue on email.

-- You could have a high-level structure from the 2012 round (to foster diversity, encourage competition, and enhance the utility of the DNS), then create specific targets within that structure within that framework.

2.2.2 Predictability

-- Support from most commenters

-- BC/RySG/IPC/ALAC (in response to e.1): New Idea - The Standing IRT must be representative of the community, but must also allow for the appointment of experts where needed.

New Ideas/Concepts for Deliberations -- ICANN Org: Concerns/New Ideas

Discussion:

-- Can things in the model be improved so that you can support it?  If not, what takes its place?

-- Don’t think it’s in our authority to replace the GNSO policy process.

-- We're not changing any of the policies or processes that have been established.

-- Changes to policies after the launch need to go through the GNSO policy process; the predictability framework is for issues that come up outside of that process and guidance to the standing IRT.  In the report we called it a standing IRT, but that seems to be confusing so we should change the name.  Could call it a “gateway” to decide what is policy and what is not, and only looking at non-policy issues.

-- Need to be more conscious of the need for predictability for third party interests.  We use the term “affected parties” for that reason.

-- WG needs to come up with a different name for the “standing IRT”.  Maybe a Post Application Advisory Team.

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