2018-12-18 New gTLD Subsequent Procedures PDP WG - Sub Group B

Notes/ Action Items

1.  Update SOIs: No updates.

2.  Discussion of Public Comment on:

a.  2.5.3 – Application Submission Period

2.5.3.e.2:

Line 44, #6 ALAC, New Idea: we believe that batching applications for assessment holds greater importance than a fixed period for accepting applications; refer to full WG

Line 45, #7 RySG, New Idea: refer to full WG

b.  2.5.5 – Terms and Conditions 

2.5.5.c.2:

Line 14, #9 RySG, New Idea: The RySG proposes the following language: "ICANN reserves the right to reject any application that ICANN is prohibited from considering under applicable law, policy, or eligibility and evaluation requirements outlined in sections 1.2, 2.1-2, and 3.2.1 in the Applicant Guidebook."; refer to full WG.

Line 15, #10 ICANN Org -- Concerns (or more precisely, suggestion for clarity)

2.5.5.c.3:

Line 23, #7 RySG -- *New Idea: The RySG supports the position that ICANN *confidentially disclose to the applicant the specific basis for any rejection of an application; refer to full WG.

Line 24, #8 Fairwind Partners -- New Idea: emphasize that the reason for the rejection should be communicated confidentially to the applicant.; refer to full WG.

Line 25, #9 Valideau -- Agreement; New Idea: However, to the extent that doing so would reveal confidential information of the applicant then this reason should be provided only to the applicant and not published: refer to full WG. (Change made following discussion.)

2.5.5.c.4:

Line 31, #6 Valideus -- Agreement; New Idea: However it ought to be possible to address such concerns by means of limitations on liability to a reasonable level; refer to full WG.

Line 32, #3 INTA -- Agreement; New Idea: t is possible that ICANN’s concerns about liability could be addressed by limiting that liability to a reasonable level; refer to full WG.

Line 33, #1 ALAC -- Agreement; New Idea; Concerns: The ALAC believes that if the covenant not to sue were contemplated to be removed, then a reasonable limitation of liability clause must be simultaneously put in place. The financial stability of ICANN is a core, joint responsibility of the ICANN Community which cannot be put at risk through an unmitigated removal of the covenant not to sue as a term in the Program. However, we do not disagree with the need for a challenge/appeal mechanism for which we have provided input in section 2.8.2 Accountability Mechanisms; refer concerns and new idea to full WG.

Line 34, #5 RySG -- Agreement, New Idea, Divergence: 

-- Note sure that the comment is appropriately characterized.  The agreement is both agreement and new idea.  (This change has been made.)

-- The divergence needs to be characterized as two separate divergences.  This is reflected in the comment.

2.5.5.c.5:

Line 41, #7 RySG -- Agreement (seems that can be inferred from reponse) New Idea; refer to full WG.

Line 42, #5 INTA -- Agreement seems that can be inferred from reponse) ; Concerns: it will be essential to determine which changes to the AGB or program process have a material impact on the applicant’s situation and would allow the applicant a recourse. It will also be essential to determine the recourse mechanism and specify the extent to which the applicant may be refunded and if a full refund should apply; refer to full WG.

Line 43, #4 ICANN Org -- Concerns (or rather, a request for clarity): It would be helpful if the PDP Working Group could clarify if the refund referenced in this preliminary recommendation is in accordance to a refund schedule of the program, or if this is in reference to a full refund; refer to full WG

2.5.5.e.1:

Line 45, #1 ALAC -- New Idea: All applicable routes, procedures, costs and timelines for any challenge/appeal mechanism and for each stage up to delegation ought to be made clear in the Applicant Terms and Conditions; refer to full WG.

Line 46, #2 BC -- New Idea: In subsequent rounds, applicants should transparently declare whether they intend to operate the registry, or whether they anticipate selling some of their pending applications to others: refer to full WG.

Line 47, #3 RySG -- New Idea: - Modify the language in section 6.3 to reference related eligibility and evaluation criteria (i.e. sections 1.2, 2.1-2, and 3.2.1 of the Applicant Guidebook) to further clarify when and why an application may be declined.

- Specify the procedures and timeframes for handling excess application fees discussed in foregoing comments.

- Specify a timeframe for proposed changes/updates to the Applicant Guidebook to provide applicants with adequate warning: refer to full WG.

2.5.5.e.2:

Line 49, #1 INTA -- New Idea: if the changes made to the Applicant Guidebook or program processes are such that it is no longer attractive to them to proceed with their application, and this should be a decision for the applicant alone, i.e. not at ICANN’s discretion; refer to full WG.

Line 50, #2 Brand Registry Group -- New Idea: (a) post-launch it was determined that the string was identified as a high risk for Name Collision or (b) changes are made to the AGB post launch that are material to the applicant; refer to full WG.

Line 51, #3 Valideus -- New Idea

Line 52, #4 RySG -- New Idea: f (a) a new gTLD is applied for but later is disqualified because it poses too great a risk regarding Name Collision, or (b) ICANN mmakes updates to the Applicant Guidebook that are material to the application. Limiting other opportunities for a full refund is a potential way to discourage speculative applications; refer to full WG.

Line 53, #5 Neustar -- New Idea: Neustar supports the suggestion of a full refund where ICANN makes substantive changes to the Applicant Guidebook that materially impact an application. We agree with the comments of the RySG that other opportunities for a full refund should be limited to discourage speculative applications; refer to full WG.

2.5.5.e.3:

LIne 58, #4 IPC -- Agreement; New Idea: then perhaps the covenenat not to sue would compliment well with the reservation to sue in cases of ICANN acting outside of its determination requirements as stated in responses to Section 3 of the Terms and Conditions; refer to full WG.

Line 59, #5 INTA -- New Idea: ovenant not to sue remains, it should be made clear that this does not cover cases of fraud, negligence or willful misconduct (which cannot be excluded at law); refer to full WG.

Line 60, #6 ALAC -- New Idea: he ALAC believes that if the covenant not to sue were contemplated to be removed, then a reasonable limitation of liability clause must be simultaneously put in place: refer to full WG.

Line 61, #7 Valideus -- New Idea: See comments at 2.5.5.c.4; refer to full WG.

Line 62, #8 RySG: Please refer to 2.5.5.c.4 regarding removing or not the covenant not to sue and to add or not a limited appeals process.