[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 23 September 2019

[Aikman-Scalese, Anne]

Thanks Julie – re the possible high level agreement in relation to requirements for GAC Advice, the “friendly amendment” to the proposed language was to state the requirement for a rationale as being based on (i) law “and/or”  (ii) public policy.  I think this addition of the “or” (as noted by Steve in the document) would be important since the ICANN ByLaws make no reference to the GAC needing to cite any particular law in its Consensus public policy advice to the Board.   Separately, I agree with those who noted that this proposed provision would read better if the word “must” were changed to “should”.

It may also be appropriate to note that if the WG’s proposed high level agreement as to GAC Advice is in fact adopted by the Board (if recommended by GNSO Council and over the objection of the GAC), this would likely require amendment to the ByLaws so the WG may want to be specific about that .  In this regard, I recall a lot of discussion in the Accountability workstream regarding the definition of “GAC Consensus Advice”.  That definition appears below.  (Greg Shatan may have a clearer recollection of this discussion than I do.)

What gets VERY interesting here is that the Board overriding GNSO policy advice requires a 2/3 majority and the Board overriding GAC Advice requires a 60% majority vote (which I think is 11 Directors). So the WG should be cognizant that we may be setting up a stalemate at the Board level on these issues that could well result in the Board coming back to the GNSO and the GAC and telling us all to “work it out”. The problem there, of course, is possible further delay in the next round so I think the WG has to consider whether engagement for that purpose is advisable, as will GNSO Council once it receives the Final Report of the WG.  A “fallback” position would be to develop language that does not require ByLaws amendments and would not put the Board in the “Dueling ByLaws” bottleneck, unless of course that is exactly what the WG as a whole recommends that we trigger.  (So again, it may be appropriate to seek public comment on that particular issue.)

Would it not be better to state the “high level agreement” in the form of recommending that the Board formally request a written statement from the GAC as to its rationale?  (That recommendation would not necessarily put the Board in the position of having to amend ByLaws and would not necessarily create a “bottleneck”.)  In other words, it would be much easier for the Board to adopt.    Could we say as follows:

"The WG recommends that the Board formally request that GAC Consensus Advice include  a clearly articulated written rationale, including the (i) national or international law; and/or  (ii) merits-based public policy reasons, upon which it is based."

The new ByLaws section on GAC Advice from the 2016 Accountability Process in Sec 12.2.(a)  is:

[cid:image001.png at 01D57216.147E82E0]

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Julie Hedlund
Sent: Monday, September 23, 2019 12:11 PM
To: gnso-newgtld-wg at icann.org
Subject: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 23 September 2019

[EXTERNAL]
________________________________
Dear Working Group members,

Please see below the notes from the meeting on 23 September 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/2019-09-23+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie
Julie Hedlund, Policy Director

Notes and Action Items:

Actions:

Objections -- re: GAC Advice

Option listed in Initial Report: GAC Advice must include clearly articulated rationale, including the national or international law upon which it is based.

ACTION ITEM 1: Re: BRG/RySG: New Idea - Supports this option but suggests the language is modified to "GAC Advice must include clearly articulated rationale, including the (i) national or international law; and (ii) merits-based public policy reasons, upon which it is based".   Review to determine if WG agrees to add to high-level agreements.

ACTION ITEM 2: Re: INTA: New Idea - Require that GAC Advice nominate and provide contact details for an authorized GAC contact who is knowledgeable about the grounds for the objection and authorized to discuss solutions with a view to trying to reach a resolution.  Review to determine if WG agrees to add to high-level agreements.

Option listed in Initial Report: Future GAC Advice, and Board action thereupon, for categories of gTLDs should be issued prior to the finalization of the next Applicant Guidebook. Any GAC Advice issued after the application period has begun must apply to individual strings only, based on the merits and details of the application, not on groups or classes of applications.
ACTION ITEM 3: Review to determine if WG agrees to add to high-level agreements.
ACTION ITEM 4:  Look in the Bylaws with respect to GAC Advice.

Notes:

1. Updates to Statements of Interest: No updates provided.

2. Review of summary documents:

-- General Question: Where will we see the summary of agreements?  Staff and Co-Chairs are working on a draft.

