2019-01-10 New gTLD Subsequent Procedures PDP - Sub Group C

Notes/ Action Items

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

2. Discussion of Public Comments:

a. Continued - 2.8.2: Accountability Mechanisms (starting with 2.8.2.e.8, specifically line 89 in the Google Sheet)

Line 90, Council of Europe -- Various concerns

Line 91, Council of Europe -- Provides concerns and various solutions:

Main accountability-related concerns:

- the lack of responsibility of ICANN decision-makers, its staff, dispute resolution service providers (DRSP) and the DRSP`s panellists for any wrongdoing;

- the unclear attribution of responsibility for decision-making, based on expert determination provided by external contractors;

- the lack of an effective redress mechanism; - the lack of an effective appeal mechanism

Line 92, Vanda Scartezini -- Concerns: Recommendation 12 – I believe we need to define better Rules of Proceedings and not only the Process itself.

Comment from Anne Aikman-Scalese (from email):

-- Referencing Line 52 in 2.8.1 Objections -- supported PICs assuming they are published for public comment.

Comment from Kristine Dorrain:

-- Needs to be considered at the WG level.

Comment from Kathy Kleiman:

-- Also supports publishing PICs for public comment.

b. Starting - 2.9.1: Community Applications

2.9.1.c.1:  Summary -- multiple commenters agree, ALAC has concerns.

Line 18, ICANN Org -- Concerns (Or more precisely, request for additional clarity): It would be helpful if the PDP Working Group could provide more detailed guidance on the specific areas of the CPE process that “must be more transparent and predictable.” Additionally, it would be helpful if the PDP Working Group could provide more specific guidance on what should be changed or added that would enhance transparency and predictability for the CPE process.

2.9.1.c.2: Summary -- multiple commenters agree.

2.9.1.c.3: Summary -- multiple commenters agree.

2.9.1.c.4: Summary -- multiple commenters agree; some new ideas.

Line 30, IPC -- New idea: If permitted, the "dialogue" should be in the form of written questions and written answers that are open to public inspection.

Line 31, ICANN Org -- Clarification provided: It should be noted that the CPE process in the 2012 round did allow for the CPE panelist to issue clarifying questions if the panelist determines there’s a need for it. See the CPE Panel Process Document at http://newgtlds.icann.org/en/applicants/cpe/panel-process-07aug14-en.pdf. Concerns -- Regarding the suggestion that the applicant be able to engage in dialogue with the CPE panelist during the CPE process, the PDP Working Group might want to consider the potential lobbying, and whether this is needed if there’s an opportunity for clarifying questions.

-- In the 2012 round there was a definitive no engagement between the panelists.  Ability for clarifying questions, but not live discussion.

From the chat:

Cheryl Langdon-Orr (CLO  PDP Co-Chair): exactly  @Jamie... this question was offering an oportunity for clarifying questions to be codefied more as an Norm as in *where APROPRIATE engage in a dialogue..."

Jamie Baxter | dotgay: i think the language is clear but happy to clarify if anyone has questions

2.9.1.c.5:

Line 33, ALAC -- Divergence: The more informative and clear the written requirements, the more crisp and precise the provided information will be. Hence, there is no need to have a less restrictive word count.

2.9.1.e.1:

Line 36, IPC -- Agreement and Concerns: The existing definition of "community" is fine. No effort should be made to disqualify economic communities or exclude communities based on goals related to proposed content of the TLD. This is outside ICANN's mission and abridges the principle of Applicant Freedom of Expression.

Line 37, Jamie Baxter, dotgay LLC -- Agreement (that definition is sufficient and flexible enough) Concerns (about interpretation, implementation).

Line 38, ALAC -- Agreement/New Idea Concerns.

Line 39, Council of Europe -- New Idea

2.9.1.e.2:

Line 42, ALAC -- New Idea: The ALAC supports differential treatment in the form of access to experts to assist communities, particularly those from underserved regions in preparing applications. This would help level the playing field between communities, often under resourced, and the more experienced, well- resourced players..

2.9.1.e.3:

Line 45, ALAC -- New Idea: The ALAC does not see the need of any alteration of the scoring, but we believe there should be a mechanism within this process which is set up to help first time community applicants.

Line 46, Jamie Baxter, dotgay LLC -- Concerns: Any benefit considered should be done so in the interest of helping to realize the larger interests of the community that that community application represents, improving their chances of securing the TLD without the financial burden of auction.

-- Noting that both commenters support the recommendation, but with new ideas and concerns.

2.9.1.e.4:

Line 48, Jamie Baxter, dotgay LLC -- Concerns/New Idea

Line 49, ALAC -- New Idea: The term “membership” must be flexible enough to take into account the fact that modern communities, sometimes, but always, geographically distributed, often do not have traditional membership lists and should not be penalized for this.

2.9.1.e.5:

Line 53, NCSG -- Concerns: An award of automatic prioritization of a fuzzy concept is a rather blunt instrument that has led to widespread disappointment with the outcome of the "community" process. NCSG recommends that there should be a balancing of all legitimate interests in the gTLD process, rather than auto deference to any group, including "communities".

Line 54, RrSG -- Divergence: he notion of "community" is quite fuzzy and should not be kept. Communities should not be given priority in regards to having their gTLDs delegated before other applications.

2.9.1.e.6:

Line 58, ALAC -- Agreement & Divergence: The ALAC does not believe that the CPE process endangered freedom of expression or association as such. But due to the narrow definition of membership and how "association" is measured, the evaluators and the process they followed did discredit many forms of association that had great merit, but did not satisfy the narrow model being used.

Most of the community TLDs that did not undergo CPE would have similarly failed. But many of them do embody the intent of the concept of a "community" and thus a "community TLD".

Line 59, NCSG -- Concerns: We are also concerned about the impact on freedom of expression rights created by the "community" application process. It is important for evaluators to take into account that people have a legal right to identify themselves in ways of their own choosing. Resultingly we caution against maintaining a community-based policy that devolves into a "beauty contest" between applicants and burdens ICANN with having to make arbitrary decisions that privilege one group over another in the domain name system.

Line 60, IPC -- Divergence: Therefore, community applications should not be restricted based on content or "worthy" goals (as opposed to simply creating space for virtual associations and speech.) Evaluation based on content or evaluating whether or not goals are "worthy" abridges the principle of Applicant Freedom of Expression.

2.9.1.e.7:

Line 62, Jamie Baxter, dotgay, LLC -- Concerns, New Idea

Line 63, ALAC -- Concerns, New Idea

2.9.1.e.8:

Line 66, Jamie Baxter, dotgay LLC -- Concerns/Divergence

-- Deviation should not be an option without consultation and consent of the applicant.

-- Jamie Baxter: Deviations that are considered shortcuts on behalf of panelists -- the consultation is important.  When those shortcuts lead to lower labor hours for panelists that should affect the fees being paid.  Concerns all relate to the lack of transparency with the entire process.

3. AOB -- The next Sub Group C call: Thursday, 17 January 2019 at 21:00 UTC for 60 minutes