[ALAC] ALAC MEMBERS: Consensus Call on ALAC Advice to the ICANN Board on New gTLD Contention Resolution closing 21 June at 23:59 UTC

Wed Jun 19 22:48:16 UTC 2024

When I was intimately involved with this question, the lawyers argued
against a ban on private post-application resolution of contention sets by
focusing on principles of [California] contract and U.S. antitrust law.
Very interesting indeed.

They threw everything at it that they thought could stick to the wall,
including some fairly learned treatises on use of the English language; the
singular/plural situation,homophones et. al.  Think mud wrestling but with
words and lawyers.

They built a head of steam going on about the principle of the freedom of
contract, daring everybody to finger any statutory law violated or the
public policy that was fettered. I can recall one high-priced legal eagle
labeling any such action a paternalistic interference from ICANN. And you
know charges of paternalism are emotive to those of us from the edge of
empire!

You heard that a private post-application resolution is actually a better
indicator of the domainers interest and intentions than a mandated process.
They are both more amicable and efficient. And, inure to the free market
commitments to which ICANN has variously committed. They placed a big value
on the optics with decreased litigation risk, reduced overall costs for the
parties and avoided delays. Then they added the kicker. This way avoided
ICANN being labeled a regulator, but this time with facts on the ground.

You heard them invoke the 'rule of reason' that private resolutions in this
instance are not anti-competitive nor a restraint on their trade but a
voluntary enhancement of competition by allowing pooling of resources and
encouraging market innovation.

Take the nuanced approach, they say. Evaluate on a case-by-case basis. Soon
as we tell you about it.

It's great to watch these things in play. The intellectual stimulation
alone is a downpayment for me being here.

Carlton

==============================
*Carlton A Samuels*

*Mobile: 876-818-1799Strategy, Process, Governance, Assessment & Turnaround*
=============================

On Tue, 18 Jun 2024 at 17:01, Justine Chew via ALAC <
alac at atlarge-lists.icann.org> wrote:

