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

Maxim Alzoba m.alzoba at gmail.com
Fri Sep 27 08:43:30 UTC 2019 

Hello Kathy, 

Please provide an evidence, like the reference to the Registry Agreement clause, which at least mentions the application (there is none).

There is no legal link between an Applicant and the Registry after the execution of the contract (RA). 

Though nothing prevents a Registry from including the most important ideas of the application into the Registry own set of policies and contractual texts with Registrars (RRA), which was usually done. 

For example a Registry might include some elegibility criteria (like a certain kinds of license for food manufacturer in case of a relevant TLD),  and the process of review, when  they receive a notification, that the particular Registrant does not follow policies or lost the required license. 
The review process might be held by a panel of community recognized or appointed respected experts in this field (and this can be in Registry policies). 

So there is a way to do these things, but it is up to a Registry and not derived from the 
Application. 

P. S: In  the 2012 round all applicants included business models, which became unworkable after sudden unpredicted changes from ICANN side (RAA 2013 restriction,  long delays with Archery, glitches, name collisions e.t.c.) , 
So making the application binding might not work at all (and Registry Agreements are almost unified, unlike texts of aplications, so it would lead to the compliance nightmare). 

⁣Maxim Alzoba​

Sorry for typos, smartphone was used. 

On 27 Sep 2019, 06:13, at 06:13, Kathy Kleiman <kathy at kathykleiman.com> wrote:
>Tx Rubens for your message.  What you say simply can't be true. The 
>public portion of the application is binding and enforceable. If you
>are 
>.BANK and you are serving the banking community that's a commitment. If
>
>you are .HALAL or .KOSHER, ditto.
>
>In response to community objections, substantive changes were offered
>by 
>the applicant *to their application.* They were posted for public 
>comment, monitored and commented on by the relevant communities, and 
>ultimately adopted.
>
>PICs were not part of the original applicant guidebook. Fadi, standing 
>on one foot when he created them, may have intended them for one thing,
>
>but they became something else almost immediately -- a dumping ground, 
>and provably (for many of them) having absolutely nothing to do with
>GAC 
>Early Warnings.  (We can sit down any time you want to run a 1:1 
>comparison.)  There are seminars discussing this - I can send you
>links.
>
>Voluntary PICs are not part of the original rules, Rubens, and have no 
>consensus for going forward. But revising the original application - 
>particularly to serve the commercial, business or noncommercial 
>communities who should be served -- sure. That can and has been done.
>
>Best, Kathy
>
>On 9/26/2019 6:56 PM, Rubens Kuhl wrote:
>
>>
>> Kathy,
>>
>> Changes to the application that happen outside of PICs and/or Exhibit
>
>> A (registry services) are unenforceable. PICs were created by ICANN 
>> Org in response to the lack of enforceability, and are an integral 
>> part of what happened in 2012.
>>
>> Although you mentioned some PICs with applicant-thought features,
>most 
>> of them were imposed down applicants throats by ICANN Org, following 
>> GAC advice. So, characterizing the whole using a minority is likely a
>
>> distortion.
>>
>> If you succeed in making this discussion a lack of consensus, the 
>> default in this case is to include mandatory and voluntary PICs as 
>> they existed.
>>
>>
>>
>> Rubens
>>
>>
>>> Em 26 de set de 2019, à(s) 19:39:000, Kathy Kleiman 
>>> <kathy at kathykleiman.com <mailto:kathy at kathykleiman.com>> escreveu:
>>>
>>> All,
>>>
>>> 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>
>>>> _____________________________
>>>> <image006.png>
>>>> Lewis Roca Rothgerber Christie LLP
>>>> One South Church Avenue, Suite 2000
>>>> Tucson, Arizona 85701-1611
>>>> lrrc.com <http://lrrc.com/>
>>>>
>>>> <image007.jpg>
>>>>
>>>> Because what matters
>>>>
>>>> to you, matters to us.™
>>>>
>>>>
>>>>
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