[Gnso-newgtld-wg] Notes and Action Items - New gTLD Subsequent Procedures PDP WG - 08 October at 15:00 UTC

[Julie Hedlund]

Dear Working Group members,

Please see below the notes from the meeting on 08 October 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/2020-10-08+New+gTLD+Subsequent+Procedures+PDP.

Kind regards,
Julie

Notes and Action Items:

Actions:

Topic 9: Registry Voluntary Commitments/Public Interest Commitments (PICs), bullet A;
Re: “The language of the Bylaws, however, could preclude ICANN from entering into future registry agreements (that materially differ in form from the 2012 round version currently in force) that include PICs that reach outside of ICANN’s technical mission as stated in the Bylaws.  The language of the Bylaws specifically limits ICANN’s negotiating and contracting power to PICs that are “in service of its Mission.” The Board is concerned, therefore, that the current Bylaws language would create issues for ICANN to enter and enforce any content-related issue regarding PICs or Registry Voluntary Commitments (RVCs).”
ACTION ITEM: WG Leadership will reach out to the Board liaisons and put some thoughts into an email.

Topic 17: bullet B, Pro Bono Assistance Program;
“B. Implementation Guidance 17.14 states that “ICANN org should seek funding partners to help financially support the Applicant Support Program, as appropriate.” The ICANN Board notes that this would change the role of ICANN, as ICANN is not a grant-seeking organization. Alternatively, ICANN org – through the Pro Bono Assistance Program – could act as a facilitator in the introduction of industry players or potential funding partners to the prospective entrants.”
ACTION ITEM: Ask the Board liaisons for guidance/context.  Look at the Pro Bono Assistance Program.

e. Topic 24: String Similarity Evaluations, bullet B;
Re: “The Board asks the PDP WG to include recommendations and implementation guidance for objective evaluation criteria to determine “different intended uses” because we believe this will be invaluable to ensure consistent and transparent processes regarding this element in string similarity evaluations. (Pg. 103)
ACTION ITEM: Consider whether to add Implementation Guidance and rationale relating to criteria for “different intended uses”.

Topic 34: Community Applications, bullet B, Bylaws considerations
“A. The Board believes these clarifications are required in order for the Board to assess whether it is in the best interests of ICANN and the ICANN community to proceed with CPEs in the next round.”
--and--
“B. In this context the Board also encourages the PDP WG to consider the mission-limitation that derives from the Bylaws, which state that ICANN will not restrict “services that use the Internet's unique identifiers or the content that such services carry or provide (Section 1.1 (c)). The PDP WG may want to review the impact this provision might have on ICANN’s ability to enforce the content of community TLDs post delegation.”
ACTION ITEM: The WG leadership should seek guidance from the Board liaisons.

Notes:

1. Updates to Statements of Interest:

-- Paul McGrady: Appointed by the IPC as the Policy Coordinator; this is a volunteer position.  Updated his SOI.

2. ICANN69 Update – Begin Public Comment Review of Selected Topics

-- Email from staff that the spreadsheet of responses is cleaned up the spreadsheet and set it to allow download.
-- The spreadsheet is not the document the WG will use to review comments.
-- Staff is creating a Public Comment Review Tool organized by topic and level of support.  The tool will be used for the WG to review the comments.
-- Tool will be ready to send to the WG no later than the end of the week.
-- We have a draft Work Plan.  Staff can send it to the WG, although it still is a draft.
-- Not going in depth into every single subject, especially those that got very few comments or got support from the community.
-- Will focus on those topics where there are comments that introduce new ideas.
-- Timeline will require some sort of flexibility.  ICANN org and Board comments are quite extensive and instructive.

3. Discussion of selected topics from the ICANN Board of Directors comments on the SubPro PDP WG draft Final Report – possible topics related to authority and/or potential Bylaws issues include the following (see attached document):

a. Topic 2 Predictability, bullets C and E

“C. With regard to the proposed Standing Predictability Implementation Review Team (SPIRT), the Board encourages the PDP WG to consider whether there are established processes within the GNSO (or within ICANN’s multistakeholder model) that might serve the intended role(s) of the SPIRT, rather than creating new ones.”

