[Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6

Alexander Schubert alexander at schubert.berlin
Thu Jul 16 19:55:37 UTC 2020


    
Hi,These RVCs: Do they have to be in the public interest?Is there a public interest goal?Could RVCs be used to game the system somehow?Thanks,Alexander Sent from my Samsung device

-------- Original message --------
From: Jeff Neuman <jeff at jjnsolutions.com> 
Date: 7/16/20  20:41  (GMT+02:00) 
To: "Aikman-Scalese, Anne" <AAikman at lrrc.com>, Jamie Baxter <jbaxter at spimarketing.com>, Rubens Kuhl <rubensk at nic.br>, gnso-newgtld-wg at icann.org 
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6 



Anne, I never said delete the second sentence of that paragraph…so the whole paragraph would state:
 
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, GAC Consensus Advice,
or for any other reason the applicant desires to make additional commitments. 
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 recommendation
 set forth in Section xx
Application Changes Requests, including, but not limited to, public comment in accordance with ICANN’s standard procedures and timeframes.
 
 
So how is that not clear…I have bolded it and added emphasis. 

 


 







Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E:
jeff at jjnsolutions.com
http://jjnsolutions.com




 

 


From: Aikman-Scalese, Anne <AAikman at lrrc.com>

Sent: Thursday, July 16, 2020 1:31 PM
To: Jeff Neuman <jeff at jjnsolutions.com>; Jamie Baxter <jbaxter at spimarketing.com>; Rubens Kuhl <rubensk at nic.br>; gnso-newgtld-wg at icann.org
Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 
Jeff,
The Application Change Request section does NOT say that all RVCs are subject to public comment.  You would have to add your language below to that section – but only IF the WG agrees that private negotiation
 of RVCs is ok.  (I can’t remember but Kathy has a different recollection of this.)
Anne
 


From: Jeff Neuman <jeff at jjnsolutions.com>

Sent: Thursday, July 16, 2020 9:32 AM
To: Aikman-Scalese, Anne <AAikman at lrrc.com>; Jamie Baxter <jbaxter at spimarketing.com>; Rubens Kuhl <rubensk at nic.br>;
gnso-newgtld-wg at icann.org
Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 

[EXTERNAL]




I am trying to distill all of these emails from the last 24 hours and here are my thoughts.
 

The text in the existing Applicant Guidebook states: 
“A formal objection can be filed only on four enumerated grounds, as described in this module. A formal objection initiates a dispute resolution proceeding.”  Thus using the term “formal” does make sense in Section 2.3.2 Recommendation XX (Rationale
 4).  It does not make sense to include the word “informal” there because it creates a category of objections that does not exist. 

 

Why don’t we just state something like: “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, GAC Consensus Advice,
or for any other reason the applicant desires to make additional commitments.
 
 
The point of that language was to use as an example, but it was not intended to be a limited list.  Plus, when combined with the language Steve quoted, there is no doubt that
 all RVCs are subject to public comment (whether they are in the initial application) or submitted as an Application Change.

 


 







Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
p: +1.202.549.5079
E:
jeff at jjnsolutions.com
http://jjnsolutions.com




 

 


From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org>
On Behalf Of Aikman-Scalese, Anne
Sent: Thursday, July 16, 2020 10:26 AM
To: Jamie Baxter <jbaxter at spimarketing.com>; Rubens Kuhl <rubensk at nic.br>;
gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 
No – that’s the issue I am raising.  All the changes to “formal objection” in the Objections section raise questions about the various references to “objections” in both the RVC section and the Application Change
 Request section.  Those sections talk about “objections”.  I did not see a prohibition on adopting RVCs in response to private negotiations with a party that is threatening to file an Objection.  If we are permitting an RVC to be adopted during a private negotiation
 process, the RVC should be subject to public comment.  If we are prohibiting adoption of an RVC to resolve a dispute before it gets to the formal Objection phase, then I am also fine with that. 

 
I am not fine with RVCs being adopted in private negotiations with that potentially not being subject to public comment. This is not at all clear in the document.  We make reference to “formal objections” in
 the Objections section and just use the word “objections” in the RVC and Application Change Request section.  We do not make any references to an RVC adopted pursuant to private negotiation before an Objection is filed.  If we are going to allow those, it
 needs to be clear and it also needs to be clear that they are subject to public comment.  If we are not going to allow that kind of private resolution, that has to be clear from the document.

Anne
 


From: Jamie Baxter <jbaxter at spimarketing.com>

Sent: Thursday, July 16, 2020 7:16 AM
To: Aikman-Scalese, Anne <AAikman at lrrc.com>; Rubens Kuhl <rubensk at nic.br>;
gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 

[EXTERNAL]




Hey Anne
 
And I don’t disagree with your concerns, however I thought Steve had pointed to where in the language your concern was covered. No?
 
