[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 23 July at 03:00 UTC

[Julie Hedlund]

Dear Working Group members,

Please see below the notes from the meeting on 23 July at 03:00 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/2020-07-23+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie

Notes and Action Items:

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

2. Closed Generics – Proposal from George Sadowsky/Small Group (George with Greg Shatan, Alan Greenberg, and Kathy Kleiman) – See attached document.

-- Schedule for the agenda for the meeting on Monday, 27 July.
-- Continue the discussion on the list.

3. Private Resolutions and Auctions: Mechanisms of Last Resort:

Model 5: https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZzjHw/edit#heading=h.vggepvpizwpy

Discussion:
-- Paul McGrady made some edits, most of which were not substantive, but we’ll go through them.
-- Edits came in late; no time to review before the meeting.

Re: “Any modified application resulting from a non-auction private resolution is subject to...”

-- It makes it sound as though you could have a modified application that did not result from an auction private resolution that was somehow not subject to public new public comment but the subject of the sentence is any modified application so it doesn’t make sense.
-- Feel free to comment on the list to reverse the sentence if it makes more sense, essentially “any private resolution resulting in a modified application...”

Re: “Applicants will be given a reasonable timeframe to respond. Applicants can mark portions of any such responses as “confidential” if the responses include proprietary business information and such portions will not be shared or communicated by the Evaluator. In no event will an Applicant be required to disclose any trade secrets.”

-- Re: “Applicants will be given a reasonable timeframe to respond.” – if this edit is maintain, it should be made consistent with the CQ section.

Re: “if the responses include proprietary business information and such portions will not be shared or communicated by the Evaluator.”

-- The evaluators will disappear once the evaluation is complete – this is an ICANN administered program and they should be the ones to ensure compliance, which they can’t do if the evaluators aren’t disclosing information to ICANN.
-- Jim Prendergast will come back with comments on the list.

Re: “In no event will an Applicant be required to disclose any trade secrets.”

-- who would determine that, because I think that all from an applicant standpoint, I would just say, Hey, you know, I'm not, I'm not going to tell you what my business model is here for sure because that is a trade secret and that's going to be you know my competitive advantage. And that could be a very legitimate position to be in. But does it address the question of disclosure that we're trying to with this – this is very broad, catch-all, language.
-- No one should ever be required to disclose any trade secrets but saying it as an affirmative -- giving people an affirmative way out that they can say everything is a trade secret when they have to reveal certain elements to evaluators in order for them to evaluate the application, it's a little much.
-- Applicants might consider the model that they are using to operate a trade secret, and if they weren’t willing to disclose it they might be rejected.
-- You could have safety or security issues that you are baking into your application that you don’t want to reveal as it would put your registered users at risk later.
-- Security and stability issues suggests that it should be disclosed to the evaluator as confidential.  The evaluator needs to have enough information to evaluate security and stability.  We shouldn’t have this statement: “In no event will an Applicant be required to disclose any trade secrets.”
-- The applicant needs to figure out a way to describe what you want to do in enough detail without revealing trade secrets.  I don’t think we need this statement here.
-- Not having that statement there is not the same thing as saying that an applicant is required to disclose trade secrets.
-- There might be a middle ground – there could be procedures for the evaluators, but it’s difficult to edit this text on the fly. It doesn’t have to be either you have to disclose or you don’t.  It’s hard to come up with a solution to a very substantive point.
-- There are systems for disclosing trade secrets confidentially under applicable trade secret law. Disclosure can be made to the Evaluator without disclosing to the public where measures are taken to preserve the trade secret.

Re: Sealed Bids:

-- Clarified the language to make it clear that sealed bids are just for last resort auctions.
-- Even if the sealed bid is not prescribed as method for private auctions, most applicants will choose the same method as the last resort one.
-- Don't think there was agreement on Jim's proposal that sealed bids be in play for private auctions.
-- With this language we aren’t doing anything to prevent the rolling of auction proceeds from one auction to another, which is the second part of the Board’s concern.
-- Trying to prevent rolling money from one auction to another is likely to benefit the largest and most sophisticated entrants, because they will have other financing methods available.
-- Realize that this is a Board concern but that doesn’t mean we have to address it.
-- You want to run the risk that the board comes back and say you didn't address it - work on it - or worse - come up with their own ideas - that's one path. Address it up front and avoid that inevitable delay.
-- Thought sealed bids were being used for both private auctions and auctions of last resort and the distinction was that the applicants decide to split the money or it goes in an auction of last resort.
-- The way it reads now if there is a private resolution it can be handled any way that the participants wish as long as the transparency requirements are met.

