[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 06 July at 15:00 UTC

[Julie Hedlund]

Dear Working Group members,

Please see below the notes from the meeting on 06 July at 15:00 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/2020-07-06+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie

Notes and Action Items:

Actions:

2. Review of "Can't Live With" comments on Package 6: https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLuQuo/edit?usp=sharing, page 118.
2.2.4 Different TLD Types
a. Recommendations and/or implementation guidelines
Recommendation and Implementation Guidance xx:
ACTION ITEM: The WG agrees to adopt the change.

2.6.1 Application Queuing
a. Recommendations and/or implementation guidelines
Affirmation with modification xx:
ACTION ITEM: The WG agreed to adopt the concept - make clear that we are making groupings, but only to determine priority order. Corresponding changes to the terminology should be made elsewhere in this section for consistency.

Implementation Guidance xx:
ACTION ITEM: The WG will not adopt the change, but will ask that Rubens Kuhl should submit it during the public comment period.

c. New issues raised in deliberations since publication of the Initial Report, if applicable.
ACTION ITEM: The WG will not adopt the change, but will ask that Susan Payne could submit it during the public comment period.

2.8.1 Objections
a. Recommendations and/or implementation guidelines
Recommendation xx (rationale 3):
ACTION ITEM: Move new text to Recommendation, not the rationale. Move this text in the appeals section, as well.

 Implementation Guidance xx (rationale 4):
ACTION ITEM: Add text in brackets: “and/or processes”.

b. Deliberations and rationale for recommendations and/or implementation guidelines
Rationale for Affirmations xx-xx and Implementation Guidance xx (rationale 1):
ACTION ITEM: Change “execution of” to “performance by”.

2.9.1. Community Applications
a. Recommendations and/or implementation guidelines
Implementation Guideline xx (rationale 2) and Implementation Guideline xx (rationale 3):
ACTION ITEM: The WG will not adopt the change, but will ask that Justine Chew/ALAC could submit it during the public comment period.

c. New issues raised in deliberations since publication of the Initial Report, if applicable.
ACTION ITEM: The WG will not adopt the alternative text, but will point out that this is a new issue on which we are seeking comment, and strike the sentence: “Rather, this should be done by the Implementation Review Team taking into account all of the recommendations and implementation guidance described herein.”  Add a question for public comment.

2.7.3 Closed Generics
ACTION ITEM: The WG agrees to adopt the alternative language from Jeff and to change “the Working Group was not able to agree as to how to treat these applications in subsequent rounds” to “The Working Group was not able to agree on any changes to the status quo or what the status quo is.”

Notes:

1. Updates to Statements of Interest: Updated SOI from Jeff Neuman.

2. Review of “Can’t Live With” comments on Package 6: https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLuQuo/edit?usp=sharing, page 118.

2.2.4 Different TLD Types
a. Recommendations and/or implementation guidelines
Recommendation and Implementation Guidance xx:
AAS6.1 – Anne Aikman-Scalese proposes adding a footnote: ““The Working Group notes that the so-called ‘Closed Generic’ application is a separate type of application treated in Section 2.7.3 of this draft Final Report. The Recommendation and Implementation Guidance provided in this Section 2.2.4 is not intended to apply to Closed Generics as they are subject to a need for further policy efforts in the community.” Rationale: “This text does not identify “Closed Generics” as a type of application. It has been treated by the Working Group as a type of application and has a separate section. To avoid confusion, this application “type” should be distinguished and set apart from this general WG recommendation.”

ACTION ITEM: The WG agrees to adopt the change.

