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051040040 New gTLD Subsequent Procedures Working Group call
Cheryl Langdon-Orr
29:52
In other words this is the ascwrtainment of more information from our Board Liaison time bit for general debate (that can follow ;-)
Cheryl Langdon-Orr
30:02
ergh typos sorry
Anne Aikman-Scalese
35:13
From the new ByLaws Section 1.1.: (iv) ICANN shall have the ability to negotiate, enter into and enforceagreements, including public interest commitments, with any party inservice of its Mission.
Julie Bisland
39:34
Reminder-Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.
Maxim Alzoba
41:31
hello al
Maxim Alzoba
41:33
all
Anne Aikman-Scalese
41:51
It's actually 1.1 (d) B. (iv) - authority to enter into and enforce public interest commitments "in service of its mission".
Maxim Alzoba
42:08
it looks more like contract performance monitoring rather than content regulation
Cheryl Langdon-Orr
48:51
I would have also thought (personal opinion!!) that where a RVC or PIC was based on some specific 'measure' such as a third party accreditation, business function, activity limitation to Membership of some group or community etc., *non exhaustive list here* then the compliance aspects should be clearer as the future post delegation activity either will or will not meet such measure or criteria...
Cheryl Langdon-Orr
49:23
and then specifically NIT a content issue
Cheryl Langdon-Orr
49:26
NOT
Kathy Kleiman
49:42
Tx Becky, appreciate the reading. Avri, tx. But isn't the Board the official "reader" of the Bylaws, not the Community.
Kathy Kleiman
50:18
Can we really tell you to do something you (Board collectively) believes is not within its mission?
Cheryl Langdon-Orr
51:55
Indeed you were @Greg :-)
Donna Austin, GoDaddy Registry
52:18
so we need the policy to state that VPICs that are within ICANN's mission can only be enforced by compliance, but to Cheryl's point, for a community TLD that is answerable to a separate board, shouldn't that be captured in Spec 12 and not in a VPIC.
Kathy Kleiman
53:09
But ICANN is then forced to involuntarily enforce them - outside the scope of their mission.
Kathy Kleiman
53:17
That makes no sense.
Jeff Neuman
53:31
Perhaps Kathy, but we will address that a little later
Kathy Kleiman
53:42
@Jeff, it seems like a good time now :-)
Cheryl Langdon-Orr
53:44
seems like that is what needs sorting out to get some sort of consensus on @Donna (again personal opinion)
Jeff Neuman
53:57
I meant that a little later in the call...
Kathy Kleiman
55:04
The Mandatory PICs are the community agreement of the intersection of what we (GNSO), ACs and Board agreed to.
Maxim Alzoba
55:12
enforcing contract compliance, not content
Kathy Kleiman
55:23
No Jeff
Cheryl Langdon-Orr
55:44
(indeed @Maxim (again personal view)
Kathy Kleiman
56:40
Yes - and the GAC was pretty good about staying in clear limits in the last round.
Cheryl Langdon-Orr
56:52
:-)
Anne Aikman-Scalese
56:58
From Mission 1.1 in the current ByLaws (recently sent to the list in a pdf) In this role, ICANN’s scope is to coordinate thedevelopment and implementation of policies:• For which uniform or coordinated resolution is reasonablynecessary to facilitate the openness, interoperability, resilience,security and/or stability of the DNS including, with respect togTLD registrars and registries, policies in the areas described inAnnex G-1 and Annex G-2; and• That are developed through a bottom-up consensus-basedmultistakeholder process and designed to ensure the stable andsecure operation of the Internet’s unique names systems.
Jeff Neuman
58:39
I am trying to separate out enforcement for the ability to make commitments.
Greg Shatan
58:49
ICANN is not “involuntarily” enforcing any provision of the agreement; it can exercise a certain amount of judgment, but not complete discretion.
Kathy Kleiman
01:00:37
You can't, Jeff
Kathy Kleiman
01:01:43
That agreement can be made privately too.
Kathy Kleiman
01:03:27
.Whitesupremecy bans Black Lives Matter content - arbitrator agrees
Donna Austin, GoDaddy Registry
01:03:29
But what would be the likely enforcement action required?
Kathy Kleiman
01:03:32
- can ICANN enforce it?
