[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 23 November 20:00 UTC

[Jeff Neuman]

Jorge,

Thanks for this note.  I think the issue we are grappling with is whether any new PICs (or RVCs) would be enforceable by ICANN if the terms do vary materially from the form of registry agreement or registrar accreditation agreement that existed on 1 October 2016.

For example, if we look at your previous e-mail on Category 1 Safeguards.  The GAC language you pointed to states that “The GAC recalls persistent GAC concerns regarding both the weak implementation of PICs applicable to gTLDs in highly regulated sectors and the lack of clarity and effectiveness of the mechanism to enforce disputes (the…..PICDRP).”

If the Working Group were to agree with the GAC Comments here, and were to make a recommendation like that supplied by NABP holding registries responsible for enforcing requirements against registrants, then the language of the agreements would change and would likely contain terms that do vary materially from the 1 October 2016 form Registry Agreement.

For this example, we may not be able to rely on the “grandfather” language in the Bylaws.  And therefore if we did want to accept this recommendation we will need to either (a) figure out other language in the Bylaws that would allow this, or (b) recommend that changes to the Bylaws be made.

***Please note that I am not taking a position in favor or not in favor of this proposed change.  I am just pointing out the question that we are facing.

Leadership is meeting this week to discuss the path forward on this issue and will present to the Working Group for consideration.

[cid:image003.png at 01D6C241.E0E14210]
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> On Behalf Of Jorge.Cancio--- via Gnso-newgtld-wg
Sent: Tuesday, November 24, 2020 6:15 AM
To: julie.hedlund at icann.org; gnso-newgtld-wg at icann.org
Subject: Re: [Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 23 November 20:00 UTC

Dear all

Just to note that the GAC consensus input includes relevant material on basically all these topics.

Regarding “closed generics” this is the relevant portion:

==
The GAC is mindful that the issue of closed generics has generated considerable debate and diverse views. Broadly speaking, while the GAC does not believe closed generics are necessarily inherently anti-competitive, it considers that restricting common generic strings for the exclusive use of a single entity may have unintended consequences, including a negative impact on competition, if appropriate guardrails are not established.
In this respect, the GAC continues to support the retention of the advice contained in the GAC Beijing Communique whereby “exclusive registry access should serve the public interest goal” and that adequate means and processes are defined to ensure that public interest goals are met. The burden of demonstrating the public interest benefit of a closed generic string should rest with the applicant and be subject to comments during the review process.
As no agreement has been found yet within the PDP WG, the GAC encourages further discussions to identify criteria as to how to assess “public interest” within closed generic TLDs.
In this sense, the GAC, recognizing that the PDP WG has not been able to agree on how to treat closed generic TLD applications in future rounds, has taken note of the three proposals submitted by individual/small groups of PDP WG Members:

●        A Proposal for Public Interest Closed Generic gTLDs (PICG TLDs), submitted by Alan Greenberg, Kathy Kleiman, George Sadowsky, and Greg Shatan
●        The Case for Delegating Closed Generics, submitted by Kurt Pritz, Marc Trachtenberg, Mike Rodenbaugh.
●        Closed Generics Proposal, submitted by Jeff Neuman in his individual capacity.

Regarding these proposals, the GAC is not in a position to support “The Case for Delegating Closed Generics”, which would allow all closed generics being delegated, and finds common ground in the other two proposals. The GAC notes that the “Proposal for Public Interest Closed Generic gTLDs”, which includes a new category of new gTLDs - Public Interest Closed Generic Strings (PICGS) - is aimed to operate within a public interest framework directly in response to the GAC Beijing Advice, and notes that the suggestion of a public interest closed generic review panel and creation of public interest closed generic would require further community work, in order to minimize added complexity and avoid undue overlap with community status applications. The GAC encourages the continued consideration of this proposal together with the “Closed Generics Proposal”, both proposals having found explicit support in the GAC.

