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051040040 New gTLD Subsequent Procedures Working Group call
Terri Agnew
28:57
Please review ICANN Expected Standards of Behavior here: https://www.icann.org/resources/pages/expected-standards-2016-06-28-en
Steve Chan
31:56
Working document here: https://docs.google.com/document/d/1X8F8zHkgMzQg2WqGHpuoEP78rhpDkFOjD2qKrZZzjHw/edit#heading=h.vggepvpizwpy
Jeffrey Neuman
36:43
I think I raised it on both the calls and on the list
Rubens Kuhl
37:19
Note: financial evaluation didn't evaluate business plans in 2012 (ICANN Org's own words) and the new evaluation is less evaluable since it's retained by the applicant, which only sends its certification.
Jim Prendergast
37:51
spin
Justine Chew
38:44
"Penalty" for next round isn't ineffective insofar as 'applicants' can reincarnate in another form to a previous round.
Elaine Pruis
38:57
objections- it doesn’t go far enough. and it doesn’t have any teeth
Alan Greenberg
38:58
@Justine, Agree.
Justine Chew
40:44
+1 Elaine, and there are all sorts of limitations to objections for parties not holding legal right grounds.
Paul McGrady
41:21
We cannot tear down the GAC Advice process, the Objections process, the evaluation process, etc. Especially for a "problem" that not everyone sees.
Rubens Kuhl
42:00
What happened in 2012 is peanuts compared to what will happen in the next round if this issue is not addressed.
Justine Chew
42:32
@Paul, timing of when the bidding or auction happens can be looked at.
Elaine Pruis
42:55
+1 Rubens
Paul McGrady
43:43
Where does 120 come from? Another arbitrary number not tied to public comments, GAC Early Warning, Objection processes etc. We simply cannot set aside the protections in this program because of a singular focus on anti-private auctions.
Rubens Kuhl
45:21
I'm not a fan of giving ICANN Org any money, and even ICANN called it "last resort", so it seems they expected that most contention sets would not use it, and they succeeded in that. The few that happened amounted a large sum of money, but they were few indeed.
Kathy Kleiman
45:34
<<"Penalty" for next round isn't ineffective insofar as 'applicants' can reincarnate in another form to a previous round.>> I share this concern with Justine.
Rubens Kuhl
46:16
The timing issue can be solved by changing when the clock starts. In all proposals.
Justine Chew
46:27
Exactly, @Rubens
Kathy Kleiman
47:29
@Staff - is there a link to this letter?
Steve Chan
47:45
Yes, here: https://www.icann.org/en/system/files/correspondence/chalaby-to-langdon-orr-neuman-18dec18-en.pdf
Kathy Kleiman
47:50
Tx Steve!
Phil Buckingham
48:09
absolutely in agreement Jim . Facts . there were 234 contention sets involving over 800 individual applicants . each one went through an unneccessary evaluation cost of $185000
Rubens Kuhl
49:18
$185k is more than the evaluation cost, and that issue has been addressed by the RSP program.
Paul McGrady
49:33
Bad faith applications - not private auctions.
Rubens Kuhl
49:36
So those costs are neutral in the decision regarding contention set resolutions.
Paul McGrady
49:37
"possible"
Justine Chew
50:10
@Paul, please don't read sentences in isolation.
Paul McGrady
50:12
Again, the Board is focused on applications
Paul McGrady
50:40
Which the Guardrails do.
Justine Chew
51:36
Not only perception but a likelihood of problems now that the "avenue" is there until we close it. :)
Paul McGrady
51:54
Then lets set up rules and see if there is, in fact, a problem. We can't make data-less policy.
Paul McGrady
52:50
The Board could have said "no private auctions please" if they wanted to. Instead, they focused on applications.
Elaine Pruis
52:53
yes Jeff we do.
Justine Chew
53:05
@Paul, that's what we're doing whether it's your proposal or someone else's proposal.
Rubens Kuhl
53:32
+1 Transparency. Who got $ for doing what.
