[Gnso-newgtld-wg] CPE: Supplementary Guidelines 4-B: Opposition
AAikman at lrrc.com
Wed Nov 13 19:08:43 UTC 2019
HI Jeff et al,
I think we will need a redlined version of the CPE Guidelines in order to send that out for public comment. (We have noted a few changes are required, e.g. the reference to the community having existed since 2007.) In the context of appeals, I am still very concerned about the use of the word “considerable” in CPE evaluations. I don’t know any way for an appeals panel to objectively judge the word “considerable” in relation to a standard for overturning the first panel’s decision.
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Justine Chew
Sent: Sunday, October 27, 2019 7:19 PM
To: Jeff Neuman <jeff.neuman at comlaude.com>; Jamie Baxter <jamie at dotgay.com>
Cc: gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] CPE: Supplementary Guidelines 4-B: Opposition
Thanks, Jeff, for this.
First, I largely support what Jamie has set out in his email in respect of 4-B Opposition, and your conclusion at the top of your email.
Second, I appreciate that it's been mentioned and generally received support, I just wanted to reiterate that selection of the next CPE provider - in terms of community input into the RFP process - would be crucial.
Third, I wanted to clarify -- for implementation, what additional guidance should (or could) be provided to draw clearer distinction between opposition (i.e. opposite to community endorsement) and objection?
On Tue, 15 Oct 2019 at 05:04, Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>> wrote:
This one we discussed on the call extensively and I think we already discussed making sure that the there be a balance of support and opposition. If an Applicant demonstrates support from the community and earns full credit on Support, then the opposition MUST be substantial in order get points taken off. One letter from one individual or group should not necessarily be enough to lose a point (unless that group is substantial in terms of representing the community).
Here is what the FTI Group states on Opposition.
Sub-Criterion 4-B: Opposition
To receive two points for Opposition, an application must have no opposition of relevance.197 To receive one point, an application may have relevant opposition from no more than one group of non-negligible size.198
Nine CPE reports recorded one point for Opposition.199 In each instance, the CPE Provider determined that the underlying applications received relevant opposition from no more than one group of non-negligible size. Opposition was deemed relevant on several grounds: (i) opposition was from a community not identified in the application but had an association to the applied-for string;200 (ii) the application was subject to a legal rights objection (LRO);201 or (iii) opposition was not made for any reason forbidden by the Applicant Guidebook, such as competition or obstruction.202
Seventeen CPE reports recorded the full two points for Opposition.203 The CPE Provider determined that the applications corresponding to 17 CPE reports did not have any letters of relevant opposition.204 Ultimately, FTI observed that the CPE Provider engaged in a consistent evaluation process that strictly adhered to the criteria and requirements set forth in the Applicant Guidebook and CPE Guidelines. FTI observed no instances where the CPE Provider's evaluation process deviated from the applicable guidelines pertaining to the Community Endorsement criterion. Based on FTI's investigation, FTI concludes that the CPE Provider consistently applied the Community Endorsement criterion in all CPEs. While the CPE Provider awarded different scores to different applications, the scoring decisions were based on the same rationale, namely a failure to satisfy the requirements that are set forth in the Applicant Guidebook and CPE Guidelines.
197 Id. at Pg. 4-17.
199 MERCK (KGaA) CPE Report (https://www.icann.org/sites/default/files/tlds/merck/merck-cpe-1-980- 7217-en.pdf); MERCK (RH) CPE Report (https://www.icann.org/sites/default/files/tlds/merck/merck-cpe-1- 1702-73085-en.pdf); SHOP (Commercial Connect) CPE Report (https://www.icann.org/sites/default/files/tlds/shop/shop-cpe-1-1830-1672-en.pdf); GAY CPE Report (https://www.icann.org/sites/default/files/tlds/gay/gay-cpe-1-1713-23699-en.pdf); GAY 2 CPE Report (https://www.icann.org/sites/default/files/tlds/gay/gay-cpe-rr-1-1713-23699-en.pdf); LLP CPE Report (https://www.icann.org/sites/default/files/tlds/llp/llp-cpe-1-880-35508-en.pdf); LLC CPE Report (https://www.icann.org/sites/default/files/tlds/llc/llc-cpe-1-880-17627-en.pdf); INC CPE Report (https://www.icann.org/sites/default/files/tlds/inc/inc-cpe-1-880-35979-en.pdf); and MUSIC (.music LLC) CPE Report (https://www.icann.org/sites/default/files/tlds/music/music-cpe-1-959-51046-en.pdf). No CPE reports recorded zero points for Opposition. 200 LLP CPE Report (https://www.icann.org/sites/default/files/tlds/llp/llp-cpe-1-880-35508-en.pdf); LLC CPE Report (https://www.icann.org/sites/default/files/tlds/llc/llc-cpe-1-880-17627-en.pdf); and INC CPE Report (https://www.icann.org/sites/default/files/tlds/inc/inc-cpe-1-880-35979-en.pdf).
