[Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
Aikman-Scalese, Anne
AAikman at lrrc.com
Mon Sep 9 21:48:34 UTC 2019
Hi. Kristine. The overall policy consideration is not dependent on the particular string. I ended up having to give three specific examples to demonstrate the principle that the WG should consider how future policy may need to affect previous applications denied delegation on policy grounds. I tried earlier to raise this issue by giving examples in three categories. (See attached email to the list from August 8 where I discuss three categories.) Later Alex Schubert volunteered his own summary of the status of specific 2012 strings and I responded. (Susan cautioned that we should wait for the staff-approved list (also attached.)
Jeff sent an email stating that all future applications for the .HOME, .CORP, and .MAIL strings were already banned by the Board resolution. (This was inaccurate and had to be addressed in the attached September 6 email quoting the Board resolution.) Then Rubens sent a note to the list stating that in his opinion, there is no longer a dependency between the Name Collision Analysis Project and the policy being developed by this WG. This is inaccurate because Study 1 of the NCAP is proceeding and there is a half day meeting on that topic in Montreal on Friday November 1. These (very specific) comments from Leadership certainly required specific responses, especially since we will address name collision policy in the upcoming call. Many of the public comments simply state “Defer to the SSAC” so that’s important. The ALAC clarification on this point (from Justine Chew) says the following:
Hi Jeff,
In reply to your request for further clarification, the ALAC is saying:
The Subsequent Procedures WG can conclude its work, and implementation may proceed, BUT EITHER ICANN may not launch the application window until the NCAP study(ies) are completed and any recommendations resulting from those study(ies) are addressed in implementation OR ICANN may launch the application window and start the evaluation process, but no TLD may be delegated until the NCAP Study(ies) is/are completed and any recommendations resulting from those study(ies) are retroactively incorporated.
Kind regards,
Justine Chew
ALAC liaison for Subsequent Procedures
I can’t imagine why we would ask the WG to develop policy impacting Applicant Freedom of Expression without looking at the attached list of strings that would enjoy protected status prohibiting future applications by the proposed language. If these 2012 applications are outside the Charter as Rubens asserts, then they are definitely outside the scope of giving them preference by banning future applications for the same string. As Alex points out, “apply at your own risk.”
Anne
From: Dorrain, Kristine <dorraink at amazon.com>
Sent: Thursday, September 5, 2019 4:06 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com>; Jeff Neuman <jeff.neuman at comlaude.com>; Susan Payne <susan.payne at valideus.com>
Cc: gnso-newgtld-wg at icann.org
Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
[EXTERNAL]
________________________________
Anne,
I would hope that our policy discussions were not targeted at specific applications and that we could have this conversation without a list in front of us. That is, if you think people should be able to apply for TLDs while current applications for those strings are pending, that is a policy stance you’ve taken. Why would it be dependent on the string?
Kristine
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Aikman-Scalese, Anne
Sent: Thursday, September 5, 2019 11:48 AM
To: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>; Susan Payne <susan.payne at valideus.com<mailto:susan.payne at valideus.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
Jeff – You had said you were waiting on GDD approval of the list. Can we have the link to that?
Re second question, hard to evaluate a proposal to prohibit new applications for the same strings when we don’t know which applications we are discussing.
From: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>
Sent: Thursday, September 5, 2019 11:02 AM
To: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; Susan Payne <susan.payne at valideus.com<mailto:susan.payne at valideus.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
[EXTERNAL]
________________________________
Anne,
I am not sure what you mean by the “GDD approved list of strings that may still be in play from 2012”? We have published a status chart of where everything from 2012, which will need one update (if it has not been already), as I understand .llp may be signed now.
I am also not clear on what you mean by concurrent evaluation of these proposals.
Jeff Neuman
Senior Vice President
Com Laude | Valideus
D: +1.703.635.7514
E: jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>
From: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>
Sent: Thursday, September 5, 2019 1:52 PM
To: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>; Susan Payne <susan.payne at valideus.com<mailto:susan.payne at valideus.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
Thanks Jeff. I was under the impression that since there was no consensus evident on Proposal 1, Susan would be drafting proposal 2 for consideration. Separately, I don’t see how any WG member can reflect properly on either proposal without the GDD approved list of strings that may still be in play from 2012. Will that be coming in time for concurrent evaluation of these proposals?
Anne
From: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>
Sent: Wednesday, September 4, 2019 12:10 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; Susan Payne <susan.payne at valideus.com<mailto:susan.payne at valideus.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
[EXTERNAL]
________________________________
Anne,
During the call that Susan is referring to Susan volunteered to draft some language to flesh out her proposal. And although it did not seem to have a huge amount of support on that call, she was asked to send the proposal around to the list to see if it has traction.
As you have pointed out, decisions are not generally made with just one phone call. Discussions can and should happen on the mailing list. Susan has responded with her proposal on the list and we can see which version has support. The options are:
1. Prohibit Applications for strings where the applications are still pending (for whatever reason) – As per Susan’s proposal; or
2. Allow applications in for those strings, but do not process them any further than the reveal stage, unless and/or until the applications from the previous round that match those strings have had their final disposition.
