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Comment Close
Date		Statement
Name 

Status

Assignee(s) and
RALO(s)

Call for
Comments		Call for
Comments
Close 		Vote
Announcement 		Vote OpenVote
Reminder		Vote CloseDate of SubmissionStaff Contact and EmailStatement Number
05.04.2013Public Interest Commitments Dispute Resolution Procedure (PICDRP)Adopted
14Y, 0N, 0A 		Alan Greenberg (NARALO)30.03.201309.04.2013n/a11.04.2013
(ALAC Meeting in Beijing) 		n/a11.04.201311.04.2013Olof Nordling olof.nordling@icann.orgAL/ALAC/ST/0413/5
Comment / Reply Periods (*)
Comment Open Date: 
15 March 2013
Comment Close Date: 
5 April 2013 - 23:59 UTC
Reply Open Date: 
6 April 2013
Reply Close Date: 
27 April 2013 - 23:59 UTC
Important Information Links
Public Comment Announcement
To Submit Your Comments (Forum)
View Comments Submitted
Brief Overview
Originating Organization: 
ICANN
Categories/Tags: 
  • Top-Level Domains
Purpose (Brief): 

Seeking comments on the Public Interest Commitments Dispute Resolution Procedure

Current Status: 

Awaiting comments

Next Steps: 

Review public comments and revise if necessary

Staff Contact: 
Olof Nordling
Email Staff Contact
Detailed Information
Section I: Description, Explanation, and Purpose: 

As previously reported, a dispute resolution procedure will be put in place to address complaints that a Registry in the New gTLD Program may not be complying with the Public Interest Commitment(s) in Specification 11 of their Registry Agreement with ICANN. A draft procedure has been created for this purpose. The draft procedure, or Public Interest Commitments Dispute Resolution Procedure (PICDRP), closely tracks the Registry Restrictions Dispute Resolution Procedure (RRDRP) that has already been vetted with the community through several public comment periods and subsequent revisions. The purpose of this Public Comment Forum is to obtain public input on the PICDRP, and to inform revisions to the PICDRP, if appropriate.

Section II: Background: 

Specification 11 in over 500 new gTLD Registry Agreements will have voluntary Public Interest Commitments that the Registry has made and with which the Registry has agreed to comply. To effectively and efficiently resolve any issues that might arise regarding non-compliance with a Registry’s Public Interest Commitments, a third party-administered dispute resolution procedure will be put in place.

Section III: Document and Resource Links: 
Section IV: Additional Information: 
None

(*) Comments submitted after the posted Close Date/Time are not guaranteed to be considered in any final summary, analysis, reporting, or decision-making that takes place once this period lapses.

 

FINAL VERSION TO BE SUBMITTED IF RATIFIED

Please click here to download a copy of the PDF below.

 

FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC

The ALAC is deeply concerned by the proposed enforcement mechanism for the new gTLD Public Interest Commitments, which appears to be ineffectual by design.

Although described as a Dispute Resolution Procedure, the Public Interest Commitment (PIC) was introduced to the community as a process that could be “enforced by ICANN."

Many in our community were led to believe that “enforced by ICANN” meant that the PIC process would include an ICANN Compliance connection and that ICANN itself would carry out the enforcement.

As the PIC is currently presented, the process: 

  • Requires possibly significant fees with magnitudes that are currently unknown;
  • Requires that the complainant demonstrates measurable harm due to the violation;
  • May be filed by ICANN, but without any obligation for it to do so.

Given that no exception is noted in the PIC process, ICANN could presumably only file an objection if ICANN itself could demonstrate that it was measurably harmed. This situation recalls the sad period when ICANN applied RAA sanctions only when it was not paid.

The UDRP, where decisions are outsourced like those of the proposed PICDRP, was deliberately designed to operate independently – the opposite of "by ICANN" as claimed by ICANN for the PIC. And unlike trademark claimants using the UDRP, members of the public should not be expected to have financial – or even direct – interest in order to complain when PICs are not being fulfilled.

The ALAC believes that ICANN made a serious mistake in not requiring all new gTLD applicants to stand by their application promises in the form of contractual compliance. We expected that the PIC, despite being a late addition to the application process, would be used as a crucial mechanism to uphold the interest of the public and the end user. As proposed, the PIC implementation is weak with features that actively discourage and penalize complainants. The PIC Dispute Resolution Procedure as it is currently presented provides little leverage for the Global Public Interest and it is therefore unacceptable. We firmly believe that ICANN must bestow upon the PIC process the true force of responsible and competent enforcement.

