[Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

Jeff Neuman jeff at jjnsolutions.com
Sat Jul 11 17:38:53 UTC 2020


Kathy,

Your position is noted as well as your objection. However, if the rest of the Working Group is fine with the objective language we have drafted, then we will include the version that was sent out.  The public can submit comments and we will then again revisit after the comments are received.  And if we stay where we are, you will be able to submit a minority report if you don’t agree with the Working Group’s Consensus Call (when that happens).

But we have to cut off the conversation as we just seem to be going around and around on the same points.  You have your interpretation of what the status quo is or should be, and others have their viewpoint, which is the polar opposite.  At the end of the day, that is why the current language is completely objective and does not advocate for one side or the other.  That is the way it must remain absent agreement by the group otherwise.


Jeff Neuman
JJN Solutions, LLC
Founder & CEO
+1.202.549.5079
Vienna, VA 22180
Jeff at JJNSolutions.com
http://jjnsolutions.com<http://jjnsolutions.com/>

From: Kathy Kleiman <kathy at kathykleiman.com>
Sent: Friday, July 10, 2020 4:15 PM
To: Jeff Neuman <jeff at jjnsolutions.com>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

Hi Jeff,
I'm sorry, but the language below is not accurate, and it must be.  There is no way this group can agree to allow Closed Generics outside the public interest framework required by the GAC in its Advice. Further, absent our agreement (and the GNSO’s approval), we have not meet the requirements of the Board's resolution on Closed Generics, and the bar does not simply "time out."

I offer the language below as a substitution -- to accurately reflect the two “Closed Generic” policy requirements before this WG and the GNSO --  the 2015 Board Resolution AND the GAC Advice.

No Agreement: The Working Group was unable to come to agreement on a policy that meets the GAC Advice requirements for “exclusive registry access for generic strings serving a public interest goal.”  In keeping with the requirements of the 2015 Board resolution, as clarified in the Rationale, the GNSO must “inform the Board on a regular basis with regards to the progress on the issue.” It has not done so.

“The NGPC [ICANN Board New gTLD Program Committee] is also requesting that the GNSO specifically include the issue of exclusive registry access for generic strings serving a public interest goal as part of the policy work it is planning to initiate on subsequent rounds of the New gTLD Program, and inform the Board on a regular basis with regards to the progress on the issue. The President and CEO should provide the GNSO with information needed to support this request.” https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en

Accordingly, in the absence of agreement by the Working Group on any new policy consistent with the GAC advice on public interest goals, the status quo is that Closed Generics would not be allowed in subsequent rounds in line the Board’s resolution. The GNSO has not formulated or approved a policy in accordance with the Board’s wishes, as stated in the Rationale, and has not reported any progress to the Board, as requested in the Rationale. Therefore, the Board’s resolution holds until such a policy is formulated and formally approved by the GNSO.

---------------

Best, Kathy

----- Original Message -----
From:
"Jeff Neuman" <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>

To:
"McGrady Paul D." <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>, "gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>" <gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>>
Cc:

Sent:
Thu, 9 Jul 2020 18:18:30 +0000
Subject:
[Gnso-newgtld-wg] Latest Version of Compromise Closed Generic Text

[KK: Replacing]
Fair enough.  Here is the latest version with Paul’s edits:
No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board[1] 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 TLDs.” All applicants in 2012 chose either options (a) or (b). The result was that no exclusive generic gTLDs (also called “Closed Generic” gTLDs) were delegated in the first round.


It was the expectation of the ICANN Board that the GNSO would “develop policy advice concerning exclusive generic TLDs”[2]. 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 on “policy advice concerning exclusive generic TLDs.”


Questions within the Working Group arose on the impact of a failure to develop any policy advice concerning exclusive generic TLDs. Following the approach the Working Group has taken on other issues where there is no agreement on changes to the implementation of the new gTLD program, the Working Group would normally recommend applying the Status Quo (e.g., no changes recommended). However, in this unique case, the Working Group was not able to agree on what the Status Quo actually was given the Board’s expectation that the Working Group would develop policy on this matter. In the absence of agreement on any policy, the Working Group debated, and was unable to come to agreement on, whether the status quo meant that either (i) Closed Generics would be allowed (as there were no provisions in the final Applicant Guidebook that prohibited them), (ii) Closed Generics would not be allowed (noting that none were delegated in the 2012 round), or (iii) Closed Generics would be allowed if they serve a public interest goal (in accordance with the GAC Advice that was accepted by the Board).




Jeff Neuman
JJN Solutions, LLC
Founder & CEO
+1.202.549.5079
Vienna, VA 22180
Jeff at JJNSolutions.com<mailto:Jeff at JJNSolutions.com>
http://jjnsolutions.com<http://jjnsolutions.com/>


From: McGrady, Paul D. <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>
Sent: Thursday, July 9, 2020 2:14 PM
To: Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: Proposed Compromise Language on Closed Generics


Thanks Jeff.


I actually think that is a step backwards as there was no ban (or “not allowed”).  There were 3 options, none of which were a ban:  1.  Change  2.  Defer to the next Round or 3.  Withdraw


Let’s keep trying.  How about simply deleting the (    ) on all of the options.  They are, ultimately, commentary on the opinions of WG members, so they don’t really add much.  If we can’t do that, then we could say (ii) Closed Generics would not be allowed (noting than none were delegated in the 2012 round).  That would be factual.