Regarding the “Closed Generics Proposal” the GAC finds value in the notion of creating a Framework for Evaluating Closed Generic applications to determine whether those applications serve a legitimate public interest goal.
==

On a personal note: I found the exchange in the call on “PICs” very interesting and insightful. As some mentioned, the relevant section of the Bylaws is the result of a long negotiation, and needs to be considered in full, without leaving any pieces unconsidered. For instance, I missed more discussion on the “forward-looking” “grandfathering” language (marked in yellow below):

==
Section 1.1. MISSION
(a) The mission of the Internet Corporation for Assigned Names and Numbers ("ICANN") is to ensure the stable and secure operation of the Internet's unique identifier systems as described in this Section 1.1(a) (the "Mission"). Specifically, ICANN:
(i) Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS") and coordinates the development and implementation of policies concerning the registration of second-level domain names in generic top-level domains ("gTLDs"). In this role, ICANN's scope is to coordinate the development and implementation of policies:
·        For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS including, with respect to gTLD registrars and registries, policies in the areas described in Annex G-1 and Annex G-2; and
·        That are developed through a bottom-up consensus-based multistakeholder process and designed to ensure the stable and secure operation of the Internet's unique names systems.
The issues, policies, procedures, and principles addressed in Annex G-1 and Annex G-2 with respect to gTLD registrars and registries shall be deemed to be within ICANN's Mission.
(ii) Facilitates the coordination of the operation and evolution of the DNS root name server system.
(iii) Coordinates the allocation and assignment at the top-most level of Internet Protocol numbers and Autonomous System numbers. In service of its Mission, ICANN (A) provides registration services and open access for global number registries as requested by the Internet Engineering Task Force ("IETF") and the Regional Internet Registries ("RIRs") and (B) facilitates the development of global number registry policies by the affected community and other related tasks as agreed with the RIRs.
(iv) Collaborates with other bodies as appropriate to provide registries needed for the functioning of the Internet as specified by Internet protocol standards development organizations. In service of its Mission, ICANN's scope is to provide registration services and open access for registries in the public domain requested by Internet protocol development organizations.
(b) ICANN shall not act outside its Mission.
(c) ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet's unique identifiers or the content that such services carry or provide, outside the express scope of Section 1.1(a). For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority.
(d) For the avoidance of doubt and notwithstanding the foregoing:
(i) the foregoing prohibitions are not intended to limit ICANN's authority or ability to adopt or implement policies or procedures that take into account the use of domain names as natural-language identifiers;
(ii) Notwithstanding any provision of the Bylaws to the contrary, the terms and conditions of the documents listed in subsections (A) through (C) below, and ICANN's performance of its obligations or duties thereunder, may not be challenged by any party in any proceeding against, or process involving, ICANN (including a request for reconsideration or an independent review process pursuant to Article 4) on the basis that such terms and conditions conflict with, or are in violation of, ICANN's Mission or otherwise exceed the scope of ICANN's authority or powers pursuant to these Bylaws ("Bylaws") or ICANN's Articles of Incorporation ("Articles of Incorporation"):
(A)
(1) all registry agreements and registrar accreditation agreements between ICANN and registry operators or registrars in force on 1 October 2016 [1], including, in each case, any terms or conditions therein that are not contained in the underlying form of registry agreement and registrar accreditation agreement;
(2) any registry agreement or registrar accreditation agreement not encompassed by (1) above to the extent its terms do not vary materially from the form of registry agreement or registrar accreditation agreement that existed on 1 October 2016;
(B)any renewals of agreements described in subsection (A) pursuant to their terms and conditions for renewal; and
(C)ICANN's Five-Year Strategic Plan and Five-Year Operating Plan existing on 10 March 2016.
(iii) Section 1.1(d)(ii) does not limit the ability of a party to any agreement described therein to challenge any provision of such agreement on any other basis, including the other party's interpretation of the provision, in any proceeding or process involving ICANN.
(iv) ICANN shall have the ability to negotiate, enter into and enforce agreements, including public interest commitments, with any party in service of its Mission.
==

In addition, personally, I feel that the application of the Human Rights core value could be helpful in addressing concerns related to content regulation.

