The six losing applicants for the .hotel new gTLD are collectively threatening ICANN with a second Independent Review Process action.
Together, they this week filed a Request for Reconsideration with ICANN, challenging its decision earlier this month to allow the Afilias-owned Hotel Top Level Domain Sarl application to go ahead to contracting.
HTLD won a controversial Community Priority Evaluation in 2014, effectively eliminating all rival applicants, but that decision was challenged in an IRP that ICANN ultimately won.
The other applicants think HTLD basically cobbled together a bogus “community” in order to “game” the CPE process and avoid an expensive auction.
Since the IRP decision, the six other applicants — Travel Reservations, Famous Four Media, Radix, Minds + Machines, Donuts and Fegistry — have been arguing that the HTLD application should be thrown out due to the actions of Dirk Krischenowski, a former key executive.
Krischenowski was found by ICANN to have exploited a misconfiguration in its own applicants’ portal to download documents belonging to its competitors that should have been confidential.
But at its August 9 meeting, the ICANN board noted that the timing of the downloads showed that HTLD could not have benefited from the data exposure, and that in any event Krischenowski is no longer involved in the company, and allowed the bid to proceed.
That meant the six other applicants lost the chance to win .hotel at auction and/or make a bunch of cash by losing the auction. They’re not happy about that.
It doesn’t matter that the data breach could not have aided HTLD’s application or its CPE case, they argue, the information revealed could prove a competitive advantage once .hotel goes on sale:
What matters is that the information was accessed with the obvious intent to obtain an unfair advantage over direct competitors. The future registry operator of the .hotel gTLD will compete with other registry operators. In the unlikely event that HTLD were allowed to operate the .hotel gTLD, HTLD would have an unfair advantage over competing registry operators, because of its access to sensitive business information
They also think that HTLD being given .hotel despite having been found “cheating” goes against the spirit of application rules and ICANN’s bylaws.
In that case, the panel suggested that the board should conduct more thorough, meaningful reviews of CPE decisions.
It also found that ICANN staff had been “intimately involved” in the preparation of the Dot Registry CPE decision (though not, it should be noted, in the actual scoring) as drafted by the Economist Intelligence Unit.
The .hotel applicants argue that this decision is incompatible with their own IRP, which they lost in February, where the judges found a greater degree of separation between ICANN and the EIU.
Their own IRP panel was given “incomplete and misleading information” about how closely ICANN and the EIU work together, they argue, bringing the decision into doubt.
The RfR strongly hints that another IRP could be in the offing if ICANN fails to cancel HTLD application.
The applicants also want a hearing so they can argue their case in person, and a “substantive review” of the .hotel CPE.
The HTLD application for .hotel is currently “On Hold” while ICANN sorts through the mess.
Rejected community gTLD applicant Dot Registry has waded into the lawsuit between DotConnectAfrica and ICANN.
Filing an amicus brief on Friday in support of the unsuccessful .africa applicant, Dot Registry argues that chagrined new gTLD applicants should be allowed to sue ICANN, despite the legal releases they all signed.
The company is clearly setting the groundwork for its own lawsuit against ICANN — or at least trying to give that impression.
If the two companies are successful in their arguments, it could open the floodgates for more lawsuits by pissed-off new gTLD applicants.
Dot Registry claims applicants signed overly broad, one-sided legal waivers with the assurance that alternative dispute mechanisms would be available.
However, it argues that these mechanisms — Reconsideration, Cooperative Engagement and Independent Review — are a “sham” that make ICANN’s assurances amount to nothing more than a “bait-and-switch scheme”.
Dot Registry recently won an Independent Review Process case against ICANN that challenged the adverse Community Priority Evaluation decisions on its .inc, .llc, and .llp applications.
But while the IRP panel said ICANN should pay Dot Registry’s share of the IRP costs, the applicant came away otherwise empty-handed when panel rejected its demand to be handed the four gTLDs on a plate.
The ICANN board of directors has not yet fully decided how to handle the three applications, but forcing them to auction with competing applications seems the most likely outcome.
By formally supporting DotConnectAfrica’s claim that the legal waiver both companies signed is “unconscionable”, the company clearly reckons further legal action will soon be needed.
