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051040040 New gTLD Subsequent Procedures Working Group call - Shared screen with speaker view
Julie Bisland
34:02
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en.
Donna Austin, Neustar
35:45
Who are the four people?
Greg Shatan
37:05
George, Alan Greenberg, Kathy Kleiman and me
Maxim Alzoba
37:14
hello all
Donna Austin, Neustar
37:15
Thanks Greg
Paul McGrady
39:07
@George, I understand what you are saying, but when voices are excluded in the process...
Paul McGrady
39:29
Looking forward to seeing the work product. The question will be "is this proposal better than the status quo, whatever that is?"
Rubens Kuhl
40:07
The status quo of not knowing what the status quo is is not good.
Taylor Bentley (ISED, Canada)
40:24
Well said George
Paul McGrady
41:39
Keeping an open mind
Cheryl Langdon-Orr
41:56
Excellent thanks everyone
Julie Hedlund
42:20
See the doc at: https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZzjHw/edit#heading=h.vggepvpizwpy
Taylor Bentley (ISED, Canada)
42:31
ty Julie
Paul McGrady
44:28
I was on travel. I'm generally opposed to additional restrictions Jim proposed (sealed bids, etc.).
Phil Buckingham
44:43
@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
Paul McGrady
45:42
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.
Kathy Kleiman
46:27
Can we look at Jim's email on screen?
Paul McGrady
47:25
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.
Emily Barabas
47:30
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
Julie Hedlund
47:42
@Kathy: The text from Jim’s suggested language is on the screen too.
Kathy Kleiman
47:50
Tx Emily.
Paul McGrady
47:59
Bids at the same time is another heavyweight option that makes private auctions no longer private auctions.
Kathy Kleiman
48:49
@Julie, I'm seeing more language in his email too. Jim has some particular proposals that might be good to see on the screen.
Alexander Schubert
49:05
it's a strategy to game the system
Alexander Schubert
49:18
gaming requires strategy
Paul McGrady
49:33
+1 Donna. All of these heavyweight solutions presuppose mal-intent of the losing applicant. That is a big leap.
Jim Prendergast
49:38
Gaming is not my term - its the board language so question might be best addressed to them
Rubens Kuhl
49:39
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.
George Sadowsky
50:15
@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
Elaine Pruis
50:50
support
Paul McGrady
51:37
What is (XX)? Hard to support without knowing it is 3 days or 300 days.
Elaine Pruis
51:50
Gaming is finding vagaries or advantages in the rules to benefit oneself outside the intent of the program.
Alexander Schubert
51:52
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.
Donna Austin, Neustar
51:54
Is it ICANN, is it the evaluator? I'm not sure I understand what constitutes a 'significant competition issue'?
Kathy Kleiman
52:08
support
Maxim Alzoba
52:09
actually even GA of California has authority over ICANN (proven fact)
Maxim Alzoba
52:33
ICANN is not international body
Kathy Kleiman
53:04
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.
Jim Prendergast
53:11
whats your suggestion paul?
Alexander Schubert
53:27
And freezing money doesn't help: once the money is "earned" fresh cash can be lent against it.
Rubens Kuhl
53:30
ICANN is based in the US and is a part to the registry contract, so the US regulators will likely be involved.
Jim Prendergast
53:49
radion
Jim Prendergast
53:53
radino
Paul McGrady
53:55
Rodino
Rubens Kuhl
55:12
15 days is the usual ICANN analysis timeframe.
Emily Barabas
55:13
It’s me. Apologies.
Emily Barabas
55:17
One moment
Marc Trachtenberg
55:36
Have we discussed how will ICANN determine if there are significant competition issues?
Phil Buckingham
55:52
agreed Donna , what constitutes significant competition issue . I only see this as a potential delaying tactic
Jim Prendergast
56:08
Language on screen is within 5 days of ICANN making its determination
Paul McGrady
57:06
How long does it have to make the determination?
Paul McGrady
57:14
3 days? 300?
