Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.

Who are the four people?

George, Alan Greenberg, Kathy Kleiman and me

hello all

Thanks Greg

@George, I understand what you are saying, but when voices are excluded in the process...

Looking forward to seeing the work product. The question will be "is this proposal better than the status quo, whatever that is?"

The status quo of not knowing what the status quo is is not good.

Well said George

Keeping an open mind

Excellent thanks everyone

See the doc at: https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZzjHw/edit#heading=h.vggepvpizwpy

ty Julie

I was on travel. I'm generally opposed to additional restrictions Jim proposed (sealed bids, etc.).

@george , sorry I’ve just joined the call . maybe my Q has been answered . will u be using a selection of example strings as a test bed . how about .disasterrecoveryfund

Those sorts of heavyweight items are still trying to solve a problem by putting so many restrictions on private auctions such that private auctions are not really private auctions anymore.

Can we look at Jim's email on screen?

Also, still believe that requiring any private resolutions to turn over more information than is required of auction last resort participants is over reach, specifically JV and settlements based on trademark and other disputes.

Hi Kathy, it is quite a lot of text. Here is the link: https://mm.icann.org/pipermail/gnso-newgtld-wg/2020-July/003244.html

@Kathy: The text from Jim’s suggested language is on the screen too.

Tx Emily.

Bids at the same time is another heavyweight option that makes private auctions no longer private auctions.

@Julie, I'm seeing more language in his email too. Jim has some particular proposals that might be good to see on the screen.

it's a strategy to game the system

gaming requires strategy

+1 Donna. All of these heavyweight solutions presuppose mal-intent of the losing applicant. That is a big leap.

Gaming is not my term - its the board language so question might be best addressed to them

One possibility would be freezing the money until all non-blocked contention sets are resolved. So the money can't be reused for that round.

@Phil, I believe that we will have an example of a possible closed generic public interest string. But we're not suggesting strings, but rather discussing the principles behind our approach and the implication for application, approval, and operation of of a possible TLD resulting from such a string

support

What is (XX)? Hard to support without knowing it is 3 days or 300 days.

Gaming is finding vagaries or advantages in the rules to benefit oneself outside the intent of the program.

If people apply for 20 or 50 strings - then lose enough of them to finance 10 they want to keep: that's exactly the problem the Board is addressing.

Is it ICANN, is it the evaluator? I'm not sure I understand what constitutes a 'significant competition issue'?

support

actually even GA of California has authority over ICANN (proven fact)

ICANN is not international body

Further language/proposal from Jim that we should discuss:All private auctions would be conducted using sealed bids and all bids, regardless of whether they be used for ICANN Auction of last resort or for ICANN administered “private auctions” would be due on the same day. Any bids not used would be destroyed and not revealed.Again – ICANN oversight and collection of bids at one time is critical to satisfying the concerns of the Board. Anything less, is toothless.

whats your suggestion paul?

And freezing money doesn't help: once the money is "earned" fresh cash can be lent against it.

ICANN is based in the US and is a part to the registry contract, so the US regulators will likely be involved.

radion

radino

Rodino

15 days is the usual ICANN analysis timeframe.

It’s me. Apologies.

One moment

Have we discussed how will ICANN determine if there are significant competition issues?

agreed Donna , what constitutes significant competition issue . I only see this as a potential delaying tactic

Language on screen is within 5 days of ICANN making its determination

How long does it have to make the determination?

3 days? 300?

Isn't this an IRT issue? implementation?

Are there any criteria for what constitutes competition issues? Any way to challenge this determination?

We still don't have a knowable timeframe.

ICANN already has such a criteria for RSEPs. Whatever that criteria is.

@Paul - ICANN doesn't have any timeline for making its determination - it just depends what the issues are.

Would really like to get behind this if I can, but need to know the effects on the timelines. Can't brush past it.

RSEP is different process. If we are going to include this here it has to be relevant to the context of contention set resolution.