Jamie
 
 

From: "Aikman-Scalese, Anne" <AAikman at lrrc.com>
Date: Thursday, July 16, 2020 at 10:04 AM
To: Jamie Baxter <jbaxter at spimarketing.com>, Rubens Kuhl <rubensk at nic.br>, "gnso-newgtld-wg at icann.org" <gnso-newgtld-wg at icann.org>
Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 

Jamie,
I don’t disagree with any of what you have said below.  I am only saying that the document now creates the possibility that someone can argue that an RVC adopted in response to private negotiations (as opposed
 to the currently listed mechanisms) would not be viewed as an application change request requiring public comment.  

 
It is certainly not my purpose to “create” an informal objection.  My purpose is to clarify that any RVC adopted to resolve a potential dispute (not just  formal objection) should trigger an application change
 request process that requires public comment.  
 
Perhaps I have used the wrong language to try to accomplish that but it seems to me that once we say that Application Change Request with public comment only applies where there is a “formal objection”, then
 you have created a big loophole to transparency.  
 
Not intending to create a new category, just recognizing that private parties may approach each other and negotiate and the outcome could be a “settlement” that results in an RVC and that should always be subject
 to public comment.
Anne
 


From: Jamie Baxter <jbaxter at spimarketing.com>

Sent: Thursday, July 16, 2020 6:56 AM
To: Aikman-Scalese, Anne <AAikman at lrrc.com>; Rubens Kuhl <rubensk at nic.br>;
gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 

[EXTERNAL]




Hey Anne
 
I think my point may have been missed so I’ll try again.

 
Currently there are public comments and there are objections (formal objections). These are two clearly defined periods for comment and opposition to be expressed by those reviewing applications
 (minus any GAC processes). Each of these have clearly defined procedures and timelines associated with them as noted in the 2012 AGB, creating transparency and predictability for all. If someone is interested in expressing comment or opposition about an application
 they are required to do so within those confines (minus GAC). This makes it a fair playing field for all applicants, including community applicants.

 
In the 2012 round, people expressed comment and opposition outside of those confines and ICANN took no steps to enforce the AGB rules or prevent that comment or opposition from impacting the
 application and evaluation process. This diminished any transparency and predictability that was promised to applicants, and it was in contradiction to what the AGB provided for comment and oppostion. For standard applicants, any comment or opposition expressed
 after initial evaluation and “formal” objections were completed had no further impact, however for community applicants, ICANN’s miscarriage of the AGB rules had a direct impact on CPE scoring because of gaming.
 
There is no such thing as informal objection in the AGB (as Steve Chan has confirmed), and I do not believe we should be creating such a thing. There are clearly defined times to submit public
 comment (for free) and there are clearly defined times to challenge applications via the objection process (at a cost). We should not be striping the transparency and predictability out of the process for applicants by allowing an undefined new category of
 “informal objection” that has no time limit or constraint. 
 
As I have pointed out on multiple occasion, all applicants should be treated equally in the process, but community applicants were not in the 2012 round, leaving them subject to an ICANN imposed
 additional period for people to game them in CPE by going after criteria 4 scoring.
 
Hopefully that clarifies.
Jamie
 
 
 

From: "Aikman-Scalese, Anne" <AAikman at lrrc.com>
Date: Wednesday, July 15, 2020 at 8:08 PM
To: Jamie Baxter <jbaxter at spimarketing.com>, Rubens Kuhl <rubensk at nic.br>, "gnso-newgtld-wg at icann.org" <gnso-newgtld-wg at icann.org>
Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 

Hi Jamie – I think transparency is the issue.  If the new language says that RVCs that are adopted in response to a “formal” objection require public comment, then that language, in and of itself, creates a category
 of objection that is “not formal”. That could easily be a call or a letter from some party that says, “If you don’t adopt the following RVC, we are going to file an objection.”  In that case, the RVC that is adopted should also be subject to an Application
 Change Request and public comment.  A private “threat” like that would not be a matter of public comment.
 
Anne
 


From: Jamie Baxter <jbaxter at spimarketing.com>

Sent: Wednesday, July 15, 2020 4:01 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com>; Rubens Kuhl <rubensk at nic.br>;
gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 

[EXTERNAL]




Hey Anne
 
I would venture to argue that informal objection is technically “public comment.” I do not support creating an undefined category of application input/intervention called “informal objection”
 that has no specific rules or timeline for submission. This does not add transparency to the process or predictability for applicants. Public comment and formal objections already have clearly defined rules and timelines.
 