-- Consider capturing agreements with actions, but these would need to be specifically called out, ideally by leadership, so that they can be accurate captured.

a. Objections -- See: https://docs.google.com/document/d/1BkRn9nYeBNjyx2mTw-3nIDn22jTumWd4w1PZR-KNrPs/edit?usp=sharing, continue discussion, start on page 5

Opportunity to amend an application or add Public Interest Commitments in response to concerns raised in an objection (see High-Level Agreement E above).
-- Noting opposition by NCSG to PICs.
-- Changes to applications went out for public comment, but voluntary PICs don’t make sense.  Concerned about changes being presented in PICs, when they aren’t.
-- What is the distinction between a change to an application versus one that is made in response to an objection?  It is an agreement between ICANN and the applicant.  There is still a role for ICANN in compliance with what the applicant said what they would do.
-- If part of the agreement is in a PIC then ICANN has the ability to outsource that compliance to a third party.
-- The CPE is not an objection process, it’s an evaluation.  There is no CPE objection process.  We should not confuse Community Objections with Community Priority Evaluations.   Community Objections come from affected community members, the CPE aims if a community applicant fulfills the community criteria.
-- There can be opposition to community applications, although that is not an objection.
-- Community Priority Evaluation rules and principles were not solidified before the application window closed in 2012.  Don’t want the rules and principles to shift after the window closes.
-- Let’s keep the Opposition / Objection separate.
The Opposition component of CPE we will tackle when we discuss CPE (2 topics from now). 
For today, lets focus ONLY on Community-based objections.
-- Objections filed by under Community Objections should be time-limited just as with other objections - String Confusion, Legal Rights, Limited Public Interest. CPE should not be used to "submit" opposition akin to an objection.
-- The assumption after reading the AGB was once a community applicant gets through objection and public comments that would be the basis for CPE, but that didn’t happen and allowed community opposition to come in weeks before the application window closed.

Additional comments on possible remediation measures in response to objections.
-- ALAC comment: the WG policies will go to an Implementation Review Team.  This is different from the recommendation for a Standing IRT, which is to address issues that arise after implementation.

Were some objections in the 2012 round filed with the specific intent to delay the processing of applications for a particular string? How can this issue be addressed?:
-- Re: NSCG: Agreement - Working Group should build safeguards into the objection process that protect against potential gaming and other manipulations of the process. There is agreement to build in such safeguards.
-- Re: NTA: New Idea - Suggests quick look mechanisms, processes which would allow for summary judgments and costs awards in clear cut non-cases, as well as clear application guidelines for applicants and clear conflicts of interest measures.  Seems to be general agreement to this.  Can we say who would be the third party to handle the quick look?  For PICDRPs ICANN Org does it.  For the limited public interest objection in the 2012 round it was a third party.
-- From the AGB regarding the Limited Public Interest: The quick look is the Panel’s first task, after its appointment by the DRSP and is a review on the merits of the objection. The dismissal of an objection that is manifestly unfounded and/or an abuse of the right to object would be an Expert Determination, rendered in accordance with Article 21 of the New gTLD Dispute Resolution Procedure.


Should ICANN continue to fund all objections filed by the ALAC?
-- Re: Council of Europe: New Idea - Clarify ALAC’s task in the Bylaws.  Can note this but can’t recommend changes to the Bylaws.
-- Need to clarify how the ALAC has standing to object.  It’s more than standing.  They were not given the privileges of the independent objector.  For clarification, are there any limits to the number of objections can file, if not there should be.  Some comments supported that there should be limits.
-- Last time they had 3 objections to 1 string.  ALAC filed 3 objections against .health. We have a stringent process within ALAC to get to filing an objection.
-- Limits should be qualitative, not quantitative.  There already is a high bar for the ALAC to file objections.
-- If you added a Global Public Interest standard, if the Board defines one, not sure why it would apply only to ALAC.  The ALAC already applies the GPI standard.

GAC Advice:
Option listed in Initial Report: GAC Advice must include clearly articulated rationale, including the national or international law upon which it is based.
-- Everyone except for the GAC agreed -- relying solely on the Bylaws for GAC advice.
-- Re: BRG/RySG: New Idea - Supports this option but suggests the language is modified to "GAC Advice must include clearly articulated rationale, including the (i) national or international law; and (ii) merits-based public policy reasons, upon which it is based".   ACTION: Review to determine if WG agrees to add to high-level agreements.
-- Re: INTA: New Idea - Require that GAC Advice nominate and provide contact details for an authorized GAC contact who is knowledgeable about the grounds for the objection and authorized to discuss solutions with a view to trying to reach a resolution.  ACTION: Review to determine if WG agrees to add to high-level agreements.
-- Presumably we cannot tell the GAC to change it's processes but we can make recommendations?

-- 
Language should say OR rather than "and" between the "(i) and the (ii).


-- Perhaps it being a SHOULD instead of MUST ?  Don't think GAC Advice has to be based on law so language would be "and/or" between (i) and (ii))

Option listed in Initial Report: Future GAC Advice, and Board action thereupon, for categories of gTLDs should be issued prior to the finalization of the next Applicant Guidebook. Any GAC Advice issued after the application period has begun must apply to individual strings only, based on the merits and details of the application, not on groups or classes of applications.
-- Comments are in agreement.  ACTION: Review to determine if WG agrees to add to high-level agreements.
-- ACTION:  Look to the Bylaws with respect to GAC Advice.



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