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

Jeff Neuman jeff.neuman at comlaude.com
Fri Sep 27 18:10:11 UTC 2019

As Alan states below, the baseline that we use is how the program was actually implemented as opposed to what was in the 2007/2008 GNSO Policy and/or what was in the Applicant Guidebook.

The one exception is on the issue of closed generics, where the board specifically stated that it was creating a temporary solution and that it wanted policy development on this matter. Therefore, in the event that we cannot find consensus on that subject, we will document the positions taken and at the end of the day it will be up to the board to determine what the baseline is.

With respect to what constitutes high-level agreement, this is a determination that leadership of the working group will have to make. We take this responsibility very seriously and assure you that we are doing everything in our power to be fair and neutral. That said its determination (and ultimately the determination of consensus) is not formulaic, but rather is dependent on a number of factors. We also want to note that the fact that there is only one group, or one individual, or one constituency or stakeholder group that opposes a concept, does not automatically mean that there cannot be high level agreement on the concepts, or elements thereof.

As you will see in a number of comments, many groups oppose an entire concept. However, when you read the comments as a whole you can see that their opposition to the entire concept may be based on one element of many that constitute the subject area. Where that is the case, If we can address that one element, we may still find high-level agreement on the concept as a whole.

Therefore, what is most helpful to us is not a reply that states there is no high-level agreement on a subject. Rather, what is most helpful to us is a reply that states in specificity what elements of the overall concept you believe the group as a whole may not have addressed in a satisfactory manner.   Some of the recent comments have done that, but others have not.

Best regards,

Jeffrey J Neuman
(202) 549-5079
Jeff.Neuman at comlaude.com
From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> on behalf of Alan Greenberg <alan.greenberg at mcgill.ca>
Sent: Friday, September 27, 2019 5:36 AM
To: Kathy Kleiman; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Resolving Objection Proceedings with Mandatory PICs

My understanding is that the Baseline that we are working to is not the Applicant Guidebook but the final effective implementation including Board actions, so Voluntary PICS, (which predated Mandatory PICS) are there unless we have agreement to change them.

JEFF/CHERYL: Can you confirm exactly what our baseline is?


At 26/09/2019 06:39 PM, Kathy Kleiman wrote:


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 Objectionwas 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 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
One South Church Avenue, Suite 2000
Tucson, Arizona 85701-1611
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to you, matters to us.™


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