201 MERCK (KGaA) CPE Report (https://www.icann.org/sites/default/files/tlds/merck/merck-cpe-1-980- 7217-en.pdf); and MERCK (RH) CPE Report (https://www.icann.org/sites/default/files/tlds/merck/merckcpe-1-1702-73085-en.pdf).
202 GAY CPE Report (https://www.icann.org/sites/default/files/tlds/gay/gay-cpe-1-1713-23699-en.pdf); GAY 2 CPE Report (https://www.icann.org/sites/default/files/tlds/gay/gay-cpe-rr-1-1713-23699-en.pdf); SHOP (Commercial Connect) CPE Report (https://www.icann.org/sites/default/files/tlds/shop/shop-cpe-1- 1830-1672-en.pdf); and MUSIC (.music LLC) CPE Report (https://www.icann.org/sites/default/files/tlds/music/music-cpe-1-959-51046-en.pdf).
203 ART (eflux) CPE Report (https://www.icann.org/sites/default/files/tlds/art/art-cpe-1-1675-51302- en.pdf); MUSIC (DotMusic Ltd.) CPE Report (https://www.icann.org/sites/default/files/tlds/music/musiccpe-1-1115-14110-en.pdf); ECO CPE Report (https://www.icann.org/sites/default/files/tlds/eco/eco-cpe-1- 912-59314-en.pdf); HOTEL CPE Report (https://www.icann.org/sites/default/files/tlds/hotel/hotel-cpe-1- 1032-95136-en.pdf); OSAKA CPE Report (https://www.icann.org/sites/default/files/tlds/osaka/osaka-cpe1-901-9391-en.pdf); SPA CPE Report (https://www.icann.org/sites/default/files/tlds/spa/spa-cpe-1-1309- 81322-en.pdf); RADIO CPE Report (https://www.icann.org/sites/default/files/tlds/radio/radio-cpe-1-1083- 39123-en.pdf). TENNIS CPE Report (https://www.icann.org/sites/default/files/tlds/tennis/tennis-cpe-1- 1723-69677-en.pdf); MLS CPE Report (https://www.icann.org/sites/default/files/tlds/mls/mls-cpe-1-1888- 47714-en.pdf); CPA (USA) CPE Report (https://www.icann.org/sites/default/files/tlds/cpa/cpa-cpe-1-1911- 56672-en.pdf); CPA (AU) CPE Report (https://www.icann.org/sites/default/files/tlds/cpa/cpa-cpe-1-1744- 1971-en.pdf); GMBH CPE Report (https://www.icann.org/sites/default/files/tlds/gmbh/gmbh-cpe-1-1273- 63351-en.pdf); IMMO CPE Report (https://www.icann.org/sites/default/files/tlds/immo/immo-cpe-1-1000- 62742-en.pdf); SHOP (GMO) CPE Report (https://www.icann.org/sites/default/files/tlds/shop/shop-cpe-1- 890-52063-en.pdf); KIDS CPE Report (https://www.icann.org/sites/default/files/tlds/kids/kids-cpe-1-1309- 46695-en.pdf); TAXI CPE Report (https://www.icann.org/sites/default/files/tlds/taxi/taxi-cpe-1-1025- 18840-en.pdf); and ART (Dadotart) CPE Report (https://www.icann.org/sites/default/files/tlds/art/art-cpe1-1097-20833-en.pdf).
Senior Vice President
Com Laude | Valideus
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
From: Jamie Baxter <jamie at dotgay.com<mailto:jamie at dotgay.com>>
Sent: Friday, October 11, 2019 12:41 PM
To: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>; 'Emily Barabas' <emily.barabas at icann.org<mailto:emily.barabas at icann.org>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: [Gnso-newgtld-wg] Community Priority Evaluations Review of Supplementary Guidelines
Good afternoon Working Group members
On the last call regarding Community Applications, everyone was asked to review the EIU’s CPE Guidelines to see if there are any items that need further scrutiny before being added into the AGB for subsequent procedures.
My apologies for the length of this response, but hopefully these notes help provide insight on how the AGB language was interpreted from a Community Applicant perspective, and what things continue to need further clarification before the next AGB is published.