Jim Prendergast
54:07
You had an applicant for hundreds of TLDs bring their own auction provider to the table. Don't think for a second there wasn't a plan to make this a revenue stream. You had applicants bragging about the tens if not hundreds of millions that changed hands in "private auctions" all outside the purview of ICANN. That cannot happen again.
Jeffrey Neuman
54:15
Sorry Paul. You said earlier that you "didn't see the point" so sorry to pick on you
Elaine Pruis
54:53
- full disclosure on applicant info, participants, deal terms, structure, outcome. nothing undisclosed.
Kathy Kleiman
55:05
+1
Rubens Kuhl
55:43
Jim, that shows that they had thought of that before contention set resolution, not that they foresee it at application time.
Donna Austin, Neustar
55:50
@Jim, can you explain the harm of generating revenue if the strategy in doing so is 'win' other auctions with the intent of operating all of the portfolio TLDS at the end of the day.
Jim Prendergast
55:55
My proposal makes all bidders known Greg.
Paul McGrady
56:35
@Jim, your proposal forces people into auctions that they would not have to be in if they prevailed in objections or the other application was knocked out by evaluation, etc.
Rubens Kuhl
57:37
@Donna, the harm is that it's in fact an unwilling funding of another's endeavour. Projects should only get the financing they are able to convince investors.
Elaine Pruis
57:44
@Donna the harm is to single applicants that lose to portfolio applicants that have padded their war chest with losses
Rubens Kuhl
58:24
@Paul, I already suggested moving it after objection deadline/resolution, and you said it wasn't enough. So what is enough ?
Paul McGrady
58:46
+1 Christa - there have been a lot of assumptions of gaming and "frivolity" that were unjustified.
Jim Prendergast
59:27
While I appreciate hearing the challenges portfolio applicants may face the goal of this program is not to make it easier for portfolio applicants to win more TLDs.
Donna Austin, Neustar
59:28
@Elaine, I don't buy that. A single applicant may actually have a very good war chest because it is betting on one string only.
Donna Austin, Neustar
59:59
Agree with Christa.
Paul McGrady
01:00:49
@Rubens, we would need to think through each objection and when they are likely to be over (along with appeals, etc. You know that all of these pieces are interrelated. While it is tempting to pick one thing and focus on it, it doesn't automatically solve all of the many issues raised by Jim's proposal. There is no shortcut to all of this.
Elaine Pruis
01:01:00
maybe, but it won’t be increased by losing other bids
Rubens Kuhl
01:02:01
@Paul, this was already done by ICANN in 2012. They only started the clock of last resort if no objections, possible objections or accountability mechanisms were over.
Elaine Pruis
01:02:05
I disagree with that assumption. some applicants bet $185k that they’d walk away with more.
Jim Prendergast
01:02:13
like it or not - the .org fiasco and the amount of money has put a spotlight back on ICANN for the wrong reasons. IF ICANN facilitates a system where after having lived through the 2012 and not learned lessons will only increase the heat on the organization and the model.
Kathy Kleiman
01:03:02
+1 Alan and Jim.
Paul McGrady
01:04:06
@Jim, if CANN facilitates a system where people are forced into early auctions and GAC Early Warning and the Objection processes are ignored that is going to bring a lot of heat to ICANN and the model as well
Donna Austin, Neustar
01:04:34
@Jim, the sky is not falling. The .org fiasco had many components to it and by the time we get around to a next round that fiasco will be long forgotten.
Jeffrey Neuman
01:05:50
Disclosure at the time that arrangements are made.
Jim Prendergast
01:05:52
Wait for a new administration in DC Donna. And Brussels is already watching. Closely.
Kathy Kleiman
01:06:46
The FCC, as Jeff mentioned, had full disclosure in its spectrum auctions. Lots of precedent!
Rubens Kuhl
01:07:03
When: an embargo for 6 months or a year sounds fine to me. It should happen to provide data for future policy making, not for business strategy during the round.
Justine Chew
01:07:06
+1 Kathy
Vaibhav Aggarwal
01:07:14
+1 Kathy
Donna Austin, Neustar
01:07:58
Is the FCC an organisation that is comparable to ICANN?
