[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 07 October 2019

Tue Oct 22 05:53:27 UTC 2019

Dear colleagues,

During our WG calls in the first week of October 2019, there was some
discussion around the issue of the ALAC's ability to file appeals under the
proposed limited appeals mechanism being contemplated. The issue was also
connected to the ALAC's ability to file certain Objections in Subsequent
Procedures.

My At-Large colleague Alan Greenberg had indicated that we would take the
issue back to ALAC for a response.

I now wish to relay the ALAC's response on the matter of its ability to
file both Limited Public Interest Objections and Community Objections in
Subsequent Procedures, as well as appeals against any DRSP decisions
dismissing the ALAC's filed Objections. The response is as follows:

The ALAC has no funding ability beyond that supplied by ICANN. It is not
feasible for the ALAC to raise funds to finance an appeal (or objection) or
to bear costs under a “loser pays” model if its appeal is unsuccessful.

Any withholding of ICANN funding for the ALAC to file objections and/or
appeals would be tantamount to denying ALAC the ability to fulfill its duty
under the Bylaws as the primary organisational constituency for the voice
and concerns of the individual Internet user.

As to any contemplated limits to the number of appeals or quantum of ICANN
funding to ALAC in light of ICANN budgetary constraints, the ALAC believes
that its ICANN funding must be commensurate with number of applications
received.

The question of standing for the ALAC to file an objection and appeal is
beyond the scope of the Subsequent Procedures PDP WG. It is a question for
the ALAC to consider and the Dispute Resolution Service Provider and
Appeals Arbiter to determine in respect of an objection and appeal,
respectively.

I have also inserted the above response into the relevant working
document referred
to by Steve Chan below.

Olivier Crepin-Leblond and Jonathan Zuck are copied in this email for their
information as Co-Chairs of the At-Large Consolidated Policy WG.

Kind regards,

Justine Chew
ALAC liaison for Subsequent Procedures
-----

On Wed, 9 Oct 2019 at 00:26, Steve Chan <steve.chan at icann.org> wrote:

