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.sucks sends in the lawyers in “gag order” fight

Kevin Murphy, January 23, 2016, 10:29:51 (UTC), Domain Registries

Vox Populi is taking ICANN to mediation over a row about what some of its registrars call a “gag order” against them.
Its lawyers have sent ICANN a letter demanding mediation and claiming ICANN has breached the .sucks Registry Agreement.
I believe it’s the first time a new gTLD registry has done such a thing.
The clash concerns changes that Vox Populi proposed for its Registry-Registrar Agreement late last year.
Some registrars believe that the changes unfairly give the registry the unilateral right to amend the RRA in future, and that they prevent registrars opposed to .sucks in principle from criticizing the gTLD in public.
I understand that a draft letter that characterizes the latter change as a “gag order” has picked up quite a bit of support among registrars.
ICANN has referred the amended draft of the .sucks RRA to its Registrars Stakeholder Group for comment.
But Vox Pop now claims that it’s too late, that the new RRA has already come into force, and that this is merely the latest example of “a pattern on ICANN’s part to attempt to frustrate the purpose and intent of its contract with Vox Populi, and to prevent Vox Populi from operating reasonably”.
The registry claims that the changes are just intended to provide “clarity”.
Some legal commentators have said there’s nothing unusual or controversial about the “gag” clauses.
But the conflict between Vox and ICANN all basically boils down to a matter of timing.
Under the standard Registry Agreement for new gTLDs, registries such as Vox Pop are allowed to submit proposed RRA changes to ICANN whenever they like.
ICANN then has 15 calendar days to determine whether those changes are “immaterial, potentially material or material in nature.”
Changes are deemed to be “immaterial” by default, if ICANN does not rule otherwise within those 15 days.
If they’re deemed “material” or “potentially material”, a process called the RRA Amendment Procedure (pdf) kicks in.
That process gives the registrars an extra 21 days to review and potentially object to the changes, while ICANN conducts its own internal review.
In this case, there seems to be little doubt that ICANN missed the 15-day deadline imposed by the RA, but probably did so because of some clever timing by Vox.
Vox Pop submitted its changes on Friday, December 18. That meant 15 calendar days expired Monday, January 3.
However, ICANN was essentially closed for business for the Christmas and New Year holidays between December 24 and January 3, meaning there were only three business days — December 21 to 23 — in which its lawyers and staff could scrutinize Vox’s request.
Vox Pop’s timing could just be coincidental.
But if it had wanted to reduce the contractual 15 calendar days to as few business days as possible, then December 18 would be the absolute best day of the year to submit its changes.
As it transpired, January 3 came and went with no response from ICANN, so as far as Vox is concerned the new RRA with its controversial changes came into effect January 6.
However, on January 8, ICANN submitted the red-lined RRA to the RrSG, invoking the RRA Amendment Procedure and telling registrars they have until January 29 to provide feedback.
Vox Pop’s lawyer, demanding mediation, says the company was told January 9, six days after ICANN’s 15-day window was up, that its changes were “deemed material”.
Mediation is basically the least-suey dispute resolution process a registry can invoke under the RA.
The two parties now have a maximum of 90 days — until April 20 — to work out their differences more or less amicably via a mediator. If they fail to do so, they proceed to a slightly more-suey binding arbitration process.
In my opinion, ICANN finds itself in this position due to a combination of a) Vox Pop trying to sneak what it suspected could be controversial changes past its staff over Christmas, and b) ICANN staff, in the holiday spirit or off work entirely, dropping the ball by failing to react quickly enough.
While I believe this is the first time a 2012-round gTLD registry has gone to dispute resolution with ICANN, Vox did threaten to sue last year when ICANN referred its controversially “predatory” launch plans to US and Canadian trade regulators.
That ultimately came to nothing. The US Federal Trade Commission waffled and its Canadian counterpart just basically shrugged.

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Comments (4)

  1. John Berard says:
    January 24, 2016 at 3:28 am

    Kevin,
    I enjoy a good public tussle as much as you do, but it is hard to reconcile expert commentary that there was little of consequence to the changes made by Vox Populi Registry to its registrar agreement and your view that the registry was “trying to sneak what it suspected could be controversial changes past its staff over Christmas.”
    Nothing could be further from the truth.
    The changes were some of the many we made prompted by a natural review of the business as it reached it first anniversary. The registry contract was signed, as you know, last December.
    Note the changes made to our Market Premium and Reserved lists and scheduling a monthly update for both as examples of improvements based on what has been learned.
    The registry takes great pride in its business and practices. Persistent improvement is a commitment made to our real partners and Vox Populi registrants.
    Cheers,
    Berard

    Reply
    • Siemen Roorda says:
      January 25, 2016 at 7:47 am

      In this case again I sense a registry that does not see its registrars as their customers. In my opinion, registry’s customers are the *registrars*, although I know some registries claim it’s the *registrants*.
      Having said that, I am wondering why Vox Populi seems to reach out directly to formal legal methods rather than admitting that timing could have been better and trying to work out a solution together with the registrar stakeholder group?
      If the changes are meant to be immaterial, it shouldn’t have too many consequences postponing them for a bit for the sake of a healthy relationship with your registrars.

      Reply
  2. SoFreeDomains says:
    January 25, 2016 at 7:36 am

    i wonder when .sucks will cease to be controversial.

    Reply
  3. John Berryhill says:
    January 25, 2016 at 1:34 pm

    “In this case, there seems to be little doubt that ICANN missed the 15-day deadline imposed by the RA, but probably did so because of some clever timing by Vox.”
    Given that ICANN wrote the rules, then one would expect them to have taken into account the potential timing of a notice period embodied in those rules. Not having nearly the staff of ICANN, even a very small law firm somehow can manage to deal with response periods as low as five days in the NAF implementation of the UDRP.
    “We were out partying for two weeks” is not quite what one should expect of an organization with a $100 million budget.

    Reply

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