Page 4: “Delineation”
The non-exhaustive list the EIU added into the CPE guidelines that denotes elements of straight-forward member definitions contains a clear bias towards professional and trade communities. The AGB did not carry this kind of bias, and it would be a concern if the next AGB projected this kind of bias around delineation, especially since many linguistic and cultural communities are straight-forward in the eyes of their members but do not use a membership card system.
Can review be done to determine what other forms of delineation were accepted in CPE scoring from all community applications in the 2012 round? And can those examples be included in the examples already noted by the EIU?
The AGB very clearly states that “”identify” means that the applied for string closely describes the community or the community members,” providing two distinct paths to establish if an applied for string identifies the community. These paths are not interconnected or contingent on one another in the AGB, but instead suggest separate routes to establishing nexus.
My interpretation of this AGB language is that an applicant can select a string that is a known identifier of the community, or a string that identifies the specific members of that community. Additionally, no rule is placed on the “known identifier of the community” as needing to be the only identifier of that community.
The AGB additionally provides two examples to help illustrate the definition of “identity” for each of the possible paths.
1. As an example, a string could qualify for a score of 2 if it is a noun that the typical community member would naturally be called in the context. (AGB, Pg 197)
2. If the string appears excessively broad (such as, for example, a globally well-known but local tennis club applying for “.TENNIS”) then it would not qualify for a 2. (AGB, Pg 197)
What the AGB does not do with these examples is suggest that both paths must be successfully maneuvered in order to achieve 2 points. The definition of “identify” in the AGB suggests the applicant had the choice to design their application around a name of the community (TENNIS community), or the member attributes in the community (TENNIS players, TENNIS coaches, etc).
This is clearly noted in example 1 where 2 points were achieved when it’s confirmed the string identifies the actual community members. The second example denying 2 points for .TENNIS however does not further elaborate on how 2 points could have been achieved in the case of describing the TENNIS community.
The second example could suggest that if an internationally recognized tennis club applied for .TENNIS instead of a local tennis club, for use among those in the wider TENNIS community (broadcasters, networks, physical therapists, vendors, fans, etc – all tertiary parts of the community that also have other identifiers), then it could have been successful on the path of “closely describes the community.” When the average person thinks of the TENNIS community they could reasonably include the list above, yet these participants in the TENNIS community may not identify naturally with the word TENNIS (i.e. a tennis broadcaster that also covers football).
Although the EIU’s CPE guidelines are silent on establishing further clarity around the AGB language related to the two paths to “identify,” the practice of the EIU did not align with the flexibility of the AGB. The EIU appears to have conflated the two distinct paths as one and made them both requirements under the definition of “identity,” or at least imposed the requirement that the string be a term the community members naturally call themselves. This may have happened because the two examples outlined above run sequentially in the AGB, causing confusion without distinction.
Given the unfortunate implementation route taken by the EIU, it should be more clear in the AGB what is meant by “identify means that the applied for string closely describes the community or the community members.” I believe it offers two separate paths to success for community applicants, one based on a widely used and identifiable name of the community (known by those inside & outside the community) and the other based on the identity of the actual members in the community.
As discussed on the last call, guidance for “relevance” in 4-B must include a balance of opposition in relation to documented support, and not just an isolated determination of whether the opposing entity is part of the community explicitly or implicitly addressed. One misaligned community member/entity should not have the power to impact CPE scores of a largely aligned community, yet that was the EIU’s interpretation and practice in the 2012 round.
To illustrate this point, if an applicant has hundreds of organizations from around the world supporting an application, and those endorsements represent the voices of tens of thousands of other local and regional organizations, then an expression of opposition from one single, small and even locally based organization from within the defined community among the thousands globally expressing support should not be able to put 1 of the 2 CPE points for this criteria in jeopardy.
jamie at dotgay.com<mailto:jamie at dotgay.com>
A Certified LGBT Business Enterprise (LGBTBE)
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From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Jeff Neuman
Sent: Thursday, October 10, 2019 2:54 PM
To: Emily Barabas; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Community Priority Evaluations Review of Supplementary Guidelines
I would hope that everyone reads all of the notes sent out on each of the meetings carefully, but just in case, I want to draw your attention to one of the biggest action items that arose as a result of our call this morning (Wednesday night for those in the US). In addition, I would like to pose a question for consideration by the Working Group.
1. “ACTION ITEM: WG members will go through the guidelines and flag anything they think should not be incorporated into the AGB for subsequent procedures. See guidelines at: https://newgtlds.icann.org/en/applicants/cpe/guidelines-27sep13-en.pdf”
One of the universal criticisms about the CPE process was that there were additional rules and guidelines that were adopted by the CPE Evaluators (EIU) after all of the applications were submitted. The Working Group will most likely be recommending that all rules be set forth in the Applicant Guidebook or at the very latest prior to the Application Window opening up. That message has been delivered loud and clear.
