[Gnso-newgtld-wg] New gTLD Subsequent Procedures PDP WG Consensus Call - Closes Friday, 08 January 2021 at 23:59 UTC

Fri Jan 8 23:59:44 UTC 2021

I hereby submit my response to the Consensus Call.  I am submitting this in
my personal capacity, and not on behalf of my employer or any ICANN
structure.

Except as noted below, my response is that I support or do not object to
the Recommendations in the Final Report.

   - *Topic 9: Registry Voluntary Commitments / Public Interest
   Commitments;*

I strongly support PICs and RVCs. However, it should be clear that
PICS/RVCs, by definition, DO NOT and CANNOT violate Section 1.1(c) of the
ICANN ByLaws, which reads:

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.

Simply put, a PIC/RVC is a mutually agreed term in a contract and thus is
not the *imposition* of a rule or restriction by ICANN.  This was a heavily
discussed provision during the  IANA transition and I participated directly
in those discussions.

If ICANN believes that ICANN cannot agree to a PIC/RVC because it violates
the Bylaws, ICANN should not agree to these PICS//RVCs in the first place.
Once a PIC/RVC is agreed to and in place, registries need to comply and
ICANN needs to enforce it as it would with any other contract term..

   - *Topic 23: Closed Generics;*

*I agree with Justine Chew's statement (on behalf of ALAC) and with  Anne
Aikman Scalese's statement on this Recommendation, which reads as follows:*

 I agree that the WG members did not reach Consensus on this topic.  I
disagree with WG members who maintain that the “status quo” is no
prohibition on Closed Generics.  After the 2012 implementation, applicants
for Closed Generics were permitted to convert to open registries or to
withdraw applications with refunds pursuant to Board Resolution.  I support
the proposal made by Greg Shatan in the December 10, 2020  WG call (at 1
hour 7 minutes into the call) to allow applications for Closed Generics but
to “suspend” such applications subject to further policy work in the
appropriate forum, e.g. EPDP.  In this regard, it would be helpful for the
ICANN Board to specify whether it intends to accept standing GAC Advice to
the effect that a “Closed Generic” should serve a public interest goal.
Such guidance would assist the GNSO Council in constructing a Charter for
an EPDP.  Here it is important to note that a finding that a particular
Closed TLD “serves a public interest goal” does not need to be equal to a
finding that a particular Closed TLD is “in the Global Public Interest”.
The two standards are distinguishable and elements to establish the status
of serving a public interest goal are ascertainable.  Specific questions
for evaluation of this status are suggested beginning on page 104 of the
December 22 version of the Final Report.

It should also be noted that if this Closed Generic topic is not resolved
by adoption of policy prior to the opening of the next application window,
it is certain there will be applications for Closed Generics by applicants
who will be relying on the new policy contained in Implementation Guidance
3.4 that prohibits subsequent applications for the same string if any prior
application for that string remains unresolved. This means that a future
application for a Closed Generic could effectively block a subsequent round
application for an Open Generic TLD for the same string.  Such a result
would violate the Principle of Applicant Freedom of Expression which has
been affirmed by the Working Group as discussed in Topic 10.

   - *Topic 34: Community Applications/CPE;*

*I support this with some reservations. On the one hand, I have some
concerns about gaming and on the other hand, I have some concerns about how
difficult it was for actual bona fide communities to satisfy these
requirements.*

   - *Topic 35: Auctions: Mechanisms of Last Resort / Private Resolution of
   Contention Sets;*

I do not support Recommendation 35.4.

Thanks to all.  Amazing work!