So, if I understand correctly, there's no competition concern about applicants for TLDs where there's no contention set, only where there is? And only where there's a private auction and not where there's an ICANN one? This just doesn't seem to be an effort to address the "board concerns" but it certainly seems to create a delay for some applications

I believe they have....but need to find it.

Do we really want to rely on ICANN to make determinations on what constitutes a significant competition issue? What qualifications or expertise do they have in this regard?

I think it was once

Susan I think it should apply to all contention resolution.

Is it ICANN Org who does the referral or the Board? If Org, we are handing staff the power to snarl an application for at least (unknown number of days to make a "determination" + 30 days).

Can’t we just take out that provision since it seems meaningless?

In RSEP it's ICANN Org, Paul.

RSEP is about the introduction of a new service and the competition issue is specific to that new service. I don't see how we can apply the RSEP process to this situation.

It seems better to enable ICANN to refer to a competition authority than for a competition authority to swoop in and stop the entire program

agree donna

+1 Donna. Not the same thing.

@Elaine - why even have ICANN refer to. competition authority? They have no expertise here. If they want to they can and we don’t need text for this

@Elaine, I may be okay with this, but I honestly do not know what a signficant competition issue might be in this context.

didn't applications go to competition authorities in Round 1? I think there is precedent...

Marc, the information is privileged so it could be prevented from referring to an authority.

@Kathy - no, nothing went to competition authorities from Round 1

@Jeff - .SUCKs went to FTC

@Ruben - what information is privileged? What privilege?

@ Marc I’d rather create the rules than have ICANN act without direction from the community

+1Paul

@Elaine - is that really a rule? There is no criteria and ICANN has no expertise here. The “rule” is meaningless

What's a good timeframe, Paul?

@ Elaine - I think we should simplify where possible and not have meaningless rules or process

Kathy, .sucks wasn't referred to FTC during application time, but after launch due to pricing practices.

@Paul has misunderstood me. ICANN must take responsibility for the competition aspects land act accordingly across several issues.

The only difference in .sucks agreement is the payout for what the owners owed to ICANN.

@Jim - if you are trying to do is inform applicants that the Justice Department can accept referrals from private parties (which people already know), then why do we need the timeframes and holding pens?

I think having a defined process is better than leaving it undefined.

@Jim - a defined meaningless process?

@ Paul for predictability. it would protect applicants from an unknown length of time in purgatory

@Jim - I have seen nothing from the Justice Department that indicates that the heavyweight restrictions on private auctions, making them not really private auctions, makes them not a problem from the Justice Department's point of view. Have you seen such a document? Or, is that an assumption?

Thanks @Anne

If we force ICANN to unconditionally accept the private resolution of contention sets without letting them have the ability to refer something, that leaves ICANN exposed. And that's not good.

@Jim - this WG cannot keep ICANN from referring whatever it wants to. That is a red herring.

+1 Paul. Waste of time discussing

I object without knowing what the timeframes are

I support including.

At this point I do object.

I object to meaningless provisions

I object as I don't see the point of this or how it deals with the problem Jim says he's trying to fix

currently object. and concerned with over complications

@paul - quite right

@Paul not according to the quote from the board Jim included in his email

The Board solved JVs in 2012 by prohibiting them. Now this group is opening that door.

** leave the date to the IRT? Seems like an implementation issue.

+1 to what Paul is saying

@Paul - So what's reasonable for time frame?

Maybe there is another way to restate this: perhaps as an overarching principle that applies to the program and applicants in the whole--ICANN may refer an issue/applicant to the appropriate governmental competition authority ......

@Jim you said the purpose of this was to "fix" the risk of people gaining financially from private auctions. That isn't what you're doing

The question is why do we need a time frame for something that ICANN can do by law at any time? This is a waste of time

this applies to all reslutions Susan - not just auctions

@marc for predictability

Agree Susan, the 'fix' doesn't address the stated problem.

Marc, a timeframe specifies how long will ICANN wait for a competition authority to state something. It's an ICANN service level.

