[Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Sat Aug 15 21:48:16 UTC 2020

Hi Donna,

You wrote:

For example: you have six applicants that have applied for the same string. Two submit sealed bids because they want to compete for the string in an ICANN Auction of Last Resort. Four don’t submit a sealed bid because they prefer private resolution. At what point will the ‘four’ be informed that the contention set will be resolved via an ICANN Auction of Last Resort (because If one party does not agree, the contention set will go to an ICANN Auction of Last Resort) and they will need to submit a sealed bid if they wish to continue? 

Short answer: All 6 applicants would have to submit their sealed bids for the auction of last resort together before the application roster reveal. 

Below a longer explanation why:

I think this is a simple misinterpretation on your side. In my mind there is no problem where you see one:

In case a contention set is established ICANN calls upon the applicants to resolve contention amongst themselves – and in the event that after the given period of time more than one contention set member is left the “ICANN auction of last resort” is being triggered.

That “auction of last resort” is in reality just a simple “reveal” now: ICANN will reveal the highest bidder and the second highest bid amount (the contention set members aren’t actively participating in the auction other than submitting their auction deposit).

The sealed bids that are basis for the auction are submitted directly after ICANN reveals the contention to the members: All members are required to submit “auction of last resort” bids. It doesn’t matter whether or not they “prefer private resolution”:  you submit a bid for the auction of last resort anyways. Why? Because your preference is irrelevant as soon as at least one member will decide to choose ICANN of last resort. Why do all members have to submit at once – even if they hope a private resolution should settle the matter? Because we want that the bid amounts are assigned before the application roster is being published. That is in reaction to the board concerns of auction proceed shifting, etc. We never said we are actively trying to prevent portfolio applicants (mainly because we don’t now how to do that) but we clearly don’t want to provide them with tools that allow them to gain advantages over single string applicants. Hence the aim to submit all sealed bids before application roster reveal. 

So you submit a bid for the ICANN auction of last resort – after all the bids were submitted the application roster is being published, you try to settle the matter; if all but one applicants withdraw their applications then an auction of last resort is being prevented; if more than one applicant is still contention set member after the given period, ICANN will move forward and invite all (remaining) applicants to pay their deposits in order to reveal the winner. And that bid has been submitted before the application roster reveal.

Thanks,

Alexander

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Donna at registry.godaddy
Sent: Saturday, August 15, 2020 1:17 AM
To: Jeff Neuman <jeff at jjnsolutions.com>; Justine Chew <justine.chew at gmail.com>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Sorry for setting hares racing—my comments inline below—I think this is a drafting issue:

From: Gnso-newgtld-wg [mailto:gnso-newgtld-wg-bounces at icann.org] On Behalf Of Jeff Neuman
Sent: Friday, August 14, 2020 12:20 PM
To: Justine Chew <justine.chew at gmail.com <mailto:justine.chew at gmail.com> >; gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> 
Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

Notice: This email is from an external sender. 

All,

I wanted to reply to a particular thread on the E-mail list that we did not get to yesterday during our call.

I think we have a couple of issues here all stemming from misunderstandings (which could be a text issue that we can fix).

1.	I believe Donna read the original text in a way that it was not intended (but again that could be a drafting issue); and
2.	I believe Phil B. misread Donna’s comment to mean something I don’t think Donna intended; and
3.	Rubens and Justine commented on Phil’s misreading of Donna’s comment.

So, let me try to add some clarity.

1.	On Donna’s original point.  The language states: “At the end of the String Evaluation period, Applicants in contention sets will be informed of the number of other applications in their contention set, but no other information regarding the other applications will be shared. Any applicants that wish to compete for their applied-for string in an ICANN Auction of Last Resort must submit a sealed bid for each relevant application (“Last Resort Sealed Bids”).

a.	Donna took that to mean that to mean that Applicants could force other applicants to resolve their contention sets through private auctions (even if one applicant did not want to).