-- Believe that the WG has considered established processes at length.
-- Much of the work of the SPIRT that the work was not envisioned to be policy; didn’t identify processes that did what the SPIRT would do.
-- Do agree that the statement about the GNSO Operating Procedures taking precedence should be moved from Implementation Guidance to Recommendation; this suggestion will be discussed further.
-- GAC wanted the WG to clarify what the role of the GAC and other parts of ICANN would be in the SPIRT.
-- Thought the Board was asking the WG to tell them that the WG took a good look at all of the alternatives.  Not sure we built out what a non-SPIRT process would look like.

“E. It may also be useful for the PDP WG to consider the role of precedent in the Predictability Framework, e.g., can SPIRT recommendations form a body of decisions to guide handling of issues and increase efficiencies? (Pg. 16)”

-- Would think that once there is an outcome from the SPIRT that should establish some sort of precedent.
-- This was a weird question.  There is sort of an automatic precedential effect.  The idea of formal precedent doesn’t seem necessary.  There is history.
-- Important point is that the SPIRT is not meant to look at one registry in particular, but at overall issues.
-- Other important point is that the SPIRT does not make decisions.  It can advise the GNSO Council.  It can’t set precedent.
-- Probably should respond to the Board that precedent isn’t set by the SPIRT but by the decision made by the GNSO Council or Board.
-- I don't think it says the body of decision "comes" from SPIRT - I think body of decisions comes from GNSO Council, per the way SPIRT is structured.
-- The word “predictability” indicates that the SPIRT is created to maintain predictability.
-- The WG will record its response to commenters in the PCRT and/or in the rationale of the Final Report.

b. Topic 9: Registry Voluntary Commitments/Public Interest Commitments (PICs), bullet A

Re: “The language of the Bylaws, however, could preclude ICANN from entering into future registry agreements (that materially differ in form from the 2012 round version currently in force) that include PICs that reach outside of ICANN’s technical mission as stated in the Bylaws.  The language of the Bylaws specifically limits ICANN’s negotiating and contracting power to PICs that are “in service of its Mission.” The Board is concerned, therefore, that the current Bylaws language would create issues for ICANN to enter and enforce any content-related issue regarding PICs or Registry Voluntary Commitments (RVCs).”

-- Seems odd that the Board would ask the WG about what is allowed in the Bylaws; seems that is a determination that is made by ICANN as a determination.
-- Not sure this question is relevant for the WG to consider.
-- Could say that whether or not it is in the scope of the ICANN Bylaws at this time, this is something we want the community to do.  ICANN org figures out how to do it.
-- Need more information from the Board concerning the context for their concern.
-- The Bylaws changes came after the 2012 round.
-- The concern is with new provisions relating to RVCs and PICs that might be adopted in the next round.
-- Without PICs and RVCs in future rounds, many of our "solutions" unravel and there is NO WAY we are getting this in by the end of the year.
-- At the end of the day if we asked for legal advice would only be interpreting it under the existing Bylaws.
-- There is a lot of interpretation lying behind the Board statement. The whole issue of content regulation: “regulation” is defined in the Bylaws.  Something in a contract is not a regulation.
-- One short answer could be that while we hadn’t considered it in detail we think that ICANN can enforce PICs under the existing Bylaws.
-- We have recommended PICs and RVCs for resolution of issues with the GAC after Early Warning as well as resolution of Objections after public comment on the proposed resolution.  Our whole system is depending on PICs and RVCs.  I don't think this amounts to content regulation, but maybe the resolution is to put the PICDRP OUTSIDE of ICANN and into an independent panel.
-- It is probably not unreasonable to look at the Board’s comments as risk adverse and controlling risk.
-- Not the WG’s role to manage/mitigate risks.

ACTION ITEM: WG Leadership will reach out to the Board liaisons and put some thoughts into an email.