FIRST DRAFT SUBMITTED

ALAC Statement on Public Interest Commitments Dispute Resolution Procedure

The ALAC is disappointed in the proposed mechanism for enforcement of the new gTLD Public Interest Commitments.

Although described a dispute resolution procedure, the process was introduced whereby a Public Interest Commitment (PIC) could be “enforced by ICANN” (http://www.icann.org/en/news/public-comment/base-agreement-05feb13-en.htm).

When announced, many in the community presumed that “enforced” included an ICANN Compliance connection, and that “by ICANN” in fact meant, “by ICANN”.

As it stands, the process:

  • Requires possibly significant fees, the magnitude of which are currently unknown;
  • Requires that the complainant can show measurable harm due to the violation;
  • May be filed by ICANN, but there is no obligation to do so.

Since no exception is noted, presumably ICANN could only file an objection if ICANN itself could demonstrate that it was measurably harmed. This sounds like a return to the days when the only sanctions ICANN applied under the RAA were those where ICANN was not being paid.

Using this same standard of language, one could say that “trade-marks are enforced by ICANN” because it has provided the UDRP.

There was much hope in the community that the PIC would go at least part way to recovering from the mistake of not requiring all new gTLD applicants to stand by their application promises once the new TLD is delegated. This hope has not been satisfied.

 

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15 Comments

  1. Alan Greenberg

    Holly had volunteered for this, but could had to decline due to other work commitments. A was asked to review the document and draft a statement if needed.

  2. Anonymous

    Congratulations on the first draft. The tone of the comment seems to be a bit harsh. I recommend that the tone be more diplomatic. Additionally, there seems to be a word or two missing from the sentence below:

    "Requires possibly significant fees, the magnitude of which are currently;"


    Regards,

    Karlene Francis

    1. Alan Greenberg

      Thanks for noting the error.

      On the tone, I will wait to hear what other ALAC Members think.

      Alan

  3. Evan Leibovitch

    Actually, I think the tone is, if anything, too conciliatory. ICANN is looking to devolve some of its compliance responsibilities to third parties, AND make complainants pay for the cost of challenging applicants to uphold to their contractual obligations; that is unacceptable.

    I would change "is disappointed by" to "has serious concerns regarding". "Disappointment" suggests that the outcome is not quite to our liking but acceptable. I think what is proposed makes a mockery of public oversight into holding TLD operators to uphold their commitments.

    The PICs are a poor, tacked-on solution to a significant concern regarding the gTLD expansion's public benefit. While I share my colleague Carlton's view that these statements of commitments are greatly overvalued within ICANN, they are still worthy of being seen as components of contractual compliance rather than subjective disputes to be adjudicated by third parties at significant cost.

  4. Thomas Lowenhaupt

    Perhaps this might be handled through a complaint form, submitted to contract compliance and/or the ombudsman, with transparency as to its progression through a review process. There should be a "complaint" point of contact on the ICANN's home page that included this form.

    More generally, I don't see a clear complaint process link on the Home page. If you speak bureaucracy, perhaps the ombudsman is a starting place. 

     

    1. Alan Greenberg

      That's the main point. This is not, as envisioned by some of us, a process that would be undertaken by compliance.

  5. Hong Xue

    PIC DRP, which modeled on the PDDRP for trademarks, is a flawed system, in which ICANN struggles between its dual roles as the TLD regulator and at the meantime the contractual party with the TLD operators. Although, understandably, ICANN has no regulatory authority except through the contractual relationship with TLD operators, it is not a fix to mix both rules up. As a contractual party, ICANN should enforce the contract without relying the third party's complaint. As a regulator, ICANN should be able to judge whether a breach of commitment occurs without outsourcing the assessment to a DRP proceeding, which is both costly and with high bars. We can only hope that the compliance against new gTLDs' PIC would not be diluted by this new DRP proceedings. 



  6. Carlton Samuels

    I am unanimous that there is no intent to put teeth into this PIC business. Seems to me It was included in the gTLD contracting machinery more for its likely 'feel good' effect than not.

    So the use of the word 'disappointment' is too piddling.  How about "The ALAC is troubled by what appears to be an enforcement mechanism for gTLD PIC enforcement designed to be ineffectual......"? 

    Let's get that right out the box up front.

     

    -Carlton

     

  7. Rinalia Abdul Rahim

    Alan, I would have preferred stronger words.  Seriously.

    I agree with Evan that "disappointment" is too weak and not accurate to capture the community sentiments.

    My tweak to Carlton's intro : "The ALAC is deeply troubled by what appears to be a gTLD PIC enforcement mechanism that is designed to be ineffectual."

