[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 29 June at 15:00 UTC

[Julie Hedlund]

Dear Working Group members,

Please see below the notes from the meeting on 29 June 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/2020-06-29+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie

Notes and Action Items:

Actions:

"Can't Live With" comments on Package 5:

2.4 Application Change Requests
Proposed new Implementation Guidance: Implementation Guidance xx (rationale 3)
ACTION ITEM: Accept the change from Justine to include text in brackets, “Insofar as it is feasible, ICANN org should explore the possibility of allowing applicants to delay [by 60-90 days] evaluation of relevant applications pending early submission [prior to their own] of an applicant change request on the basis of business combination or other forms of joint ventures, so as to facilitate evaluation (instead of re-evaluation) of the new combined venture or entity, in an effort to save time and cost.”  Also make consistent the text in Rationale for Recommendation xx (rationale 3).

Recommendation xx (rationale 4):
[Suggested edit to the preceding sentence: [Applicants of .Brand strings will be given the opportunity to continue with the application process for a change in string that is linked to their brand without the need for an auction of last resort to resolve contention, contingent on process guardrails which ensure that changes in the applied-for string occur only under narrow circumstances, limit impact on the New gTLD Program more broadly, and are subject to public comment and objections processes.]
ACTION ITEM: The WG agrees to the change.

2.8.1 GAC Consensus Advice and GAC Early Warning
Rationale for recommendation xx (rationale 6):
ACTION ITEM: Revise the text with text in brackets: Application changes would be subject to [public comment and] evaluation by ICANN as discussed in section xx Application Change Requests.”

2.5.4 Applicant Support
Recommendation xx (rationale 2):
ACTION ITEM: Revise the text to include text in brackets and strikeout: “In addition, the Working Group recommends that ICANN continue to facilitate [and promote] non-financial assistance including the provision of pro-bono assistance to applicants in need.”  [ICANN will provide educational materials and outreach during the communications period to both the applicants and potential providers of pro bono services.] Also, update Rationale for Affirmation xx with modification (rationale 2).

Recommendation xx (rationale 4)
Implementation Guidance xx (rationale 4)
ACTION ITEM: Revise the text with text in brackets: “The Working Group recommends that ICANN improve outreach, awareness-raising, application evaluation, and program evaluation elements of the Applicant Support Program, [as well as usability of the Applicant Support Program] as proposed in the Implementation Guidance below.”
ACTION ITEM: Revise the text with the text in brackets: “In implementing the Applicant Support Program for subsequent rounds, the dedicated Implementation Review Team should draw on experts with relevant knowledge, including from the targeted regions, to develop appropriate program elements related to outreach, education, [business case development,] and application evaluation. Regional experts may be particularly helpful in providing insight on the [development] of business plans from different parts of the world.”  Also, update Rationale for Recommendation xx and Implementation Guidance xx-xx (rationale 4).

c. New issues raised in deliberations since publication of the Initial Report, if applicable.
[Proposed additional paragraph: The Working Group considered a comment submitted by the ALAC during the call for public comments to the Initial Report which proposed for an applicant that qualifies for ASP to be given priority in any string contention set, and not be subjected to any further string contention resolution process. While the Working Group noted that applicants which apply for applicant support would consider themselves as applicants in need of financial support and therefore less likely to possess the financial wherewithal to succeed in an auction of last resort, the Working Group did not come to an agreement on the ALAC’s proposal. Instead, the Working Group preferred to consider the ALAC’s secondary proposal for the provision of a multiplier (or equivalent) to help applicants which qualified for applicant support to effectively
ACTION ITEM: Integrate concept with content about the multiplier/bid credit -- to be added to ASP section and released with package 7.

Notes:

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

2. Complete review of "Can't Live With" comments on Package 5, start on page 95: https://docs.google.com/document/d/1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLuQuo/edit?usp=sharing [docs.google.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_document_d_1Hh8Wj3IwXvi91Am1k4Zoooct2zmPOmVe1pLmjQLuQuo_edit-3Fusp-3Dsharing&d=DwMGaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=QiF-05YzARosRvTYd84AB_UYInlydmFcjNmBM5XgySw&m=6x2HMdqVfiv2E9Flmkt8hiOb5ZRMF_zVc1AHRrIlPGg&s=t906hYXtHHg6kAzEF8fkFmilgBffCvfuF3I7MB7R9tE&e=>

2.4 Application Change Requests
[Proposed new Implementation Guidance: Implementation Guidance xx (rationale 3): Insofar as it is feasible, ICANN org should explore the possibility of allowing applicants to delay evaluation of relevant applications pending early submission of an applicant change request on the basis of business combination or other forms of joint ventures, so as to facilitate evaluation (instead of re-evaluation) of the new combined venture or entity, in an effort to save time and cost.]

