[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 06 April 1500 UTC

Julie Hedlund julie.hedlund at icann.org
Mon Apr 6 18:40:17 UTC 2020


Dear Working Group members,

Please see below the notes from the meeting on 06 April at 1500 UTC. 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/2020-04-06+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie

Notes and Action Items:

 Actions:

Affirmation xx (rationale 1):
ACTION ITEM: Clarify that it was part of the compromise in Work Track 5 to recognize that some GAC procedures were available even if specific objections were not established.
ACTION ITEM: Change the last sentence to, “The Working Group further affirms that the IO should continue to be given the opportunityin a position to file Community and/or Limited Public Interest objections when doing so serves the best interests of the public who use the global Internet, as was the case in the 2012 round.

Recommendation xx (rationale 2):
ACTION ITEM: Change to  “This process will [must] serve as a supplement to the existing Code of Conduct Guidelines for Panelists and Conflict of Interest Guidelines for Panelists.
ACTION ITEM: Make a note that when we discuss appeals we should consider what we may want to recommend if the IO has a conflict of interest.
ACTION ITEM: Draft an overarching section on conflicts of interest.
ACTION ITEM: Add links to COI policies of IO and evaluators.

Implementation Guidance xx (rationale 4):
ACTION ITEM: Change “must” to “should” here and in the other IGs, and consider alternative language in brackets: Information about fees and refunds for the dispute resolution processes must be readily available [prior to the end of the application submission period.] [prior to the commencement/opening of the application submission period.] [at the time of publication of the Applicant Guidebook.]

Recommendation xx (rationale 6):
ACTION ITEM: Consider adding reference to public comment as part of the Application Change Request -- see comments on Global Public Interest.
ACTION ITEM: Add a footnote about standing in general categories.
ACTION ITEM: Add text in brackets “All [these] amendments and RVCs submitted after the application submission date shall be considered Application Changes and be subject to the recommendations set forth in Section xx Application Changes Requests.”

Implementation Guidance xx (rationale 7):
Re: “The same panel would review all documentation associated with the objection. Each response would be reviewed on its own merits to determine whether the relevant applied-for gTLD was confusingly similar.”
ACTION ITEM: Delete “to determine whether the relevant applied-for gTLD was confusingly similar.”

Re: The panel would issue a single determination that identified which applications would be in contention. Any outcome that resulted in indirect contention would be explained as part of the DRSP’s determination.
ACTION ITEM: Add a footnote defining direct and indirect contention.

RE: Possible additional Recommendations/Implementation Guidance: Reduce costs associated with filing [community objections] [all objections].
ACTION ITEM: Find out if ICANN gathered information from the ICC on the nature of their charges.

c. New issues raised in deliberations since publication of the Initial Report, if applicable.
String Confusion Objection:
ACTION ITEM: Add bracketed text in “Proposal that there should be grounds for a String Confusion Objection if an applied-for string is [an] exact translation of an existing string that is in a highly regulated sector, and the applied-for string would not employ the same safeguards as the existing string[, subject to the applicant’s governing law].”

Notes:

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

2. Discussion of Final Report Topics: https://docs.google.com/document/d/1kUlmZH8nxWTgfcRluA5FxLheMm4XhhOwkRt7om52aQU/edit?usp=sharing

a. 2.8.1 Objections [All Sub-Sections Except GAC Early Warning and GAC Advice - Not Yet Completed], continue discussion on page 68, Affirmation xx with modification (rationale 1)

Affirmation xx (rationale 1): The Working Group affirms that the role of the Independent Objector (IO) should exist in subsequent procedures as it did in the 2012 round, subject to the changes introduced from other recommendations, and the Implementation Guidance below. The Working Group further affirms that the IO should continue to be in a position to file Community and/or Limited Public Interest objections when doing so serves the best interests of the public who use the global Internet, as was the case in the 2012 round.

ACTION ITEM: Clarify that it was part of the compromise in Work Track 5 to recognize that some GAC procedures were available even if specific objections were not established.
ACTION ITEM: Change the last sentence to, “The Working Group further affirms that the IO should continue to be given the opportunityin a position to file Community and/or Limited Public Interest objections when doing so serves the best interests of the public who use the global Internet, as was the case in the 2012 round.