@Jim, quite - this has nothing to do with the concern the Board actually expressed. thanks for confirming

@Elaine - this doesn’t create any predictability. It’s meaningless

I think I could support that Jeff.

The content of such a general notices without timeframes exist as a matter of law, so it would be harmless to include.

@marc I disagree.

What would be the outcome of referring something to a competition authority? Would ICANN refer saying we think this applicant is gaming the program?

@Susan - the reason the Board didn't raise concerns with JVs and is because they were banned in 2012. So how could they raise concerns?

regulators tend to use the timing they like

@Donna - unknown. Seems broader than that.

If ICANN refers something to a competition authority shouldn't that stop all processes associated with the string?

Contracting is not the same as delegation

I don't want to tie to contract signing!

Agree with Anne

@Elaine - I understand that we are agreeing to disagree here. I think this is meaningless and propose eliminating this completely. If people can’t agree to that let’s just pick an arbitrary time period and move on instead of wasting more time on this

Keeping it in and picking a time period works for me Marc. Thanks

And to be clear, the Justice Department can step in whenever it wants to - it could step in 10 years after a TLD is up and running. That is up to them.

@Paul- agree. This is meaningless. Let’s just pick a time and be done with this

For what? For ICANN to refer?

I’m good with that Jeff

works for me

30 days for ICANN to refer - ok

ANy objections to @Jeff's middle ground??

then 30 more days for silence from the competiton authority?

+1

Sounds sensible

+1

@Paul - fine. Who cares. Will likely not happen anyway

+1

Yes Paul - 30 days for silence from competition authority

Does this mean we've agreed to the para above if we agree to the timeframe?

@Susan - exactly. meaningless

Agree with Susan.

In RSEP there is the same limit, 45 days to be exact.

If competition authority doesn't react in that timeframe, the service moves forward.

No, because the competition authority could completely ignore it.

And we know that RSEPs are very good at explicitly following stated timeframes Rubens.

you assume that this would be referred only in US?

@Ruben - the competition authority will NEVER respond in 30 days

Silence after 30 days is valuable to applicants.

This is a big mess. Let's just put in the notice only

@Anne - Silence after 30 days is meaningless. Comp Authorities will not respond that quickly

Jim said he could live with it

I am OK with 30 days as a compromise because this is meaningless just so we can move forward and discuss other matters

Notice only is also good for me

30 days to refer and 30 days after it is referred and no action means ICANN moves ahead to contract

+1 to Susan

Agree Susan, and it shouldn't be constrained to contention resolution.

Can Elaine and others gets behind Susan’s proposal?

"Applicant or action regarding applications, including but not limited to contention set resolutions"

I support Susan’s proposal as espoused by Jeff

I think it is better to include some predictability, based on language that contracted parties are already familiar with, but if it means we can move on fine, just a general notice will do.

And yes, for all applicants.

Any objections then to Susan’s proposal? If not done, and let’s move on

@Elaine, why language that contracted parties are familiar with? What about new entrants that have no knowledge of what's familiar or not.

Agree with Marc and Susan. This should be an overarching statement/principle that is applicable to any applicant or application and not just contention set resolution.

Can I make an official call for any objections to Susan’s proposal? If none please let’s move one

on

+1 anne

Exactly Jim, all contention set resolutions.

Then why are trying to solve a non-problem that didn't happen yet?

Jim admits no JV problems from last round.

Board didn't ask about them

I’m fine with Jim’s change/clarification. Now any objections other than Anne and Ken?

yes

@Paul, I don't think Jim said that.

@paul, and why are we purporting to fix the "winning by losing" concern but actually attempting to address a whole different issue

+1 to Paul - just say that anything about the application might be referred to competition authorities

General to the point of not even being in the resolution section, could be above all (like someone else already said).

nope sorry

I don't understand how that would be technically possible?

Could you put the text from the board on the screent

“The board believes that applications should not be submitted as a means to engage in private auctions…” if we take away private auctions we remove that problem

Full support for Jim's suggestion. Private auctions remain private resolutions - but the bids are sealed and go out early.