Something that can help, however, would be if the Working Group could review the CPE Guidelines that were developed by EIU (at the link above) to see if those Guidelines make sense and whether those Guidelines or something similar to those Guidelines could be formally adopted as part of our recommendations. Putting aside the fact that these came after applications were submitted, many of the Guidelines make sense. If we formally approve them, then this will go a long way to helping potential applicants understand how CPE evaluations will work.
1. Clarifying Questions and CPE: A second item which looks likely to be a recommendation will be that CPE Evaluators should utilize the CQ process (Clarification Questions process) to seek clarifications (but not new material) from the applicant on items where it has questions or issues. However, would it also be advisable for the CPE Evaluators to be able to send CQs to those that oppose a community application (and that have submitted letters of opposition)? In other words, CPE Evaluators can ask those that oppose the application questions about themselves and how representative they are. They can drill down on details about what it is that they oppose, etc. Those on the call thought this may be a good idea to help weed out frivolous letters of opposition or also emphasize the opposition of real entities, persons and communities.
We believe these should be non-controversial, but would like to input other than that which we got on the call.
Senior Vice President
Com Laude | Valideus
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Emily Barabas
Sent: Thursday, October 10, 2019 7:16 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 - 10 October 2019
Dear Working Group members,
Please see below the notes from the meeting on 10 October 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/2019-10-10+New+gTLD+Subsequent+Procedures+PDP.
On the call, it was suggested that guidelines used by CPE evaluators in the 2012 round should be incorporated into the Applicant Guidebook in subsequent procedures to improve predictability. Please see the notes below for details. As a follow up to the action item below, WG members are encouraged to review the 2012 CPE guidelines (https://newgtlds.icann.org/en/applicants/cpe/guidelines-27sep13-en.pdf) and raise on the mailing list if there are elements of the guidelines that they believe should not be incorporated into the AGB.
Notes and Action Items:
ACTION ITEM: WG members will go through the guidelines and flag anything they think should not be incorporated into the AGB for subsequent procedures. See guidelines at: https://newgtlds.icann.org/en/applicants/cpe/guidelines-27sep13-en.pdf
1. Welcome and Update to Statements of Interest
* No SOI updates
* Following up on Monday’s call, there is a revised chart available on appeals. Please add questions and comments to the draft for discussion on the email list. The chart is available at: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit?usp=sharing
2.a. Community Applications
* Policy Goals are high-level and non-controversial. High-Level agreements so far: The Community Priority Evaluation (CPE) process must be more transparent and predictable; All evaluation procedures should be developed BEFORE the application process opens and made easily and readily available.
* CCT-RT Recommendation 34 also suggests making improvements to address concerns raised about community applications before going forward with subsequent procedures.
* Guidelines developed by the evaluators have not been discussed in depth by this group, other than the fact that they were made available late in the process. Key point raised in the public comments -- information contained in the guidelines needs to be available to applicants before applications are submitted.
* Would it make sense to put some of the guidelines developed by the evaluators into the Applicant Guidebook?
* Were there things in the guidelines, other than those detailed in the public comments, which were problematic?
* ACTION ITEM: WG members will go through the guidelines and flag anything they think should not be incorporated into the AGB for subsequent procedures. See guidelines at: https://newgtlds.icann.org/en/applicants/cpe/guidelines-27sep13-en.pdf
* By including guidelines in the AGB, there would be greater predictability for applicants and also greater clarity for future evaluators.
* As a community applicant, there was a lot left open for interpretation in the 2012 AGB. As a result, an applicant’s interpretation of the guidebook may have been different from what the evaluators took away when they developed their guidelines. This resulted in a discrepancy that should not exist in subsequent procedures.
* Review of suggestions in the public comments on improving transparency and predictability of the CPE process.
* Review of comments on the definition of community.
* One WG member disagrees with the way the EIU further restricted the definition of community in its guidelines, and suggests that this is not incorporated into the AGB going forward. Specifically, the EIU prioritized those that had a structured system to the community -- institutionalized or industry-related organizations would therefore be higher priority.
* Suggestion - what if ICANN community members served as CPE panelists? They might better understand the definition of community from the ICANN perspective. ALAC advised in their public comments that members of grassroots organizations should serve as panelists.