Recommendation xx (rationale 2): ICANN must develop a transparent process to ensure that Dispute Resolution Service Provider panelists, Independent Objectors, and third-party providers evaluating applications are free from conflicts of interest. This process will serve as a supplement to the existing Code of Conduct Guidelines for Panelists and Conflict of Interest Guidelines for Panelists.

Discussion:
-- Re: Suggestion to include the recommendation in all sections where it may apply.  Think about the sections to which this is relevant. Need to look at all possible sections and see if they make sense -- repeating in 5 or more sections.  Alternatively, have an overarching issue about conflict of interest across the program, and include with other overarching recommendations.
-- What do we mean by “This process will serve”?  Change to “must”.
-- As to IO,  there should be an appeal on the conflict of interest issue prior to that Objection proceeding.  Who should hear the appeal?  Maybe whoever will be enforcing the decision, such as the ICANN Board.
-- There also is the question of who enforces the conflict of interest with an IO.
-- Need to make sure all of the players in the process are known.  So extend the concept of conflict of interest to additional categories.
-- Legal conflicts of interest do not refer to financial interests or nepotism.  Those are Board of Director conflict principles.
-- The point was that the same language may not apply to every section on this question of appealing a conflict of interest decision.  Nevertheless we could draft one overarching section if we make sure we distinguish the proceeding types in this regard.

ACTION ITEM: Change to  “This process will [must] serve as a supplement to the existing Code of Conduct Guidelines for Panelists and Conflict of Interest Guidelines for Panelists.
ACTION ITEM: Make a note that when we discuss appeals we should consider what we may want to recommend if the IO has a conflict of interest.
ACTION ITEM: Draft an overarching section on conflicts of interest.
ACTION ITEM: Add links to COI policies of IO and evaluators.

Implementation Guidance xx (rationale 4):.  Information about fees and refunds for the dispute resolution processes must be readily available prior to the end of the application submission period.

Discussion:
-- Talking about the fees to file a dispute.
-- In filing an application the biggest question is how much are the fees.
-- This is not the first time dispute providers are being enlisted. we are not starting from scratch here so why added delays in establishing fees.
-- This is part of a larger conversation.  Think more about that -- about all the things we are requiring to be out at the time of the launch.
-- Given the cost “variability” that many suffered in the 2012 round I believe it is prudent to make best efforts here to be as transparent as possible - if nothing more than to rein in the cost inflation that was allowed to happen in the 2012 round.
-- We should strive for an early stage - and state that finalization be delayed.
-- Lawyers will definitely be asked what are the chances of drawing an Objection and what would it cost.  Will be very awkward to say "I don't know what it will cost."  From an applicant's point of view, ICANN has had 8 years to nail down this detail.
-- Publication with Guidebook gives the most predictability.

ACTION ITEM: Change “must” to “should” and consider alternative language in brackets: “Information about fees and refunds for the dispute resolution processes must be readily available [prior to the end of the application submission period.] [prior to the commencement/opening of the application submission period.] [at the time of publication of the Applicant Guidebook.]”

Implementation Guidance xx (rationale 4):.  [Prior to the launch of the application submission period], to the extent that dispute resolution panelists provide other guidance, processes and/or sources of information to assist them with processing and making decisions, such information must be made publicly available and easily found, either on their respective websites or preferably, in a central location.

Discussion:
-- Question: Is this meaningful? Answer: This was meant to be a catchall -- all under the heading of transparency.  Anything else that could be used to make a decision needs to be known.
-- Question: The word “processes” is problematic.  What processes are we talking about?  Could we delete the word “processes”?

Recommendation xx (rationale 6): Applicants must have the opportunity to amend an application or add Registry Voluntary Commitments in response to concerns raised in an objection. All amendments and RVCs submitted after the application submission date shall be considered Application Changes and be subject to the recommendations set forth in Section xx Application Changes Requests.

Implementation Guidance xx (rationale  6).  To the extent that RVCs are used to resolve an objection either (a) as a settlement between the objector(s) and the applicant(s) or (b) as a remedy ordered by an applicable dispute panelist, those RVCs must be included in the applicable Applicant(s) Registry Agreement(s) as binding contractual commitments enforceable by ICANN through the PICDRP.