DotConnectAfrica is suing ICANN on different grounds. Its .africa bid did not lose a CPE; rather it failed for a lack of governmental support.
But both companies agree that the litigation release they signed is not legally enforceable.
They both say that a legal waiver cannot be enforceable in ICANN’s native California if the protected party carries out fraud.
The court seems to be siding with DotConnectAfrica on this count, having thrown out motions to dismiss the case.
Dot Registry’s contribution is to point to its own IRP case as an example of how ICANN allegedly conned it into signing the release on the assumption that IRP would be able to sort out any disputes. Its court brief (pdf) states:
although claiming to provide an alternative accountability mechanism, the Release, in practice, is just a bait-and-switch scheme, offering applicants a sham accountability procedure
Indeed, the “accountability” mechanism is nothing of the sort; and, instead of providing applicants a way to challenge actions or inactions by ICANN, it gives lip-service to legitimate grievances while rubber-stamping decisions made by ICANN and its staff.
That’s an allusion to the IRP panel’s declaration, which found no evidence that ICANN’s board of directors had conducted a thorough, transparent review of Dot Registry’s complaints.
Dot Registry is being represented by the law firm Dechert. That’s the current home of Arif Ali, who represented DotConnectAfrica in its own original IRP, though Ali is not a named lawyer in the Dot Registry brief.
The community-driven applicant for .gay is attempting to raise hundreds of thousands of dollars via crowd-funding to challenge a series of adverse decisions that look set to lock it out of running the gTLD.
Alongside the fundraising, dotgay LLC has launched an extraordinary broadside at its frustrators, accusing ICANN of “discrimination” and rival applicants of trying to “exploit” the gay community.
The company wants to raise $360,000 via this Generosity.com page, “to challenge decisions that have stalled community efforts for .GAY.”
Although the campaign has been running for 23 days, so far only three people (including a former employee) have donated a total of $110.
Given the vast number of LGBTQIA organizations that have lent their support to dotgay, I can only assume a lack of publicity is to blame for the $359,890 shortfall.
A five-minute video announcing the campaign has been on YouTube since August 3, but at time of writing has only been viewed 100 times.
In the video, embedded below, dotgay says that only it can properly represent the LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Ally) community.
ICANN is dividing the community by accepting the Economist Intelligence Unit’s decision that the company should fail its Community Priority Evaluation (largely because the TQIA are not necessarily “gay”), the video voiceover suggests.
This is an old game that highlights how LGBTQIA continue to be disadvantaged and discriminated against. If .gay is not recognized as a community domain, ICANN will simply auction the namespace to the highest bidder and pocket the proceeds. If ICANN assigns to the right to operate the registry for .gay to a company seeking to exploit it for profit — very possibly without community participation in policy development for the domain, or taking into consideration LGBTQIA interests and concerns — the community will have no assurances .gay will be s safe space on the internet… In the end, ICANN and the three other applicants for the .gay domain have shown no respect for the global gay community’s wishes.
Neither the video not the crowdfunding page specify exactly what the $360,000 would be used for.
However, in order to challenge the CPE decision(s) against it, a lawsuit or an Independent Review Process — either of which could wind up costing over a million dollars — would be the most usual avenues of attack.
Perhaps eager to avoid the possibility of a legal challenge, the three other applicants — Minds + Machines, Rightside and Top Level Design — this week wrote to ICANN to demand a hasty resolution of the long-running saga.
Writing on behalf of all three, Rightside VP Statton Hammock wrote (pdf):
It has been more than FOUR years since the Applicants filed their applications for .GAY. Since this time long ago, dotGay has filed THREE community objections, one against each of the Applicants; TWO community priority applications, ONE Independent Review Panel request (later withdrawn) and ONE motion for reconsideration with the BGC which has been carefully considered by the members of that Committee and found insufficient to be granted. In total dotGay has had SIX “bites of the apple” and has been unsuccessful each time… It is simply time for the Board to affirm these decisions and allow the .GAY applications to proceed to contention set resolution.
The ICANN board had been due to consider dotgay’s latest Request for Reconsideration at at a meeting August 9, but the agenda item was removed, the letter notes. The applicants called on the board to meet again soon to make a decision.