I continue to believe it was a miscarriage of the AGB to allow “letters of opposition” (a.k.a informal objection) to be accepted years after the public comment period was closed and the formal
 objection period was complete. There was certainly no reference in the AGB that this would be allowed or acceptable. It was ultimately a successful gaming tactic used against community applicants. Community applicants deserve the same level of predictability
 as all other applicants. 
 
Jamie
 
 

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org> on behalf of "Aikman-Scalese, Anne" <AAikman at lrrc.com>
Date: Wednesday, July 15, 2020 at 6:21 PM
To: Rubens Kuhl <rubensk at nic.br>, "gnso-newgtld-wg at icann.org" <gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 

Section 2.3.2 on RVCs and PICs says in Recommendation xx (Rationale 4) that ICANN MUST allow RVCs to be added after the application submission date in order to respond to public comments, objection, GAC Early
 Warnings, and/or GAC Consensus Advice.  So obviously RVCs can be adopted in a context other than “formal objection”.  That section then refers us to the Application Change Request section.
 
Thus, in Section 2.4 Application Change Requests, it appears we may have to amend the following language in a.
 
Recommendation xx (rationale 2): ICANN org must document
 the types of changes which are required to be posted for public comment and which are not required to be posted for public comment. The following is a non-exhaustive list of changes that must require public comment:

The addition of Registry Voluntary Commitments in response to public comments, objections
(whether formal or informal), GAC Consensus Advice, or GAC Early WarningsChanges to Registry Voluntary Commitments in response to public comments, objections, GAC Consensus Advice,
 or GAC Early WarningsChanges associated with the formation of joint ventures (see Recommendation xx below)
 
 


From: Aikman-Scalese, Anne

Sent: Wednesday, July 15, 2020 2:53 PM
To: 'Rubens Kuhl' <rubensk at nic.br>; 
gnso-newgtld-wg at icann.org
Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 
Right Rubens – just looking for the language that confirms that because the section on Objections now says in d. that this applies where RVCs are adopted in response to concerns raised in a FORMAL objection.
 


From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org>
On Behalf Of Rubens Kuhl
Sent: Wednesday, July 15, 2020 2:49 PM
To: gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6


 

 

My take is that unless the RVC is already filed in the application, when it will be subject by comments as all applications, will trigger application change request which includes public comments. 

Why would that not be so ? 


 


 


Rubens


 

 


On 15 Jul 2020, at 18:38, Aikman-Scalese, Anne <AAikman at lrrc.com> wrote:

 


Thanks Jamie.  I’m looking for the language in the draft Final Report that confirms your understanding.  As mentioned below, Subsection d. has some added language stating that RVCs adopted in response to “concerns
 raised in a formal objection” will be considered application changes.


 


Maybe Jeff or staff can advise where we would find that RVCs adopted in response to concerns expressed by a party that has not yet filed such “formal objection” would also be subject to application change request
 and public comment.  (It may be in the section on Registry Voluntary Commitments”, but I am just looking for confirmation that all RVCs, regardless of the stage in which they are proposed to address concerns, trigger application change request procedures and
 public comment on the RVCs.


Anne


 




From: Jamie
 Baxter <jbaxter at spimarketing.com> 
Sent: Wednesday, July 15, 2020 2:34 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com>; Emily Barabas <emily.barabas at icann.org>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6




 



[EXTERNAL]






Hey Anne


 


I do not believe that all informal objection is weighted equally (or at the level of formal objection) – at least that was our experience in the 2012 round – therefore not all informal objection
 necessarily invokes an application change request. That said, I do see opportunities where informal objection may invoke an application change request, such as in CPE to address a “letter of objection” targeting points in criteria 4.


 


It has been my understanding that any application change request that extends beyond administrative adjustments to an application goes out for public comment – which I believe is the catch
 net to address your concerns below. I have never assumed that change requests stemming from informal objection are exempt from public comment. Do I understand that correctly?


 


Jamie


 


 



From: "Aikman-Scalese, Anne" <AAikman at lrrc.com>
Date: Wednesday, July 15, 2020 at 5:07 PM
To: Jamie Baxter <jbaxter at spimarketing.com>, Emily Barabas <emily.barabas at icann.org>,
 "gnso-newgtld-wg at icann.org" <gnso-newgtld-wg at icann.org>
Subject: RE: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6




 



Yes – Jamie – that would be my understanding. The question posed relates to the fact that the later paragraph says that RVCs developed in response to a “formal objection” invoke an application change request
 and require public comment.  I hope we have not inadvertently created an exception to this requirement in relation to RVCs adopted in response to an “informal” objection.


Anne


 




From: Jamie
 Baxter <jbaxter at spimarketing.com> 
Sent: Wednesday, July 15, 2020 1:29 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com>; Emily Barabas <emily.barabas at icann.org>; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6




 



[EXTERNAL]






Hey Anne


 


My interpretation of “formal objection” would be those that are paid for via a dispute resolution provider, not to be confused with any other objection expressed in public comment or other
 format, including the ICANN correspondence page.


