At-Large Workspace: Initial Report on the New gTLD Subsequent Procedures Policy Development Process (Overarching Issues & Work Tracks 1-4)

Response on Public Interest Commitments (PICs).

Background:

ALAC has made a number of submissions on this issue.  See <https://atlarge.icann.org/topics/public-interest/background>.

PICs were not included in the original Applicant Guidebook, but added after representations, including from ALAC, that new registry operators should commit to the names that would be allowed by that registry. Provision for both mandatory and voluntary PICS are contained in Specification 11 of the 2013 RAA. Both Mandatory and Voluntary PICs, while forming part of the ICANN-Registry contract, are enforceable through a separate process - the PICDRP (PIC Dispute Resolution Process) Mandatory PICS have been strengthened (see below) since the original Specification 11.  ALAC was hopeful, at that time, that applicant registry operators would also, under the Specification, make additional voluntary commitments, on how names under that registry would be used.  Indeed, as ALAC commented (18 May 2017) in reviewing the Interim Review on Competition, Consumer Trust and Consumer Choice:

However, the Report does suggest that end users have some expectation that there will be a connection between the specific gTLD and the website. (p. 64) Indeed, their expectations are that there will be restrictions on registrations to reflect that connection. (p. 67) This strengthens the ALAC view that all applications for new gTLDs should contain a commitment that details how the name will relate to the registrars and their registrant’s use of the new gTLD.

Voluntary PICS

As set out in the background, ALAC had conerns about voluntary PICS including their enforceability, and the fact that the PICS statement could include provisions that would allow change of or termination of use at any time.  Indeed, voluntary PICS have, in ALAC's view, been a disappointment. Of the original 1930 successful applications (1232 of which are now delegated), only 499 included PICS, and few of those included commitments on how the names would be used by reggistries and registrants. 

Closed Generics: As part of the PICs issue, GAC (supported by ALAC) raised concerns about the use of genenric terms (such as doctor, lawyer etc) by registries in allowing registrars/registrants to use the TLD with no necessary connection to the TLD name.

Mandatory PICS, however, do add consumer protections through requirements on the reegistry operator, as set out in the Sepcification:

• Clause 1 requires Registry Operators to only accredit registrars that are party to the 2013 RAA.

• Clause 2 says that the Registry operator will operate the registry in compliance with commitments they made in the application, business plans, etc for the new gTLD.   Enforcement will be through the special PIC Dispute Resolution Process. 

• Clause 3 (subsequent amendment) imposes specific PICS, enforceable through the PICDRP as follows:

  • Include in their registration agreements a prohibition prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy. etc.  and providing ‘consequences’ for such activities

  • Periodically conduct technical analysis to assess whether domains in the TLD are being used to perpetrate malware, botnets, phishing, etc

  • Establishing, publishing and adhering to clear registration policies

  • Registry operator of a ‘generic string’ TLD may not impose eligibility criteria for registering names in that TLD that limit registrations to a single person/entity…

Suggested  Questions/Recommndations on PICS - all part of Clause 2.3.2

• codify mandatory PICS as a policy recommendation?  Suggest ALAC support. (rationale - the revised mandatory PICS provide additional protection for end users.  As mandatory PICS, the enforcement is through the PICDRP. Those requirements should be enforceable as a contract term in an ICAN-Registry agreement - which can only be done through a policy process.

• Agree that the concept of voluntary PICS continue - allowing applicants to make additional commitments?

• Question the recommendation that the applicant must state whether the PIC is limited in time, and/or scope. such that it can be reviewed. While recognising that a registry may change its nature/focus, should there be a required public process before such changes are made?

• On whether voluntary PICS should be mandatory for registry operators  to implement ?
  
  

•  If a volunary PIC is made in response to he GAC, public comments or other concerns, is the inclusion of a PIC in the contract the     proper mechanism - or something else?

• Is there concern that a voluntary PIC could change the nature of the application?