Alan Greenberg
01:03:33
Sorry, had another meeting called on short notice. Back now.
Susan Payne Com Laude
01:05:15
Q - In your scenario Jeff, if the agreement the TM owner and the Ry reaches is that the Ry will reserve certain names/categories of names (related to the field of activity protected by the TM) so that these cannot be registered and used by third parties that is NOT content regulation, right? That is a naming issue
Jim Prendergast
01:05:17
I'm not trying to cut short the conversation because its important but we are nearly half way done with the allotted time and we are still on topic 1. We have 3 more to go. If we can get through them all today, I suggest we consider a second call to ensure each of the topics is discussed in as thorough a manner.
Anne Aikman-Scalese
01:05:46
hand up
Cheryl Langdon-Orr
01:05:57
Noted @Jim
Jeff Neuman
01:06:28
@Jim - We are getting to a bunch of the topics in this part of the discussion, so I think we are doing ok
Cheryl Langdon-Orr
01:07:57
Might I suggest we might consider this particular request for advice back on the questions raised to a short term effort by a Small Team, seems like most of the diversity of views could be found in the talent from the WG here today ;-) and then once proposed the WG can come back to discuss and agree (or not) on any responses...
Greg Shatan
01:10:18
Compromises are so rarely thrilling....
Susan Payne Com Laude
01:10:35
@Beck
Anne Aikman-Scalese
01:10:39
THanks Becky
Susan Payne Com Laude
01:10:46
@Becky, but the existing PICs were gra
Susan Payne Com Laude
01:11:13
grandfathered for future RAs too, right?
Anne Aikman-Scalese
01:12:16
@Susan I think you are right because those contracts that were grandfathered can be renewed with those same PICs in them. I think that is what the 2016 ByLaws say.
Greg Shatan
01:12:44
+1 Anne & Susan, my understanding as well.
Maxim Alzoba
01:15:06
@Susan, I think it is quite hard to predict GAC (on whose demands obligatory voluntary PICs were formed)
Jeff Neuman
01:15:14
The language talks about "including public interest commitments" which would not necessarily exclude things we called by a different name.
Maxim Alzoba
01:15:43
if the organization changes it's bylaws too often, it would be a sign that something is wromg
Anne Aikman-Scalese
01:16:13
ByLaws Scope: ICANN’s scope is to coordinate thedevelopment and implementation of policies:• For which uniform or coordinated resolution is reasonablynecessary to facilitate the openness, interoperability, resilience,security and/or stability of the DNS
Kathy Kleiman
01:17:52
Jeff, I think we do need a change from "anything goes"
Donna Austin, GoDaddy Registry
01:17:58
GEOs and community TLDs have enforcement that sit outside ICANN by virtue of the arrangements they have with their supporting community or government. Other TLDs have acceptable use policies that may cover content related issues and provide discretionary enforcement that is also outside of ICANN compliance.
Jeff Neuman
01:18:13
@Kathy - I don't think this is an anything goes
Anne Aikman-Scalese
01:18:16
ByLaws amendment - that's an extremely lengthy Empowered Community exercise.
Jim Prendergast
01:18:34
I do think one takeaway is the Board is expecting answers to the questions they have asked so we need to plan for that.
Kathy Kleiman
01:18:35
@Jeff, it is right now.
Anne Aikman-Scalese
01:18:40
+1 Donna
Greg Shatan
01:18:45
To be clear, while I think it is practical to make any contract provision more clearly understood and readily complied with (and thus more readily enforced when not complied with), all provisions of the contract are enforceable (unless proven otherwise).
Kathy Kleiman
01:18:59
@Jeff, It is anything goes and that we can fix :-)!
Kathy Kleiman
01:21:04
@Greg, nothing should go into the Registry Agreements between ICANN and registries which violate ICANN's 2016 bylaws, including the sections Becky read.
Elaine Pruis
01:21:59
And if the community cannot agree on a new policy, does there temporary policy stand until we can agree?
Anne Aikman-Scalese
01:22:03
QUESTION: Does this mean the Board would send the matter back to GNSO for EPDP if Sub Pro fails to develop policy? QUESTION
Cheryl Langdon-Orr
01:22:24
@Jim see my suggestion earlier in chat I was trying to address that exact point
Justine Chew
01:22:31
@Kathy, violating Bylaws according to who?