> Dear WG Members,
>
>
>
> As agreed on the 7 October 2019 WG call, staff has updated the limited
> appeals mechanism matrix to address several items identified during the
> call (e.g., background screening, Community Priority Evaluation,
> Independent Objector). The link to the working document is available here:
> https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit?usp=sharing
>
>
>
> The WG Co-chairs of course encourage your review and feedback.
>
>
>
> Best,
>
> Steve
>
>
>
>
>
>
>
> *From: *Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> on behalf of
> Julie Hedlund <julie.hedlund at icann.org>
> *Date: *Monday, October 7, 2019 at 9:38 AM
> *To: *"gnso-newgtld-wg at icann.org" <gnso-newgtld-wg at icann.org>
> *Subject: *[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent
> Procedures PDP WG - 07 October 2019
>
>
>
> Dear Working Group members,
>
>
>
> Please see below the notes from the meeting on 07 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/2019-10-07+New+gTLD+Subsequent+Procedures+PDP.
>
>
>
>
> Kind regards,
>
> Julie
>
> Julie Hedlund, Policy Director
>
>
>
> *Notes and Action Items:*
>
>
>
> *Actions:*
>
>
>
> Accountability Mechanisms -- Evaluation Procedures:
>
>
>
> *Background Screening:*
>
> ACTION ITEM 1: Add a row in the chart where the applicant can appeal and
> for contention sets and exact match, for WG comment.
>
>
>
> *CPE:*
>
> ACTION ITEM 2: Someone has to pay the brunt of the cost -- who paid last
> time for .gay?  Was that the service provider?  Ask ICANN Org.
>
>
>
> ACTION ITEM 3: Add Applicant Support Program as new line 14.
>
>
>
> *Notes:*
>
>
>
> 1. Updates to Statements of Interest: No updates provided
>
>
>
> 2. Review of summary documents:
>
>
>
> a. Accountability Mechanisms -- See: https://docs.google.com/document/d/1BkRn9nYeBNjyx2mTw-3nIDn22jTumWd4w1PZR-KNrPs/edit?usp=sharing
> [docs.google.com]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1BkRn9nYeBNjyx2mTw-2D3nIDn22jTumWd4w1PZR-2DKNrPs_edit-3Fusp-3Dsharing&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=mBQzlSaM6eYCHFBU-v48zs-QSrjHB0aWmHuE4X4drzI&m=fzAGthS59M6Ja4eWRH-tXjhHXW0h74Ii50a2U7XH5Ow&s=jpXSa64TPR6HkgQjBvjd6X3sp9CKdveWxSSM1pMRqrk&e=>,
> page 19 -- Who will be the arbiter of such an appeal?
>
>
>
> See also: concepts related to the Limited New gTLD Appeals Processes:
> https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit#gid=0
>
>
>
> -- This is an aid to help everyone.  It is not a final document.  WG
> members can make comments during the call and afterwards.
>
>
>
> *Evaluation Procedures:*
>
>
>
> -- Add line 13 -- CPE
>
>
>
> *Background Screening:*
>
> -- Should there be a panel of experts?  For string similarity they were
> farmed out to do the background screen.
>
> -- In this case we don’t know if there could be some kind of standing
> panel.
>
> -- Not sure how prescriptive the WG should be.  But the Individual
> Evaluator who made the decision probably shouldn’t be the one that reviews
> the appeal.
>
> -- For background screening, Applicant for identical string should also
> have a right to appeal.  There was no mechanism for this in the last round
> and ICANN ignored objections when someone passed who should not have passed
> under the clear language of the AGB.  If contention sets are done before
> screening then anyone in a contention set should have the right to appeal.
>
> -- Doesn’t that open every single applicant up to an additional layer of
> delay by contestants?
>
> -- Does it mean that an applicant has to pay  for bad work of the
> screeners of the first wave?
>
> -- Evaluators should be INDIVIDUALS with recognized personal expertise.
>
> -- If it is loser pays that addresses concerns about frivolous appeals.
>
> -- Real life example: CPE that had to be done a second time for .gay.  In
> that case .gay didn’t pay, not sure who did.
>
> -- How would a member of the public have access to the private portions of
> the application? (How would a private party challenge that application?)
>
> -- Not all background information is private
>
> -- We’re talking about background screening. It seems like clear
> parameters (felony, x number of UDRP losses, etc) should be established so
> it is not subjective.
>
> -- Appeal would be on one of the publicly known data points.
>
> -- This is a concern for .brands, but not just .brands.
>
> ACTION: Add a row in the chart where the applicant can appeal and for
> contention sets and exact match.
>
>
>
> *CPE:*
>
> -- Someone has to pay the brunt of the cost -- who paid last time for
> .gay?  Was that the service provider?  Ask ICANN Org.
>
>
>
> ACTION: Add Applicant Support Program as new line 14.
>
>
>
> *Objections:*
>
>
>
> *String Confusion Objection*:
>
> -- Question: What’s the difference between the appeals that are allowed
> for string similarity?  Answer: The string similarity evaluation as the way
> it was in 2012 was a strictly visual evaluation.  That was a pass/fail.  If
> the application failed the evaluation then it was thrown out (if similar to
> another string).  If similar to another application then it was thrown into
> a contention set.  The string confusion is a broader analysis, looking at
> other factors other than just visual.  It’s between the applicant and an
> existing TLD objector or another applicant objector.  It’s an appellate
> process if the existing objector believes that the evaluator got it wrong.
> In 2012 if it was decided that a string was in a contention set there was
> not way for an applicant to appeal being put in a contention set as there
> were no grounds for objection.
>
> -- When .unicorn and .unicom where put in the same contention set there
> was no appeal for that or objection.
>
> -- In the case shown in the matrix, .unicorn or .unicom could appeal.
>
> -- Doesn't this mean that contention sets need to be done very early so
> that any contention set folks can use the string similarity objectioner
> string non-similarity objection?  Yes.
>
>
>
> *Legal Rights Objection*:
>
> -- Questions: 1) Weren’t we trying to come up with narrowly tailored
> appeals? 2) how much consideration has been given to the 15 days?  Answer:
> For this charter whatever grounds we decide on for Legal Rights Objections
> are used, and we are just talking about appeals.  We haven’t decided if
> there should a de novo review or where something is clearly erroneous where
> the panel made a mistake.  Still need to decide the burden of
> proof/standard.  Also need to decide what the timeline must be, 15 days is
> just an example/placeholder.  Could a be notice of appeal in 10 days and a
> brief within 20 days.
>
>
>
> *Limited Public Interest Objection*:
>
> -- Included ALAC because their fees are covered by ICANN.
>
> -- On the last call we talked about options for applicants.  On the last
> call some people did not agree that the Independent Objector should have a
> right to an appeal due to costs.  Did the Work Track discussing this issue
> provide any guidance?  Did not think there was enough support to get rid of
> the IO and didn’t think there would be anyone else who would have the will
> to file an appeal.  WT3 decided to keep the IO but there were no
> discussions on appeals.
>
> -- Question: Do we want ICANN and Contracted Parties to pay for the IO to
> be able to appeal a decision?
>
> -- Plus a remote possibility for extension of time under special
> circumstances.
>
> -- If the IO fails is there another objection that can be used?  Depends
> on whether there are mechanisms under the Bylaws, also the GAC could file
> advice, and any third party that filed the initial objection could appeal,
> but who pays the costs?
>
> -- IO should have the same rights of appeal.
>
> -- If appeals are designed to counter panelist mistakes then it does
> appear to discriminate against IO objections .
>
> -- Add back in that the IO can appeal under user pays (which would be
> ICANN).
>
> -- ALAC has no funding ability beyond that supplied by ICANN.
>
> -- Still there that whether it is a team of IOs -- we said that there
> should be multiple IOs.  We use it in the singular, but it could be a
> team.  If there is a team, then there would not have to be an appeal.
>
> -- But what if the IO team made a mistake?
>
> -- In the previous discussion there were no objections to ALAC making an
> appeal, but there were to ICANN funding it.  That makes no sense because
> there is no ALAC as such without ICANN.  ALAC will provide a statement.
>
> -- Talked about budgets for IOs -- if they have the budget to go to appeal
> they IOs should be able to take that into account.  Budget should be scaled
> to applications.
>
>
>
> *Community Objection*:
>
> -- Should increase the number of days to file -- 15-20 days for notice of
> appeal, and 45 days to file the appeal.
>
> -- Plus a remote possibility for extension of time under special
> circumstances.
>
>
>
> *Conflict of Interest of Panelist*:
>
> -- Question: In the Chamber of Commerce you can challenge an arbitrator as
> soon as you know.  If the issue has already been heard we don’t want to
> encourage anyone to wait?  Answer: They should go through the normal
> conflict process, and then if they disagree with that decision then they
> could appeal it. It is appealing the decision of the entity who made the
> decision on conflicts.
>
> -- What about 15 days from when the appealing party has knowledge of the
> conflict.  Conflicts aren't always known up front.
>
> -- Interlocatory means before a decision is made in the case.
>
>
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