• There is a specific question about concerns from the pharmaceuticals on PICS

2.5.4 Applicant Support

The SubPro WG made a number of preliminary recommendations:

2.5.4.c.1 – In the 2012 round, although anyone could apply, applicants that operated in a developing economy were given priority in the Applicant Support Program (ASP). The Work Track generally agreed that Applicant Support should continue to be open to applicants regardless of their location so long as they meet the other criteria.

2.5.4.c.2 – Geographic outreach areas should not only target the Global South,  but also consider the “middle applicant” which are struggling regions that are further along in their development compared to underserved or underdeveloped regions.

2.5.4.c.3 – Applicants who do not meet the requirements of the ASP should be provided with a limited period of time (that does not unreasonably delay the program) to pay the additional application fee amount and transfer to the relevant application process associated with their application

2.5.4.c.4 – ICANN should improve the awareness of the ASP by engaging with other ICANN communities and other suitable partners that include, but not limited to, focus on technology and communication industries, especially in underserved regions, while improving awareness through extensive promotional activities.

2.5.4.c.5 – ICANN should employ a multifaceted approach based on pre-application support, including longer lead times to create awareness, encouraging participation of insightful experts who understand relevant regional issues and potential ramifications on the related business plans, along with the tools and expertise on how to evaluate the business case, such as developing a market for a TLD.

2.5.4.c.6 – Support should continue to extend beyond simply financial. ICANN’s approach should include mentorship on the management, operational and technical aspects of running a registry such as existing registries/registrars within the region to develop in-house expertise to help ensure a viable business for the long term.

2.5.4.c.7 – Additionally, financial support should go beyond the application fee, such as including application writing fees, related attorney fees, and ICANN registry-level fees.

2.5.4.c.8 – ICANN should evaluate additional funding partners, including through multilateral and bilateral organizations, to help support the ASP.

2.5.4.c.9 – ICANN should consider whether additional funding is required for the next round opening of the Applicant Support Program.

The SubPro WG then asks a series of questions (ie Q 2.5.4.e.1 to Q 2.5.4.e.11 reproduced below):

Q 2.5.4.e.1
Work Track 1 generally agreed that the Applicant Support Program (ASP) should be open to applicants regardless of their location (see recommendations 2.5.4.c.1 and 2.5.4.c.2 above). How will eligibility criteria need to be adjusted to accommodate that expansion of the program?

Q 2.5.4.e.2 Metrics
What does success look like? Is it the sheer number of applications and/or those approved? Or a comparison of the number that considered applying vs. the number that actually completed the application process (e.g., developed its business plan, established financial sustainability, secured its sources of funds, ensured accuracy of information?)

• 2.5.4.e.2.1: What are realistic expectations for the ASP, where there may be critical domain name industry infrastructure absent or where operating a registry may simply not be a priority for the potential applicants?

Q 2.5.4.e.3
If there are more applicants than funds, what evaluation criteria should be used to determine how to disperse the funds: by region, number of points earned in the evaluation process, type of application, communities represented, other?

Q 2.5.4.e.4
Did the ASP provide the right tools to potential program participants? If not, what was missing?

Q 2.5.4.e.5
How can we best ensure the availability of local consulting resources?

Q 2.5.4.e.6
How can we improve the learning curve – what ideas are there beyond mentorship?

Q 2.5.4.e.7
How do we penalize applicants who may try to game the system?

Q 2.5.4.e.8
Are there any considerations related to string contention resolution and auctions to take into account?

Q 2.5.4.e.9
Should there be a dedicated round for applicants from developing countries?

Q 2.5.4.e.10
What should the source of funding be for the ASP? Should those funds be considered an extra component of the application fee? Should ICANN use a portion of any excess fees it generates through this next round of new gTLDs to fund subsequent Application Support periods?

Q 2.5.4.e.11
Are there any particular locales or groups that should be the focus of outreach for the ASP (e.g., indigenous tribes on various continents)?

What input do you have to these preliminary recommendations and/or questions?