Jeff Neuman
Senior Vice President
Com Laude | Valideus
D: +1.703.635.7514
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 Aikman-Scalese, Anne
Sent: Tuesday, September 3, 2019 7:09 PM
To: Susan Payne <susan.payne at valideus.com<mailto:susan.payne at valideus.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
Susan – sorry for the confusion but based on Jeff’s request, I had understood you were “fleshing out” the part that the WG might be able to agree on – which was that prior round applications should be “completed” prior to subsequent round applications for the same string being considered. I’m pretty sure the recording will confirm this.
Anne
From: Susan Payne <susan.payne at valideus.com<mailto:susan.payne at valideus.com>>
Sent: Tuesday, September 3, 2019 4:06 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>
Cc: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
[EXTERNAL]
________________________________
Anne, This is based on the comments that my company and INTA had made. I was asked on the call, including by you, to flesh this out so that the group could see what such a proposal would look like, and whether it would garner sufficient support. Here it is.
Sent from my iPad
On 3 Sep 2019, at 17:57, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
Hi Susan. This is a bit confusing. I recall that Jeff noted there was no high level agreement for this proposition. Rather he stated there could be high level agreement that strings from prior rounds must complete application evaluation prior to consideration of subsequent round applications for the same string. He has since confirmed that in a post to the list.
How did we get to a proposal for “no applications for the same string?”
Anne
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Susan Payne
Sent: Tuesday, September 3, 2019 3:54 PM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Proposal on Prioritising Applications - prohibition on applying in a later round for a string from a prior round which has not yet been delegated
[EXTERNAL]
________________________________
All
During a call a couple of weeks ago, when we were discussing application prioritisation, I volunteered to circulate for consideration a proposal to prohibit allowing applications in a later application window where the string has previously been applied for and not yet been delegated. Although it had originally been proposed that this might extend to confusingly similar strings, having reflected on the discussion during the call I accept that this would probably be unrealistic, since confusing similarity needs to be determined as part of the TLD evaluation process. I have therefore limited this proposal to exact match strings, as follows:
* This proposal assumes that we will have at least one further application round/open window for submission of applications, and possibly that there may be a number of such future open windows during which applications may be submitted, followed by some closed period when applications are not received, before the next application window opens (I will use the phrase “application submission period”).
* Where one or more applicants for a particular TLD string have applied for that string in a prior application submission period (including the 2012 application submission period); and
* The TLD has not been withdrawn but has not yet proceeded to delegation for whatever reason, including but not limited to:
* One or more of the applications has not yet completed evaluation;
* One or more of the applications is still the subject of an objection process
* The contention set has not yet been resolved;
* There is an ongoing accountability process, [appeal] or other legal challenge underway with respect to a decision(s) relating to one or more application;
* Time within which to commence an accountability process, [appeal] or other legal challenge on such a decision is still running;
* The exact match to that TLD string shall be blocked from application during future application submission periods until such time as the prior round application(s) have finally been concluded, according the rules under which they applied:
* If the TLD string is delegated to one of the earlier applicants, then that string will remain unavailable for later applicants;
* If all of the earlier applications are finally rejected, then (provided that a decision has not been made by the Board to permanently refuse that string) the TLD string will once again become available for application:
* from the next application submission period, provided that this allows a minimum of 3 months notice before the application submission period opens; or,
* If the next application submission period opens in less than 3 months, then the subsequent application submission period.
Rationale
We know that, many years after the 2012 application submission period closed, there are still a handful of applications for TLD strings which remain unresolved, generally due to delays caused by recourse to ICANNs accountability mechanisms.
Whilst we all hope that in subsequent procedures we will have fewer of the challenges that we saw in the 2012 round, it is reasonable to assume that some will still occur.
In any event, if subsequent procedures take the form of a series of discrete application submission periods, with known, finite, periods between them, then it is conceivable that applications from one application submission period may still be being processed when then next application submission period opens.
If the period between application submission periods is reasonably short (12 months has been discussed, for example) we could conceivably see the added complication of applications for the same string being queued up across multiple windows.
Whilst a later applicant who applied unsuccessfully for a TLD, which was eventually allocated to an applicant from a prior application submission period, could expect to recover their application fee, there is a cost to putting together an application in excess of the ICANN fee, and this would not be recoverable. The later applicant could also have their application fee tied up for months or even years, pending the outcome of the earlier application(s).
Some have argued that this is the choice of the later applicant, that they can check whether there are prior “live” applications and decide accordingly whether they still want to apply. I believe this does a disservice to potential applicants, particularly those who are not so familiar with all of the history of prior applications and who may not appreciate that in many cases they would have no realistic prospect of being allocated the TLD string that ICANN has allowed them to apply for. Blocking the TLD from application, until such time as the previous applications are resolved, seems a much fairer approach.
Susan Payne
Head of Legal Policy
Valideus
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