Model 5 doesn’t address all of the board’s concerns

@Alexander - early sealed bids ignores contention sets, GAC Early warning, etc. that could knock out a contention set.

+1 Susan - all of this seems designed to ensure no new market entrants.

@Paul, exactly. The clock can only start after:

Susan has a really valid point.

All active applications in the contention set have:Passed evaluationResolved any applicable GAC adviceResolved any objectionsNo pending ICANN Accountability MechanismsEach applied-for gTLD in the contention set is:Not classified as "High-Risk" per the Name Collision Occurrence Management Plan

Support early sealed bids proposal. It puts a check on making a secondary market in TLDs.

Private auctions aren't adding in anything that wasn't in the 2012 AGB.

Well maybe we should just put out a list of 100 strings, and call for bids; rather than have an application process.

@donna - That was an option proposed by the GAC.

@Anne, sealed bids don't put a check on a secondary market for TLDs. applicants will do a back room deal and then the "winner" will sell on.

handup

Sorry briefly dropped from Zoom

put it out for public comment

Or that private auctions need sealed bids at all.

@Jeff, sure I understand that

The idea of simultaneous sealed bids is not new - it has never been rejected. Put is out for public comment.

are there other proposals to address this Board Concern? "In particular, we are concerned about how gaming for the purpose of financing other applications, or with no intent to operate the gTLD as stated in the application, can be reconciled with ICANN's Commitments and Core Values."

@Paul - there is nothing in the proposal that requires sealed bids for auctions

Paul, private resolutions in 2012 default to the same mechanism of last resort. This is likely to repeat itself in the future, so we can define the last resort and imagine that most, although not all, will follow.

All - remember OUR default is that we recommend doing it the way in 2012; The Board is not bound to OUR default necessarily.

good point jeff

@Jeff, yes there is: Only after all sealed bids are received or the window to submit bids closes, publicly available information will be published (i.e., reveal day), including the composition of contention sets. Applicants may participate in various forms of private resolution as permissible in the AGB, including joint ventures.

Not sure what Paul is even talking about. ICANN isn't doing anything - certainly not looking into bank accounts.

@Paul, that guardrail is less meaningful without effective remedy for the same round.

+1 Justine

We don't make rules that are portfolio applicant friendly.....

@Christa, that seems like that a problem that the applicant creates for itself by applying for SO MANY strings.

we need to be careful to not underestimate the ability of applicants to participate in an advantageous way

@Justine, understand your point, buty when you try to solve a problem that hasn't happened yet, you are going to over-solve it and that is what all of these heavyweight mechanisms Jim has tried multiple times to introduce do.

But you shouldn't put them at a disadvantage

@Jeff - old hand, sorry,

I'd say we're trying to be agnostic about who we are designing this for. We should be careful not to create a process that in and of itself is anti-competitive.

@Anne - it was never accepted in the private auction context either.

Yes, Sealed bids we did agree on.

Even small players with 2-3 applicants had this issue in the last round

The fundamental question is on timing

of submission

@Paul, it's also beneficial to find ways to prevent foreseeable problems.

we're not going to come out of another public comment on 2 or more alternatives with a solution. we'll just get a reiteration of the range of views

we already did a public comment with choces for people to input on

@Anne - that should have been done in the preliminary report but the "no private auctions ever" crowd only came to the table a few weeks ago...

@paul the board language has bee there for years.

@Paul, I don't agree with "the no private auctions ever crowd only came to the table a few weeks ago..."

Private auction doesn't mean "secret auction"; just distribution of proceeds between applicants.

Look for Compromises people! let's see where we get over the next week...

Public interest goal of the program!

NEXT CALL: Thursday, 23 July 2020 at 03:00 UTC for 90 minutes.

Alexander, try an easier question like how we get to world peace.

Bye for now...

The goal of the program is to introduce competition and innovation--it is not to operate in the public interest

@ Alex - discuss what that means and whether it applies to program as a whole or individual elements