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

Justine Chew justine.chew at gmail.com
Tue Oct 29 13:50:46 UTC 2019


In answer to Jeff's original email - I agree largely with Donna's and
Kristine's comments, and look forward to some fine-tuning in respect of
objections and appeals after a bit more thought.

In answer to Kurt's comments, policy goals to aim for in my book:

1. Allowing private contention set resolution but strongly discouraging, if
not prohibiting or preventing, collusion and profiting through withdrawing
from a contention set - ban on private auctions
2. Moving to Vickrey auction, instead of regular bidding auction, to make
applicants put a (fixed) value on the string being applied for
3. Leveling the playing field somewhat with a multiplier on bids for
applicants which qualify for Applicant Support in the event of an
ICANN-endorsed auction as the mechanism of last resort to resolve
contention set

Justine
-----


On Wed, 23 Oct 2019 at 15:20, Marc Trachtenberg via Gnso-newgtld-wg <
gnso-newgtld-wg at icann.org> wrote:

> +2
>
>
>
> *Marc H. Trachtenberg *
> Shareholder
> Greenberg Traurig, LLP
> 77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
> T +1 312.456.1020
> trac at gtlaw.com <trachtenbergm at gtlaw.com> | www.gtlaw.com | View GT
> Biography <https://www.gtlaw.com/en/professionals/t/trachtenberg-marc-h>
>
> [image: Greenberg Traurig]
>
>
>
> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] *On
> Behalf Of *Peter LaMantia
> *Sent:* Tuesday, October 22, 2019 5:48 PM
> *To:* Mike Rodenbaugh <mike at rodenbaugh.com>
> *Cc:* gnso-newgtld-wg at icann.org
> *Subject:* Re: [Gnso-newgtld-wg] Donna Austin Proposal and Paul McGrady
> Question re: Sealed Bid Auction
>
>
>
> **EXTERNAL TO GT**
>
> +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
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__rodenbaugh.law&d=DwMFaQ&c=2s2mvbfY0UoSKkl6_Ol9wg&r=L7MB7eHT-UoCXD4iA3c7Sm3JrKXt7T1dG3NjBzCxm1c&m=zFZB8iUe58ayb8_hBLvOYJC1j0jjffmZSCcDAO5WXcI&s=DkZP4fYCxg0G3V3oMCSunIkG1kMwKQ412X6EBwe-SqQ&e=>
>
>
>
>
>
>
> 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 <donna.austin at team.neustar>* / *Website:*
> home.neustar
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>
> *Follow Neustar:* LinkedIn
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> *From:* Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org
> <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
> <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]:
>
>
>
>    1. 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.
>    2. 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].
>    3. 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.
>    4. 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.
>    5. How does String Similarity Evaluation fit in here?
>
>
>    1. For exact matches and plural/singular (if that rule is adopted), it
>       will be clear who is in a contention set.
>       2. But, what if String Similarity Evaluation determines that others
>       should be in the Contention Set?
>       3. 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.
>
>    1. Would objections need to be filed during the objection period?
>
>
>    1. 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.
>       2. 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.
>
>
>    1. Is #5 above the same if there are one or more Community
>    Applications?
>
>
>    1. 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.
>       2. 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.
>       3. Then, the objections (if any) on the non-Community Applications
>       would only be heard *if* the Community Applications do not pass CPE.
>
>
>    1. What if a String Confusion Objection results in the creation of a
>    new contention set or adds to an existing contention set?
>
>
>    1. I think this would be treated similarly to the String Similarity
>       Evaluation results.
>       2. 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).
>
>
>    1. How do Appeals/Accountability Mechanisms work with this?
>
>
>    1. 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.
>
>
>    1. How does the Applicant Support Program figure into this?
>
>
>    1. 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.
>       2. 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
>
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