[Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs

Kathy Kleiman kathy at kathykleiman.com
Thu Sep 26 22:39:50 UTC 2019


Mandatory PICS are unchanging. You can't resolve an Objection with a 
Mandatory PIC. It would require a Voluntary PIC -- which has become a 
misnomer, and a complete garbage can of everything applicants wanted to 
throw into the kitchen sink. There are longstanding objections to 
"voluntary PICs" from the Noncommercial Stakeholder Group, Electronic 
Frontier Foundation and the Public Interest Community (as we discussed 
many times). There is no high-level agreement on including them -- and 
they were not part of the Round 1 rules.

We agreed in last week's call that you could *amend the application* to 
settle an Objection.  That puts the private Objection settlement out for 
fuller and fairer review -- which is fair.  Changes to public portion of 
applications would be subject to public comment -- and hopefully 
notification to all who have filed comments and therefore are likely 
interested in following changes to that application.  Publication and 
public notice on significant changes to applications (with public 
comment) to settle an Objection *was *done in Round 1.

But there was no question that there is a _high level Disagreement __to 
settling disputes with changes to PICs --  because mandatory PICs are 
fixed and unchanging. _This high level Disagreement was raised in every 
Objections call until last night. /Surely we are not saying that if you 
miss one discussion in the dead of night, you have waived all previous 
objections? /

I'm assuming GAC objections were the topic at issue here -- and can 
settled with changes to the application itself. **Many, many changes to 
public portions of applications were made in response to the GAC in 
Round 1. /

Best,  Kathy

Kathryn Kleiman, American University Washington College of Law

On 9/26/2019 6:13 PM, Aikman-Scalese, Anne wrote:
> Regarding the last call and the possible high level agreement on 
> resolving Objection proceedings with mandatory PICs, it’s important to 
> note that there is no private right of action to enforce a PIC.  The 
> current PIC Dispute Resolution procedure – PICDRP (see attached) 
> provides for various steps to be taken in resolving the PIC complaint 
> and if unresolved, ICANN  at its SOLE discrestion, can invoke a a 
> Staning Panel or undertake a compliance investigation.
> So the points I am raising here are:
> (1) Proceeding on the report of a PIC violation rests in the sole 
> discretion of ICANN
> (2) The expense of the Compliance investigation and/or Standing Panel 
> is an expense of ICANN.
> Accordingly, it may be appropriate to consider adopting a private 
> right of action (rather than forcing the expense on ICANN) in 
> connection with the enforcement of mandatory PICs adopted for purposes 
> of resolving an Objection proceeding.
> In fact, the PICDRP originally contained a provision allowing the 
> enforcement issue to be taken to a third party provider.  However, 
> that draft did not survive.
> Anne
> *Anne E. Aikman-Scalese*
> Of Counsel
> 520.629.4428 office
> 520.879.4725 fax
> AAikman at lrrc.com <mailto:AAikman at lrrc.com>
> _____________________________
> Lewis Roca Rothgerber Christie LLP
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