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PICs could be Beijing deal-breaker for new gTLDs

ICANN’s Governmental Advisory Committee may delay the approval of new gTLDs if applicants don’t submit Public Interest Commitments tomorrow.

That’s the message coming out of ICANN today, on the eve of the deadline for PICs submission set less than one month ago.

PICs, you will recall, are binding, enforceable commitments that new gTLD applicants are able to voluntarily add to their registry contracts with ICANN.

They’re meant to satisfy the GAC’s request for ICANN to tighten its grip on new gTLD registries and to give applicants a way to avoid GAC Advice and formal objections against their bids.

Applicants that commit to do whatever was asked of them in GAC Early Warnings, for example, may be able to avoid having the warning mutate into a full-blown GAC Advice kiss of death.

When ICANN announced the PICs idea a month ago, it gave applicants until March 5 to submit them. It intends to publish them on Wednesday for public comment and the GAC’s perusal.

But applicants are understandably nervous (to put it mildly) to comply, given that PICs would be enforceable via a dispute process that has yet to be written but could put their contracts at risk.

Responding to these concerns during a conference call today, ICANN CEO Fadi Chehade urged applicants to hit the deadline or risk the GAC delaying its Advice discussions beyond Beijing.

“I don’t think we can delay the submission of the PICs,” Chehade said. “If we do, then we will definitely not have the GAC come back to use with their committed advice in Beijing.”

“Unless we want to get them to do this advice beyond Beijing, we should stick with the 30 days or so we’ve asked people to get this done and make it happen,” he said.

The Beijing meeting runs April 7 to 11. The GAC is expected to issue its advice shortly after the meeting ends.

ICANN reckons it will be able to start approving new gTLDs April 23, but has also stated on numerous occasions that it will not approve anything before the GAC has spoken.

Chehade said today, based on his conversations with influential GAC members, that pushing the PICs deadline out beyond March 5 by even a few days would seriously endanger the current GAC Advice timeline.

New gTLD applicants are now in the tricky position of having to decide between potentially costly delays today and an unknown dispute system that could prove dangerous in future.

NTIA fights Big Content’s corner, tells ALL new gTLD applicants to submit PICs

Kevin Murphy, February 26, 2013, Domain Policy

The National Telecommunications and Information Administration said today that all new gTLD applicants, even those that have not already been hit by government warnings, should submit Public Interest Commitments to ICANN.

In a rare comment sent to an ICANN public forum today, the NTIA suggested that applicants should use the process to help combat counterfeiting and piracy.

The agency, the part of the US Department of Commerce that oversees ICANN and participates in its Governmental Advisory Committee, said (emphasis in original):

NTIA encourages all applicants for new gTLDs to take advantage of this opportunity to address the concerns expressed by the GAC in its Toronto Communique, the individual early warnings issued by GAC members, and the ICANN public comment process on new gTLDs, as appropriate.

PICs were introduced by ICANN earlier this month as a way for applicants to voluntarily add binding commitments — for example, a promise to restrict their gTLD to a certain user base — to their registry contracts.

The idea is to let applicants craft and agree to stick to special terms they think will help them avoid receiving objections from the GAC, GAC members and others.

NTIA said that applicants should pay special attention in their PICs to helping out the “creative sector”.

Specifically, this would entail “ensuring that WHOIS data is verified, authentic and publicly accessible”.

They should also “consider providing an enforceable guaranty that the domain name will only be used for licensed and legitimate activities”, NTIA said, adding:

NTIA believes that these new tools may help in the fight against online counterfeiting and piracy and is particularly interested in seeing applicants commit to these or similar safeguards.

The PICs idea isn’t going down too well in the applicant community, judging by other submissions this week.

The Registries Stakeholder Group of ICANN, for example, says its members are feeling almost “blackmailed” into submitting PICs, saying the timing is “completely unreasonable”.

As DI noted when PICs was first announced, applicants have been given until just March 5 to submit their commitments, raising serious questions about the timetable for objections and GAC advice.

The RySG has even convened a conference call for March 4 to discuss the proposal, which it says “contains so many serious and fundamental flaws that it should be withdrawn in
its entirety”.

ICANN’s new gTLD Public Interest Commitments idea: genius or pure crazy?

Kevin Murphy, February 7, 2013, Domain Policy

ICANN has given new gTLD applicants a month to draft their own death warrants.

Okay, that might be a little hyperbolic. Let’s try again:

ICANN has given each new gTLD applicant 28 days to come up with a list of voluntary “Public Interest Commitments” that, if breached, could lead to the termination of their registry contracts.

The proposed, far-reaching, last-minute changes to the basic new gTLD Registry Agreement were introduced, published and opened for public comment on Tuesday.

PICs — as all the cool kids are calling them — are designed to appease ICANN’s Governmental Advisory Committee, which wants applicants to be held accountable to statements made in their gTLD applications.

If an applicant said in its application for .lawyer, for example, that only actual lawyers will be able to register a .lawyer domain name, the GAC wants ICANN to be able to step in and enforce that promise if the registry changes its registration policies at a later date.

Public Interest Commitments are the way ICANN proposes to let applicants state clearly what they commit to do and not to do, either by flagging parts of their existing application as binding commitments or by writing and submitting entirely new commitments.

