[Gnso-newgtld-wg] Revisions to sections on GAC Advice - Current Status?

Tue May 5 20:49:33 UTC 2020

Paul – I think you forgot one section, though I understand you agreed to this language as well:

From Justine’s email:

To this end, I support Anne's proposed compromise language to be applied towards the original recommendation in full, which I now suggest should be condensed to read as,
"Recommendation xx: To the extent that the GAC provides GAC Consensus Advice (as defined in the ICANN Bylaws) in the future on categories of TLDs, the GAC should provide this Advice prior to the finalization of the next Applicant Guidebook. In the event that GAC Consensus Advice is issued after the application period has begun and whether the GAC Consensus Advice applies to categories, groups or classes of applications or string types, or to a particular string, the ICANN Board should take into account the circumstances resulting in such timing and the possible detrimental effect of such timing in determining whether to accept or override such GAC Consensus Advice as provided in the Bylaws."

From: McGrady, Paul D. <PMcGrady at taftlaw.com>
Sent: Tuesday, May 5, 2020 1:45 PM
To: Justine Chew <justine.chew at gmail.com>; gnso-newgtld-wg at icann.org; Aikman-Scalese, Anne <AAikman at lrrc.com>; Jeff Neuman <jeff.neuman at comlaude.com>
Subject: RE: [Gnso-newgtld-wg] Revisions to sections on GAC Advice - Current Status?

[EXTERNAL]
________________________________
Anne, Justine, All,

Thank you so much for the spirit of collaboration that you brought to this discussion.  I know everyone’s time is valuable, so I especially appreciate your investing your time into finding a solution.  While I would have liked a more strict approach, I fully understand your concerns and I also fully understand that part of this WG process is not always getting everything you want .  I believe the formulation that Anne produced and that Justine agreed with is probably the best we are going to get in this review and I support it.  Thanks again!

Jeff/Staff, can you please bring forward the Anne/Justine/Paul version for discussion on tomorrow’s call?  Here it is again from Justine’s email below:

"Section 3.1 of the 2012 Applicant Guidebook states that GAC Advice “will create a strong presumption for the ICANN Board that the application should not be approved.” Noting that this language does not have a basis in the current version of the ICANN Bylaws, the Working Group recommends omitting this language in future versions of the Applicant Guidebook to bring the Applicant Guidebook in line with the Bylaws language. The Working Group further notes that the language may have the unintended consequence of hampering the ability for applicants, ICANN org, and the GAC to mitigate concerns and reach a mutually acceptable solution as described in the relevant Bylaws language, which could allow an application to proceed."

Thanks all!

Best,
Paul

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Justine Chew
Sent: Saturday, May 2, 2020 1:10 AM
To: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Revisions to sections on GAC Advice - Current Status?

Paul,

Thank you for noting my rejection to your original proposed text on Recommendation xx  in the googledoc.

Along with others in this thread, I cannot accept your proposed amended text of "... which should result in a strong presumption against the Board adopting such late GAC Consensus Advice.] " either.

All,

Anne has pointed out what I wanted to say in addition, but I will raise one further rationale for my rejection.

Given the current Bylaws, Recommendation xx (rationale 3) seeks to remove from the AGB "a strong presumption" in favour of GAC Advice and I quote, as proposed,
"Section 3.1 of the 2012 Applicant Guidebook states that GAC Advice “will create a strong presumption for the ICANN Board that the application should not be approved.” Noting that this language does not have a basis in the current version of the ICANN Bylaws, the Working Group recommends omitting this language in future versions of the Applicant Guidebook to bring the Applicant Guidebook in line with the Bylaws language. The Working Group further notes that the language may have the unintended consequence of hampering the ability for applicants, ICANN org, and the GAC to mitigate concerns and reach a mutually acceptable solution as described in the relevant Bylaws language, which could allow an application to proceed."

Since we are noting that such a strong presumption in favour of GAC Advice does not have a basis in the current version of the Bylaws, I cannot in the same breath accept your (amended) proposal which provides for another strong presumption to arise, albeit against GAC Advice this time. The same would apply whether the GAC Advice pertains to applications for categories, groups or classes of applications or string types or for a particular string, IMO - recalling that "any new gTLD application or string" was the subject of the WG's questions on the role of GAC Advice in the Initial Report.

Thus, I would like to address the proposed recommendation in question in totality, for completeness sake.

