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mentioned so we could allocate necessary time for the topic.

Mp3

AC Chat

Attendance

Apologies: Annebeth Lange, Susan Payne 

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Slides: WT2 Meeting 4

Notes/Actions:

1.  Terms and Conditions of Applying for a TLD: Discussion around adding this topic

Action Items:

1. Staff will provide a first cut of the comments on module 6 of the AGB.
2. Staff will look at the Requests for Reconsideration from the 2012 round, and IRPs from the 2012 round.

Discussion Notes:

Questions:

• Is this in the scope of the PDP WG?
• Does this belong in WT2?
• Is this a policy aspect or an implementation of ICANN or hybrid
• What reference material is there -- AGB Module 6: https://newgtlds.icann.org/en/applicants/agb/terms.
• In the event of tackling this subject, what recommendations could be made from a policy standpoint?
• Are the Terms and Conditions for described in the AGB enforceable?

Jeff Neuman:

• Became an issue recently when addressed in the court case involving .africa -- alleged fraudulent or willfull misconduct.
• Serious questions raised whether the broad waiver or release of any and all claims is enforceable.
• Case is on appeal.
• Broad release seems to not be favored in California courts.
• How to allow applicants to exercise their right to judicial review?
• Jim Prendergast: I would also ask - did the community have input into the T&Cs or the ability to suggest changes to them?  Seems like everyone was focused on modules 1-5.  I’m not sure anyone every commented on module 6.
• Jeff Neuman: Everyone could provide input but not sure how much ICANN accepted.

Michael Flemming:

• Seems to be an implementation aspect.
• Need to look back at comments and how they were dealt with.
• Rubens Kuhl: Re: whether in scope -- the list in the charter is a starting point and the WG can supplement the list provided the topic is directly related to new gTLD subsequent procedures, which it is.
• Berry Cobb: Another vector for the group to monitor/consider is the changes to Request for Reconsideration and eventual release of the updated IRP as a result of the CCWG Accountability work.  It did not specifically touch upon what these mean for subsequent rounds/procedures, but it will be changing in the future.
• Michael Flemming: Do we need to change the charter?
• Jeff Neuman: I don't think we need to go back to the Council for permission or to change the charter.
• Michael Flemming: Take into consideration Requests for Reconsideration.  We agree that this is in scope and we can add it to our issues.
• Steve Chan: It is part of AGB so it is in scope.  Not necessary to send anything to Council.
• Jeff Neuman:  We shouldn't engage in legal drafting of what we think the Terms and Conditions should be, but look at the policy.
• Rubens Kuhl: What we could say at a policy level would be "Have T's&C's to reduce ICANN liability to the minimum level allowed by ICANN Bylaws, California law and US law".
• Steve Chan: Look at comments received to the AGB and interpretation of those comments.
• Rubens Kuhl: Also Requests for Reconsideration from the 2012 round and lawsuits.
• Rubens Kuhl: Two stress tests I suggest to T&C is the TAS issues that occurred, (1) freezing the application process (2) data leak.

2. Base Registry Agreement: Continued high level discussion and what we have been discussing over the mailing list.

Action Items:

1. Sub Team members should provide additional pros and cons.
2. Michael Flemming will send an email to the list asking for a volunteers to set up a sub team from this WT sub team for anyone who thinks there should be a separate agreement for a category.  The sub team would go through the registry agreement provision-by-provision and say this is why we need a new brand agreement, because these provisions don't apply to the brand.

Discussion Notes:

Questions:

• Does a single base agreement make sense for all types of registries?
• Do we as a group support the notion of having separate agreements for separate categories? For categories -- see: the Google Doc at https://docs.google.com/spreadsheets/d/1mA_hTUhLhJSsfcmoQwREtUqxykZ5KfJffzJAAhEvNlA/edit#gid=0.
• Rubens Kuhl: I would also add "Sponsored TLDs", which although being a twin brother of Community TLDs, have different regulatory framework.
• Raymond Zylstra - Neustar: Question - Is reviewing 'categories' part of this WT? Or is it just if a single agreement makes sense?
• Jeff Neuman: Overall categories is being considered in the full PDP WG.

Pros and Cons re Single Base Agreement: See the Google Doc at https://docs.google.com/document/d/1k1HrFIjwzupuJqr33WmGmBUD45SQ5Cv1-vNP7ZRztPk/edit (pros are for a single base agreement; cons are why it is good to have different agreements)

• Raymond Zylstra - Neustar: Another Consideration: 1 Size Fits All vs. 2 Sizes Fits All – Introducing version(s) of the Registry Agreement may just change the problem. Within categories of TLDs there will still be differing business models.
• Kristina Rosette (Amazon Registry): I have a clarifying question:  Does "different base agreement" mean (a) a completely different base agreement for every category; (b) a standard base agreement with additional specifications that differ (like Specification 13); or (c) something else entirely?  (If the answer is (c), please elaborate). Thanks.
• Jeff Neuman: I don't think we are making a determination yet.
• Michael Flemming: One idea is to have one agreement and then how it deviates for each category.
• Rubens Kuhl: Note that we already have two different agreements at the 2012-round, and it's not based on specifications... it's the governmental and standard versions of the agreement.  Spec 9 - Code of Conduct (not applied for exclusive use TLDs and for Brand TLDs) Spec 12 - Community TLDs  Spec 13-Brand TLDs.
• Jeff Neuman: Proposal -- Dealing with this issue in the abstract, which is hard to do.  Set up a sub team from this WT sub team for anyone who thinks there should be a separate agreement for a category and go through the registry agreement provision-by-provision and say this is why we need a new brand agreement, because these provisions don't apply to the brand.
• Michael Flemming: Have them make their case.
• Jeff Neuman: Looking for specific areas that you feel don't apply to your category or group, or additional provisions that should be in there.
• Raymond Zylstra - Neustar: Question ‘What is the outcome of the ‘Scope of Work’? What is it that we working towards delivering?’
• Michael Flemming: Make the recommendation of whether or not there should be category-based agreements.  Should come back to this discussion by a certain date.
• Gg Levine (NABP): Wouldn't it be simpler to keep single base agreement and then fine-tune specs per catagory? Multiple specs might apply to applicants.. Doesn't make sense to have separate agreements.
• Michael Flemming: I can send an email concerning Jeff's proposal.
• Jeff Neuman: See if there is a volunteer from this group to move this forward.  Give people 5 days to say if they want to participate.  Schedule a call.
• Michael Flemming: Rather allow 2 weeks.
• Jeff Neuman: I can reach out to Martin/Cecilia (from the BRG) and relay this conversation.