[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 09 November 15:00 UTC - re rationale of GAC Advice

Mon Nov 23 15:26:48 UTC 2020

Hi Jeff

Thanks very much! I am actually using some extra time to listen to that specific call, and that is why I am intervening on-list so that this point –based on GAC consensus- is on the record.

Best

Jorge

Von: Jeff Neuman <jeff at jjnsolutions.com>
Gesendet: Montag, 23. November 2020 16:24
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch>; julie.hedlund at icann.org
Cc: gnso-newgtld-wg at icann.org
Betreff: RE: Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 09 November 15:00 UTC - re rationale of GAC Advice

Thanks Jorge.  I can assure you that we are taking the GAC comments extremely seriously on this topic (as well as all of the others).

Julie and ICANN staff do their best to take notes in real time while the meetings are in progress, but unfortunately, the notes are just shorthand and do not necessarily reflect all of the context and material discussed in the meetings.  Although those are the 3 potential options with respect to the language on GAC Advice, in order to get a real flavor of the impact of each of the options, you would have to really listen to the call (which I know is not always possible).

More on this topic will follow shortly.

Sincerely,

Jeff

[cid:image002.png at 01D6C1B5.7027DBB0]

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

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> On Behalf Of Jorge.Cancio--- via Gnso-newgtld-wg
Sent: Monday, November 23, 2020 10:18 AM
To: julie.hedlund at icann.org<mailto:julie.hedlund at icann.org>; gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Subject: Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 09 November 15:00 UTC - re rationale of GAC Advice

Dear all

Regarding the language regarding the «rationale” of GAC Consensus Advice: please do just refer to the Bylaws language, without adding any additional requirements not contained in the Bylaws.

Please note that the GAC input on this recommendation is based on GAC consensus:

== (quote from the GAC input to the public consultation)==

In this regard, the GAC does not support:
●        PDP WG recommendations limiting the scope of GAC advice. In particular, the GAC does not support PDP WG recommendation 30.3 requiring that if GAC advice is “based on public policy considerations, well-founded merits-based public reasons must be articulated”, and considers that no additional requirements on what is established in the Bylaws regarding GAC Advice can nor should be established through policy recommendations. In this sense, current Bylaws (Section 12.3) already prescribe that the GAC, as any advisory committee, needs to provide a rationale, a requirement which the GAC has been abiding by consistently since the Bylaws change in 2016. The rationale provided by the GAC is based on its role under the Bylaws to “consider and provide advice on the activities of ICANN as they relate to governments, particularly matters where there may be an interaction between ICANN’s policies and various laws and international agreements or where they may affect public policy issues”, without any need to add any further requirements through policy.
==

Due to resource limitations GAC folks (like me) are normally not able to follow SubPro calls…

However, I feel it would be fair and sensible that the WG considers GAC inputs, especially those based on GAC consensus very seriously.

Best

Jorge

Von: Gnso-newgtld-wg <gnso-newgtld-wg-bounces at icann.org<mailto:gnso-newgtld-wg-bounces at icann.org>> Im Auftrag von Julie Hedlund
Gesendet: Montag, 9. November 2020 17:54
An: gnso-newgtld-wg at icann.org<mailto:gnso-newgtld-wg at icann.org>
Betreff: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 09 November 15:00 UTC

Dear Working Group members,

Please see below the notes from the working sessions on 09 November 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/2020-11-09+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie
==
Notes and Action Items:

Action Items:

Topic 31: Objections<https://docs.google.com/spreadsheets/d/1Pk3SadfiropKdD387FrgELdulfZuTbUCivf1SId9ZGU/edit?usp=sharing>

Row 21 – ICANN Org re: Questions about "arbitration forum".
ACTION ITEM: Check the language to make sure it is clear. Switch the terminology to make it clear -- use "panel" not "arbitration forum" or "arbitration" or be consistent.

Topic 30: GAC Early Warning/GAC Consensus Advice<https://docs.google.com/spreadsheets/d/1Pk3SadfiropKdD387FrgELdulfZuTbUCivf1SId9ZGU/edit?usp=sharing>

Row 13 – Swiss Government OFCOM and Row 14 – GAC France re: Concerns about removal of "strong presumption" Reiterates GAC concerns listed under "new information"
and Row 20 – GAC re: WG shouldn't make recommendations on limiting GAC activities under Bylaws; amend Recommendation 30.6 to allow applicants to address issues raised in GAC Early Warning.
ACTION ITEM: Take the discussion to the list on the three options with respect to Recommendation 30.3 and GAC Consensus Advice.  Options: 1) don’t change the language of the recommendation; 2) clarify the recommendation as suggested by IPC; 3) revise the recommendation to use the language it as in 12.3 of the Bylaws.

Row 21 – ICANN Org re: Clarification on whether amendments permitted in response to "non-consensus advice"; need clear process and deadlines to change an application.
ACTION ITEM: Clarify with Leadership the terminology to use be consistent re: “GAC Advice” and “GAC Consensus Advice”.
ACTION ITEM: Send the question to the WG list: “is the WG recommending particular actions in the event that the GAC issued non-consensus advice?”