2.6.1 Application Queuing
a. Recommendations and/or implementation guidelines
Affirmation with modification xx:
[Proposed alternate text for the previous sentence: Nevertheless, the actual 2012 implementation had no batching at all. The working group affirms the 2012 implementation, so it also prescribes changing the Applicant Guidebook to reflect it.]
RK6.1 – Rubens Kuhl proposed changing the text of the previous sentence. Rationale: “The actual 2012 implementation used no batching whatsoever, and I don’t saw a consensus to change that to implement batching. It also contradicts evaluation efficiencies.”
RK6.2 – Rubens Kuhl proposed changing “all instances of the word “batch” with the word “group”, ending up with the same effect in providing IDN applications some priority.” Rationale: “If batches are removed, the language needs to be adopted. The listed method can be kept so the IDN priorities can be fitted in the overall randomization. Removing batches requires no change to this except language. “
RK6.4 – Rubens Kuhl proposed changing “all instances of the word “batch” with the word “group”, ending up with the same effect in providing IDN applications some priority.” Rationale: “If batches are removed, the language needs to be adopted. The listed method can be kept so the IDN priorities can be fitted in the overall randomization. Removing batches requires no change to this except language. “

Discussion:
-- QUESTION:  How would ICANN determine order of evaluation if not by order of priority?
The priority for IDNs is still there.
Group the priorities only.
Not the actual evaluation.
The difference is not dividing the evaluation work.

-- Does not change priority groupings, it is just going to continue from 1 until whatever on a rolling basis.

ACTION ITEM: The WG agreed to adopt the concept – make clear that we are making groupings, but only to determine priority order. Corresponding changes to the terminology should be made elsewhere in this section for consistency.

Implementation Guidance xx: Procedures related to application queuing should be simplified and streamlined to the extent possible. For example, applicants could be provided the opportunity to pay the optional fee for participating in the drawing along with payment for the application. [If the fee is not required to establish a legal basis for the randomization, then a fee must not be required, only an indication of wanting prioritization or not.] Another suggestion is to explore ways to assign a prioritization number during the application process without the need for a distinctly separate drawing event.

RK6.3 – Rubens Kuhl suggested adding this sentence. Rationale: “It’s unclear whether this is optional to applicants or to ICANN. If ICANN can establish a draw without a separate fee, then this option must be exercised. “

Discussion:
-- If they don’t need a fee then they shouldn’t have one.
-- WG doesn’t have to determine if it is legal, just to note that it should be streamlined.
-- CA lottery law was the reason they charged the fee.  Otherwise – it was illegal.  But what pays for the cost of the draw?  Would we say the application fee pays for that?
-- Money sending costs and issues. Sending money in some jurisdictions is problematic.

ACTION ITEM: The WG will not adopt the change, but will ask that Rubens Kuhl could submit it during the public comment period.

c. New issues raised in deliberations since publication of the Initial Report, if applicable.

SP6.1 – Susan Payne recommends that priority numbers should be transferable between the applications of the same owner. Rationale: “Whilst it is understood that creating an aftermarket for prioritization numbers is undesirable, this concern does not apply to the applications of a single applicant. There seems to be no demonstrable reason to prevent an applicant from making their own choice as to how to prioritise as between their own applications.  Since we have not made a recommendation that a single applicant may not apply for more than one TLDs then, to the extent that opposition to transfer of priority between applications of the same owner are based on a fundamental objection to multiple applications, this would seem to be irrelevant.”

Discussion:
-- Not sure why this was a problem (transferring priority numbers between applications of the same owner).
-- Wasn’t a problem for 2012 because it wasn’t allowed.

ACTION ITEM: The WG will not adopt the change, but will ask that Susan Payne could submit it during the public comment period.

2.8.1 Objections
a. Recommendations and/or implementation guidelines
Recommendation xx (rationale 3): For all types of objections, the parties to a proceeding must be given the opportunity to mutually agree upon a single panelist or a three-person panel, bearing the costs accordingly.

JC6.1 - Comment from Justine Chew: What is the conclusion to the question raised of what happens if parties do not agree on a single panelist or 3-person panel?
Staff comment: The following has been added to the rationale for this Recommendation, and has also been added to the corresponding rationale under Limited Challenge/Appeals: "Following the model of the Limited Public Interest Objection in the 2012 round, absent agreement from all parties to have a three-expert panel, the default will be a one-expert panel."