Jim Prendergast
01:08:20
when it comes to allocating a public resources like TLDs and Spectrum, yes - very similar
Rubens Kuhl
01:08:25
Publishing embargo. ICANN would have information right away.
Paul McGrady
01:08:47
@Jeff - this seems very ad hoc. Can the framework for disclosure be written down somewhere so that we can discuss it? Right now it is a bunch of ideas flying around.
Rubens Kuhl
01:08:51
Donna, it's indeed similar.
Paul McGrady
01:09:12
@Donna - no. The FTC is nothing like ICANN. ICANN is a private actor that used to have a government contract but doesn't have one anymore.
Jim Prendergast
01:10:31
I believe Jeff is trying to get agreement on concepts right now
Elaine Pruis
01:10:33
aren’t we hitting the main elements first and then fleshing then out?
Jeffrey Neuman
01:10:34
ICANN is a not for profit public-private partnership
Kathy Kleiman
01:10:36
We administer the global DNS in the global public interest; the FCC administers spectrum in the public interest.
Vaibhav Aggarwal
01:10:41
@Paul ICANN is bound by the California State Laws for Not for Profits which is pretty Exhaustive
Rubens Kuhl
01:10:44
@Paul, because Jeff is looking for high level directions at this time.
Jim Prendergast
01:11:28
Im sure staff is taking good notes for us to review.
Elaine Pruis
01:11:33
let’s keep going and deal with details when we get through high level first
Phil Buckingham
01:11:51
why does it require full disclosure to the community . surely disclosure privately to ICANN .org would be sufficient ?
Elaine Pruis
01:12:21
why not to the community?
Rubens Kuhl
01:12:36
Phil, there is no policy making for TLD transitions, while there is policy making for subsequent procedures, like we are doing now.
Vaibhav Aggarwal
01:13:39
@Phil then what the point of us the community contributing ? Icann has enough money to hire all of us on contract basis for delivering specifics - The Answer to your question is that ICANN’s independence is based on a Multi Stake Holder Engagement and thus its the community which is valued :-)
Paul McGrady
01:14:10
@Jeff - so are we actually talking about forcing new market entrants to open their books and business to incumbents in the industry?
Jim Prendergast
01:14:28
if the ICANN Board wouldn't approve the .org deal because they never revealed the ultimate ownership of the entity that would control it, why should they delegate a TLD to an entity that didn't disclose those types of details?
Jeffrey Neuman
01:15:14
@Jim - that is one of the things that I was thinking about. ICANN needs to know who is behind the applications that survive
Paul McGrady
01:15:51
@Jim - telling ICANN who the JV partners are is not the same thing as Jeff's "full disclosure" model which would force the JV partners to turn over everything to everyone about the JV - including trade secrets, financial investments, etc.
Vaibhav Aggarwal
01:16:00
For example : The Commercial Extent which is pertinent to the health of the business of the Entity - could be restricted viewing but the largely the agreement & other deliberations should be in Community / Public Domain.
Donna Austin, Neustar
01:16:03
@jim and jeff, that's not just an issue for contention set resolution.
Jeffrey Neuman
01:16:19
@Donna - agreed
Vaibhav Aggarwal
01:16:30
+1 Alan
Jim Prendergast
01:16:43
now - if you do a change of control you have to submit that information to ICANN as it currently is.
Paul McGrady
01:17:06
I think we are conflating application disclosures with what is needed for contention set resolutions
Paul McGrady
01:17:27
@Jim - what does that have to do with contention set resolution?
Jim Prendergast
01:17:37
precedent
Rubens Kuhl
01:18:04
@Alan, is that an old hand ?
Alan Greenberg
01:18:49
Thx
Donna Austin, Neustar
01:18:50
what about interference from a third party that is not an applicant once the contention set is known?
Justine Chew
01:19:23
@Donna, such as?
Paul McGrady
01:19:30
@Jeff - but that would be fresh application material update and not any sort of "full disclosure" under 2012 precedent
Donna Austin, Neustar
01:19:43
@Justine, what Jeff is talking about right now.