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, 23. November 2020 22:39
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 - 23 November 20:00 UTC

Dear Working Group members,

Please see below the notes from the WG meeting on 23 November at 20:00 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/2020-11-23+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie
==
Notes and Action Items:

Action Items:

Topic 9 PICs / RVCs – Row 29<https://docs.google.com/spreadsheets/d/1bxEnuFrtI7996NnGPMR00JEwM6KK5m8Y_AGpSwqfi1o/edit#gid=1163822586>
ACTION ITEM: The WG needs to revisit the recommendations and consider how they would be enforced.

 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:

Discussion with Board Liaisons on Board Bylaws comments regarding:

a. Topic 9 PICs / RVCs – Row 29<https://docs.google.com/spreadsheets/d/1bxEnuFrtI7996NnGPMR00JEwM6KK5m8Y_AGpSwqfi1o/edit#gid=1163822586>

Discussion:
-- From the new ByLaws Section 1.1.:  (iv) ICANN shall have the ability to negotiate, enter into and enforce
agreements, including public interest commitments, with any party in
service of its Mission.
-- Have used PICs to resolve disputes.
-- Becky Burr, Board Liaison: Concerns about taking on more voluntary private commitments for which compliance is not objectively measurable.  Need to remind ourselves that enforceability goes beyond whether something is content regulation or not. It goes back to looking at the voluntary commitments and understanding whether it is in furtherance of ICANN’s Mission: “Coordinates the allocation and assignment of names in the root zone of the Domain Name System ("DNS") and coordinates the development and implementation of policies concerning the registration of second-level domain names in generic top-level domains ("gTLDs").” And “ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet's unique identifiers or the content that such services carry or provide, outside the express scope of Section 1.1(a). For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority.”  How is the WG thinking about the voluntary commitments with the Bylaws in mind, including contractual compliance.
-- Avri Doria, Board Liaison: How have you thought about how to deal with this?  At the end of the day the Board will look at the Bylaws and the recommendations and try to see where the public interest point is, but ultimately that will have to come from the WG.
-- What happens if the answer is that the WG hasn’t concerned the Bylaws?  Should we be asking ICANN Legal about the limits?
-- In this case in drafting the Bylaws there was a lot of work, but even the plain meaning – when we talk about “regulates” the Bylaws defines that as imposing rules, as forcing something to be accepted.  If we are talking about voluntary commitments then they are not regulations.  They aren’t imposed, so not prohibited by the Bylaws.
-- If there was a dispute between two parties – GAC gave advice against a string but said if you do x, y, and z we are okay with it and it can go forward.  Does it matter what x, y, and z are?
-- Avri Doria, Board Liaison: You tell us how that is to be read and enforced.  If there those agreements can be objectively dealt with.  There is what you can contract and what can you enforce in an objective way.  The interpretation has to come from the PDP WG’s recommendation.
-- Becky Burr, Board Liaison: The Board does not have a position on this issue and is looking for guidance from the GNSO via the PDP.  The question of how you use these voluntary commitment to resolve contention or concerns, it probably would make a difference to how you go about addressing those.  It seems like it is going to be hard to enforce in light of the language in the Bylaws.
-- If we assume we could come up with a way for these to be objectively enforced, can these commitments be made?  Let’s say there’s a legal rights objection against an applicant’s string.  To resolve it there is an agreement with a third party to not infringe.  If there are disputes these would be dealt with an arbitration association, but ICANN enforces the decision of the arbitration association.
-- Avri Doria, Board Liaison: If the third party is doing something independently of ICANN, then we don’t know.  If they are hired by ICANN, then no.
-- Caution that the PDP WG can’t rewrite the Bylaws and interpretation has to be consistent with the history and language.  This Bylaw is a compromise.  Anything that is in the Registry Agreement should be in furtherance of ICANN’s mission.
-- Are there examples of non-content related PICs that the WG could pull out as examples to set some criteria/parameters?
-- Becky Burr, Board Liaison: Not sure that looking at existing PICs solves the problem.  But it would be very useful to hear what kinds of things you think are fair game and what aren’t.
-- These Bylaws have been changes several times so if this is a major barrier maybe it needs to be revisited.
-- It’s clear that content is relevant to many TLDs.
-- Avri Doria, Board Liaison: If there is a consensus recommendation that requires a change to the Bylaws then the Board will consider that.

