Setting the PIC

FairWinds Partners —  February 12, 2013

ICANN made some serious waves during its most recent New gTLD Applicant Update webinar when it announced, among other notices, that it has proposed a series of significant changes to the baseline form of the new gTLD Registry Agreement and would be opening those changes up to Public Comments. The Registry Agreement, or RA, as we’ve discussed previously on this blog, is the contract that all new gTLD applicants must enter into with ICANN in order to operate their new gTLDs.

Without a doubt, the most significant change to the RA is the addition of Specification 11, which outlines new “Public Interest Commitments” (PICs) that applicants will have to uphold. The PICs fall into three sections; the first refers to which registrars a new gTLD Registry Operator may work with. Specifically, it states that the Registry Operator will only use accredited registrars that are party to the newest version of the Registrar Accreditation Agreement. This agreement is still undergoing refinement within the ICANN community, however, and the final version has not yet been published.

The second and third sections of the PICs are commitments that Registry Operators can choose to impose on themselves. Registry Operators have the option to select commitments, business plans or other intentions stated in their new gTLD applications that will become binding aspects of the RA under this specification (Section 2), or they can create new binding commitments and outline them in Section 3.

What has been confusing to many is that the PICs, aside from Section 1, are not technically required. Applicants do not have to add any additional required elements to their RAs. So what would motivate an applicant to add any commitments? Generally speaking, this may be an opportunity for certain applicants that received Early Warnings from ICANN’s Governmental Advisory Committee or other precautionary feedback from governments or other authorities to ease their concerns. For example, if an applicant applied for a new gTLD with the intention of operating it in a completely open and unrestricted manner, but a government representative or other authority expressed concern that doing so would mislead and ultimately harm consumers, then it may be beneficial for the applicant to add a PIC stating that the gTLD will be operated in a more restrictive manner than originally implied by the application.

Unfortunately, applicants that do wish to add PICs to their Registry Agreements have only a short time to do so – ICANN expects to receive applications for PICs by March 5.

ICANN’s decision to make these changes in what some members of the community have called a unilateral manner also raises some issues. All proposed changes are open for Public Comment until February 26, so you can expect to see some discussion of this issue in that forum.