Jeffrey Neuman
01:20:57
@Paul - if there any financial arrangements or otherwise that are different than the original application, that should be disclosed.
Paul McGrady
01:21:43
@Jeff - correct, in an updated application
Paul McGrady
01:22:17
which would be reevaluated and put out for public comment, etc. again
Paul McGrady
01:24:00
Why are people afraid of working out details? Why the sudden allergy to protecting applicants from overreach?
Kathy Kleiman
01:24:11
"disclosure of all material details"
Donna Austin, Neustar
01:24:22
@Kathy, you can't put millions of dollars on the table for applicants that don't have access to those funds.
Christa Taylor
01:24:51
So if an AS enters into an agreement with another party in a contention set is there a claw back on the auction mulitiplier?
Rubens Kuhl
01:25:31
Christa, unless the another party is also AS, I don't see the multiplier holding up.
Vaibhav Aggarwal
01:29:01
The rest of the larger issues will be up for deliberation in the group - on Transparency and Accountability - but I think it will be easier to just pick up the legal definition and incorporate that - as otherwise - any policy we come up with any which ways will be open for review in the court of law. Around the world. So how we will look at it - is irrespective - it has to be legal definition.
Kathy Kleiman
01:29:05
@Donna: will all auctions go up to millions? Some will; some won't. Transparency and accountability will raise the confidence of all -- participants and watchers - of the auctions.
Paul McGrady
01:29:21
@Greg - normally, I would be OK with that,. but so many things in this process were meant to be returned to but weren't.
Paul McGrady
01:29:57
@Jeff - we need to write it out so that we can understand it. 1. Disclosure of what 2. Disclosure to who? 3. Is anything confidential?
Jim Prendergast
01:30:44
Can staff reassure Paul that notes are being taken and will be circulated?
Donna Austin, Neustar
01:30:52
@Kathy, I don't know either. Making the results of auctions public may actually serve to push up TLD prices as contenders look to results as a guide.
Greg Shatan
01:31:19
Recordings?! What a concept!
Rubens Kuhl
01:31:31
@Donna, but this could happen after a time so it doesn't affect the round in which they occurred.
Paul McGrady
01:31:44
@Jim - of course Staff is taking notes. What was the purpose of your comment?
Justine Chew
01:31:47
@Donna, we don't know that.
Jim Prendergast
01:32:09
You are repeatedly asking if this will be written down
Rubens Kuhl
01:33:26
I suggest we look into the building blocks regardless of which proposal it came from.
Donna Austin, Neustar
01:34:09
@Justine, we don't know, but that's how economics generally works. If you have, what someone considers to be a scarce resource and they are trying to assess value, looking to information available is how that is generally done.
Justine Chew
01:35:07
@Donna, having relevant data will help us know.
Justine Chew
01:35:25
@Jeff, sorry, can you repeat your question please?
Rubens Kuhl
01:35:43
I believe a whole new solution based on building blocks we agree to can work. As long as we discuss ad-hominem, it won't work.
Jeffrey Neuman
01:36:04
Sorry Justine - not being as clear as I should be. Just trying to see where best to spend our time to get to the draft final report
Rubens Kuhl
01:36:20
For instance, defining when the clock starts seems more important than picking an specific proposal to me.
Donna Austin, Neustar
01:36:36
@Justine, my point is that as auctions start to happen and results become known to those still in contention sets they will look to the results of prior auctions as indicators and this may affect later auctions.
Kathy Kleiman
01:36:46
I thought Jim's proposal was a genuine attempt at compromise. Agree with Jeff
Elaine Pruis
01:36:56
+1 Rubens
Steve Chan
01:37:10
Jeff, hand up
Kathy Kleiman
01:38:26
@Alan, I thought Vickey was our agreed path forward too...
Paul McGrady
01:38:34
@Alan - then let us build the Guardrails and make them meaningful. But dismantling GAC Early Warning, public comment, etc. isn't the answer.