After the board processes the RfR, .gay would presumably go to auction. Whether the auction resulted in ICANN pocketing the cash (as dotgay claims) or being distributed between the three losing applicants remains to be seen.
Whether the auction is public or private, the crowdfunding campaign strongly suggests that dotgay does not currently have the resources to win.
There are over 1,000 new gTLDs out there right now, and figuring out what’s going on in the marketplace can be difficult.
So what better way to reduce confusion than to plot the 250 most populous TLDs into an infographic that vaguely resembles the iconic London Underground route map?
There must be thousands of better ways.
Regardless, the Tube map idea is the one Nominet decided to run with, and it released this beauty today.
While the strings have been roughly organized by categories, there doesn’t seem to be much logic to the layout otherwise.
If one were to overlap the map on a map of London, there doesn’t appear to be much relationship between the string and the characteristics of the corresponding neighborhood.
DI World International Global Headquarters would be sandwiched between .lawyer and .marketing, or thereabouts, just to the north of Jack the Ripper’s stalking ground of .miami.
There is a Citizens Advice Bureau across the street, but I’m not sure that makes this area a hotbed of legal activity.
Market-leading .xyz would be up in Walthamstow somewhere, quite off the beaten track, .tokyo would be close to Chinatown, and .city is nowhere near the City.
I’m probably reading it wrong.
Afilias is back on the path to becoming the registry for .hotel, after ICANN decided claims of hacking by a former employee of the applicant did not warrant a rejection.
The ICANN board of directors decided last week that HOTEL Top-Level Domain Sarl, which was recently taken over by Afilias, did not gain any benefit when employee Dirk Krischenowski accessed competing applicants’ confidential documents via an ICANN web site.
Because HTLD had won a Community Priority Evaluation, it should now proceed to contracting, barring any further action from the other six applicants.
ICANN’s board said in its August 9 decision:
ICANN has not uncovered any evidence that: (i) the information Mr. Krischenowski may have obtained as a result of the portal issue was used to support HTLD’s application for .HOTEL; or (ii) any information obtained by Mr. Krischenowski enabled HTLD’s application to prevail in CPE.
It authorized ICANN staff to carry on processing the HTLD application.
The other applicants — Travel Reservations, Famous Four Media, Radix, Minds + Machines, Donuts and Fegistry — had called on ICANN in April to throw out the application, saying that to decline to do so would amount to “acquiescence in criminal acts”.
That’s because an ICANN investigation had discovered that Dirk Krischenowski, who ran a company with an almost 50% stake in HTLD, had downloaded hundreds of confidential documents belonging to competitors.
He did so via ICANN’s new gTLD applicants’ portal, which had been misconfigured to enable anyone to view any attachment from any application.
Krischenowski has consistently denied any wrongdoing, telling DI a few months ago that he simply used the tool that ICANN made available with the understanding that it was working as intended.
ICANN has now decided that because the unauthorized access incidents took place after HTLD had already submitted its CPE application, it could not have gained any benefit from whatever data Krischenowski managed to pull.
The board reasoned:
his searches relating to the .HOTEL Claimants did not occur until 27 March, 29 March and 11 April 2014. Therefore, even assuming that Mr. Krischenowski did obtain confidential information belonging to the .HOTEL Claimants, this would not have had any impact on the CPE process for HTLD’s .HOTEL application. Specifically, whether HTLD’s application met the CPE criteria was based upon the application as submitted in May 2012, or when the last documents amending the application were uploaded by HTLD on 30 August 2013 – all of which occurred before Mr. Krischenowski or his associates accessed any confidential information, which occurred from March 2014 through October 2014. In addition, there is no evidence, or claim by the .HOTEL Claimants, that the CPE Panel had any interaction at all with Mr. Krischenowski or HTLD during the CPE process, which began on 19 February 2014.
The HTLD/Afilias .hotel application is currently still listed on ICANN’s web site as “On Hold” while its rivals are still classified as “Will Not Proceed”.
It might be worth noting here — to people who say ICANN always tries to force contention sets to auction so it possibly makes a bit of cash — that this is an instance of it not doing so.