Best,
Paul






From: Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>
Sent: Thursday, July 9, 2020 1:09 PM
To: McGrady, Paul D. <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: Proposed Compromise Language on Closed Generics


Thanks Paul.  Each option is followed by a parenthetical explaining why that option could be viewed as the status quo.  So while I take your point, we could amend to read:


(ii) Closed Generics would not be allowed (as they were not allowed to proceed in the 2012 round)


Would that work?


Jeff Neuman
JJN Solutions, LLC
Founder & CEO
+1.202.549.5079
Vienna, VA 22180
Jeff at JJNSolutions.com<mailto:Jeff at JJNSolutions.com>
http://jjnsolutions.com<http://jjnsolutions.com/>


From: McGrady, Paul D. <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>
Sent: Thursday, July 9, 2020 1:11 PM
To: Jeff Neuman <jeff at jjnsolutions.com<mailto:jeff at jjnsolutions.com>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: Proposed Compromise Language on Closed Generics


Thanks Jeff.  Most of your proposed text is accurate and, therefore, good.  However, “…(ii) Closed Generics would not be allowed (in line with part (a) of the Board’s resolution),…” is not accurate since the Board’s resolution specifically addressed the 2012 Round and not future Rounds, so there is no “in line with”  The inaccuracy jumps out since A would require an applicant to file a closed generic then later amend it.  That would be nonsensical.


A more accurate way to state what I think you are trying to say would simply be “…(ii) Closed Generics would not be allowed…”.


Otherwise, I think this works.


Best,
Paul





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From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Jeff Neuman
Sent: Thursday, July 9, 2020 11:41 AM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: [Gnso-newgtld-wg] Proposed Compromise Language on Closed Generics


All,


There has been some good conversation on Closed Generics and specifically making sure that we stay completely factual.  In light of the e-mails from Paul, Kathy, Anne and others, I wanted to present some text to replace part (a) of the Closed Generics section.  That text is below.  A couple of notes first.



  1.  The materials produced by the Working Group are intended to be as objective as possible and not advocacy pieces for one side or the other. I ask that you look at it for its accuracy and not whether the language makes your position look good or not.
  2.  The Chairs have not cut off any discussions on this topic at all.  If you really believe this to be the case, you are free to report this to the GNSO Council Liaison to escalate.  But to make it clear, leadership has assessed that this Working Group is not able to come to agreement on either the substance of this issue, or even on what the default/status quo would be.  And the discussions so far on the mailing list have proven us correct.  So I would ask that everyone please refrain from accusations that we have cut off discussions inappropriately, or to escalate the issue.
  3.  The cites for the quotes here are in footnotes (which I did not attach to the body of this e-mail, but can if you would like).
  4.  If the text below is acceptable, then we will make the corresponding changes in the Rationale.
  5.  Finally, I know Kathy you were only on the phone during the last call where Package 6 (which included Closed Generics) was on the agenda and discussed.  If you review the chat transcript, you will see that there was no support for including the terms “ban” or “effective ban” as you raised.  Further George Sadowski, who was on the call, in that chat stated that his opinion of what happened was his opinion and not necessarily the opinion of the 2013/2014 Board which is reflected in the resolution itself.  I have the utmost respect for George as he knows from our many conversations, and his views are incredibly important to us, but for the text of the Draft Final Report, we have to include the language of the actual resolution and supporting documentation.


*********************************************
So, here is the proposed text:


No Agreement: The Working Group notes that in the 2012 round of the New gTLD Program, a decision was made by the ICANN Board[1] 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 TLDs.” All applicants in 2012 chose either options (a) or (b). The result was that no exclusive generic gTLDs (also called “Closed Generic” gTLDs) were delegated in the first round.


It was the expectation of the ICANN Board that the GNSO would “develop policy advice concerning exclusive generic TLDs”[2]. 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 on “policy advice concerning exclusive generic TLDs.”


Questions within the Working Group arose on the impact of a failure to develop any policy advice concerning exclusive generic TLDs. Following the approach the Working Group has taken on other issues where there is no agreement on changes to the implementation of the new gTLD program, the Working Group would normally recommend applying the Status Quo (e.g., no changes recommended). However, in this unique case, the Working Group was not able to agree on what the Status Quo actually was given the Board’s expectation that the Working Group would develop policy on this matter. In the absence of agreement on any policy, the Working Group debated, and was unable to come to agreement on, whether the status quo meant that either (i) Closed Generics would be allowed (as there were no provisions in the final Applicant Guidebook that prohibited them), (ii) Closed Generics would not be allowed (in line with part (a) of the Board’s resolution), or (iii) Closed Generics would be allowed if they serve a public interest goal (in accordance with the GAC Advice that was accepted by the Board).




Jeff Neuman
JJN Solutions, LLC
Founder & CEO
+1.202.549.5079
Vienna, VA 22180
Jeff at JJNSolutions.com<mailto:Jeff at JJNSolutions.com>
http://jjnsolutions.com<http://jjnsolutions.com/>




________________________________




________________________________



________________________________
[1] https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en#2.a

[2] Ibid.
[1] https://www.icann.org/resources/board-material/resolutions-new-gtld-2015-06-21-en#2.a

[2] Ibid.
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