> There are some errors in the second last paragraph. It should read,
>
> In other words, the ALAC supports the overall intention of the Subsequent
> Procedures PDP Recommendation 35.4 which the GNSO Council chose not to
> submit to the ICANN Board for adoption, EXCEPT FOR (a) the provision
> allowing participation in various forms of private resolution; (b) the
> allowance for applicants whose applications are caught or are added to any
> contention sets that are expanded as a result of other application
> procedures to submit a fresh bid; and (c) the provision that ICANN Auctions
> must only take place after all the other evaluation procedures, and
> objections are completed.
>
> Kind regards,
> Justine
> ---------
>
> On Tue, 18 Jun 2024, 23:21 ICANN At-Large Staff via ALAC, <
> alac at atlarge-lists.icann.org> wrote:
>
>> Dear All,
>>
>>
>>
>> On behalf of Jonathan Zuck, ALAC Chair, this is a three-day Consensus
>> call for the 15 members of the ALAC on the ALAC Advice to the ICANN Board
>> on New gTLD Contention Resolution.
>>
>>
>>
>> The Consensus call will close on Friday, 21 June at 23:59 UTC.
>>
>>
>>
>> Please let us know if you have any significant comments or concerns on
>> the ALAC Advice.
>>
>>
>>
>> **
>>
>> *At-Large Advisory Committee Advice to the ICANN Board on New gTLD
>> Contention Resolution *
>>
>>
>>
>> In her 3 June 2024 Blog <
>> https://www.icann.org/en/blogs/details/board-discusses-auctions-of-last-resort-private-resolution-of-contention-sets-03-06-2024-en>,
>> the ICANN Board Chair reiterated that *“the Board is not inclined to
>> sanction a repeat of the 2012 process when private resolutions were
>> encouraged in the Applicant Guidebook.”*
>>
>>
>>
>> The ALAC strongly supports this statement by the ICANN Board Chair.
>>
>>
>>
>> The ALAC agrees with the National Economic Research Associates (NERA)
>> which said in its report of 17 May 2024 <
>> https://www.icann.org/en/system/files/files/addressing-monetary-means-private-resolution-final-report-17may24-en.pdf>
>> that attempting to eliminate private auctions or comparable monetary
>> resolutions while allowing legitimate post-application “joint ventures”
>> would be difficult or impossible, and its conclusion that a ban on private
>> resolutions would have to include all forms, including joint ventures.
>> While also noting the lack of such post-application joint ventures being
>> formed to as a means to resolve contention sets in the 2012 round, the ALAC
>> now reiterates and expands upon its previous advice.
>>
>>
>>
>> The ALAC advises the ICANN Board to ban all forms of post-application
>> private resolution of contention sets, including joint-ventures regardless
>> of claims as good-faith joint ventures.
>>
>>
>>
>> Furthermore, the ALAC advises the ICANN Board to adjust the ICANN Auction
>> of Last Resort to an auction process a methodology comparable to a Vickrey
>> Auction (sealed-bid second-price auction - https://en.wikipedia.org/wiki/Vickrey_auction
>> [en.wikipedia.org]
>> <https://urldefense.com/v3/__https:/en.wikipedia.org/wiki/Vickrey_auction__;!!PtGJab4!5_mw9p8LH53CKdy0Qa_hrpCzu8E1QHSvqcPQXg2ciD8heLDDYij8iwoB84wIWYX3tF4wmVe1bIwygRGX6pzj3IQ97DuyOttfCiK2HA$>)
>> requiring each gTLD string application to be accompanied by an auction bid
>> at the time the application is submitted, and prior to any indication of
>> possible contention sets being formed.
>>
>>
>>
>> Firstly, requiring an applicant to submit an accompanying auction bid
>> with its application - and if more than one application, a bid with each of
>> its applications - helps the applicant demonstrate the *bona fide *intention
>> of operating a TLD that it affirmatively attests to.
>>
>>
>>
>> Secondly, Vickrey auctions mitigate, if not eliminate, any ability to
>> abuse or game the application process since bids are submitted prior to
>> knowing if there are any competitors and who they may be.
>>
>>
>>
>> Thirdly, ICANN may be able to capitalize on opportunities to reduce
>> application evaluation costs, for both ICANN org and applicants, in cases
>> where there are multiple contenders for the same string, by strategically
>> positioning the ICANN Auction as a process of elimination earlier in the
>> evaluation cycle, rather than as a contention set resolution mechanism of
>> last resort, thereby foregoing the need for evaluation processes which can
>> reasonably be avoided. However, this consideration must not displace the
>> option for Community Priority Evaluation (CPE) by Community-based TLD
>> applicants that opts for the CPE in an attempt to prevail out of a
>> contention set.
>>
>>
>>
>> In other words, the ALAC supports the overall intention of the Subsequent
>> Procedures Recommendation 35.4 which the GNSO Council chose not to submit
>> to the ICANN Board for adoption, *EXCEPT FOR* (a) the provision allowing
>> participation in various forms of private resolution; (b) the allowance for
>> applicants whose applications that are caught or are added to any
>> contention sets that are expanded as a result of other application
>> procedures to as a result of other application procedures; and (c) the
>> provision that ICANN Auctions would only take place after all the other
>> evaluation procedures, and objections are completed.
>>
>>
>>
>> The ALAC would be pleased to enter into further dialogue with the Board
>> on any of these issues.
>>
>> **
>>
>>
>>
>> Kind regards,
>>
>>
>>
>> At-Large Staff
>>
>> ICANN Policy Staff in support of the At-Large Community
>>
>> Website: atlarge.icann.org
>>
>> Facebook: facebook.com/icann <https://www.facebook.com/icannatlarge>
>> atlarge <https://www.facebook.com/icannatlarge>
>>
>> Twitter: @ <https://twitter.com/ICANNAtLarge>ICANNAtLarge
>> <https://twitter.com/ICANNAtLarge>
>>
>>
>>
>> [image: signature_1222559652]
>> _______________________________________________
>> ALAC mailing list
>> ALAC at atlarge-lists.icann.org
>> https://atlarge-lists.icann.org/mailman/listinfo/alac
>>
>> At-Large Online: http://www.atlarge.icann.org
>> ALAC Working Wiki:
>> https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALAC)
>> _______________________________________________
>> By submitting your personal data, you consent to the processing of your
>> personal data for purposes of subscribing to this mailing list accordance
>> with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and
>> the website Terms of Service (https://www.icann.org/privacy/tos). You
>> can visit the Mailman link above to change your membership status or
>> configuration, including unsubscribing, setting digest-style delivery or
>> disabling delivery altogether (e.g., for a vacation), and so on.
>
> _______________________________________________
> ALAC mailing list
> ALAC at atlarge-lists.icann.org
> https://atlarge-lists.icann.org/mailman/listinfo/alac
>
> At-Large Online: http://www.atlarge.icann.org
> ALAC Working Wiki:
> https://community.icann.org/display/atlarge/At-Large+Advisory+Committee+(ALAC)
> _______________________________________________
> By submitting your personal data, you consent to the processing of your
> personal data for purposes of subscribing to this mailing list accordance
> with the ICANN Privacy Policy (https://www.icann.org/privacy/policy) and
> the website Terms of Service (https://www.icann.org/privacy/tos). You can
> visit the Mailman link above to change your membership status or
> configuration, including unsubscribing, setting digest-style delivery or
> disabling delivery altogether (e.g., for a vacation), and so on.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://atlarge-lists.icann.org/pipermail/alac/attachments/20240619/80b7d777/attachment-0001.html>