2017-10-12 New gTLD Subsequent Procedures PDP Work Track 2

Notes/ Action Items

1. SOI Updates:

-- Cheryl Langdon-Orr reports that the GNSO Council confirmed her as Co-Chair with Avri and Jeff.

-- Re-confirmed as the Director of Internet Society chapter.

2. CC2 Comments on Terms and Conditions:

See the full text: https://newgtlds.icann.org/en/applicants/agb/terms

Slide 3:

-- Schedule for 12 and 19 October.

-- Suggestions for topics for 28 October F2F meeting at ICANN60.

Slide 4: Discussion Recap: Where are we at now?

-- Sections 3, 6, and 14 are of particular interest.

-- See the summaries on Slide 4.

Slide 5: Discussion Recap: Where are we now?

Proposed Language from Previous Call:

-- Section 3: Some respondents suggested clarifying language.

-- Section 6: Suggestion to bring in an appeals mechanism.

-- Section 14: Emphasized the importance of predictability and having a framework for change management.

Slide 6: CC2 Question 2.5.1

Slide 7-10: Question 2.5.1 Comments

-- RySG, BRG, Afilias, and INTA suggested adjusting language to clarify that ICANN cannot unilaterally reject an application without an appropriate reason.

-- Jannik Skou stated that ICANN should not have the right to stop processing an application unless the application is disqualified according to rules in the AGB.

-- NORID, ALAC, and John Poole stated that ICANN should have this right.

Discussion:

-- There seems to be a factual predicate in the highlighted language that seems to suggest that ICANN offers this option at their discretion.  This is something that is decide by policy from the community, not by ICANN.  ICANN's core values of transparency would dictate that any reasons for a choice would be spelled out.

-- Can see where there could be occasions for ICANN to reject an application for reasons not outlined in the AGB, but is there a process to appeal that decision?  [Covered in 2.5.2 question and responses]

Slide 12-16: Question 2.5.2

-- INTA, NORID, RySG, BRG, and Afilias supported establishing an appeals process prior to opening subsequent procedures.

-- ALAC suggested that if appeals are allowed they should only be allowed when decision is based on an error of fact that ICANN has available at the time.

-- Nominet recommended adopting a "better mechanism" to require ICANN to review operational decisions related to applications.

-- John Poole stated that the interests of the global Internet community should receive priority over the interests of registry operators.

Discussion:

-- Seems to be general agreement for an appeals mechanism.

From the Chat:

Gg Levine (NABP): Agreed.

Jon Nevett: Need an appeal process, but make it loser pays as a deterrent to frivilous complaints

Steve Chan: Note, the topic of possible appeal processes is part of WT3's slate of topics. For those interested in the topic, please be sure to participate in WT3's discussions.

Slides 17-24: 2.5.3

-- INTA, NORID, Nominet, and Valideus emphasized this importance of ensuring predictability, planning in advance, and learning from the 2012 round.

-- BC and Jim Prendergast stated that ICANN's ability to change the AGB should be limited.

-- INTA, NORID, BRG, RySG, Afilias, Valideus, and Jim Prendergast suggested specific conditions and rules for changes in the AGB.

-- ALAC stated the AGB should not be changed after the application procedure has been initiated.

Discussion:

-- This issue of ICANN insisting on language that ICANN could unilaterally amend the contract really struck a nerve with registries.  We are still dealing with some issues we need to iron out, but these should be nailed down before application acceptance.

-- The latter part of Section 14 says something to the effect that ICANN would provide accommodation if there was harm.

-- Can we ask ICANN for examples of where the have accommodated applications?

-- Some of these could be good test cases.

-- Might be an error in the ALAC response that it agrees that after the application procedure has been initiated, Guidebook should not be changed.  ALAC will get back to the WT on that.  Seems anomalous.

-- It is not as if we are going into this blind.  We've had several years to learn from mistakes.  We can avoid many of the discussions about changes being made after the AGB is finalized.  Would hope that there are not major issues that would appear that we haven't seen the first round.

-- Still need an escape hatch, but should do a much better job than before.

From the Chat:

Jim Prendergast 2: for more background on my upcoming point - suggest reading this piece by Jeff Neuman - provides good background.  http://www.circleid.com/posts/20130316_icann_must_drop_request_for_unilateral_right_to_amend_agreements

Jon Nevett: I would add to the list of ICANN inappropriate post-application changes was the $5K per-registry TMCH set-up fee that is nowhere in the AGB

Michael Flemming 2: That is a good idea, I think, Jon. (Co-Chair hat off)

Michael Flemming 2: Adding it to our list of issues, I mean.

Cheryl Langdon-Orr 2: agree with the importance of predictability

Jim Prendergast 2: are there examples of where applicants been accomodated?

Jim Prendergast 2: exactly

Slides 25-27: Question 2.5.4: Do you believe that any changes are needed in the Terms & Conditions in Module 6 of the Applicant Guidebook? If so, what are those changes and what is the basis or rationale for needing to do so?

-- RySG, BRG, and Afilias suggested specific changes.

-- Jannik Skou stated that ICANN should be allowed to make changes to the Terms and Conditions, but should seek to minimize the need for changes.

Discussion:

-- Doesn't seem like anyone is saying that no changes are allowed, but there should be an opportunity for applicants to modify or withdraw their applicants.

Slide 28: General Comments:

-- GAC pointed to its comments in response to questions in section 1.3.