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.gay is gay enough after all? ICANN overturns community panel decision

Kevin Murphy, January 22, 2015, 19:42:04 (UTC), Domain Registries

One of the applicants for .gay has won a significant battle in the fight for the controversial new gTLD.

In a shock move, a committee of ICANN’s board of directors has overturned the rejection of dotgay LLC’s Community Priority Evaluation, ordering that the case should be re-examined by a new panel of experts.

As you may recall, dotgay’s CPE was kicked out in October after the Economist Intelligence Unit panel decided that the company’s defined community was too broad to be described by “gay” as it included a lot of people who aren’t gay, such as straight people.

The decision — which I thought was probably correct — caused an uproar from dotgay’s myriad supporters, which include dozens of international equal rights and gay community organizations.

dotgay filed a Request for Reconsideration, ICANN’s cheapest but least reliable form of appeal, and today found out it actually won.

ICANN’s Board Governance Committee, which handles the RfR process, this week ruled (pdf):

The BGC concludes that, upon investigation of Requester’s claims, the CPE Panel inadvertently failed to verify 54 letters of support for the Application and that this failure contradicts an established procedure. The BGC further concludes that the CPE Panel’s failure to comply with this established CPE procedure warrants reconsideration. Accordingly, the BGC determines that the CPE Panel Report shall be set aside, and that the EIU shall identify two different evaluators to perform a new CPE for the Application

The successful RfR appears to be based on a technicality, and may have no lasting impact on the .gay contention set.

Under the EIU’s process rules: “With few exceptions, verification emails are sent to every entity that has sent a letter(s) of support or opposition to validate their identity and authority”.

It seems that the EIU was sent a bundle of 54 letters of support for dotgay, but did not email the senders to verify they were legit. The BCG wrote:

Over the course of investigating the claims made in Request 14-44, ICANN learned that the CPE Panel inadvertently did not verify 54 of the letters of support it reviewed. All 54 letters were sent by the Requester in one correspondence bundle, and they are publicly posted on ICANN’s correspondence page.36 The 54 letters were deemed to be relevant by the EIU, but the EIU inadvertently failed to verify them.

If an applicant wins a CPE it means all the other applicants are automatically excluded, and the door is now open for the EIU to rethink its earlier decision.

So do competing applicants Rightside, Minds + Machines and Top Level Design now have genuine cause for concern? Not necessarily.

CPE applicants need to score at least 14 out of 16 available points in order to win, and dotgay only scored 10 points in its original evaluation.

Crucially, the EIU panel said that because the “community” as defined by dotgay included transgender, intersex, asexual and straight “allies” of equal rights, it was too broad to score any of the available four points on the “Nexus” criteria.

The BCG could find no fault with the EIU’s determination on Nexus, so even if dotgay’s letters of support are verified according to procedure, it would not necessarily lead to dotgay picking up any more Nexus points.

The BCG wrote on Nexus: “Requester’s substantive disagreement with the CPE Panel’s conclusion does not support reconsideration”.

However, given that the EIU is going to do the entire CPE all over again with new panelists, it seems entirely possible that dotgay could win this time.

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Comments (4)

  1. If another panel finds in favor of the applicant, then it opens up a can of worms because we’ll have proven inconsistency between panels.

    • Rubens Kuhl says:

      The decision called for 2 new panels, so either way there will be either a unanimous output or a majority position with a minority report.

  2. Rubens Kuhl says:

    If only the letters were not verified, then any new CPE could only reduce the score, not raise it… as of now, .gay is the most likely string to be the last of this round to be delegated due to litigation.

  3. ICANN is finally taking responsibility to do the right thing for community applicants. And for that we thank them. I believe the EIU has done a great job with nearly all of the CPE results except this one.

    The DotGay decision was problematic because the definition of the community is not determined by the Oxford dictionary. How about Wikipedia, Merriam-Webster etc? If the definition is reasonable, is not anti-competitive and all-inclusive of gay-related entities then it should represent the string and full points awarded.

    Another issue is “Opposition” which can be easily gamed by competitors. DotGay is arguing that this is what happened. According to the AGB CPE guidelines rules the EIU must ensure it is “avoiding potential conflicts of interest, and non-discrimination. Consistency of approach in scoring Applications will be of particular importance.”

    Only opposition arguments that on aggregate reasonably harm the respective community should be taken into consideration. Any argument that favors discrimination, is anti-competitive or filed to serve a competitor (i.e obstruction) is against the rules. The rules are clear: “All EIU evaluators must ensure that no conflicts of interest exist.”

    All CPE applications received opposition letters from competitor applicants to obstruct their application. Nearly opposition letters have been meritless and the EIU did a great job rejecting them.

    We sent a letter to the EIU which contained a dozen non-negligible opposition letters against our competitor because it was a known fact that their policies excluded a majority of the community from being able to register .MUSIC domains (only members of 42 organizations were allowed to register under their model). The EIU got it right not to penalize our competitor because there was a conflict of interest with us sending the opposiiton letter. The EIU though did agree with our comments that our competitor’s community definition (i.e.”music” is defined as 42 music organizations and only members of those 42 organizations could register a .MUSIC) was “construed” and that they excluded a majority of the community and hence overreached beyond community (i.e. discriminates and anti-competitive).

    Just in our case in which our opposition did not cost a competitor, if there is enough reasonable proof that there is a conflict with DotGay’s opposition then it should not have counted just as every other EIU decision did not regard letters of opposition from competitors or their supporters as relevant to deduct opposition points.

    While we can reason any argument against a competitor, it is difficult to substantiate a likelihood of harm. The CPE rules clearly say that “unsubstantiated” claims are irrelevant. The only clear cases of a likelihood of harm are lack of safeguards for sensitive strings, discrimination and anti-competition. These are easy to prove and can be verified through an applicant’s policies.

    I expect that there will be a different decision in favor of DotGay because it will be consistent with all of the EIU’s decisions.

    The EIU has done a pretty good job thus far and ICANN got this right to have the decision re-assessed by a new Panel.

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