    My proposal for the end paragraph: The community believes that ICANN made a serious mistake in not requiring all new gTLD applicants to stand by their application promises once the new TLD is delegated.  We had high hopes that the PIC could serve as an adequate mechanism for upholding the interest of the public and the end user.  As it stands, the PIC is weak and requires that ICANN bestow upon it the true force of responsible and competent enforcement. 

    (smile)

    Rinalia

     

     

  8. Olivier Crepin-Leblond

    You might consider having some text effectively saying:

    "The PICDRP as it is currently presented provides no or little leverage for the Global Public Interest and is therefore unacceptable for the ALAC."

  9. Evan Leibovitch

    My suggested tweak to Rinalia's tweak:

    The community believes that ICANN made a serious mistake in not requiring all new gTLD applicants to stand by their application promises, as a matter of contractual compliance, once the new TLD is delegated.  We expected had high hopes that the PIC, despite being a late addition to the application process, would be used to upholdcould serve as an adequate mechanism for upholding the interest of the public and the end user.  As proposedit stands, the PIC implementation is weak, actively discouraging and penalizing complainants; and requires that ICANN must bestow upon it the true force of responsible and competent enforcement.

  10. Rinalia Abdul Rahim

    Tweaks to tweaks - Revised Version (where there is a slash, choose a word)

    ALAC Statement on Public Interest Commitments Dispute Resolution Procedure

    The ALAC is deeply troubled/concerned by the proposed enforcement mechanism for the new gTLD Public Interest Commitments, which appears to be ineffectual by design.

    Although described as a Dispute Resolution Procedure, the Public Interest Commitment (PIC) was introduced to the community as a process that could be “enforced by ICANN” (http://www.icann.org/en/news/public-comment/base-agreement-05feb13-en.htm).

    Many in our community were led to believe that “enforced by ICANN” meant that the PIC process would include an ICANN Compliance connection and that ICANN itself would carry out the enforcement.  

    As the PIC is currently presented, the process:

    • Requires possibly significant fees with magnitudes that are currently unknown;
    • Requires that the complainant demonstrates measurable harm due to the violation;
    • May be filed by ICANN, but without any obligation for it to do so.

    Given that no exception is noted in the PIC process, ICANN could presumably only file an objection if ICANN itself could demonstrate that it was measurably harmed.  This situation is a reversion towards the deplorable period when ICANN applied RAA sanctions only when it was remunerated/compensated.

    Using the PIC narrative and language to draw an analogy with how ICANN deals with trademarks, one could say that “trade-marks are enforced by ICANN” because ICANN has provided the Uniform Dispute Resolution Procedure. 

    The ALAC believes that ICANN made a serious mistake in not requiring all new gTLD applicants to stand by their application promises in the form of contractual compliance.  We expected that the PIC, despite being a late addition to the application process, would be used as a crucial mechanism to uphold the interest of the public and the end user.  As proposed, the PIC implementation is weak with features that actively discourage and penalize complainants.  The PIC Dispute Resolution Procedure as it is currently presented provides little leverage for the Global Public Interest and it is therefore unacceptable.  We firmly believe that ICANN must bestow upon the PIC process the true force of responsible and competent enforcement.

     

    Rinalia

  11. Evan Leibovitch

    Rinalia's last full draft is with me, except for one line I find problematic:

    This situation is a reversion towards the deplorable period when ICANN applied RAA sanctions only when it was remunerated/compensated.

    Besides containing some difficult grammar (ICANN only applied sanctions when ICANN was paid?), it doesn't really add anything to the argument and instead, IMO, weakens it. In the eyes of some, ICANN is still in the "deplorable period" referenced. And it's not a reversion if ICANN is still at that stage.

    The trademark analogy in the next paragraph could be stated far more efficiently, but doesn't weaken the statement as much as the one above.

     

    1. Rinalia Abdul Rahim

      That RAA bit was tricky. I am fine with leaving it in or out. By all means improve the efficiency of the trademark analogy, Evan. Rinalia

  12. Evan Leibovitch

    Original:

    Using the PIC narrative and language to draw an analogy with how ICANN deals with trademarks, one could say that “trade-marks are enforced by ICANN” because ICANN has provided the Uniform Dispute Resolution Procedure. 

    My suggestion:

    The UDRP, where decisions are outsourced like those of the proposed PICDRP, was deliberately designed to operate independently – the opposite of "by ICANN". And unlike trademark claimants using the UDRP, members of the public should not be expected to have financial – or even direct – interest in order to complain when PICs are not being fulfilled.

    Yes, the proposed replacement is longer, thus arguably not more efficient. But the point in the original analogy is made by the first sentence of my suggestion, which could stand alone. In its second sentence I extend the contrast to demonstrate public harm in the proposed process.