Topic 28: Role of Application Comment<https://docs.google.com/spreadsheets/d/1YJJDm9mdmSssXav1P08Uhw6Ofyp0KtfTX8QSRChrVNI/edit#gid=1163822586>

Row 10 – Jamie Baxter re: Same application comment period for Standard and Community applications, for a predetermined period.
ACTION ITEM: Add a recommendation along the lines suggested by Jamie Baxter/ALAC: “the Applicant Comment Period should only run for the predetermined period outlined in the AGB. Any comments received during the period would be the only comments considered during evaluations.”

Row 14 -- PETILLION Law Firm re: Inform applicant if information is submitted on confidential portions of an application.
ACTION ITEM: Revise Recommendation 28.13 that if such information is submitted, the applicant should be fully informed of the submitted information and be able to respond through the same mechanism.

Notes:

1. Updates to Statements of Interest: None provided.

2. Review draft Final Report Public Comments – to prepare see the links to the Public Comment Review Tool on the wiki at: https://community.icann.org/display/NGSPP/h.+Published+Draft+reports and review the following topics and comments:

Topic 31: Objections<https://docs.google.com/spreadsheets/d/1Pk3SadfiropKdD387FrgELdulfZuTbUCivf1SId9ZGU/edit?usp=sharing>

Row 14 – ALAC re: ALAC should be equal in standing to the Independent Objector insofar as not having to prove a link to the community invoked in its Community Objection.
Leadership Comments: WG Discussed whether ALAC should automatically have standing for Community-based objections and there was no agreement within the Working Group to give ALAC that. Does WG want to revisit?

Discussion:
-- No agreement in Work Track 3 on this. They didn’t want to duplicate the Independent Objector role.
-- No interest from the WG to revisit this issue.

Row 16 -- Intellectual Property Constituency (IPC) and PETILLION Law Firm re: Applicants in String Confusion Objection set should respond if an objection is filed.
Leadership Comments: Does the Working Group wish to consider a default option?

-- No WG action noted.

Row 18 – ICANN Board re: Identify the purpose of continuing the IO role.
Leadership Comments: We did discuss this and there was no agreement on changing this part of the program.

Discussion:
-- No agreement in the WG to keep the IO, but no agreement to get rid of it.
-- Decide whether the WG should respond to the Board to address their comments.  Could say that the same justifications for the IO program exist as they did for the 2012 round.
-- Don't get continued employment of an IO.  It was a failed experiment and the Board is right to question us. The best we could say that some WG members think the same justifications as in 2012 exist for subsequent rounds, other WG members think it’s a wasteful and unnecessary program.

Row 19 – ALAC re: Questions about budget/resources for IO panel
Leadership Comments: More an issue for ICANN Org/IRT.

Row 21 – ICANN Org re: Questions about "arbitration forum".
Leadership Comments: These are all clarifications - we should check the language to make sure it is clear. #1 and #2: Arbitration forum is the same thing as the panel. Switch the terminology to make it clear -- use "panel" not "arbitration forum" or "arbitration" or be consistent. #4 - The answer is to determine whether they are reasonable.

ACTION ITEM: Check the language to make sure it is clear. Switch the terminology to make it clear -- use "panel" not "arbitration forum" or "arbitration" or be consistent.

Topic 30: GAC Early Warning/GAC Consensus Advice<https://docs.google.com/spreadsheets/d/1Pk3SadfiropKdD387FrgELdulfZuTbUCivf1SId9ZGU/edit?usp=sharing>

Row 13 – Swiss Government OFCOM and Row 14 – GAC France re: Concerns about removal of "strong presumption" Reiterates GAC concerns listed under "new information"
and Row 20 – GAC re: WG shouldn't make recommendations on limiting GAC activities under Bylaws; amend Recommendation 30.6 to allow applicants to address issues raised in GAC Early Warning.
Leadership Comments: Should we amend the language also submitted by Swiss Govt on "possible" mechanisms to address GAC Advice?

Recommendation 30.3: As stated in the ICANN Bylaws, GAC Consensus Advice must include a clearly articulated rationale.[1] The Working Group recommends that GAC Consensus Advice be limited to the scope set out in the applicable Bylaws provisions and elaborate on any “interaction between ICANN's policies and various laws and international agreements or where they may affect public policy issues.” To the extent that the rationale for GAC Consensus Advice is based on public policy considerations, well-founded merits-based public policy reasons must be articulated.

Discussion:
-- WG recommendations can’t change the Bylaws.
-- GAC says it can provide advice on policy, which may not be in the law.
-- The recommendation is not a Bylaws change.
-- Example:  There is no law against Closed Generics.  The existing advice is based on public policy.
-- On the GAC Consensus Advice, when that came through after applications were submitted was problematic.
-- GAC when it provides advice it has to provide a rationale.
-- Make sure we are being consistent in the recommendations.
-- Options re GAC Consensus Advice: 1) leave as is; 2) clarify as suggested by IPC; 3) state it as 12.3 of the Bylaws states it.

