New gTLD Expressions of Interest: Proceed with Caution

Abstract

The Internet Corporation for Assigned Names and Numbers (ICANN) should look to precedents if it chooses to move forward with soliciting Expressions of Interests for new Generic Top Level Domains. Previous EOIs were successful in helping ICANN gather pertinent data to judge likely gTLD demand and make fact-based decisions.The Expression of Interest, if well executed, could help to address a number of the remaining issues with implementation of new gTLDs. If executed improperly, however, the initiative will likely erode confidence in the new gTLD process and negatively impact ICANN's evaluation in the upcoming reviews under ICANN's new Affirmation of Commitments. Proposals should not make participation in the EOI a condition for participating in the first new gTLD round, nor should there be substantial fees to file, since both proposals deviate from established precedent. Such actions would transform a fact-based gathering EOI into a front-running scheme for insiders to reserve their space at the front of the new gTLD line.The proposal would fail to create a level playing field for potential applicants. Moreover, this proposed front-running approach would likely only increase ICANN's litigation risks by appearing to grant a license or privilege in a process which may ultimately diverge from present expectations.The path forward for ICANN is a road that it has previously traveled - and one which has served it well. There is little benefit to deviating from these established precedents to benefit the narrow interests of a small number of TLD applicants whose business plans have been jeopardized because of ICANN's decision to listen to the global community by slowing down and getting things right.