ACTION ITEM: Move new text to the Recommendation, not the rationale. Move this text in the appeals section, as well.

Implementation Guidance xx (rationale 4): All criteria [and/or processes] to be used by panelists for the filing of, response to, and evaluation of each objection, should be included in the Applicant Guidebook.

JC6.2 - Question from Justine Chew: "Why would there be criteria used by panelists to file objections?"

ACTION ITEM: Add text in brackets: “and/or processes”.

b. Deliberations and rationale for recommendations and/or implementation guidelines
Rationale for Affirmations xx-xx and Implementation Guidance xx (rationale 1): “The Working Group expressed concerns about the effectiveness and execution of the Independent Objector (IO)...”

JC6.3 - Question from Justine Chew: "What does “and execution of the Independent Objector” mean?"

ACTION ITEM: Change “execution of” to “performance by”.

2.9.1. Community Applications
a. Recommendations and/or implementation guidelines
Implementation Guideline xx (rationale 2): To support predictability, the CPE guidelines, or as amended, should be considered a part of the policy adopted by the Working Group.
Implementation Guideline xx (rationale 3): ICANN org should examine ways to make the CPE process more efficient in terms of costs and timing.

JC6.3 - Comment from Justine Chew: " Not disagreeing with the text but taking the opportunity to table a document, “Revised Community Priority Evaluation Guidelines – A Proposal by At-Large” (https://community.icann.org/download/attachments/111390697/01B.%20CPE%20Guidelines%20-%20At-Large%20Proposal%2011.06.2020.pdf?version=1&modificationDate=1592012489000&api=v2<https://www.google.com/url?q=https://community.icann.org/download/attachments/111390697/01B.%2520CPE%2520Guidelines%2520-%2520At-Large%2520Proposal%252011.06.2020.pdf?version%3D1%26modificationDate%3D1592012489000%26api%3Dv2&sa=D&ust=1594050212671000&usg=AFQjCNGeBJbSSa7gsAUBCoeB1MkkuLMgoA>) which is At-Large’s amendment of the CPE guidelines of 27 Sep 2013, and which could be useful as Implementation Guidance. Please refer to the “Revised Community Priority Evaluation Guidelines – A Proposal by At-Large”. This version of 11 June may be subject to amendment by At-Large but if that happens, then the updated version would likely be shared vide ALAC’s response to the upcoming public comment process for the Final Report.  NB. There is a second document “At-Large Interventions on Community-based Applications and Community Priority Evaluation” (https://community.icann.org/download/attachments/111390697/01C.%20At-Large%20Interventions%20on%20CBA%20%26%20CPE%20as%20at%2011.06.2020.pdf?version=1&modificationDate=1592012475000&api=v2<https://www.google.com/url?q=https://community.icann.org/download/attachments/111390697/01C.%2520At-Large%2520Interventions%2520on%2520CBA%2520%2526%2520CPE%2520as%2520at%252011.06.2020.pdf?version%3D1%26modificationDate%3D1592012475000%26api%3Dv2&sa=D&ust=1594050212672000&usg=AFQjCNHaKs76uigCNVpcdpR96EsF07uhDA>) which includes, inter alia: - some high level explanation on key amendments to the CPE guidelines of 27 Sep 2013) - desired criteria for a CPE provide/panelists

ACTION ITEM: The WG will not adopt the change, but will ask that Justine Chew/ALAC could submit it during the public comment period.

c. New issues raised in deliberations since publication of the Initial Report, if applicable.

The Working Group considered proposals for specific changes to the CPE Guidelines from 2012, but did not ultimately recommend any specific changes to the text of the Guidelines. Rather, this should be done by the Implementation Review Team taking into account all of the recommendations and implementation guidance described herein.
[Proposed alternative text for the above paragraph: “The Working Group considered proposals for specific changes to the CPE Guidelines from 2012 but did not fully review and discuss the changes proposed by Working Group members to the CPE Guidelines.  Accordingly, the Working Group is seeking public comment on the 2012 CPE Guidelines linked at Footnote 197 prior to the finalization of its recommendations for changes to those Guidelines and will incorporate the public comment into its consideration of the changes needed for the implementation of CPE Guidelines and scoring system to be applied in the next round.”]