C5.6 - Justine Chew proposed adding new Implementation Guidance. Rationale: "In the interest of transparency and predictability, it should be clarified if application change requests are allowed immediately after close of the application period and when all applied-for strings and corresponding applicants are revealed.  Where permissible, we should consider allowing applicants which have applied for exactly matching strings or strings which in their belief run the risk of being confusingly similar an opportunity to delay their evaluation/reviews pending submission of an applicant change request on the basis of business combination or other forms of joint ventures.  Having to evaluate just the new combined venture or entity will help avoid need for re-evaluation, also save time and costs.
Withdrawals of application and corresponding refunds should be allowed."

Discussion:
-- Any suggestions for the amount of time for the delay.
-- Clarify that an applicant could delay his/her own application.
-- Suggest a an applicant could ask for a delay of 60-90 days.
-- Define “early” in “pending early submission”.

ACTION ITEM: Accept the change from Justine to include text in brackets, “Insofar as it is feasible, ICANN org should explore the possibility of allowing applicants to delay [by 60-90 days] evaluation of relevant applications pending early submission [prior to their own] of an applicant change request on the basis of business combination or other forms of joint ventures, so as to facilitate evaluation (instead of re-evaluation) of the new combined venture or entity, in an effort to save time and cost.”   Also make consistent the text in Rationale for Recommendation xx (rationale 3).

Recommendation xx (rationale 4):
[Suggested edit to the preceding sentence: [Applicants of .Brand strings will be given the opportunity to continue with the application process for a change in string that is linked to their brand without the need for an auction of last resort to resolve contention, contingent on process guardrails which ensure that changes in the applied-for string occur only under narrow circumstances, limit impact on the New gTLD Program more broadly, and are subject to public comment and objections processes.]

JC5.8 - Justine Chew proposed editing the preceding sentence - underlined text is new. Rationale: "For greater comfort, the sentence “Applicants will be given the opportunity to continue with the application process for a string linked to their brand without the need for an auction of last resort to resolve contention.” must be expressly tied to a .Brand context and contingent on the process guardrails described. As it stands, that sentence is too open-ended."

ACTION ITEM: The WG agrees to the change.

2.8.1 GAC Consensus Advice and GAC Early Warning
Rationale for recommendation xx (rationale 6):
KK5.6 - Kathy Kleiman proposed adding the words "and the Community" to this sentence. Rationale: "Should not be controversial; many application changes reviewed by ICANN are also reviewed by the Community. Just clarifying here."

ACTION ITEM: Revise the text with text in brackets: Application changes would be subject to [public comment and] evaluation by ICANN as discussed in section xx Application Change Requests.”

2.5.4 Applicant Support
Recommendation xx (rationale 2):
[Proposed alternate text to the preceding sentence: In addition, the Working Group recommends that ICANN proactively manage the pro bono assistance program by not only encouraging the provision of non-financial pro-bono assistance but also by coordinating communication in respect of the provision of pro-bono assistance to and uptake by applicants in need.]

JC5.9 - Justine Chew proposed alternate text to the preceding sentence. Rationale: "In addition, the Working Group recommends that ICANN proactively manage the pro bono assistance program by not only encouraging the provision of non-financial pro-bono assistance but also by coordinating communication in respect of the provision of pro-bono assistance to and uptake by applicants in need."

Discussion:
-- Be careful that ICANN Org is not assisting applicants.  Passive language would be better.
-- Education and promotion is fine, but should be delivered generally and transparently.
-- Add “In addition, ICANN Org will publicize the program and provide educational materials for applicants who qualify for support.”
-- The solution lies in outreach.  Add a clause “including ICANN Org making the need for pro bono assistance known throughout the legal community.”
-- Needs to be outreach to vendors that can provide that support.  What is our timing?  The communications period is described in that section – a least 6 months.

ACTION ITEM: Revise the text to include text in brackets and strikeout: “In addition, the Working Group recommends that ICANN continue to facilitate [and promote] non-financial assistance including the provision of pro-bono assistance to applicants in need.”  [ICANN will provide educational materials and outreach during the communications period to both the applicants and potential providers of pro bono services.] Also update Rationale for Affirmation xx with modification (rationale 2).


Recommendation xx (rationale 4): The Working Group recommends that ICANN improve [utility,] outreach, awareness-raising, application evaluation, and program evaluation elements of the Applicant Support Program, as proposed in the Implementation Guidance below.

JC5.11 - Justine Chew proposed adding the word "utility." Rationale: "At-Large considers the element of education around viable business models for applicants as identified by the AMGlobal Study is also important to increase the utility of the ASP for potential ASP applicants."

And

Implementation Guidance xx (rationale 4): In implementing the Applicant Support Program for subsequent rounds, the dedicated Implementation Review Team should draw on experts with relevant knowledge, including from the targeted regions, to develop appropriate program elements related to outreach, education [(including education on business models, for e.g. through different business case studies)], and application evaluation. Regional experts may be particularly helpful in providing insight on the evaluation of business plans from different parts of the world.

