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

Kathy Kleiman kathy at kathykleiman.com
Fri Jul 24 15:50:40 UTC 2020


Hi Jeff and Cheryl,Reverting back to an older topic, I would like to
ask when the Packet 7 issue is being scheduled for discussion in the
WG?  I'll certainly arrange to be on that call to talk this through
with you.  It is a topic worthy of discussion together. 
Quick background: This is a major change - and one appropriate for the
give and take of our Packet discussions, per our well-established
procedure. Further, if we can spent an hour together newly-presented
changes to auctions proposals, I'm sure we spend a few minutes
together vetting a change to RVCs which potentially reverses months of
discussion and agreement. :-)
Best and tx, Kathy

	On 7/16/2020 1:41 PM, Jeff Neuman wrote:   

	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 [1]

	http://jjnsolutions.com

	   

	    

	FROM: Aikman-Scalese, Anne  
SENT: Thursday, July 16, 2020 1:31 PM
TO: Jeff Neuman ; Jamie Baxter ; Rubens Kuhl ;
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  
SENT: Thursday, July 16, 2020 9:32 AM
TO: Aikman-Scalese, Anne ; Jamie Baxter ; Rubens Kuhl ;
gnso-newgtld-wg at icann.org [6]
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 [7]

	http://jjnsolutions.com [8]

	   

	    

	FROM: Gnso-newgtld-wg  ON BEHALF OF Aikman-Scalese, Anne
SENT: Thursday, July 16, 2020 10:26 AM
TO: Jamie Baxter ; Rubens Kuhl ; gnso-newgtld-wg at icann.org [12]
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  
SENT: Thursday, July 16, 2020 7:16 AM
TO: Aikman-Scalese, Anne ; Rubens Kuhl ; gnso-newgtld-wg at icann.org
[16]
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" 
DATE: Thursday, July 16, 2020 at 10:04 AM
TO: Jamie Baxter , Rubens Kuhl , "gnso-newgtld-wg at icann.org [20]" 
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  
SENT: Thursday, July 16, 2020 6:56 AM
TO: Aikman-Scalese, Anne ; Rubens Kuhl ; gnso-newgtld-wg at icann.org
[25]
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" 
DATE: Wednesday, July 15, 2020 at 8:08 PM
TO: Jamie Baxter , Rubens Kuhl , "gnso-newgtld-wg at icann.org [29]" 
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  
SENT: Wednesday, July 15, 2020 4:01 PM
TO: Aikman-Scalese, Anne ; Rubens Kuhl ; gnso-newgtld-wg at icann.org
[34]
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  on behalf of "Aikman-Scalese, Anne" 
DATE: Wednesday, July 15, 2020 at 6:21 PM
TO: Rubens Kuhl , "gnso-newgtld-wg at icann.org [38]" 
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 Warnings

	* Changes to Registry Voluntary Commitments in response to public
comments, objections, GAC Consensus Advice, or GAC Early Warnings

	* Changes 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' ; gnso-newgtld-wg at icann.org [41]
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  ON BEHALF OF Rubens Kuhl
SENT: Wednesday, July 15, 2020 2:49 PM
TO: gnso-newgtld-wg at icann.org [43]
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  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  
SENT: Wednesday, July 15, 2020 2:34 PM
TO: Aikman-Scalese, Anne ; Emily Barabas ; gnso-newgtld-wg at icann.org
[48]
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" 
DATE: Wednesday, July 15, 2020 at 5:07 PM
TO: Jamie Baxter , Emily Barabas , "gnso-newgtld-wg at icann.org [52]" 
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  
SENT: Wednesday, July 15, 2020 1:29 PM
TO: Aikman-Scalese, Anne ; Emily Barabas ; gnso-newgtld-wg at icann.org
[57]
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  on behalf of "Aikman-Scalese, Anne" 
DATE: Wednesday, July 15, 2020 at 4:19 PM
TO: Emily Barabas , "gnso-newgtld-wg at icann.org [61]" 
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  ON BEHALF OF Emily Barabas
SENT: Friday, July 10, 2020 10:44 AM
TO: gnso-newgtld-wg at icann.org [64]
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 [65]. 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 [66]):

	* 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 [67]) - 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 [68])

	* Comments will be tracked here [69].

	 

	* PACKAGE 6 revisions of the report, now ready for a FINAL
CHECK (beginning on page 118 [70]): 

	* 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 [71]. And a detailed
log with the outcomes from the WG’s consideration of that input
is available here [72].

	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 [73]

	 

	 

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