Ability to modify original application through this process

[Richard Schreier <richard@xxxxxxxx>]

We applaud the intent to hold applicants "to their word" where commitments in 
the original submission are being translated into legal obligations with 
regards to registry operations.  However, there are a two key observations to 
be made about the way ICANN is putting forth the new requirement for PICs and 
the extent to which it allows modifying an applicant's original submission.
First, the public comment period on PICs is open until February 26 yet ICANN 
expects "near final" submission of PIC documents by March 5.  Clearly this 
allows very little time (5 business days) for submitted documents to reflect 
any changes that the public comment process may germinate (the reply period in 
fact remains open until March 20).  It is understood that Specification 11 may 
be changed at a later date only to be subject to another 30 day public review.  
This process clearly sets an applicant at a time-disadvantage and only inserts 
an excuse to delay the process where changes to the PIC requirements occur 
after the March 5 deadline.
The second key point is that incorporating PICs in Article 3 of Specification 
11 allows applicants to establish a Public Interest Commitment where none 
existed in the first place.  This is clearly a competitive disadvantage to 
those organizations who fully intended to implement and proposed policy to 
support certain public interest standards from the outset.  It allows 
competitive applications that did not include such policy in their original 
application to add them after the fact.  This is clearly in conflict with ICANN 
published change guidelines. Particularly as related to: 3. Other Third Parties 
Affected (competitive applicants that included PICs in their original 
submission are being penalized, allowing competitive applications that did not 
include such policy in their original submission to catch up), 4. Fairness to 
Applicants (indeed with the public availability of submitted applications, a 
competitor that did not include PICs in their original submission can easily 
and simply copy the policy intent from a competitive bid where the policy was 
originally included), 6. Materiality (by virtue of the fact this process is 
allowing applicants to "add in" policy that will directly affect the evaluation 
of their bids).  Questions 18c and 28 of the original submissions provided 
applicants with the opportunity to declare their PIC related polices at the 
time of application.  If they did not do so in the original submission, they 
should not be allowed to do so now when they have had the opportunity to 
reflect on what their competition has submitted.
Richard Schreier
CEO, Pool.com