2.9.1 Community Applications (String Contention Resolution)

The SubPro WT3 made a number of preliminary recommendations:

WT3 had a number of extensive discussions on the topics of string contention and “communities”. In addition, it received a number of comments related to the treatment of communities during the 2012 New gTLD round in CC2.

Although the WT has yet to come to an agreement on any preliminary policy recommendations, based on many of the implementation related issues identified by the WT and the wider community, it has come to some level of general agreement on the following CPE implementation guidance related suggestions:

• 2.9.1.c.1: The Community Priority Evaluation (CPE) process must be more transparent and predictable

• 2.9.1.c.2: CPE evaluations should be completed in a shorter period of time.

• 2.9.1.c.3: All evaluation procedures should be developed BEFORE the application process opens and made easily and readily available.

• 2.9.1.c.4: The CPE process should include a process for evaluators to ask clarifying questions and where appropriate engage in a dialogue with the applicant during the CPE process.

• 2.9.1.c.5: Less restrictive word count for communities to engage in clarifying and providing information.

They then asked a series of questions (i.e. Q 2.9.1.e.1 to Q 2.9.1.e.8 reproduced below):

Q 2.9.1.e.1
During its deliberations, a number of Work Track 3 members expressed that they believed the “definition” of community, available in section 1.2.3.1 of the Applicant Guidebook, was deficient. A number of attempts were made by the Work Track to better define the term “community,” but no definition could be universally agreed upon.288 Do you believe the current definition of “community” in the AGB is sufficiently clear and flexible to represent the intentions of existing policy about community applications and the various types of communities that may seek priority in the new gTLD program? If not, how would you define “community” for the purposes of community-based applications in the New gTLD Program? What attributes are appropriate? Do you have specific examples where demonstrable community support should or should not award priority for a string? Do you believe examples are useful in developing an understanding of the purpose and goals of any community-based application treatment?

Q 2.9.1.e.2
Should community-based applications receive any differential treatment beyond the ability to participate in CPE, in the event of string contention?

Q 2.9.1.e.3
Could/should alternative benefits be considered when scoring below the threshold to award the string (e.g., support in auction proceedings)?

Q 2.9.1.e.4
What specific changes to the CPE criteria or the weight/scoring of those criteria should be considered, if the mechanism is maintained?

Q 2.9.1.e.5
In the 2012 new gTLD round, it was determined that community-based applications should have preference over non-community-based applications for the same string. Some have argued that this preference should continue, others have claimed that this preference is no longer needed. Should the New gTLD Program continue to incorporate the general concept of preferential treatment for “community applications” going forward? Is the concept of awarding priority for community-based applications feasible, given that winners and losers are created?

The Work Track also considered a report on CPE prepared by the Council of Europe,289 which noted the need to refine the definition of community and re-assess the criteria and guidance for CPE in the AGB and CPE Guidelines. Although this paper has not been officially endorsed by the European Commission or the GAC, there are a number of recommendations in this report on community based applications. The Work Track is seeking feedback from the community on this report and more specifically which recommendations are supported, not supported or which require further exploration.

• Q 2.9.1.e.6: Do you agree with the Council of Europe Report, which in summary states, “Any failure to follow a decision-making process which is fair, reasonable, transparent and proportionate endangers freedom of expression and association, and risks being discriminatory.” Did the CPE process endanger freedom of expression and association? Why or why not?

Q 2.9.1.e.7
In regards to recommendation 2.9.1.c.1 in section c above, what does, “more transparent and predictable,” mean to you? For what aspects of CPE would this apply in particular?

Q 2.9.1.e.8
Some in the Work Track have noted specific concerns about the way the CPE provider performed evaluations, particularly around the validation of letters of support/opposition. To what extent should the evaluators be able to deviate from pre-published guidance and guidelines? For instance, should the evaluators have the flexibility to perform elements of the evaluation in a procedurally different way?

What input do you have to these preliminary recommendations and/or questions?