[Gnso-newgtld-wg] Donna Austin Proposal and Paul McGrady Question re: Sealed Bid Auction

Peter LaMantia peter at authenticweb.com
Tue Oct 22 22:48:19 UTC 2019 

+1 on that. 

Sent from my iPhone

> On Oct 22, 2019, at 6:31 PM, Mike Rodenbaugh <mike at rodenbaugh.com> wrote:
> 
> I'm with Kurt at this point.  I have not seen any real evidentiary impetus to change the status quo procedures from the last round.  What is the problem we are trying to solve, and what evidence suggests it is a problem?
> 
> Thanks,
> Mike
> 
> Mike Rodenbaugh
> RODENBAUGH LAW
> tel/fax:  +1.415.738.8087
> http://rodenbaugh.law 
> 
> 
>> On Mon, Oct 21, 2019 at 7:10 PM Kurt Pritz <kurt at kjpritz.com> wrote:
>> What is the problem we are trying to solve by the instantiation of a sealed-bid auction process?
>> 
>> 1) Is it that we believed the prices paid in the ICANN (English-style) auctions were too high? 
>> 
>> 2) Is it to prevent the development of a secondary market where applicants join the process to gain in the spoils of private settlements?
>> 
>> 3) Do we suspect there was collusion in the previous round and seek to avoid that in the next round?
>> 
>> 4) Something else?
>> 
>> We discussed, but I don’t think settled our policy goals in this area.
>> 
>> My brief reading of economics papers (that I could fathom) is: 
>> 
>> 1) That sealed bid auctions and English (bidding) auctions have similar revenue results. 
>> 
>> 2) That whether a traditional sealed bid auction (where the winner pays the highest priced bid) and a Vickrey auction (where the winner pays the second highest price bid) is conducted depends on a variety of factors where the advice of a fairly sophisticated economist should be sought. 
>> 
>> 3) That collusion has occurred in all auction and contention-settlement formats. 
>> 
>> 4) That no where could I find a sealed bid auction was not close in time to the award. Cf., our situation, where the bids are to be submitted months or years prior to the award or where a set of evaluations and objections can change the status of the players and the value of the object. E.g., the reveal will markedly change the market value of the asset up for bid. 
>> 
>> It seems that having a sealed bid far in advance of the award and the uncertainties that will introduce will discourage new entrants into the field. I think one of our objectives is to encourage competition. There are other unforeseen consequences to a “far-in-advance” auction as indicated by the log list of issues created by Jeff.
>> 
>> Our approach to contention resolution depends on our policy goals and sealed-bid auctions of some type might be part of that solution. However, I don’t think we should specify auction timing of the types that have been discussed without appropriate analysis - and maybe there is a more straightforward way to accomplish our policy goals. 
>> 
>> Last week, we discussed solutions, how they would be implemented, and their likely effects. Instead, we might first write down the desired effects (our policy goals) and then generate solutions, both simple and elaborate. 
>> 
>> I hope this is helpful.
>> 
>> Kurt
>> 
>> 
>> 
>>> On Oct 21, 2019, at 3:48 PM, Dorrain, Kristine via Gnso-newgtld-wg <gnso-newgtld-wg at icann.org> wrote:
>>> 
>>> I would like to explore Donna’s suggestion a bit more.  I think we could get comfortable with a concession for sealed bids for an ICANN auction of last resort that still allowed for good faith private resolution of contention sets.  I want to re-iterate for the benefit of folks on the thread that (i) Private Resolutions need not always be a private auction (other forms of resolution like joint ventures are possible) and (ii) the only way a contention set gets to Private Resolution is if all members of the contention set agree.  So, to Alexander’s earlier point, that points to a greater likelihood that contention sets will end up at the ICANN auction, particularly if parties know there won’t be a bidding war.
>>>  
>>> I can’t speak definitively for Amazon on this point, but I believe we can and should discuss this concession a bit more to see if we can find some common ground.
>>>  
>>> Thanks,
>>>  
>>> Kristine
>>>  
>>>  
>>>  
>>> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Aikman-Scalese, Anne
>>> Sent: Monday, October 21, 2019 3:21 PM
>>> To: gnso-newgtld-wg at icann.org
>>> Subject: [Gnso-newgtld-wg] FW: Donna Austin Proposal and Paul McGrady Question re: Sealed Bid Auction
>>>  
>>>  
>>>  
>>> From: Aikman-Scalese, Anne 
>>> Sent: Monday, October 21, 2019 3:20 PM
>>> To: 'Austin, Donna' <Donna.Austin at team.neustar>
>>> Subject: RE: Donna Austin Proposal and Paul McGrady Question re: Sealed Bid Auction
>>>  
>>> Thanks Donna.  So I guess that means Objection time limit would not be triggered until the winner of the contention set is determined (either through private auction or through highest sealed bid) and then losing bidders may opt to stay in contention until the outcome of any Objection process against the winner.
