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Terri Agnew's Personal Meeting Room
Mike Rodenbaugh
27:05
Please put links to summary docs into the chat. Can’t click on them in the Zoom display. Thanks!
Emily Barabas
27:52
Accountability Mechanisms: https://docs.google.com/document/d/1BkRn9nYeBNjyx2mTw-3nIDn22jTumWd4w1PZR-KNrPs/edit#heading=h.vhvbz3om92n9
Julie Bisland
28:01
Welcome to the New gTLD Subsequent Procedures Working Group call on Thursday, 03 October 2019 at 20:00 UTC for 90 minutes.
Emily Barabas
28:16
Community Applications: https://docs.google.com/document/d/15S_sUuP_gmKqba26tU9kYQ8mVF76W_3CSl4raxSgvm8/edit
Julie Hedlund
28:37
Kathy’s hand is up
Paul McGrady
31:49
@Jeff, yes, Greg, Anne and I are going to work on it and come back to the larger group
Kathy Kleiman
31:57
Tx Jeff
Paul McGrady
39:42
@Jeff - the list will be nonexclusive and illustrative only, yes?
Paul McGrady
47:24
@Alan - no two applications are exactly alike, so variations could just be a feature I suppose.
Jeff Neuman (Com Laude)
48:44
@Kathy - the first 2 questions are further down
Paul McGrady
49:04
To Alexander's concern about appeals slowing things down, the idea is that the initial appeal will actually help things keep moving rather than going through the entire process and then filing an IRP against the entire process and starting again.
Paul McGrady
49:10
"An interlocutory appeal is an appeal of a ruling by a trial court that is made before the trial itself has concluded. It asks an appellate court to review an aspect of the case before the trial has concluded." - See https://definitions.uslegal.com/i/interlocutory-appeals/
Alan Greenberg
50:01
@Paul, my understanding was that the comfusingly simlar decision was supposed to be based purely on the strings and how they would be perceived and not how they were planning to be used (although in my opinion, how they were planning to be used, if set as an inviolate condition of the TLD, should be considered.
Alexander Schubert
51:08
Paul: I think actually appeals would speed the process up; IF we instruct the facilitators to act SWIFTLY.
Paul McGrady
51:28
@Alexander - I agree with you.
Kathy Kleiman
53:14
ICANN outsources to third parties for a reason. ICANN would overrule WIPO?
Anne Aikman-Scalese
56:12
Agree with Paul - this is what I was saying at then end of the last call. Anne
Kathy Kleiman
56:19
Agree with Paul
Paul McGrady
56:44
ICANN would be crazy to supplant WIPO et al.
Paul McGrady
58:29
@Jeff - and that is why we need the interlocutory appeals process so that actual relief can be granted before it is too late and not just have ICANN point back at the provider
Paul McGrady
59:00
We don't want to build an appeals process that erodes the accountability mechanisms.
Jeff Neuman (Com Laude)
59:50
@Alan - yes
Jeff Neuman (Com Laude)
01:01:42
I am not aware of a provision in the by-laws that talks about getting the facts right
Alexander Schubert
01:02:55
I envision most appeals deal with third party panels..... agreeing with Paul.
Rubens Kuhl
01:03:04
One unintended consequence of limiting to 3rd party panels is to outsource everything just to allow appeals.
Jim Prendergast
01:03:32
When did ICANN make that annoucement about inhouseing evaluations? (I could have easily missed that)
Rubens Kuhl
01:04:19
It was not an announcement, but a mention, discussing the premises for next round.
Anne Aikman-Scalese
01:05:05
Agree that only third party decisions should be subject to the appeals process. Otherwise there will be two actions filed, not one. ICANN would be nuts to in-house Objection proceedings. Lawyers will plead both the Accountability mechanisms and the appeal mechanisms. There will always be grey areas and ability to plead both mechanisms apply and it is wasteful.
Kathy Kleiman
01:06:07
Agree with Anne
Jim Prendergast
01:06:14
ok - that makes sense
Justine Chew
01:06:36
And what about the finality of an appeal?