Kathy Kleiman
57:47
Isn't this an IRT issue? implementation?
Marc Trachtenberg
57:48
Are there any criteria for what constitutes competition issues? Any way to challenge this determination?
Paul McGrady
58:00
We still don't have a knowable timeframe.
Rubens Kuhl
58:19
ICANN already has such a criteria for RSEPs. Whatever that criteria is.
Jeffrey Neuman
58:53
@Paul - ICANN doesn't have any timeline for making its determination - it just depends what the issues are.
Paul McGrady
58:54
Would really like to get behind this if I can, but need to know the effects on the timelines. Can't brush past it.
Donna Austin, Neustar
59:45
RSEP is different process. If we are going to include this here it has to be relevant to the context of contention set resolution.
Susan.Payne
59:53
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
Jeffrey Neuman
59:55
I believe they have....but need to find it.
Marc Trachtenberg
01:00:00
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?
Jeffrey Neuman
01:00:00
I think it was once
Elaine Pruis
01:00:30
Susan I think it should apply to all contention resolution.
Paul McGrady
01:01:55
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).
Marc Trachtenberg
01:02:04
Can’t we just take out that provision since it seems meaningless?
Rubens Kuhl
01:02:14
In RSEP it's ICANN Org, Paul.
Donna Austin, Neustar
01:03:21
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.
Elaine Pruis
01:03:31
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
Susan.Payne
01:03:32
agree donna
Paul McGrady
01:03:48
+1 Donna. Not the same thing.
Marc Trachtenberg
01:04:29
@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
Donna Austin, Neustar
01:04:53
@Elaine, I may be okay with this, but I honestly do not know what a signficant competition issue might be in this context.
Kathy Kleiman
01:04:57
didn't applications go to competition authorities in Round 1? I think there is precedent...
Rubens Kuhl
01:05:18
Marc, the information is privileged so it could be prevented from referring to an authority.
Jeffrey Neuman
01:05:25
@Kathy - no, nothing went to competition authorities from Round 1
Kathy Kleiman
01:05:35
@Jeff - .SUCKs went to FTC
Marc Trachtenberg
01:06:12
@Ruben - what information is privileged? What privilege?
Elaine Pruis
01:06:25
@ Marc I’d rather create the rules than have ICANN act without direction from the community
Kathy Kleiman
01:06:39
+1Paul
Marc Trachtenberg
01:07:01
@Elaine - is that really a rule? There is no criteria and ICANN has no expertise here. The “rule” is meaningless
Kathy Kleiman
01:07:09
What's a good timeframe, Paul?
Marc Trachtenberg
01:07:36
@ Elaine - I think we should simplify where possible and not have meaningless rules or process
Rubens Kuhl
01:07:37
Kathy, .sucks wasn't referred to FTC during application time, but after launch due to pricing practices.
christopher wilkinson
01:07:40
@Paul has misunderstood me. ICANN must take responsibility for the competition aspects land act accordingly across several issues.
Rubens Kuhl
01:08:41
The only difference in .sucks agreement is the payout for what the owners owed to ICANN.
Paul McGrady
01:10:09
@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?
Jim Prendergast
01:10:39
I think having a defined process is better than leaving it undefined.
Marc Trachtenberg
01:10:54
@Jim - a defined meaningless process?
Elaine Pruis
01:11:26
@ Paul for predictability. it would protect applicants from an unknown length of time in purgatory
Paul McGrady
01:11:51
@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?
Cheryl Langdon-Orr
01:12:32
Thanks @Anne
Jim Prendergast
01:13:09
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.
Paul McGrady
01:13:35
@Jim - this WG cannot keep ICANN from referring whatever it wants to. That is a red herring.
Marc Trachtenberg
01:13:55
+1 Paul. Waste of time discussing
Paul McGrady
01:14:47
I object without knowing what the timeframes are
Rubens Kuhl
01:14:50
I support including.
Donna Austin, Neustar
01:14:50
At this point I do object.