JC5.12 - Justine Chew proposed adding the highlighted text to this sentence. Rationale: "The proposed change corresponds to the change to the above the above Recommendation xx (rationale 4)." - see JC5.11.

ACTION ITEM: Revise the text with text in brackets: “The Working Group recommends that ICANN improve outreach, awareness-raising, application evaluation, and program evaluation elements of the Applicant Support Program, [as well as usability of the Applicant Support Program] as proposed in the Implementation Guidance below.”

ACTION ITEM: Revise the text with the text in brackets: “In implementing the Applicant Support Program for subsequent rounds, the dedicated Implementation Review Team should draw on experts with relevant knowledge, including from the targeted regions, to develop appropriate program elements related to outreach, education, [business case development,] and application evaluation. Regional experts may be particularly helpful in providing insight on the [development] of business plans from different parts of the world.”  Also, update Rationale for Recommendation xx and Implementation Guidance xx-xx (rationale 4).

Rationale for Recommendation xx and Implementation Guidance xx-xx (rationale 6): There will need to be a clear plan in place for funding the Applicant Support Program. ICANN will need to evaluate the extent to which funds will be provided from the ICANN org budget and if additional funding is needed, should consider additional funding sources. [Proposed additional sentence: In this respect, ICANN org should actively inform, encourage and liaise with National banks and aid agencies worldwide to participate in sponsoring applicants or funding for the Applicant Support Program, as well as to take steps to structure a mechanism to implement joint financing.]

JC5.14 - Justine Chew proposed adding this sentence to the end of the paragraph. Rationale: "Securing funding for the ASP is critical to its chance for success. In anticipation of more applicants for ASP in the next round, there should be concerted effort to raise more than the USD2mil allocated in the last round. In this respect, stronger language with more concrete exploratory steps is needed to compel securing of such funding."

Discussion:
-- This looks like Implementation Guidance, not rationale.  It is very specific.
-- This seems to be beyond scope.
-- There already is Implementation Guidance relating to this.
-- This could be raised in public comments.

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

[Proposed additional paragraph: The Working Group considered a comment submitted by the ALAC during the call for public comments to the Initial Report which proposed for an applicant that qualifies for ASP to be given priority in any string contention set, and not be subjected to any further string contention resolution process. While the Working Group noted that applicants which apply for applicant support would consider themselves as applicants in need of financial support and therefore less likely to possess the financial wherewithal to succeed in an auction of last resort, the Working Group did not come to an agreement on the ALAC’s proposal. Instead, the Working Group preferred to consider the ALAC’s secondary proposal for the provision of a multiplier (or equivalent) to help applicants which qualified for applicant support to effectively

JC5.15 - Justine Chew proposed adding a new paragraph. Rationale: "Reference to the ALAC/At-Large proposal that an applicant that qualifies for ASP be given priority in any string contention set, and not be subjected to any further string contention resolution process is omitted. Unsure if this omission was intended because of the latest deliberation on a multiplier/bid credit for applicants which qualify for ASP."

ACTION ITEM: Integrate concept with content about the multiplier/bid credit -- to be added to ASP section and released with package 7.

3. Private Resolutions: Hybrid Proposal 2+ and Proposal 4: https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZzjHw/edit?usp=sharing [docs.google.com]<https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZzjHw/edit?usp=sharing%20%5bdocs.google.com%5d>

Discussion:
-- Support – reflects the reality on the ground.
-- How do we enforce that? Who is going to determine if intent is bona fide or not?
-- What if an applicant changes their mind once they see the other applications?  This is too easily gamed.
-- What is the purpose of preserving private auctions.  Why are they so critical to this program? (aside from allowing large portfolio players to game this).
-- Penalize for next round? Why not penalize "this" round? Bad actor can reconstitute in many ways to participate in the next round - how do we police that?
-- Without taking a position on the substance, and agreeing that bad intent should not be assumed, we should be realistic about the ability to enforce any attestation of intent.
-- Would people agree in restricting private resolution to Brand TLDs ?
-- People are going to game – try find a way to allow this to work.  Try to put in guardrails to minimize the gaming.
-- ICANN endorsing the concept of private auctions up front is a dangerous path in this this environment.  Too big a spot light on them. You do Vickery up front - its transparent and takes out the possibility of all the collusions.
-- Complete transparency will limit gaming.  Requiring all details of private resolution with ICANN (and potentially the community)
Failure to be transparent will result in penalty and disclosure.
-- If we say that everything must be disclosed – to ICANN if not also to the community?  Consider the proposal of transparency.  Could allow us to gather data (which we could not do next time).
-- Think about this in the context of the benefits to the community.


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