Submitting a set of PICs would be voluntary for applicants, but once submitted they would become a binding part of their Registry Agreement, assuming their gTLD is approved and delegated.

“These are commitments you’re making to the community, to the governments, to everybody that can object to your applications, these are not commitments you’re making with ICANN,” ICANN COO Akram Atallah said on Tuesday’s webinar.

Registries would be subject to a new dispute policy (the Public Interest Commitment Dispute Resolution Process or PICDRP) that would enable third parties to file official complaints about breaches.

“We’re allowing third parties that are affected to be able to bring these claims, and then based upon the outcome of the dispute resolution process ICANN will enforce that third party dispute resolution result,” ICANN general counsel John Jeffrey said.

Registries that lost a PICDRP would have to “implement and adhere to any remedies ICANN imposes” up to and including the termination of the registry contract itself.

ICANN is asking applicants to submit their PICs before March 5, just 28 days after revealing the concept.

How PIC (probably) would work

Let’s take an example new gTLD application, selected entirely at random.

Donuts has applied for .dentist.

While the applied-for string suggests that only dentists will be able to register domain names, like all Donuts applications the gTLD would actually be completely open.

The government of Australia has filed a GAC Early Warning against this bid, stating that “does not appear to have proposed sufficient protections to address the potential for misuse”.

The Aussies want Donuts to detail “appropriate mechanisms to mitigate potential misuse and minimise potential consumer harm” or risk getting a potentially lethal GAC Advice objection to its bid.

If Donuts were so inclined, it could now attach a PIC to its .dentist bid, outlining its commitment to ensuring that .dentist is not abused by amateur dental surgery enthusiasts.

The PIC would be subject to public review and comment. If, subsequently, Donuts won the .dentist contention set, the PIC would be attached to its .dentist Registry Agreement and become binding.

Donuts may even stick to its commitments. But the moment some Marathon Man-inspired nutter managed to slip through the cracks, Donuts would be open to PICDRP complaints, risking termination.

What’s good about this idea?

From one perspective, PIC is a brilliantly clever concept.

The proposed solution doesn’t require applicants to amend their applications, nor would it require lengthy contractual negotiations during the gTLD approval and delegation process.

Applicants could merely attach their commitments to the base registry agreement, sign it, and be on their merry way.

This means fewer delays for applicants and relatively little additional up-front work by ICANN.

On an ongoing basis, the fact that PICs would be enforceable only by third parties via the PICDRP means fewer headaches for ICANN compliance and fewer debacles like the aborted attempt to bring .jobs into line.

Finally, it’s also completely voluntary. If applicants don’t want to file a PIC, they don’t have to. Indeed, most applicants aren’t even in a position where they need to think about it.

Do I sense a “but”?

But I can’t see these proposals going down too well in applicant land.

ICANN is, essentially, giving applicants one short month to bind themselves to a completely new, almost completely unknown dispute resolution process.

Repeat: the PICDRP does not yet exist.

Indications were given that it will be modeled on existing dispute resolution procedures in the Applicant Guidebook, but there’s no actual text available to review yet.

We do know that the process would be designed to enable third parties to file complaints, however. Agreeing to PICDRP could therefore potentially open up applicants to competitive or nuisance complaints.

The “remedies” that ICANN could impose when a PICDRP case is lost are also currently rather vague.

While the nuclear option (termination) would be available, there’s no information yet about possible lesser remedies (financial penalties, for example) for non-compliance.

I’ve talked to enough domain name industry lawyers over the years to guess that most of them will take a very dim view of PIC, due to these uncertainties.

One of the guiding principles of the new gTLD program from the outset was that it was supposed to be predictable. ICANN has veered away from this principle on multiple occasions, but these eleventh-hour proposed changes present applicants with some of the biggest unknowns to date.

The timeline doesn’t work

The raison d’être for the PIC concept is, ostensibly, to enable applicants to avoid not only potential GAC Advice but also official objections by other third parties.

But according to ICANN documentation, applicants are being asked to submit their PICs by March 5. ICANN will publish them March 6. They’d then be open for public review until April 5 before becoming final.

But the deadline for filing objections is March 13. That deadline also applies to objections filed by governments (though not GAC Advice, which is expected to come in mid-late April).

Judging by this timeline, potential objectors would have to decide whether to file their objections based on PICs that have been published for just one week and that could be amended post-deadline.

Unless ICANN extends the objection filing window, it’s difficult to see how PIC could be fit for its stated purpose.

On the bright side

I believe that only a small percentage of applicants will be affected by PIC.

Out of 1,917 applications and 1,409 strings, GAC governments filed just 242 Early Warnings against 145 strings. Some of those warnings merely tell the applicant to withdraw its bid, which no amount of PIC will cure.

I expect that very few, if any, applicants without Early Warnings will bother to file PICs, unless of course the objections deadline is moved and PIC becomes an effective way to avoid objections.

For those with Early Warnings, an alternative strategy would be to lobby friendly GAC members — demonstrably flexible to lobbying, judging by the Early Warnings — to ensure that they do not receive full, consensus GAC Advice against their applications.

That would be risky, however, as there’s currently no way of knowing how much weight ICANN’s board of directors will give to non-consensus GAC Advice against applications.