>>>  
>>> From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Austin, Donna via Gnso-newgtld-wg
>>> Sent: Monday, October 21, 2019 3:07 PM
>>> To: gnso-newgtld-wg at icann.org
>>> Subject: Re: [Gnso-newgtld-wg] Donna Austin Proposal and Paul McGrady Question re: Sealed Bid Auction
>>>  
>>> [EXTERNAL]
>>> All
>>>  
>>> Just to come back to my suggestion from Thursday.
>>>  
>>> If I understood correctly, the proposal was that we consider the following:  What if at some point prior to reveal day, ICANN were to notify all of the parties that are in a contention set that they were in a contention set.  Perhaps even telling them how many other applicants they were in a contention set with.  But there would be no disclosure of WHO was in the contention set.  Then each applicant would be given a period of time (Which would end PRIOR to reveal day), to either withdraw their application or submit a sealed bid.  
>>>  
>>> That part of Jeff’s restatement of what I proposed is largely correct—the finer details to be worked out. This goes some way to overcoming Neustar’s concerns with the Vickery model that recommends submitting a sealed bid with the application. There is no way of knowing how many applications will be submitted next time around, which makes it difficult for potential applicants to assign a value to the string beyond what they’re paying to submit the application. If the applicant is made aware that they in a contention set for a string, then they have a little more information to work with in deciding a value and submitting a bid; however, the bid is only intended to be relevant in the event of an auction of last resort.
>>>  
>>> ICANN would then process only the application that submitted the highest bid. 
>>>  
>>> This assumption is incorrect.
>>>  
>>> Our recommendation is that the applicants would still have an opportunity to resolve the contention set through other means such as private auction, a joint venture arrangement or chose another string as was suggested for ‘brands’ of the same name.  Applicants would not know before reveal day who they are in contention with and would submit a bid absent that information, but they would become aware after the fact and should still have an opportunity to resolve the contention privately. It’s important to remember that a private auction only happens if all bidders agree to do s.
>>>  
>>> I understand concerns about collusion and profiteering. I understand that what I’m suggesting may not overcome those concerns, but perhaps what we need in order to address those concerns is to have a policy statement that expressly prohibits collusion and profiting from the new gTLD. I don’t know how you enforce such a policy statement, but perhaps it would be enough to serve as a deterrent to this type of behavior.
>>>  
>>> Donna
>>>  
>>> Donna Austin
>>> Neustar, Inc. / Senior Policy Manager, Registry Solutions
>>> Mobile: +1 310 890 9655
>>> donna.austin at team.neustar / Website: home.neustar
>>>  
>>> Follow Neustar: LinkedIn / Twitter
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>>>  
>>>  
>>>  
>>>  
>>>  
>>>  
>>>  
>>>  
>>>  
>>> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Austin, Donna via Gnso-newgtld-wg
>>> Sent: Thursday, October 17, 2019 6:59 PM
>>> To: gnso-newgtld-wg at icann.org
>>> Subject: [Gnso-newgtld-wg] FW: Donna Austin Proposal and Paul McGrady Question re: Sealed Bid Auction
>>>  
>>> All
>>>  
>>> The suggestion that I made toward the end of the call was on the fly and I have not had an opportunity to fully think it through. So while I appreciate Jeff’s effort to capture what I suggested below, I wanted to flag that Jeff’s description is not completely aligned with my overall thinking. I’ll come back to the list about this tomorrow.
>>>  
>>> Donna 
>>>  
>>> From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Jeff Neuman
>>> Sent: Thursday, October 17, 2019 3:32 PM
>>> To: gnso-newgtld-wg at icann.org
>>> Subject: [Gnso-newgtld-wg] Donna Austin Proposal and Paul McGrady Question re: Sealed Bid Auction
>>>  
>>> At the end of the call that just wrapped up we had a good discussion on a potential compromise regarding auctions that I want to continue the conversation in this thread before we lost momentum.  WARNING:  THIS E-MAIL MAY RESULT IN YOUR HEAD SPINNING FROM THE POTENTIAL PERMUTATIONS. 
>>>  
>>> If I understood correctly, the proposal was that we consider the following:  What if at some point prior to reveal day, ICANN were to notify all of the parties that are in a contention set that they were in a contention set.  Perhaps even telling them how many other applicants they were in a contention set with.  But there would be no disclosure of WHO was in the contention set.  Then each applicant would be given a period of time (Which would end PRIOR to reveal day), to either withdraw their application or submit a sealed bid.  