Discussion:
-- Staff note: Note that the following recommendation is currently included under Global Public Interest: "ICANN must allow applicants to submit Registry Voluntary Commitments (RVCs)(previously called voluntary PICs) in subsequent rounds in their applications and/or to respond to public comments, objections, GAC Early Warnings, and/or GAC Consensus Advice. Applicants must be able to submit RVCs at any time prior to the execution of a Registry Agreement; provided, however, that all RVCs submitted after the application submission date shall be considered Application Changes and be subject to the recommendations set forth in Section xx Application Changes Requests." Do we want to keep both? Also, should we specify how an application may be amended?
-- That we added the text “including but not limited to public comments” after “Application Changes”.  This was included in a different section.  Or we can add a footnote that explains what are Application Changes.  That was in Global Public Interest.

ACTION ITEM: Consider adding reference to public comment as part of the Application Change Request -- see comments on Global Public Interest.
ACTION ITEM: Add a footnote about standing in general categories.
ACTION ITEM: Add text in brackets “All [these] amendments and RVCs submitted after the application submission date shall be considered Application Changes and be subject to the recommendations set forth in Section xx Application Changes Requests.”

Implementation Guidance xx (rationale 7):
Re: “The same panel would review all documentation associated with the objection. Each response would be reviewed on its own merits to determine whether the relevant applied-for gTLD was confusingly similar.”

ACTION ITEM: Delete “to determine whether the relevant applied-for gTLD was confusingly similar.”

Re: “The panel would issue a single determination that identified which applications would be in contention. Any outcome that resulted in indirect contention would be explained as part of the DRSP’s determination.”

ACTION ITEM: Add a footnote defining direct and indirect contention.

Possible additional Recommendations/Implementation Guidance:

  *   Reduce costs associated with filing [community objections] [all objections].
  *   Reduce barriers to filing objections: time, expertise required, and awareness of the opportunity to file.

Discussion:
-- People could be asked to work pro bono.
-- Question: Do we have any information that was shared by the ICC on their process?
-- Agree we need competitive quotes.  No on the issue of "caps" - will limit providers and competition among providers.
-- We need to qualify more than one provider in each category of Objection.  That way there are choices for Objectors based on the fees established by the provider.

ACTION ITEM: Find out if ICANN gathered information from the ICC on the nature of their charges.

c. New issues raised in deliberations since publication of the Initial Report, if applicable.
String Confusion Objection: Re: “Proposal that there should be grounds for a String Confusion Objection if an applied-for string is an exact translation of an existing string that is in a highly regulated sector, and the applied-for string would not employ the same safeguards as the existing string.”

Discussion:
-- Example is translation of .pharmacy translation into Russian.
-- What are we trying to get to?  We should add something that the same safeguards subject to the applicant’s governing law.  We are not trying to create universal law.  We just want to make sure that users don’t think one is regulated and one isn’t.
-- Questions: Why limited to “highly regulated sector”? And what do we mean by “exact translation”?  Do we mean linguistic translation?  Answer: In the example .pharmacy would be .pharmacia in an exact translation.  We are saying this doesn’t necessarily apply to all strings.
-- Is it a translation from English into Russian/Cyrillic?
-- Need to think about how the translated string will be used.
-- Keep this bracketed and keep the connection to GAC Category 1 Strings.

 ACTION ITEM: Add bracketed text in “Proposal that there should be grounds for a String Confusion Objection if an applied-for string is [an] exact translation of an existing string that is in a highly regulated sector, and the applied-for string would not employ the same safeguards as the existing string[, subject to the applicant’s governing law].”

String Confusion Objection: “Discussion about the potential for extending the String Confusion Objection in other ways -- for example, synonyms for verified TLDs, homonyms -- potential tie in to CCT-RT recommendation 35 is mentioned in the CCT-RT rec summary spreadsheet: https://docs.google.com/spreadsheets/d/1PGV5_nMafLWtSHyCGdr-b8eqoJj9B8YKBSheVJQcvHg/edit#gid=0”

Discussion:
-- CCT-RT -- was Recommendation 35 something for the WG to consider?  Yes, “The Subsequent Procedures PDP should consider adopting new policies to avoid the potential for inconsistent results in string confusion objections. In particular, the PDP should consider the following possibilities…”
-- It does make sense to include synonyms and potentially homonyms as standing for a String Confusion Objection.
-- We will connect this to GAC Category 1 Strings -- if both were required to have Category 1 restriction would that make there less need for an objection?
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