Marc Trachtenberg
01:15:04
I object to meaningless provisions
Susan.Payne
01:15:18
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
Martin Sutton
01:16:06
currently object. and concerned with over complications
Susan.Payne
01:16:06
@paul - quite right
Elaine Pruis
01:16:27
@Paul not according to the quote from the board Jim included in his email
Jim Prendergast
01:16:34
The Board solved JVs in 2012 by prohibiting them. Now this group is opening that door.
Kathy Kleiman
01:17:46
** leave the date to the IRT? Seems like an implementation issue.
Marc Trachtenberg
01:17:55
+1 to what Paul is saying
Anne Aikman-Scalese
01:17:57
@Paul - So what's reasonable for time frame?
Donna Austin, Neustar
01:18:06
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 ......
Susan.Payne
01:18:29
@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
Marc Trachtenberg
01:18:57
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
Jim Prendergast
01:19:12
this applies to all reslutions Susan - not just auctions
Elaine Pruis
01:19:27
@marc for predictability
Donna Austin, Neustar
01:19:39
Agree Susan, the 'fix' doesn't address the stated problem.
Rubens Kuhl
01:19:46
Marc, a timeframe specifies how long will ICANN wait for a competition authority to state something. It's an ICANN service level.
Susan.Payne
01:19:50
@Jim, quite - this has nothing to do with the concern the Board actually expressed. thanks for confirming
Marc Trachtenberg
01:19:58
@Elaine - this doesn’t create any predictability. It’s meaningless
Jim Prendergast
01:20:21
I think I could support that Jeff.
Paul McGrady
01:21:14
The content of such a general notices without timeframes exist as a matter of law, so it would be harmless to include.
Elaine Pruis
01:21:23
@marc I disagree.
Donna Austin, Neustar
01:21:28
What would be the outcome of referring something to a competition authority? Would ICANN refer saying we think this applicant is gaming the program?
Jim Prendergast
01:21:46
@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?
Maxim Alzoba
01:21:48
regulators tend to use the timing they like
Paul McGrady
01:22:15
@Donna - unknown. Seems broader than that.
Donna Austin, Neustar
01:23:00
If ICANN refers something to a competition authority shouldn't that stop all processes associated with the string?
Elaine Pruis
01:23:02
Contracting is not the same as delegation
Paul McGrady
01:23:21
I don't want to tie to contract signing!
Donna Austin, Neustar
01:23:24
Agree with Anne
Marc Trachtenberg
01:23:33
@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
Elaine Pruis
01:24:07
Keeping it in and picking a time period works for me Marc. Thanks
Paul McGrady
01:24:23
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.
Marc Trachtenberg
01:25:01
@Paul- agree. This is meaningless. Let’s just pick a time and be done with this
Paul McGrady
01:27:05
For what? For ICANN to refer?
Elaine Pruis
01:27:23
I’m good with that Jeff
Jim Prendergast
01:27:25
works for me
Anne Aikman-Scalese
01:27:25
30 days for ICANN to refer - ok
Cheryl Langdon-Orr
01:27:28
ANy objections to @Jeff's middle ground??
Paul McGrady
01:27:29
then 30 more days for silence from the competiton authority?
Kathy Kleiman
01:27:31
+1
Annebeth Lange
01:27:33
Sounds sensible
Justine Chew
01:27:38
+1
Marc Trachtenberg
01:27:39
@Paul - fine. Who cares. Will likely not happen anyway
Jamie Baxter
01:27:41
+1
Anne Aikman-Scalese
01:27:49
Yes Paul - 30 days for silence from competition authority
Donna Austin, Neustar
01:27:49
Does this mean we've agreed to the para above if we agree to the timeframe?
Marc Trachtenberg
01:28:28
@Susan - exactly. meaningless
Donna Austin, Neustar
01:28:30
Agree with Susan.
Rubens Kuhl
01:28:35
In RSEP there is the same limit, 45 days to be exact.
Rubens Kuhl
01:28:55
If competition authority doesn't react in that timeframe, the service moves forward.
Paul McGrady
01:28:58
No, because the competition authority could completely ignore it.