ACTION ITEM: The WG needs to revisit the recommendations and consider how they would be enforced.

b. Topic 23 Closed Generics – Row 23<https://docs.google.com/spreadsheets/d/1YJJDm9mdmSssXav1P08Uhw6Ofyp0KtfTX8QSRChrVNI/edit#gid=1163822586>

Discussion:
-- Becky Burr, Board Liaison: The Board adopted a temporary prohibition on closed generics and asked the community to develop policy.  The temporary prohibition should not be considered to be policy. If there is no new policy then the temporary prohibition does not automatically stand as a default.
-- The WG has taken the determination that in absence of a new policy we revert to how it happened in the last round.  Not clear how the Board will interpret the status quo if we don’t do anything this time.
-- The WG can’t assume how the Board will act if the WG does not make a recommendation.
-- Avri Doria, Board Liaison: There is no standing policy on this since there was no explicit policy.
-- Becky Burr, Board Liaison: There wasn’t policy because the Board didn’t have the authority to set the policy.
-- The WG could adopt, affirmatively, the temporary prohibition.  Would like to know if the Board would like the WG to make a recommendation.
-- It would be better if the WG can develop policy on this.  If not we should assume that it will fall one way or another.
-- Question: There is still existing GAC advice on this topic and until that is addressed it is something the Board will have to handle.
-- Avri Doria, Board Liaison: Without a policy recommendation the Board is left in the same position of having an indeterminate recommendation on advice.  We would have to go back to the GNSO.

c. Private Resolution of Contention Sets – Topic 35 Auctions – Row 24<https://docs.google.com/spreadsheets/d/1kmZRLAsW6wlTyQ8LA3KhOQzU1UABL9zCPWw39Yc9lB8/edit#gid=1163822586>

Questions from the Small Team:

“re: “A. The Board notes Recommendation 35.2, which states “[...] the Applicant Guidebook (AGB) must reflect that applicants will be permitted to creatively resolve contention sets in a multitude of manners, including but not limited to business combinations or other forms of joint ventures and private resolutions (including private auctions).” The Board encourages the PDP WG to provide a rationale why the resolution of contention sets should not be conducted in a way such that any net proceeds would benefit the global Internet community rather than other competing applicants.”

Question - Can the Board expand upon what they mean by “net proceeds benefitting the global community?”   Are there methods of contention resolution that the board has discussed specifically that the WG should take into consideration? There are deep divisions within the WG and across the broader community, as evidenced by public comment, about contention resolution where applicants use contention resolution as a means to make money, be it through creative private resolutions involving monetary agreements or private auctions where losers receive funds.  What if we are not able to reach consensus on the rationale you are asking for?

Discussion:
-- There is a divide in the WG.
-- Becky Burr, Board Liaison: Would you still come up with a policy permitting or not permitting private resolutions?
-- Avri Doria, Board Liaison: The community has been very specific about what they wanted to do with the money from the auction of last resort – to be spent in the public interest.  Why shouldn’t this apply to this money?
-- What if part of the rationale is that allowing the money to encourage competition.  It will be really hard for the WG to come to agreement on a rationale.
-- Becky Burr, Board Liaison: Not wrong to provide two rationales.
-- Avri Doria, Board Liaison: But it needs to be able to answer the questions people will ask us.
-- There is a major factor that the environment has changed significantly since 2012.
-- We haven’t talked about the significant investment people have made and in an auction scenario the applicant could walk away with nothing.
-- Seems that the Board is concerned about recommendations that are overly complex or unclear that could lead to litigation.  Is that the case?
-- Becky Burr, Board Liaison: The Board would like to get simple and clear recommendations that avoid unnecessary complexity.
-- Avri Doria, Board Liaison: Not only is it easier to make a decision on a simple and clear recommendation, but also easier to implement.