ACTION ITEM: Take the discussion to the list on the three options with respect to Recommendation 30.3 and GAC Consensus Advice.  Options: 1) don’t change the language of the recommendation; 2) clarify the recommendation as suggested by IPC; 3) revise the recommendation to use the language it as in 12.3 of the Bylaws.

Row 21 – ICANN Org re: Clarification on whether amendments permitted in response to "non-consensus advice"; need clear process and deadlines to change an application.
Leadership Comments:
Fix terminology to be consistent. Clarity on Deadlines?

Discussion:
-- Look at 12:2a1: That’s what we had in mind when we made the recommendations and maybe the IPC.
-- Re: non-consensus advice in 2012 – is the WG recommending particular actions in the event that the GAC issued non-consensus advice?
-- Should we change the recommendation to say that applicants should be able to change an application in response to non-consensus advice?

ACTION ITEM: Clarify with Leadership the terminology to use be consistent re: “GAC Advice” and “GAC Consensus Advice”.
ACTION ITEM: Send the question to the WG list: “is the WG recommending particular actions in the event that the GAC issued non-consensus advice?”

Topic 28: Role of Application Comment<https://docs.google.com/spreadsheets/d/1YJJDm9mdmSssXav1P08Uhw6Ofyp0KtfTX8QSRChrVNI/edit#gid=1163822586>

Row 10 – Jamie Baxter and also Row 12 – ALAC re: “the Applicant Comment Period should only run for the predetermined period outlined in the AGB. Any comments received during the period would be the only comments considered during evaluations.”
Leadership Comments: This is still an issue. Agreed that it should be for a definitive period of time, but didn't say that they had to be at the exact same time.

Recommendation 34.6: Evaluators must continue to be able to send Clarifying Questions to CPE applicants but further, must be able to engage in written dialogue with them as well.
Recommendation 34.7: Evaluators must be able to issue Clarifying Questions, or utilize similar methods to address potential issues, to those who submit letters of opposition to community-based applications.

Recommendation 34.9: If the Community Priority Evaluation Panel conducts independent research while evaluating an application, limitations on this research and additional requirements must apply. The Working Group recommends including the following text in the Applicant Guidebook: “The Community Priority Evaluation Panel may perform independent research deemed necessary to evaluate the application (the “Limited Research”), provided, however, that the evaluator shall disclose the results of such Limited Research to the applicant and the applicant shall have an opportunity to respond. The applicant shall be provided 30 days to respond before the evaluation decision is rendered. When conducting any such Limited Research, panelists are cautioned not to assume an advocacy role either for or against the applicant or application.”
Implementation Guideline 34.10: To support transparency, if the Community Priority Evaluation Panel relied on research for the decision it should be cited and a link to the information provided.

Discussion:
-- Comment period needs to be aligned with when the objections happen.
-- There were never two application comment periods. ICANN just never closed the application comment period for community applicants.
-- Question: Is there information that could come in during the evaluation that would be subject to public review? Answer: Research is provided to the applicant and others could get clarifying question.  There isn’t a general open public comment period.  But opportunities for those who have provided letters of objection or support to provide clarifications.
-- If there was independent research thought we said that the applicant would be notified.  Might be prejudicial if an applicant couldn’t get public comment on research that the applicant doesn’t agree with.
-- In Rec 34.10 we do say the applicant can respond, but it’s not a public comment.
-- Add a recommendation to specify that there is only one comment period and that all comments should be provided in that period.

ACTION ITEM: Add a recommendation along the lines suggested by Jamie Baxter/ALAC: “the Applicant Comment Period should only run for the predetermined period outlined in the AGB. Any comments received during the period would be the only comments considered during evaluations.”

Row 14 -- PETILLION Law Firm re: Inform applicant if information is submitted on confidential portions of an application.
Leadership Comments: Ask the WG if this is a good clarification.

ACTION ITEM: Revise Recommendation 28.13 that if such information is submitted, the applicant should be fully informed of the submitted information and be able to respond through the same mechanism.

Row 15 – ALAC re: Clarify consequences of violation of Recommendation 28.3 and related IG; allow applicant time to reply to late comments.
Leadership Comments: Consequence of a violation is that it won't be considered. Bring this up with the WG. 28.12 -- It's a clarification.

No WG action noted.

Row 17 – ICANN Org re: Differentiate between Recommendation 28.3 and related IG; concerns with data privacy, verification, confidentiality, security, and implementation.
Leadership Comments: Many of these are clarifications.  These can be noted, but nothing new or to change.  Might be information to be provided to the IRT to consider.

No WG action noted.

________________________________

________________________________

________________________________

________________________________
[1] Section 12.3. PROCEDURES of the ICANN Bylaws states: “. . .each Advisory Committee shall ensure that the advice provided to the Board by such Advisory Committee is communicated in a clear and unambiguous written statement, including the rationale for such advice.” See  https://www.icann.org/resources/pages/governance/bylaws-en.
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