Contention Resolution Transparency Requirements

Re: Private Auction or Bidding Process / ICANN Auction:  In the case of a private auction or an ICANN auction of last resort, all parties in interest to any agreements relating to participation of the applicant in the private auction or ICANN Auction of Last Resort must be disclosed to ICANN within 72 hours of resolution and ICANN must, in turn, publish the same within 72 hours of receipt.
-- Discuss timing on the list.

Re: Eliminating “and contact information”
-- Question to Paul McGrady: Why remove this? Answer: So that we don’t get bogged down in GDPR issues.
-- We need it to be disclosed to ICANN so they can do background checks.
-- No problem to disclose it to ICANN, but not publicly.
-- Make a note of this.

Re: “All material terms of any arrangement between applicants to privately resolve a contention set (financial or otherwise) must be disclosed to ICANN [and the community];”

-- Paul McGrady wants to delete this text.
-- That is a substantive change since this was the purpose of the transparency requirements.
-- Paul is suggesting it isn’t needed because it is redundant with transparency requirements earlier in the document.
-- It’s not redundant because the first section is one form of resolution and here we are talking about other forms of resolution that don’t fall into the above category.

Re: “Rebuttable Presumptions of Non-good faith Intent”

-- Consider what mitigation efforts could be made and put those in place.
-- Did any of the things and the rebuttal presumption of non-good faith intent occurred in the last round. Do we have data on that?
-- On the third bullet point there is a time element that is missing.
-- Don’t agree that these are good proxies.
-- This puts the burden on the applicant to prove that it acted in good faith.  Not clear how these could be rebutted.
-- Problem with the term “rebuttal presumption” – instead maybe say factors that must be taken into consideration.  Try to avoid legal terms.

4.  Predictability Framework, see: https://docs.google.com/document/d/1vBckhFQCCQ-zyvfGGcDB3NWQhodVsffdqbyb6kTwXL4/edit?usp=sharing.

-- We don't want to get too far down into the weeds of the wording, but we also don't want to do a major overhaul of Annex A so that everybody is happy with every single word.
-- One way to do that is in this first paragraph is recommending that the implementation review team use annex a as a guideline.
-- Especially the specific or use the language annex a as a guideline, as opposed to being very as opposed to being prescriptive.

“The Working Group recommends that during implementation, ICANN org use the Predictability Framework detailed in Annex A of this Report as indicative (rather than prescriptive) guidance to achieve the goal of predictability in mitigating issues.”

Discussion:
-- The call for volunteers and that being extended to members of the PDP working group that shouldn't just be guidelines.  That should be required.
-- We need some flexibility here to support the intended spirit may not actually be possible to time and spirit is constituted to find someone who's on the working group.
-- So, some elements should be prescriptive.
-- In the WG deliberations we talked about bringing in the applicable IRT provisions, but if you want to change their status by picking out certain ones then you are changing what our deliberations have been.
-- If everyone agrees with all of these being prescriptive then we won’t change anything.

Conflicts of Interest:
-- Thought we were adding in that a SPIRT member had to disclose involvement with a particular application or applications when it arose, and not just part of a broad Statement of Interest, particular if an application was impact by the changes being proposed by the SPIRT?
-- See the text in the second bullet: “Members of the SPIRT should accordingly disclose in their Statements of Interest (Chapter 6 of the GNSO Operating Procedures) any financial interests and, possibly, incentives as they pertain to a specific complaint or issue under review.”
-- We ask for updates to Statements of Interest at the start of every meeting.  Would it be possible for the spirit at the start of every meet any of every meeting to say, do you have a direct interest in any of the applications being discussed, or any of the changes being proposed?
-- Don’t see why not.
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