“B. In its comment on the Initial Report, the Board asked the PDP WG to give more clarity on how to frame “public interest” in the context of a PIC and the PIC Dispute Resolution Procedure (PICDRP). We note that this has not yet been developed. We would like to reiterate our view that clear guidance on this issue will be valuable, and we encourage the PDP WG to work to that end. Specifically, we ask that the PDP WG provide clear and consistent implementation guidance on “public interest” in this context, to ensure that objective enforceability lies within ICANN’s mission. (See also our comment on Topic 24 below.)”

-- The WG did consider how to frame “public interest”, but we viewed it more as resolving conflicts.
-- Need to give this further consideration.

c. Topic 17: bullet B, Pro Bono Assistance Program

“B. Implementation Guidance 17.14 states that “ICANN org should seek funding partners to help financially support the Applicant Support Program, as appropriate.” The ICANN Board notes that this would change the role of ICANN, as ICANN is not a grant-seeking organization. Alternatively, ICANN org – through the Pro Bono Assistance Program – could act as a facilitator in the introduction of industry players or potential funding partners to the prospective entrants.”

-- Want to ask the Board that they did give grants out in the first round, should that not have been allowed.
-- Applicant Support is a huge issue for the community.  It will involve coordination between applicants and providers.
-- Helpful to know more about what is behind this.
-- Didn’t read this that they couldn’t be a grant providing organization.  The concern is being a grant-seeking organization.
-- The original intent for the 2012 round Applicant Support Program was for ICANN to act as a facilitator.
-- Could explore the Pro Bono Assistance Program.
-- ICANN would also need to ensure that they are not favoring one provider over another for pro bono services, so that may also be a concern. This has come up previously with the communications strategy whereby ICANN would not pursue on the basis that they could not favor or promote one gTLD over another.

ACTION ITEM: Ask the Board liaisons for guidance/context.  Look at the Pro Bono Assistance Program.

d. Topic 23: Closed Generics

-- ICANN Board is punting it back to the WG.
-- Saying that the Board will ultimately make a decision of what is in its best interest.  Their resolution was not meant to dictate any boundaries on any advice that the WG would want to provide them.

e. Topic 24: String Similarity Evaluations, bullet B;

-- This is related to the discussion of reliance on PICs.
-- We put it in PICs so that it needs to be enforced, versus RVCs.
-- Re: “The Board asks the PDP WG to include recommendations and implementation guidance for objective evaluation criteria to determine “different intended uses” because we believe this will be invaluable to ensure consistent and transparent processes regarding this element in string similarity evaluations. (Pg. 103)
-- If we give them some criteria it could go into the rationale section as examples.  Criteria could go into the Implementation Guidance.

ACTION ITEM: Consider whether to add Implementation Guidance and rationale relating to criteria for “different intended uses”.

f.  Topic 25: Internationalized Domain Names

-- Want to clarify what we mean by IDN tables vetted by the community.
-- This is part of a larger discussion and part of a comment period.
-- We should be looking at that in the context of everything else that is going on in this topic.

g.  Topic 29: Name Collisions

“The Board encourages the PDP WG to provide details on how future NCAP study results should be dealt with in future rounds. Would these need to initiate new policy processes and how would such processes affect ongoing rounds?”

-- Think we sort of addressed this.  Should not be implemented mid-stream.
- Think we addressed this but will consider again when we look at specific comments.

h.  Topic 34: Community Applications, bullet B, Bylaws considerations

“A. The Board believes these clarifications are required in order for the Board to assess whether it is in the best interests of ICANN and the ICANN community to proceed with CPEs in the next round.”

-- Sounds like the Board wants to be relieved of the burden to allow Community Applications.
-- Or they are questioning whether CPE is a good way to resolve contentions.  Also symptomatic of the fact that our recommendations are high level and not detailed enough.

“B. In this context the Board also encourages the PDP WG to consider the mission-limitation that derives from the Bylaws, which state that ICANN will not restrict “services that use the Internet's unique identifiers or the content that such services carry or provide (Section 1.1 (c)). The PDP WG may want to review the impact this provision might have on ICANN’s ability to enforce the content of community TLDs post delegation.”

-- Related to the content regulation.  Want to make sure they can enforce the contracts but not get into content regulation.

ACTION ITEM: The WG leadership should seek guidance from the Board liaisons.
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