Donna Austin, Neustar
01:29:03
And we know that RSEPs are very good at explicitly following stated timeframes Rubens.
Susan.Payne
01:29:07
you assume that this would be referred only in US?
Marc Trachtenberg
01:29:14
@Ruben - the competition authority will NEVER respond in 30 days
Anne Aikman-Scalese
01:29:26
Silence after 30 days is valuable to applicants.
Paul McGrady
01:29:45
This is a big mess. Let's just put in the notice only
Marc Trachtenberg
01:30:02
@Anne - Silence after 30 days is meaningless. Comp Authorities will not respond that quickly
Paul McGrady
01:30:08
Jim said he could live with it
Marc Trachtenberg
01:30:47
I am OK with 30 days as a compromise because this is meaningless just so we can move forward and discuss other matters
Marc Trachtenberg
01:31:01
Notice only is also good for me
Anne Aikman-Scalese
01:31:53
30 days to refer and 30 days after it is referred and no action means ICANN moves ahead to contract
Marc Trachtenberg
01:32:33
+1 to Susan
Donna Austin, Neustar
01:32:51
Agree Susan, and it shouldn't be constrained to contention resolution.
Marc Trachtenberg
01:32:57
Can Elaine and others gets behind Susan’s proposal?
Rubens Kuhl
01:32:57
"Applicant or action regarding applications, including but not limited to contention set resolutions"
Marc Trachtenberg
01:34:04
I support Susan’s proposal as espoused by Jeff
Elaine Pruis
01:34:25
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.
Elaine Pruis
01:34:37
And yes, for all applicants.
Marc Trachtenberg
01:34:56
Any objections then to Susan’s proposal? If not done, and let’s move on
Donna Austin, Neustar
01:35:06
@Elaine, why language that contracted parties are familiar with? What about new entrants that have no knowledge of what's familiar or not.
Donna Austin, Neustar
01:36:00
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.
Marc Trachtenberg
01:37:00
Can I make an official call for any objections to Susan’s proposal? If none please let’s move one
Marc Trachtenberg
01:37:05
on
Ken Stubbs
01:37:32
+1 anne
Rubens Kuhl
01:39:16
Exactly Jim, all contention set resolutions.
Paul McGrady
01:39:43
Then why are trying to solve a non-problem that didn't happen yet?
Paul McGrady
01:40:04
Jim admits no JV problems from last round.
Paul McGrady
01:40:09
Board didn't ask about them
Marc Trachtenberg
01:40:11
I’m fine with Jim’s change/clarification. Now any objections other than Anne and Ken?
Jim Prendergast
01:40:22
yes
Justine Chew
01:40:37
@Paul, I don't think Jim said that.
Susan.Payne
01:41:05
@paul, and why are we purporting to fix the "winning by losing" concern but actually attempting to address a whole different issue
Marc Trachtenberg
01:41:17
+1 to Paul - just say that anything about the application might be referred to competition authorities
Rubens Kuhl
01:41:41
General to the point of not even being in the resolution section, could be above all (like someone else already said).
Jim Prendergast
01:42:36
nope sorry
Donna Austin, Neustar
01:43:51
I don't understand how that would be technically possible?
Elaine Pruis
01:44:02
Could you put the text from the board on the screent
Elaine Pruis
01:45:18
“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
Alexander Schubert
01:46:24
Full support for Jim's suggestion. Private auctions remain private resolutions - but the bids are sealed and go out early.
Elaine Pruis
01:47:45
Model 5 doesn’t address all of the board’s concerns
Paul McGrady
01:47:45
@Alexander - early sealed bids ignores contention sets, GAC Early warning, etc. that could knock out a contention set.
Paul McGrady
01:48:06
+1 Susan - all of this seems designed to ensure no new market entrants.
Rubens Kuhl
01:48:10
@Paul, exactly. The clock can only start after:
Donna Austin, Neustar
01:48:11
Susan has a really valid point.