Anne Aikman-Scalese
01:06:44
Doesn't it seem that ICANN doing Objections in-house would be subject to a further policy process.
Paul McGrady
01:07:39
"ICANN shall not act outside its Mission." Presumably its Mission doesn't include not correcting Staff mistakes.
Elaine Pruis
01:09:23
Elaine Pruis here on # ending in 387.
Julie Bisland
01:10:16
Thank you, Elaine!
Paul McGrady
01:10:29
@Jeff, we don't have to "set the policy" that issues caused by Staff error are handled by the Accountability mechanisms - that is already in the Bylaws.
Anne Aikman-Scalese
01:11:46
very speculative to say we have to make policy based on what ICANN is discussing. There are good reasons for ICANN to keep Objections outside of the organization - namely independence of determinations. If ICANN is selecting panelists in Objection proceedings, those panelists, paid by ICANN, are subject to too much ICANN org influence.
Rubens Kuhl
01:11:47
@Paul, ICANN repeatedly defended itself in RfRs saying that following process is all bylaws require of them.
Paul McGrady
01:12:02
+1 Kathy - it automatically makes ICANN adverse in its own program. The idea of taking these inhouse is really befuddling.
Kathy Kleiman
01:12:35
Let's set some foundational principles here
Paul McGrady
01:13:27
Then let's add the following in our Policy recommendations: "Staff will implement the Program in an error-free manner."
Anne Aikman-Scalese
01:15:19
ICANN should maintain distance from substantive decisions, even string confusion. THese are too close to regulation of content and it's outside ICANN's mission.
Justine Chew
01:15:55
Bylaw accountability mechanisms deals mostly with process - whether process was violated, it doesn't deal with the subject matter because it does not have expertise. Which is the problem is many cases.
Justine Chew
01:16:09
*in many cases
Paul McGrady
01:18:20
@Jeff - can we distill the back and forth down, in addition to the non-exhaustive examples, so that we can all see the thinking on paper? Its pretty clear that some very smart people are seeing things in different ways, so there is an opportunity to see if a unified position can be developed (but hard to do from memory, transcripts and recordings).
Kathy Kleiman
01:18:42
+1 Paul
Justine Chew
01:19:54
We have not discussed that point.
Alexander Schubert
01:21:14
ALAC's appeals should be ICANN funded
Paul McGrady
01:21:24
On the standing issue, it sounds like everyone wants there to be a direct connection between the decision and a bad affect on the appealing party. In other words, no standing for anyone who just wants to harass an applicant.
Kathy Kleiman
01:22:07
or an objector
Susan Payne
01:23:12
@alexander, aren't the community the unsuccessful objector in that scenario?
Kathy Kleiman
01:24:19
We're in CPE not Community Objections, right?
Jamie Baxter | dotgay
01:24:46
@Jeff . by “object” do you mean file a formal Objection, or just submit a public comment in opposition of an application
Jamie Baxter | dotgay
01:25:19
Thanks
Anne Aikman-Scalese
01:25:22
If the community is separate from the applicant, they would have to object below in order to appeal.
Paul McGrady
01:26:52
But a third party also-community who did not originally object can't appeal (no joining the game in the 4th quarter)
Anne Aikman-Scalese
01:27:25
if applicant on CPE fails and appeals that, can the community that opposes a reversal of that decision to have standing to oppose that appeal?
Anne Aikman-Scalese
01:28:48
No CPE applicant fails. Other community member is happy about it. CPE failure is appealed. Can community member who was happy about the failure have standing?
Paul McGrady
01:28:55
I wish we had picked different examples, because like Kathy, I am having trouble not smooshing these two community based examples in my head.
Justine Chew
01:29:58
@Jeff, agree that only an applicant that fails an evaluation has standing to file an appeal aagainst the decision of an evaluation.
Paul McGrady
01:30:01
Yes, but not the third party whose string it was similar to
Jeff Neuman (Com Laude)
01:30:56
@Paul - yes
Paul McGrady
01:31:39
@Jeff - correct, applicant only on the tech evaluation. And the backend service provider would not be able to file an appeal even though it was its systems that were found lacking
Anne Aikman-Scalese
01:32:44
So susan is saying that if CPE is approved, all applicants that are not CPE can appeal that.
