2020-04-20 New gTLD Subsequent Procedures PDP

Notes/ Action Items

Actions:

ACTION ITEM: WG members are reminded to submit their comments on the first Packet of draft recommendations.  These will be posted here: https://community.icann.org/display/NGSPP/g.+Draft+Final+Report. 

ACTION ITEM: Consider rescheduling the Name Collisions topic on 28 April at 0300 UTC to a time that is more convenient for the NCAP Chairs.

2.8.2 Limited Appeal/Challenge Mechanism and Post-Delegation Dispute Resolution Procedures

Evaluation Procedures

Applicant Support:

ACTION ITEM: Add in the Applicant Support section that panels need to have panelists available that could decide an appeal and who were not involved in the original decision.

Background Screening:

ACTION ITEM: Remove the bracketed text of third parties.

Objections:

Conflicts of Interest of Panelists:

ACTION ITEM: The Implementation Review Team should decide who will be the Arbiter of the Appeal.  Consider Board Committee as arbiter.

Rationale for Implementation Guidance xx (rationale 7) (page 88):

ACTION ITEM: Insert additional language from Anne Aikman-Scalese in the footnote: “Clearly erroneous: On balance, in terms of the substantive determination, I would tend to leave an Objection ruling in place unless (1) the panel failed to follow the appropriate procedures or (2) failed to consider/solicit necessary material evidence or information.”

Notes:

1. Updates to Statements of Interest: No updates provided.

2. Discussion of Final Report Topics: https://docs.google.com/document/d/1kUlmZH8nxWTgfcRluA5FxLheMm4XhhOwkRt7om52aQU/edit?usp=sharing

2.8.2 Limited Appeal/Challenge Mechanism and Post-Delegation Dispute Resolution Procedures

See: https://docs.google.com/spreadsheets/d/1R4eU7C-HI5ikF5RtVhp5JRXKVVRn6R8WX8fIU0IOwu8/edit?usp=sharing 

Evaluation Procedures:

Applicant Support:

-- Don’t want anyone on the panel who had input in the decision presiding over the appeal.

-- Should make a note that if in the next round we are going to rely on the same mechanism then there might need to be a recommendation to enlarge the panel.  The panels that are constituted need to have the ability to hear these types of appeals.  Make sure that there is a recommendation in the Applicant Support section that the panel needs to have people available to engage in an appeal that are not the panelists involved in the original decision.

ACTION ITEM: Add in the Applicant Support section that panels need to have panelists available that could decide an appeal and who were not involved in the original decision.

RSP Pre-Evaluation:

-- Question: Do we anticipate ICANN using a third party for the Pre-Evaluation?  Answer: Don’t think the WG made a decision on that, it would need to be decided by ICANN.  Probably the same panel and the regular tech evaluation panel.

-- Question: Do we know how many parties would be able to handle an appeal?  Answer: ICANN ended up hiring three entities last time.

Background Screening:

-- Remove the suggestion for third parties to have standing. Paul had suggested it be added and now is suggesting that it can be removed.

-- Question: What could be the alternative channel if we don’t allow third parties to challenge?   Answer: The bulk of comments last time were filed by other members of the contention set.  Third parties can provide public comments.

-- Question: What if the ALAC wants to challenge? Answer: To allow any third party to make challenges to evaluation results would be a step too far.  Not sure why the ALAC would be different from any other organization that might want to challenge.

-- There is also a recommendation to allow non-public submission of information in relation to a background screening
(this is in addition to public comment)

ACTION ITEM: Remove the bracketed text of third parties.

Objections:

String Confusion:

ACTION ITEM: Accept the bracketed language in the Notes column H.

Limited Public Interest Objection:

-- Independent Objector -- just have adequate budget to pay for an unsuccessful appeal

-- ALAC -- if it loses the appeal ICANN should not reimburse.  Do we want to say that the ALAC should have a budget for objections and appeals?

-- ALAC would not be able to appeal without a budget from ICANN.

-- A right without funding isn’t much of a right.  Need to find some mechanism for this to be meaningful.

-- We are saying that ICANN will give the IO a budget, but not that the IO would have adequate funding for any appeal.

-- Important to point out that for community objections there was an upfront $5K fee that everyone had to pay to file and to respond.  The money that the winner paid to file and participate in the objection never got reimbursed.  Advocate the filing fees being paid by the loser and returned to the winning party.

-- We will use the same language as in the AGB.

-- There wouldn’t be a way for the Board to approve the ALAC making a limited public interest objection or appeal.  There should be a budget for ALAC with a line item for appeals.  Money that is not used would be returned to ICANN.

-- Previously ICANN paid the fees -- ALAC doesn’t get funding to pay, per se.

-- Could just say “Loser Pays” and ALAC and ICANN can work out the funding.

Conflicts of Interest of Panelists:

-- Who is the Arbiter of the Appeal?  Should we provide guidance? Or punt this to the Implementation Review Team.

ACTION ITEM: The Implementation Review Team should decide who will be the Arbiter of the Appeal.  Consider Board Committee as arbiter.

Rationale for Implementation Guidance xx (rationale 7) (page 88):

-- Question: What happened to the suggestion that there should be more detail about the “clearly erroneous” standard? Answer: Look at the rationale for rationale 8 and footnote 84.

-- Doesn’t take account the language Anne Aikman-Scalese suggested. 

ACTION ITEM: Insert additional language from Anne Aikman-Scalese in the footnote: “Clearly erroneous: On balance, in terms of the substantive determination, I would tend to leave an Objection ruling in place unless (1) the panel failed to follow the appropriate procedures or (2) failed to consider/solicit necessary material evidence or information.”

Implementation Guidance xx (rationale 11): The limited challenge/appeal mechanism should include a “quick look” step at the beginning of the process to identify and eliminate frivolous challenges/appeals.

-- Should this be a Recommendation versus Implementation Guidance?

-- Concerns that the “quick look” mechanism if it is a recommendation could be abused.

-- What is important here is that there are some objections that require standing.  The “quick look” is just to establish standing.  It eliminates the frivolous objections.