To this end, I support Anne's proposed compromise language to be applied towards the original recommendation in full, which I now suggest should be condensed to read as,
"Recommendation xx: To the extent that the GAC provides GAC Consensus Advice (as defined in the ICANN Bylaws) in the future on categories of TLDs, the GAC should provide this Advice prior to the finalization of the next Applicant Guidebook. In the event that GAC Consensus Advice is issued after the application period has begun and whether the GAC Consensus Advice applies to categories, groups or classes of applications or string types, or to a particular string, the ICANN Board should take into account the circumstances resulting in such timing and the possible detrimental effect of such timing in determining whether to accept or override such GAC Consensus Advice as provided in the Bylaws."

Justine
On Sat, 2 May 2020 at 04:44, Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
Hi Paul,
I have two issues with the recommended change to the language:

1. It does not adequately warn applicants who are not already part of the ICANN system that the ByLaws accord a certain status to GAC Consensus Advice, i.e. it takes 11 directors to override it.   In this regard, we need to let potential applicants know how that advice might affect their chances of proceeding.

2. Your proposed language still looks like an attempted change in the standard that is applicable (via the ByLaws) to GAC Consensus Advice  As you know, that was all reviewed and decided upon in all the work that was done in Accountability Workstream 2 .  (We don’t want to propose language or standards that the Board is going to reject or that would require a Fundamental ByLaws Amendment in order for them to accept.  As you know, there are lots of triggers related to Empowered Community procedures for proposed amendments to the ByLaws.)

So I want to suggest a compromise as follows.

In the event that GAC Consensus Advice is issued after the application period has begun and the GAC Consensus Advice applies to categories, groups or classes of applications or string types, the ICANN Board should take into account the circumstances resulting in such timing and the possible detrimental effect of such timing in determining whether to accept or override such GAC Consensus Advice as provided in the ByLaws.

Anne

From: McGrady, Paul D. <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>
Sent: Friday, May 1, 2020 4:57 AM
To: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>; Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>; Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>; Cheryl Langdon-Orr (cheryl at hovtek.com.au<mailto:cheryl at hovtek.com.au>) <cheryl at hovtek.com.au<mailto:cheryl at hovtek.com.au>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: RE: Revisions to sections on GAC Advice - Current Status?

[EXTERNAL]
________________________________
Hi All,

I have not been able to connect with Greg on this as hoped.  Even so, I submit the following change which I believes deals with concerns some have raised that we cannot tie the ICANN Board’s hands but at the same time want to create a sense of urgency-leading-to-predictability in relationship to when the GAC gives advice:

 [ In the event that GAC Consensus Advice is issued after the application period has begun and the GAC Consensus Advice applies to categories, groups or classes of applications or string types, the ICANN Board should take into account the circumstances resulting in such timing and the detrimental effect of such timing when considering such GAC Consensus Advice which should result in a strong presumption against the Board adopting such late GAC Consensus Advice.]

I hope this balance is acceptable to the WG.  This is an area of failure for the community in the last round and I think it would be really unfortunate if we set ourselves up for failure again by not addressing it in the new AGB.

Jeff/Cheryl, will one of you please confirm receipt and that this will be on our agenda for discussion in the appropriate WG call?  Thanks!

Best,
Paul

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From: Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>>
Sent: Tuesday, April 28, 2020 4:37 PM
To: Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>>
Cc: Jeff Neuman <jeff.neuman at comlaude.com<mailto:jeff.neuman at comlaude.com>>; Cheryl Langdon-Orr (cheryl at hovtek.com.au<mailto:cheryl at hovtek.com.au>) <cheryl at hovtek.com.au<mailto:cheryl at hovtek.com.au>>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>; McGrady, Paul D. <PMcGrady at taftlaw.com<mailto:PMcGrady at taftlaw.com>>
Subject: Re: Revisions to sections on GAC Advice - Current Status?

Sorry to have missed last night's witching hour call and sorry this is not done.  You can blame me, not Paul.  i will look at the last bit of language in play this evening and hammer something out with Paul.

On Tue, Apr 28, 2020 at 5:03 PM Aikman-Scalese, Anne <AAikman at lrrc.com<mailto:AAikman at lrrc.com>> wrote:
[cid:image001.gif at 01D622E3.FE469F10]
Jeff and Cheryl (and Paul McGrady),
Jeff, you said that if there were any proposed changes to the GAC Advice language, we should get those in by May 1.

However, the last time the WG looked at this, Paul had inserted a number of redline changes into the document.  So which version are you expecting us to use when you ask for proposals to be made no later than May 1?  And are these alternate proposals supposed to come in the form of redlines to the WG document in the same manner that Paul used?

I had understood that Paul was doing some redrafting of his numerous edits.  Or was there another small group that was supposed to be convened on this point?

I don’t see any way we can cancel the discussion on the language covering GAC Advice, even though you suggested at the top of the last call that we might.

Thank you,
Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

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