re: “B. The Board notes that if “private” resolutions will be allowed or encouraged in subsequent procedures, the PDP WG is requested to provide a rationale for why these private processes should only partially be brought into the program rather than be kept outside of the program or be brought into the program. The Board also encourages the PDP WG to provide guidance on the kinds of transparency requirements that it would like to see applied in practice around private resolutions of contention sets.”

Question -  Could the Liaisons provide clarity on what the Board means when they say: “… private processes should only partially be brought into the program rather than be kept outside of the program or be brought into the program”, particularly the references to into or outside of the program.  And more generally, why the Board is seeking a rationale on this issue and A.

Discussion:
-- Avri Doria, Board Liaison: We don’t understand why if such a process is going to be allowed why it wouldn’t be completely private or completely ICANN-run.  Having this halfway measure is confusing.  What is the reason for making this a partial ICANN policy.  Some of the thoughts about the private auction did include some ICANN oversight, so it ceases to be a totally private arrangement.

re: "D. The Board acknowledges the “potential non-exhaustive list of ‘factors’ that ICANN may consider in determining whether an application was submitted with a bona fide (good faith) intention to operate the gTLD.” We note that this non-exhaustive list of “factors” may put ICANN org or the ICANN Board into the position of subjectively trying to determine the state of mind of applicants, and take decisions that are subject to possible challenges. The Board asks the PDP WG to consider providing a clear problem statement of what types of behaviour or abuse the requirement of bona fide applications is meant to address. PDP WG members could then use such a statement to provide objective criteria for assessing the bona fide nature of an application. (Pg. 164)”

Question - The Board is asking the WG for a clear problem statement about abusive behavior that the non-exhaustive factors are meant to address.  However, the work on the non-exhaustive factors was motivated by what some in the WG believed was the Board’s indication that it disfavors private auctions.  Does the Board actually disfavor private auctions?  If so, does the Board have a clear problem statement leading it to disfavor private auctions?  If so, can you please share that with us?

Discussion:
-- Becky Burr, Board Liaison: The Board does not have a shared view on private auctions.  There are a range of concerns among the Board and across the community.  The Board needs to understand how the WG arrived at its recommendation.
-- Avri Doria, Board Liaison: There is no nugget of what the Board wants in any of these questions.

re: “E. The Board notes that a statement of “bona fide” intentions would be expected for all applications, not only those involved in auctions, particularly since when an application is submitted the applicant likely will not know if it will be in contention. (Pg. 164) F. In this context, the Board suggests that the PDP WG consider the hypothetical scenario of an applicant intending to operate up to five gTLDs. To avoid contention sets the applicant might apply for 20 strings, with the expectation to drop 15 applications based on contention and their own preference. Would those 15 applications not be considered “bona fide,” and what would be the consequence for such an applicant? Similarly, a large number of applications could be submitted by separate corporations; would ICANN org be required to establish each applicant’s investor(s) and other controlling parties in order to affirm bona fide intent? The Board believes it would be helpful for the PDP WG to address these questions and provide guidance on making objectively enforceable rules to establish what constitutes a bona fide intention to run a gTLD. (Pg. 164)”

Question -  The Board comments presupposes that applicants will violate the certification of bona fide intent by proposing a hypothetical scenario in which an applicant would apply for 20 TLDs with an intent to only operate 5.  This seems to indicate a deep distrust of applicants.  Some within the WG believe that the issue of private auctions is a minor issue or even a non-issue compared with other extant and widespread DNS abuses costing global business billions of dollars.  If the Board has serious concerns that applicants will lie about their bona fide intentions to operate the registries for which they have applied, why would the Board allow such entities access to running a registry?  What can the Board do to ensure a higher quality of applicant in the program?
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