DA: No I didn’t take it to mean that at all. My point was, as noted in my issues document: 

If it’s only applicants that wish to compete for their applied-for string in an ICANN Auction of Last Resort that submit a sealed bid at this point in the process, at what point would applicants who intend to resolve the contention set through private resolution, but end up in a contention set resolution via an ICANN Auction of Last Resort submit their sealed bid? 

It was my understanding that if one applicant in the contention set opts for the ICANN Auction of Last Resort that negates the preference for private resolution of all the other applicants in the contention set.   

For example: you have six applicants that have applied for the same string. Two submit sealed bids because they want to compete for the string in an ICANN Auction of Last Resort. Four don’t submit a sealed bid because they prefer private resolution. At what point will the ‘four’ be informed that the contention set will be resolved via an ICANN Auction of Last Resort (because If one party does not agree, the contention set will go to an ICANN Auction of Last Resort) and they will need to submit a sealed bid if they wish to continue? 

b.	That was not the intent.  An ICANN Auction of Last Resort is voluntary as well.  You cannot force an applicant to participate in an ICANN Auction.  The Intent of that sentence was that an applicant after finding out that there were other applicants for the string could decide that it wanted to withdraw it application.  Or if it were a community based applicant, it could decide to stay in until CPE, but if it didn’t qualify, not compete in an ICANN Auction (meaning essentially it would be withdrawing its application at that point).  

DA: If that’s the intent of the sentence then it needs to explicitly say that.

c.	Donna’s proposed new language, however, states:  “All applicants in a contention set will be required to submit a sealed bid for each application in a contention set at this time. This sealed bid will only become relevant if the contention set is resolved through an ICANN Auction of Last Resort. (“Last Resort Sealed Bids”).

                                                              i.      This doesn’t work either because it does not allow for applicants to withdraw and/or does not let a community applicant have the option of going through CPE and then, only if not successful, withdrawing.

                                                            ii.      Sure an applicant can submit a sealed bid of $1.00 which essentially would be like withdrawing anyway, but there still should be a choice.

d.	Therefore, my proposal would be to keep the language as is, but add a bullet point to Recommendation CC (Rationale 2); that makes it clear that a contention set may only be ultimately resolved through private resolution if ALL applicants in the contention set agree.  If one party does not agree, the contention set will go to an ICANN Auction of Last Resort.

DA: But that doesn’t address my concern about at what point applicants that did not submit a sealed bid will be required to do so?

Does this make sense?  I hope it clears some things up.  If not, I am sure we will discuss on Monday anyway.

Thanks.

Jeff

Jeffrey J. Neuman

Founder & CEO

JJN Solutions, LLC

p: +1.202.549.5079

E:  <mailto:jeff at jjnsolutions.com> jeff at jjnsolutions.com

http://jjnsolutions.com

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org <mailto:gnso-newgtld-wg-bounces at icann.org> > On Behalf Of Justine Chew
Sent: Wednesday, August 12, 2020 11:23 PM
To: gnso-newgtld-wg at icann.org <mailto:gnso-newgtld-wg at icann.org> 
Subject: Re: [Gnso-newgtld-wg] Consolidated list of materials for WG Member review

I fully support Rubens' position on this.

Justine
-----

On Thu, 13 Aug 2020, 10:46 Rubens Kuhl, <rubensk at nic.br <mailto:rubensk at nic.br> > wrote:

Cannot live with rationale. 

Agree with (b) Donna’s comment . We cannot have a situation ( as happened last time) whereby only one applicant refused to go to a private auction and thereby forced an ICANN last resort takes all auction. Have Added a time limit when it needs to be done. 

Mandating any form of private settlement before last resort is adding a new set of goals to the new gTLD program: profiting from losing. Contrary to other public interest resources we are keeping the option for private settlement, but turning it into an obligation is a total deviation of program objectives. 

If one applicant doesn't want private settlements of any kind, it's their prerogative. 

Rubens

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