Jim Prendergast
01:39:49
we can discuss the timing elements but the difference here is 1) private auctions happening in the 2012 mode, with some disclosure. 2) auctions overseen by ICANN with disclosure. There needs to be a role for ICANN in overseeing settlements that involve auctions. Whether the funds go to losers or ICANN
Rubens Kuhl
01:42:00
@Jim, that's a building block we need to define: who can process private auctions. There were suggestions to both on the list, and ICANN can oversee the process both ways.
Justine Chew
01:42:29
Flow chart!
Paul McGrady
01:43:55
Why would we force a .brand into an auction with a top level squatter? Let's not dismantle the program.
Jim Prendergast
01:44:26
haooy to help where I can but I imaging others would want to be a part of it. Agree with Jeffs approach
Jim Prendergast
01:46:48
@Paul - Im a Callaway guy but I think I know what you are referring to ;)
Marc Trachtenberg
01:46:50
All of these concerns are speculative
Rubens Kuhl
01:47:42
I think we couldn't find a public benefit string + TLD operator combination.
Marc Trachtenberg
01:47:49
If closed generics should only be in the public interest then so should any restriction on use of a TLD
Marc Trachtenberg
01:48:43
There is no requirement that any string be in the public interes
Paul McGrady
01:51:15
@George - we tried to reach a middle ground, but the no-closed-generics crowd wouldn't budge. I'm never opposed to continuing to try to reach solutions, but if the no solution/no budge crowd are going to keep not budging, I'm not super optimistic about the outcomes. Even so, I would be happy to join the likeminded small group
Rubens Kuhl
01:51:15
Marc, the DNS system needs to operate in the public interest, but even brand single-registrant TLDs operate in the public interest, for the same reason we have trademark laws.
Marc Trachtenberg
01:51:50
So every string currently operates in the public interest?
Marc Trachtenberg
01:52:15
and how is premium domains and reserved names gaming in the public interest?
Rubens Kuhl
01:52:42
Marc, it was expected they do. Whether they do or not is up for discussion.
Paul McGrady
01:53:06
@Jeff/George - how do we join George's small group? I want to be part of the solution if there is going to be one
Alan Greenberg
01:53:17
My recollection (for my proposal) is that those who want wideopen closed generics would not budge.
Marc Trachtenberg
01:53:33
ANd there is no evidence that closed generics per se are not in the public interest. And who decides what is in the public interest? Is the on;ly public interest in being able to register second levels in a TLD?
Paul McGrady
01:53:53
@George - nope. We tried to build safeguards but they didn't get traction.
Rubens Kuhl
01:53:56
But the point here is that public interest is not necessarily registrants interest.
Rubens Kuhl
01:54:23
And defining public interest is as long as a problem in ICANN as WHOIS.
Donna Austin, Neustar
01:54:46
Agree with Marc. Public interest can be anything you want it to be to suit your respective point of view.
Paul McGrady
01:55:10
Well, I'm not sure how excluding voices will get us there but if George doesn't want me in, that is up to him...
Marc Trachtenberg
01:55:12
SO some generics could be in the public interest and some not - just like "open" strings. We don't need guardrails here. If we do then ever restriction on use of "open" TLDs should have to be in the public interest
Donna Austin, Neustar
01:56:36
No problem with George getting a group together, but it has no elevated status in the WG.
Paul McGrady
01:57:03
+1 Donna - especially if voices are going to be excluded from it
Donna Austin, Neustar
01:57:47
I understand George's goal is, but its sometimes helpful to be explicit in our understanding of things.
Marc Trachtenberg
02:00:05
Can anyone explain why closed generics need a public interest and not other restrictions on "open" strings which can close to being closed generics from a practical perspective if not exactly the same?
Terri Agnew
02:00:11
next meeting: New gTLD Subsequent Procedures Working Group call is scheduled on Thursday, 16 July 2020 at 20:00 UTC for 90 minutes.
Edmon Chung
02:00:33
i am interested @george
Greg Shatan
02:01:38
@Marc, because that’s where the Board left us.