>>>  
>>> ICANN would then process only the application that submitted the highest bid. 
>>>  
>>> If the application with the highest bid gets through the entire evaluation/objection processes and to the contracting stage, it would then be responsible for the payment of an amount equal to the second highest bid.  If that applicant did not make it through the evaluation/objection processes for whatever reason, ICANN would then start processing the application of the second highest bidder and if that bidder were successful, it would at contract stage pay ICANN the price of the third highest bidder, etc.
>>>  
>>> Here are the potential issues/questions [and some of my initial thoughts]:
>>>  
>>> If there are one or more Community Applications, that/those application(s) would need to be processed first through CPE before looking at the auction bids.
>>> What happens on Reveal Day?  Are all of the applications (that have not been withdrawn) posted regardless of whether they are first in the queue or not?  [I would say yes so that they next steps can be completed].
>>> If they are all revealed, would the order of where the bids came in (but not the amounts) be posted?  I would say again yes.
>>> Would comments from the public be solicited on all applications regardless of where they placed in the queue?  I would say yes because to do it otherwise would mean opening up separate public comment periods depending on whether there is a need to go to the second bidder, and that would be impossible to monitor.
>>> How does String Similarity Evaluation fit in here?
>>> For exact matches and plural/singular (if that rule is adopted), it will be clear who is in a contention set.
>>> But, what if String Similarity Evaluation determines that others should be in the Contention Set?
>>> Although String Similarity Evaluation is after reveal day, if the panel decides that another string should be added to an existing contention set, or it results in the creation of a new contention set, the following should happen:
>>>                                                                i.      If it creates a new contention set, the all of the applicants in the new contention set would be asked to submit bids.  Yes, they would know who they were in a contention set with, but that is just something I think we need to live with.
>>>                                                              ii.      If new applications were added to an existing contention set, then the new applicants would be asked to submit a sealed bid. Yes, they would know who was in their contention set and if the applications are poste in the order in which they bid, they would know who they would have to outbid, BUT, they would not know how much the others bid.  This too in unavoidable.
>>> Would objections need to be filed during the objection period?
>>> This is a much more difficult question.  My proposal would be that objections on the highest bidder’s application would certainly need to be filed within the objection period.
>>> With respect to objections on the other applications, I believe there should be something akin to the filing of “an intent to file an objection” with respect to other applications.  But the actual Objection filing would not need to be made unless the first application did not succeed.  If ICANN needs to go to the second bidder, the party(ies) that indicated an intent to file an objection would be given 30 days to file that objection at that time.  If the first applicant proceeds to contracting, then there would be no need to hear any objections on the second, third, etc. applications.
>>> Is #5 above the same if there are one or more Community Applications?
>>> I would say that all Community Applications for a string would be treated as if they were first in the queue for the purposes of #5.  So, objections on the community applications would need to be filed during the original objection period, but “intent to file objections” would need to be filed (if any) on the others.
>>> If more than one Community Application passes CPE for a string, then the highest Community bidder would be processed through the rest of the process first.  If for whatever reason they do not succeed, then it would go to the 2nd Community Applicant that passed CPE, etc.
>>> Then, the objections (if any) on the non-Community Applications would only be heard if the Community Applications do not pass CPE.
>>> What if a String Confusion Objection results in the creation of a new contention set or adds to an existing contention set?
>>> I think this would be treated similarly to the String Similarity Evaluation results.
>>> What this means is that after all String Confusion Objections are filed within the Objection Period, ICANN would need to determine whether there would be a possibility if the outcome could result in the creation of a new contention set or add to an existing contention set.  If that possibility exists, then ICANN would need to hold off on proceeding with the potentially impacted strings until after the results of the String Confusion Objection are in (as well as any appeals of those decisions).  
>>> How do Appeals/Accountability Mechanisms work with this?
>>> All appeals/Accountability Mechanisms of the first application in the queue must be exhausted.  If the first application in the queue for whatever reason loses an appeal and that results in the failure of the application (for whatever reason), then and only then would the second in line be processed.
>>> How does the Applicant Support Program figure into this?
>>> If we decide that Applicants who are given support get a multiplier on their auction bid (But not Priority), that would get figured in at the appropriate time in determining their order in the queue.
>>> If we decide that Applicants who are given support do not get a multiplier on their auction bid, then this would have no impact on the proposal.
>>>  
>>>  
>>> If you made it this far, I am not only amazed, but also proud 😊  Great job!
>>>  
>>> Best regards,
>>>  
>>>  
>>> Jeff Neuman
>>> Senior Vice President 
>>>  
>>> Com Laude | Valideus
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>>> Suite 600, McLean
>>> VA 22102, USA
>>> 
>>> M: +1.202.549.5079
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>>> www.comlaude.com
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