Kathy Kleiman
01:23:03
@Justine - according to the Board, the General Counsel and the Attorney General of California, I would think.
Kathy Kleiman
01:23:14
good questin!
Donna Austin, GoDaddy Registry
01:24:14
I don't think it can stand, because it's not a community developed policy--it was just a circuit breaker used by the Board eight years ago.
Paul McGrady
01:24:28
@Jeff - very quick question
Anne Aikman-Scalese
01:25:08
GAC has said the GAC Advice on Closed Generics does stand - so since the Board does not make policy, it appears the Board would have to refer the issue back to the GNSO Council.
Jeff Neuman
01:25:29
@Alan - not on this item. This item we specifically did not take that position
Donna Austin, GoDaddy Registry
01:25:51
@Anne, which the Board has done and that's why we're discussing it.
Marc Trachtenberg
01:26:02
@Alan - this group's view - or the view of a portion of this group - cannot change history
Paul McGrady
01:26:03
Not accurate Alan. Closed Generic applications were allowed to be suspended until the next round. They were not prohibited.
Greg Shatan
01:26:12
I expect that ICANN does not enter into agreements that it believes contain violations of the Bylaws. I assume the other party agrees, understanding that if that is not the case, they essentially have a void rather than a contractual provision.
Donna Austin, GoDaddy Registry
01:26:22
Correct Paul
Anne Aikman-Scalese
01:26:59
@Donna - yes, but we have not actually reached a consensus. This is all a bit circular since the GAC Consensus Advice is standing advice.
Alan Greenberg
01:27:30
Correct, they were not prohibited, but they also could not
Paul McGrady
01:27:48
@Jeff - not a ban. Doesn't matter how many times it is said, it doesn't change the actual text of the Board resolution.
Marc Trachtenberg
01:27:59
+1 to Paul
Alan Greenberg
01:28:01
… could not proceed
Kathy Kleiman
01:28:06
We adopted a mandatory PIC on this - consistent with both the Board resolution and the GAC Advice
Donna Austin, GoDaddy Registry
01:28:21
@Anne, i think the question is what's the status of the GAC Advice to the Board if we cannot agree one way or the other?
Paul McGrady
01:28:31
@Jeff - understood the Board is a wildcard. But, us not reaching agreement doesn't change the 2012 default position that has reigned in this entire PDP
Jeff Neuman
01:29:23
@Paul - All I am saying is that what Avri and Becky are saying may or may not match your view as to what the "default" is.
Kathy Kleiman
01:29:30
And for which there were dozens of GAC objections and GAC Advice. We're going to repeat those objections all over again...
Paul McGrady
01:29:35
@Avri - thank you for this clarification
Anne Aikman-Scalese
01:29:36
The WG disagrees as to what is the "fallback" with respect to Closed Generics. Some believe that means those applications "will not proceed". Others believe it means it's open season on Closed Generic applications as it was in 2012. The issue for the Board may be the standing GAC Advice on Closed Generics.
Marc Trachtenberg
01:29:47
So the status quo is that there is no prohibition of closed generics
Kathy Kleiman
01:30:21
The SQ is that there is a prohibition on closed generics.
Donna Austin, GoDaddy Registry
01:30:23
But the policy prior to GAC advice was that there was no issue on closed generics as there was no such thing.
Paul McGrady
01:30:37
@Jeff - the default is very clear. It is in text (or not) in the 2012 AGB. I understand that doesn't preclude that the Board could take some other action, but that is not a "default" - that is a Board action.
Jeff Neuman
01:30:40
@Marc - Perhaps, but that doesn't mean the Board will accept that. That is my point.
avri doria
01:30:59
but there is, or may be, advice and the Board would be catapulted into the same situation.
Marc Trachtenberg
01:31:01
@Jeff - That appears to be the Board's view
Paul McGrady
01:31:42
@Avri - understood. Thanks for answering this head on. It will be helpful to the WG.
Jeff Neuman
01:31:43
@Marc - We only have 2 of the Board members here and they have said that on this item they are not speaking on behalf of the Board on this issue.
Jim Prendergast
01:31:54
but the GAC will just come back with the same advice. What would we do then? I feel like we'd be in the twilight.zone.