Rubens Kuhl
01:48:36
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
Anne Aikman-Scalese
01:48:59
Support early sealed bids proposal. It puts a check on making a secondary market in TLDs.
Paul McGrady
01:49:29
Private auctions aren't adding in anything that wasn't in the 2012 AGB.
Donna Austin, Neustar
01:49:43
Well maybe we should just put out a list of 100 strings, and call for bids; rather than have an application process.
Jeffrey Neuman
01:50:31
@donna - That was an option proposed by the GAC.
Susan.Payne
01:51:10
@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.
Paul McGrady
01:51:23
handup
Cheryl Langdon-Orr
01:51:35
Sorry briefly dropped from Zoom
Anne Aikman-Scalese
01:51:51
put it out for public comment
Paul McGrady
01:52:02
Or that private auctions need sealed bids at all.
Susan.Payne
01:52:39
@Jeff, sure I understand that
Anne Aikman-Scalese
01:52:49
The idea of simultaneous sealed bids is not new - it has never been rejected. Put is out for public comment.
Jim Prendergast
01:52:49
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."
Jeffrey Neuman
01:53:02
@Paul - there is nothing in the proposal that requires sealed bids for auctions
Rubens Kuhl
01:53:04
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.
Jeffrey Neuman
01:53:45
All - remember OUR default is that we recommend doing it the way in 2012; The Board is not bound to OUR default necessarily.
Elaine Pruis
01:54:05
good point jeff
Susan.Payne
01:54:12
@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.
Alexander Schubert
01:54:35
Not sure what Paul is even talking about. ICANN isn't doing anything - certainly not looking into bank accounts.
Justine Chew
01:55:02
@Paul, that guardrail is less meaningful without effective remedy for the same round.
Elaine Pruis
01:55:23
+1 Justine
Alexander Schubert
01:56:30
We don't make rules that are portfolio applicant friendly.....
Justine Chew
01:56:35
@Christa, that seems like that a problem that the applicant creates for itself by applying for SO MANY strings.
Elaine Pruis
01:57:04
we need to be careful to not underestimate the ability of applicants to participate in an advantageous way
Paul McGrady
01:57:14
@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.
Christa Taylor
01:57:18
But you shouldn't put them at a disadvantage
Paul McGrady
01:57:23
@Jeff - old hand, sorry,
Donna Austin, Neustar
01:57:53
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.
Paul McGrady
01:57:54
@Anne - it was never accepted in the private auction context either.
Jeffrey Neuman
01:57:58
Yes, Sealed bids we did agree on.
Christa Taylor
01:58:07
Even small players with 2-3 applicants had this issue in the last round
Jeffrey Neuman
01:58:11
The fundamental question is on timing
Jeffrey Neuman
01:58:14
of submission
Justine Chew
01:58:55
@Paul, it's also beneficial to find ways to prevent foreseeable problems.
Susan.Payne
01:58:59
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
Susan.Payne
01:59:22
we already did a public comment with choces for people to input on
Paul McGrady
01:59:29
@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...
Elaine Pruis
02:00:29
@paul the board language has bee there for years.
Justine Chew
02:01:25
@Paul, I don't agree with "the no private auctions ever crowd only came to the table a few weeks ago..."
Alexander Schubert
02:01:33
Private auction doesn't mean "secret auction"; just distribution of proceeds between applicants.
Cheryl Langdon-Orr
02:01:37
Look for Compromises people! let's see where we get over the next week...
Alexander Schubert
02:02:19
Public interest goal of the program!
Julie Bisland
02:02:34
NEXT CALL: Thursday, 23 July 2020 at 03:00 UTC for 90 minutes.
Rubens Kuhl
02:02:47
Alexander, try an easier question like how we get to world peace.
Cheryl Langdon-Orr
02:02:47
Bye for now...
Donna Austin, Neustar
02:02:51
The goal of the program is to introduce competition and innovation--it is not to operate in the public interest
Marc Trachtenberg
02:02:55
@ Alex - discuss what that means and whether it applies to program as a whole or individual elements