AAS6.2 - Anne Aikman-Scalese proposed alternate text for the above paragraph. Rationale: "Although the Working Group made some references to the CPE Guidelines with a view toward affirming the scoring mechanism for the next round, the full Working Group never actually discussed all the changes that would be needed to bring this document current for the next round. I don’t recall the Working Group making the decision that the appropriate revisions to the CPE Guidelines and scoring system should be left to the IRT."

Discussion:
-- The main point is that we should seek public comment on the CPE Guidelines.  The Final Draft Report says that the IRT will deal with the CPE Guidelines.
-- The WG did discuss possible changes to the CPE Guidelines, but did not agree on the changes.
-- We could point out the Guidelines as one of those items on which we did not previously seek comment.
-- Separate the Guidelines document from all of the Recommendations and Implementation Guidance in 2.9.1 Community Applications.  The Guidelines is a separate document that dealt with more procedural matters.

ACTION ITEM: The WG will not adopt the alternative text, but will point out that this is a new issue on which we are seeking comment, and strike the sentence: “Rather, this should be done by the Implementation Review Team taking into account all of the recommendations and implementation guidance described herein.”  Add a question for public comment.

2.7.3 Closed Generics
[Alternative text proposed by Jeff Neuman: No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board to require applicants for exclusive generic strings to either (a) “submit a change request to no longer be an exclusive generic TLD”, (b) “withdraw their application” or (c) “maintain their plan to operate an exclusive generic TLD,” which would operate to defer their application to the next round of the New gTLD Program, subject to rules developed for the next round, to allow time for the GNSO to develop policy advice concerning exclusive generic TLD.” All applicants in 2012 chose either options (a) or (b). It is the understanding of the Working Group that the ICANN Board intended that its decision to not allow Closed Generics to proceed in the 2012 round applied only to the 2012 round and that it wanted the GNSO to engage in policy discussions regarding the treatment of such strings in subsequent rounds. Although the Working Group has had numerous discussions about this topic, and received extensive comments from the community, including members of the Governmental Advisory Committee, the Working Group was not able to agree as to how to treat these applications in subsequent rounds.]

Discussion:
-- Alternative text is in response to a concern raised by Paul McGrady on the list about being accurate in describing the Board resolution.
-- Avoid using the word “ban”.
-- Quote the excerpted language from the Board Resolution.
-- Question: Do we really need to quote the same language in both this No Agreement section AND the rationale. Seems like overkill. Answer: To summarize it might be problematic.  Need to be accurate.
-- Re: “...the Working Group was not able to agree as to how to treat these applications in subsequent rounds.”  That’s not true, we are agreeing to the status quo per the 2012 AGB; we need to make that clear.
-- Also not able to agree whether what status quo would be in this case.
-- The AGB can't be changed without consensus.  If the Board thinks the "default" is AGB + something else, that is up to them.  But we can't declare a change to the status quo without consensus.
-- The WG was not able to agree on any changes to the status quo.
-- When we’ve said that the status quo will prevail we’ve always meant the AGB.  If we can’t decide on the status quo then it’s for the Board to decide.
-- Suggest changing to, “The Working Group could not agree.”
-- We have elsewhere affirmed that the status quo is the implementation.
-- Need to include text that shows that the WG does not agree on what is the status quo.
-- COMMENT: I just think we have to point out that the Working Group does NOT agree on what the status quo means.  In all other issues, it's 2012 implementation.
-- Suggestion changing to “... the Working Group was not able to agree on any changes to the status quo or what the status quo is.”

ACTION ITEM: The WG agrees to adopt the alternative language from Jeff and to change “the Working Group was not able to agree as to how to treat these applications in subsequent rounds” to “The Working Group was not able to agree on any changes to the status quo or what the status quo is.”
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