Anne Aikman-Scalese
01:31:56
I don't think the Board is going to override GAC Advice by 2/3 in order to permit Closed Generics to proceed. (Speculation by me.) So I see no alternative if Sub Pro does not come up with policy but having the Board refer the policy matter back to GNSO Council.
avri doria
01:32:21
we are not speaking for the Board.
Donna Austin, GoDaddy Registry
01:32:34
@Avri, I think that's an important issue to resolve. Has the GAC advice been dealt with through this process, and if it is the case that closed generics are to be allowed in this next round that the Board will need to reject the GAC advice and have discussions?
Marc Trachtenberg
01:32:59
@Jeff - we had the plain text of the Board previously in their resolution and now we have more support of the view that the block on proceeding in the first round was not even policy but was a stopgap measure
Jim Prendergast
01:33:02
Donna said it way better than I did
Kathy Kleiman
01:33:51
Agree with Anne above
Greg Shatan
01:33:56
I am also not speaking on behalf of the Board. :-)
Marc Trachtenberg
01:34:06
I recognize that Becky and Avri are not speaking on behalf of the Board. But they are on the Board and their views are relevant. Its more than we had before
avri doria
01:34:10
Other than to say the Board has not take a position except to ask the question.
Kathy Kleiman
01:35:42
Very interesting - tx Avri.
Marc Trachtenberg
01:35:53
And what if the group still cannot come up with a recommendation when it comes back a second time?
Donna Austin, GoDaddy Registry
01:35:54
I think GAC advice should have some kind of expiry date. 8 years is a long time.
Anne Aikman-Scalese
01:36:02
If there is no approved policy, many large applicants will apply for Closed Generics and then not withdraw those applications until they get a policy. This also means that new applications for the same string for open TLDs will be Blocked by our new policy preventing applications where a prior pending one has not been withdrawn.
Alan Greenberg
01:36:37
Isn't the definition of insanity doing the same thing over again and expecting a different answer?
Greg Shatan
01:37:40
Alan, Isn’t the proposed slogan for ICANN 70?
Anne Aikman-Scalese
01:37:55
@Donna - the GAC's view is their advice is not time limited. I think this is a ByLaw interpretation and the fact that they often say "The GAC refers to and repeats its advice in Communique #X from X meeting."
Greg Shatan
01:38:09
Isn’t *that* the proposed slogan for ICANN 70.
Donna Austin, GoDaddy Registry
01:38:27
on the 'rationale' that the Board has requested.
Jeff Neuman
01:39:00
@Donna - the GAC reiterated their advice in their comments to us.
Donna Austin, GoDaddy Registry
01:39:16
For example, I can come up with a rationale that Jim won't agree with.
Elaine Pruis
01:39:20
If we make a recommendation there must be a reason for it… what’s the reason we recommend or don’t recommend.
christopher wilkinson
01:39:53
In the absence of a CLEAR consensus, the default is NO delegation.
Greg Shatan
01:40:39
Christopher, unfortunately that is not the status quo ante.
Marc Trachtenberg
01:40:49
If there is no recommendation from us then wouldn't we just have the status quo from the first round? At least it's clearer here than the closed generic issue
Marc Trachtenberg
01:41:19
Clearer what the status quo is I mean
Kathy Kleiman
01:42:34
NCSG, BC and ALAC all commented (in this last round of comments) that private auctions should be banned and the monies should go to ICANN.
christopher wilkinson
01:42:45
The persistent reference to the status quo is one of the most damaging restrictions on this PDP. There is no consensus on that.
Justine Chew
01:42:58
There won't be a consensus explanation on the issue of private auctions
Justine Chew
01:43:18
I believe
Marc Trachtenberg
01:44:38
@Christopher - without the status quo there is nothing if there is no agreement. We could take your approach that without clear consensus nothing gets delegated but I don't see any support for that position much less consensus on that
Paul McGrady
01:44:59
+1 Donna. There was no harm. No one is forced into a private auction
Anne Aikman-Scalese
01:45:25
This WG did not discuss the outcome of Auction Proceeds.
Justine Chew
01:46:39
@Paul, @Donna, I don't believe there was consensus on "no harm" either.
Donna Austin, GoDaddy Registry
01:46:55
what half-way measure?