* Response - Different members of the ICANN community might understand the definition differently. ICANN never provided a clear definition. ICANN was relying on the scoring to delineate who should get priority rather than having a specific definition.
* In selecting an entity to do the evaluations, ICANN was looking for expertise in doing this type of evaluation with independence, but as a result the evaluators may not have as much perspective on what ICANN was trying to achieve. Members of the ICANN community come in with their own biases. Could community members perhaps have some kind of advisory role instead?
* The choice of evaluators may have impacted the way they approached the evaluation process. EIU has an economic focus.
* Further review of suggestions for improving transparency and predictability of the CPE process in relation to the preliminary recommendation that the CPE process must be more transparent and predictable.
* Conflict of interest provisions discussed previously should be applicable to all panelists, including those conducting CPE. This will address public comments that raised concerns about conflict of interest.
* Comment - it is very important that one “naysayer” does not prevent an application from moving forward. There needs to be substantial opposition.
* Suggestion for an additional WG Recommendation: If there was research relied on for the decision it should be cited and a link to the information provided. This is based on comments from Jaime Baxter, ALAC, and NCSG.
* Some have commented that the costs of the process should be lower and that the process should be quicker. Suggestion for an implementation note stating ICANN staff should examine ways to make the process more efficient in terms of cost and timing. It may be difficult to be more detailed since ICANN Org is in the best position to evaluate how to increase efficiencies.
* Comment - At this stage, ICANN Org should be better able to scope the task with a service provider and set clear expectations. The service provider should be responsible for remaining within budget.
* Review of public comments on preliminary recommendation: CPE evaluations should be completed in a shorter period of time.
* Review of public comments on preliminary recommendation: All evaluation procedures should be developed BEFORE the application process opens and made easily and readily available.
* Review of public comments on preliminary recommendation: The CPE process should include a process for evaluators to ask clarifying questions and where appropriate engage in a dialogue with the applicant [and providers of letters of opposition?] during the CPE process. ICANN org raised concerns about potential lobbying and lack of transparency that could result from this type of engagement. Perhaps panelists could ask clarifying questions in written format --- all materials would be publicly available. The opportunity would be equally available to all parties to ensure that the process is fair.
* Preliminary Recommendation about dialogue between evaluators and relevant parties will be revised and included as a draft recommendation for the WG to consider further.
* One WG member stated that community applicants can’t change their application, and that the opportunity for dialogue won’t change the application. It simply provides an opportunity for the applicant to illustrate key points so that the evaluators understand the application. There is little room for lobbying from this perspective.
* Response -- by putting everything in writing, there is still this opportunity to clarify, and there is greater transparency.
* Additional question - should the panelists be able to send clarification questions to those filing opposition letters? One member expressed support for this proposal. It may help to bring greater clarity to understanding the legitimacy of the opposition. It’s important to be clear that this is not about community-based objections but about opposition to community-based applications.
* Review of public comments on preliminary recommendation: Less restrictive word count for communities to engage in clarifying and providing information. ALAC expressed opposition to this recommendation.
* It may be helpful to do some additional research on the existing word count restrictions, but there did not seem to be much support for increasing limits on word count.
* Review of ALAC comment on providing access to experts to assist communities, particularly those from underserved regions in preparing applications in order to level the playing field. Suggestion to link this comment to the topic Applicant Support.
* Review of comments on potentially providing alternative benefits if an applicant scored below the threshold.
* Review of suggested changes to evaluation criteria or weight/scoring of criteria -- in particular, discussion of the comment that if opposition is expressed, it must be examined in the big picture and weighed against the volume of support. There should be a balance.
* Discussion of suggestion in the public comments that there should be addition criteria around benefit to registrants -- perhaps there could be a form of “extra credit” granted to applicants that help or solve a problem inside a community. This could come in the form of bonus points. It might address some of the public comments from the Council of Europe, as well.
* Clarification - this is already a requirement of the application, however it was not translated into the scoring criteria. It was incorporated into the contract as a commitment to the community. It would make sense for this to part of the scoring criteria.
* Review of comments on whether there should continue to be preferential treatment for community applications -- there is general support for this concept. NCSG expressed concern about the definition of community. Registrars would like to eliminate the concept of community.
* Review of comments on the Council of Europe report.
* Review of comments in response to the question - to what extent should evaluators be able to deviate from pre-published guidance and guidelines?
* Additional comment raised by a WG member -- any requirements about letters of support should be clear and transparent up front.
* Review of additional considerations on selection of panelists and program goals raised by the Council of Europe.
* Note that ICANN is currently examining the concept of Global Public Interest which may be responsive to the Council of Europe’s comments on this topic.
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