 


Jamie


 


 



From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org>
 on behalf of "Aikman-Scalese, Anne" <AAikman at lrrc.com>
Date: Wednesday, July 15, 2020 at 4:19 PM
To: Emily Barabas <emily.barabas at icann.org>, "gnso-newgtld-wg at icann.org"
 <gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6




 



On Package 6, please see below:


 


1. re 2.6.1 re “Application Queuing”, the
 language shown below should be modified because the previous section is drafted as “more than 125” and the section below is drafted as “less than 125”.  Language should be revised does not cover what happens if you get exactly 125 IDN applications:


 



If there are (delete “less than”) 125 or
 fewer applications for IDN strings that elect to participate in the prioritization draw, then all such applications shall be assigned priority numbersprocessed in the first batch prior to any non-IDN application.


 


2. Section 2.8.1 – Objections


I don’t understand why we would remove affirmations of Recommendation 2 and Recommendation 3 from this section.  The fact that these Affirmations
 are affirmed elsewhere in the report does not change their relevance in relation to the subject of Objections.  Please clarify whether these Affirmations are “in” or “out.”  They don’t appear to be deleted but there are comments on the side saying they should
 be.


 


Recommendation xx (rationale 3) Throughout this rationale, the word, “formal” has been inserted in front of the word, “objection”.  What is the
 meaning/need for the insertion of “formal” before “objection”?  Is there a thought that there are “informal” objection processes?  This language also appears in Rationale 6 and there are NUMEROUS insertions of this reference in the Section on Deliberations. 
 Is there some intended effect here with respect to Subsection d. which specifies that a change in Registry Voluntary Commitments that is made in response to a “formal objection” invokes an application change process?  Is the idea that if there are RVCs that
 are agreed OUTSIDE the “formal objection” process (i.e. via an “informal” objection), those RVCs are somehow NOT subject to an application change process and related public comment?   I thought we had established that all new RVCs need to be subject to an
 application change process and public comment.


 


3. Section 2.9.1 Community Applications – Subsection c. “New
 issues raised in deliberations since publication of the Initial Report, if applicable.”


Thanks for deleting the reference to the conclusion that the IRT should be the body that determines any needed changes to the CPE Guidelines.  However, what was
 discussed when the “can’t live with” comments were reviewed is that there is a need to specify that the WG is seeking public comment on the CPE Guidelines.  We should be specifying at this point in the text that we are seeking that comment and we should provide
 the link at this same point in the text so that we call attention to the request for public comment on the CPE Guidelines (but not the scoring.)


 


Thank you,


Anne


 




From: Gnso-newgtld-wg
 <gnso-newgtld-wg-bounces at icann.org> On Behalf Of Emily Barabas
Sent: Friday, July 10, 2020 10:44 AM
To: gnso-newgtld-wg at icann.org
Subject: [Gnso-newgtld-wg] Deadline Wed 15 July - "Can't Live With" Review of Package 7 and Final Check on Revised Package 6




 



[EXTERNAL]






Dear all,


 


The following are now available for your review in the production
 document. The deadline for comments is Wednesday 15 July at 23:59 UTC.


Package 7 sections
 of the Report are now ready for “Can’t Live With” review (beginning on page
 148):


Please limit comments to items in the revised sections that you absolutely “cannot live with.” If there is text that you cannot accept, please
 fill out the attached form and send it to the WG by email. Please do not provide your input in any other format.Package 7 includes two report sections:




2.5.4 Applicant Support (last
 discussed on 11 June) - For this section, please
 limit “Can’t Live With” comments to the new text in the section, which is displayed in black. The text in grey has already gone through “Can’t Live With” review as part of an earlier package.2.3.2 Registry Voluntary Commitments (RVCs) / Public Interest Commitments (PICs) (last
 discussed on 18 June)




Comments will be tracked here.


 


Package 6 revisions
 of the report, now ready for a final check (beginning on page
 118): 


Please limit feedback to errors in the edits, for example a revision that you believe does not accurately reflect the outcome of discussions
 about a “Can’t Live With” item.Please send this type of feedback to the mailing list. Typo corrections can be sent directly to staff.For package 6 sections, please do not raise new issues, introduce new “Can’t Live With” items,
 or re-open deliberations. A high-level summary of the “Can’t Live With” input received is
 available here. And a detailed log with the outcomes
 from the WG’s consideration of that input is available here.


Kind regards,


Emily


 


 


Emily Barabas


Policy Manager, GNSO Policy Development Support


Internet Corporation for Assigned Names and Numbers (ICANN)


Phone: +31 (0)6 84507976


www.icann.org


 


 





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