Jeff Neuman
01:46:58
@Anne - we can look at the relevant recommendations, but the Auction Proceeds work did not go through a PDP Process. So I think we just provide our own rationale
Donna Austin, GoDaddy Registry
01:47:13
you mean contention resolution?
Paul McGrady
01:47:30
@Justine - if someone was harmed, they can seek relief from the courts. Are you aware of anyone who has sought relief?
Jim Prendergast
01:47:36
@ Donna - I think she means ICANN administered auctions of last resport - but private auctions are held outside the purview of ICANN.
Marc Trachtenberg
01:47:51
@Donna - half-way means ICANN restrictions on private auctions instead of letting them operate freely
Jeff Neuman
01:48:03
Transparency requirements?
Paul McGrady
01:48:42
@Avri -that one is easy to solve. I don't think private auctions would require any ICANN oversight in order to work just fine.
Marc Trachtenberg
01:48:58
In other words, if it is a "private" resolution why should ICANN be involved?
Susan Payne Com Laude
01:49:23
@Paul, right. It worked fine last time around
Jeff Neuman
01:49:44
@Susan - not everyone felt that way though as evidenced by our comments
Donna Austin, GoDaddy Registry
01:49:45
Agree Paul and Susan
Anne Aikman-Scalese
01:49:56
@ Avri and Jeff. those measures were discussed in response to the Board's expression of concern re gaming.
Jeff Neuman
01:50:02
sorry, not our comments...the comments we received.
Jeff Neuman
01:50:30
@Anne - And that can be part of our response to the Board.
Alan Greenberg
01:50:46
We have 4 minutes left....
Anne Aikman-Scalese
01:52:29
The Board comments said is was concerned about a possible lack of good faith in the application process. In other words, an entity or person that applies for the purpose of being paid to relinquish the TLD.
Jim Prendergast
01:52:32
so we need to answer the questions posed to us
Jim Prendergast
01:52:36
or try to
Paul McGrady
01:52:40
@Becky. @Avri. Thanks! Very helpful. Sounds like we should not be reading in disfavor just because the Board asked about it.
Greg Shatan
01:53:14
What if we say that Closed Generics must be subject to PICs and will only be delegated after a public auction?
christopher wilkinson
01:53:42
@MT I think that you understands that I disagree fundamentally with your expressed position
Paul McGrady
01:54:24
Greg, you are too funny.
Greg Shatan
01:54:50
Just thought i could solve it all...
Donna Austin, GoDaddy Registry
01:55:38
@Alan, there will be a wide variety of opinions about whether the consolidation is good or bad, whether new gTLDs have resulted in competition, what success factors are. I agree its a good conversation to have, but I don't think it should have any implication on this PDP WG.
christopher wilkinson
01:56:52
@ Alan: ICANN was constituted, inter alia, to counter the monopoly of NSI/Verisign. Now, is ICANN facilitating the creation of new dominant positions? Specially, does the GD/AF deal require ICANN approval?
Paul McGrady
01:57:28
Or the other way Jeff. :-)
Julie Bisland
01:58:03
NEXT CALL: Tuesday, 01 December 2020 at 03:00 UTC, 90 minutes.
Cheryl Langdon-Orr
01:58:04
Lots of useful interactions today THANK you to all involved
Marc Trachtenberg
01:58:14
And let's keep it simple and not overly complicated or subjective!
Maxim Alzoba
01:58:14
bye all
Annebeth Lange
01:58:15
Bye all
Christa Taylor
01:58:17
Thank you @Avri & @Becky super helpful!
Paul McGrady
01:58:22
Understood Avri!
Cheryl Langdon-Orr
01:58:24
Noted @Avri
Donna Austin, GoDaddy Registry
01:58:31
Agree Marc, simple is best.
Paul McGrady
01:58:35
Thank you Becky and Avri. Much appreciated.
Julie Bisland
01:58:38
NEXT CALL: Tuesday, 01 December 2020 at 03:00 UTC
Alan Greenberg
01:58:49
@Christopherr, my understanding is that for the TLDs owned by Af. Yes. For those whewre they are the backend : no
Phil Buckingham
01:58:50
thanks Avri & Becky
Elaine Pruis
01:58:56
Thank you Avri and Becky!!
Kathy Kleiman
01:58:57
Tx very much, Avri and Becky!
Justine Chew
01:58:58
Homework for 1 Dec!