Greg Shatan

On Tue, Dec 22, 2020 at 11:29 AM Emily Barabas <emily.barabas at icann.org>
wrote:

> Dear WG members,
>
>
>
> On behalf of the WG Co-Chairs, and as discussed during the WG meeting on
> Thursday, 17 December, this email is to notify you of the *opening of the
> online Consensus Call on the **WG Outputs *(i.e., Affirmation,
> Affirmation with Modification, Recommendation, Implementation Guidance, and
> No Agreement) of the New gTLD Subsequent Procedures GNSO Policy Development
> Process (PDP). Pursuant to the content freeze on 18 December, please see
> the attached PDF of the Outputs and contextual language, which has
> received a handful of non-substantive updates (for a redline version that
> shows the minor edits made since 18 December, please see the wiki
> <https://community.icann.org/display/NGSPP/h.+Final+Report+Drafting>). WG
> members who wish to familiarize themselves with the steps involved and the
> various levels of consensus applicable to GNSO PDP recommendations can
> refer to the recording of the 17 December meeting
> <https://community.icann.org/display/NGSPP/2020-12-17+New+gTLD+Subsequent+Procedures+PDP>
>  where the Consensus Call process was described.
>
>
>
> This Consensus Call opens *today, Tuesday, 22 December 2020** and closes
> on Friday, 08 January 2021** at 23:59 UTC*.  Per the GNSO Working Group
> Guidelines [gnso.icann.org]
> <https://urldefense.com/v3/__https:/gnso.icann.org/sites/default/files/file/field-file-attach/annex-1-gnso-wg-guidelines-24oct19-en.pdf__;!!PtGJab4!rNJ7mR-y3NiOaoAVdoJAaixwM1dqZ9IzY_6ZGh-d2rURZLU7eQqaDXkxDxY267kIUfu4bau_tQ$>
> , *WG members are requested to indicate via reply to this list whether
> they support, or do not support, the Outputs.* If a WG member does not
> respond this will be taken as support.
>
>
>
> The Outputs are largely being presented in a single package and should be
> considered as an integrated set of Outputs, which are the result of many
> years of WG discussions and input received. This includes not only the
> work of the WG, but also the comments we received to Constituency Comments
> 1 & 2, the work of Work Tracks 1-5, comments to the Initial Report and the
> two Supplemental Initial Reports, and the comments to the Draft Final
> Report.  Therefore, there will likely be Outputs that you believe are
> imperfect, so the Co-Chairs encourage you to consider the Outputs in the
> aggregate. *Even if given that context, you still believe there are
> Outputs that you do NOT support, please specifically identify the **Specific
> Recommendations and/or Implementation Guidance within the Outputs that you
> do cannot support and why.*
>
>
>
> For the purposes of this Consensus Call, the Outputs are being organized
> accordingly:
>
>    - *Topic 9: Registry Voluntary Commitments / Public Interest
>    Commitments;*
>    - *Topic 23: Closed **G**enerics;*
>    - *Topic 34: Community Applications/CPE;*
>    - *Topic 35: Auctions: Mechanisms of Last Resort / Private Resolution
>    of Contention Sets; and*
>    - *All other Outputs in the report.*
>
>
>
> As noted on the 17 December 2020 WG call, the Consensus Call is being
> issues to Individual Working Group members (and not to the Constituencies,
> Stakeholder Groups, Supporting Organizations, and/or the Advisory
> Committees in which such individuals participate).  Therefore, WG members
> will be assumed to be responding to the consensus call on their own behalf
> unless they *explicitly state in their response* that they are responding
> on behalf of their group/organization. Following the close of the Consensus
> Call, the WG Co-Chairs will meet on Monday, 11 January 2021 to review the
> responses from the WG members and determine the Consensus Designations for
> the Outputs.  The WG Co-Chairs will post the results of their determination
> to the WG email distribution list on *January 11, 2021*.
>
>
>
> On 12 January 2021 at 20:00 UTC, the Working Group will have its next and
> hopefully final call to discuss any questions or comments to the Consensus
> Designations.  Calendar invites have been sent out to Working Group
> members.  Although the meeting is scheduled for 120 minutes, WG
> leadership will stay on the call until all questions have been
> addressed. Working Group members will then have until 13 January 2021 at
> 23:59 UTC to object to the Consensus Call designations. The final
> Consensus Call designations shall then be included in the Final Report.
>
>
>
> Finally, to the extent they are needed, WG members may begin working on
> minority statements now and through the Consensus Call period, with the
> ultimate due date of* 18 January 2021*.
>
>
>
> Kind regards,
>
> Steve, Julie and Emily on behalf of the SubPro Leadership Team
>
>
>
>
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