Paul McGrady
01:33:11
Yes, because the other applicants are harmed by the decision
Rubens Kuhl
01:34:42
BTW, Unicom x Unicorn was exactly that.
Anne Aikman-Scalese
01:35:07
All others have standing because they could be hurt by the addition of another bidder. Unfortunately what we are figuring out here is that there will be lots of appeals that are not frivolous but that will cause strings to be hung up in litigation.
Jamie Baxter | dotgay
01:35:18
Having the ability to appeal certainly doesn’t guarantee a decision will be reversed, especially if frivolous appeals are filtered out
Justine Chew
01:35:53
Logically, that makes sense, but if at all, they should ideally be joined in the same appeal to be heard by the same panel.
Rubens Kuhl
01:36:28
Sorry I have to drop now.
Susan Payne
01:37:18
so on objections - appeal for an unsuccessful objector, or appeal for the applicant where they lose objection - yes?
Alexander Schubert
01:37:49
Paul: We know in almost ALL cases the parties that would lose their application due to a successful CPE of an opponent would immediately file an appeal. Such appeal (if permitted) needs to be judged ASAP (e.g. 3 weeks: NOT a year).
Justine Chew
01:38:49
The ALAC comment did include need to have a ground for appeal in addition to administrative check. Akin to quicklook.
Anne Aikman-Scalese
01:38:58
Outcome of appeal is always going to end up being subject to Accountability mechansims since ICANN will act on the decision in the appeal.
Anne Aikman-Scalese
01:39:31
There should be interlocutory appeal of conflict of interest determination.
Alexander Schubert
01:42:47
Jeff: Agree.
Kathy Kleiman
01:43:19
yikes
Anne Aikman-Scalese
01:44:45
Request for Reconsideration is a term of art for an Accountability mechanism. Paul, are you talking about something else?
Paul McGrady
01:45:15
@Anne - yes. Something else, only in front of the appeals panel.
Paul McGrady
01:45:47
@Kathy - thank you. Your concern about over doing it is an important one.
Anne Aikman-Scalese
01:46:06
I would stick with one appeal unless it's conflict of interest in the same case.
Greg Shatan
01:46:08
Javert, Esq. will never stop appealing.
Jamie Baxter | dotgay
01:46:12
@Kathy .. “experts in the field” is a highly controversial description for some when referencing CPE panels
Kathy Kleiman
01:47:06
@Jamie: CPE is outside my bailiwick. We've agreed to handle it differently :-)
Anne Aikman-Scalese
01:48:47
It s not so easy to establish "mistakes' in this environment. If Adjudicators have to pay if lower panel was wrong, lower panel will NEVER be held to be wrong.
Jamie Baxter | dotgay
01:49:30
@Greg .. then I want the job of being a third party evaluator for ICANN because I have no responsibility should I make mistakes
Greg Shatan
01:50:04
Did I say no responsibility? NO I did not,
Justine Chew
01:50:15
COI1
Justine Chew
01:50:20
COI !
Greg Shatan
01:50:30
The deciding body would also have to be a party to the action!
Paul McGrady
01:50:46
That will make all 3rd party evaluation services to be very $$$$$
Greg Shatan
01:50:58
I can’t think of any adjudicating system where the judge pays.
Kathy Kleiman
01:53:13
withdrawn
Justine Chew
01:53:28
Not allowed to proceed, actually.
Steve Chan
01:53:42
Haha, thanks Jeff :)
Julie Bisland
01:54:12
NEXT CALL: Monday, 07 October 2019 at 15:00 UTC for 90 minutes
Paul McGrady
01:54:37
I should just be appointed Permanent Appeals Majesty (PAM)
Mike Rodenbaugh
01:55:06
Bye PAM!
Paul McGrady
01:55:10
hahahah
Robin Gross
01:55:11
Thanks all, bye!