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New gTLD program thrown into chaos as ICANN loses .africa case

Kevin Murphy, July 11, 2015, Domain Policy

ICANN has been opened up to a world of hurt after an independent panel of judges ruled that the organization broke its own bylaws when it kicked DotConnectAfrica’s .africa bid out of the new gTLD program.

The what-the-fuck ruling cuts to the very heart of how ICANN deals with advice from its Governmental Advisory Committee, which comes out of the case looking like a loose canon with far too much power to sway the ICANN board.

Witness testimony published in the panel’s opinion sheds humiliating light on the GAC’s self-defeating habit of supplying ICANN with deliberately vague advice, a practice described by its former chair under oath as “creative ambiguity”.

The ruling does not, however, give DCA a serious shot at winning the .africa gTLD, which has already been contracted to rival ZA Central Registry. More delay is, however, inevitable.

The Independent Review Panel said:

the Panel is of the unanimous view that certain actions and inactions of the ICANN Board (as described below) with respect to the application of DCA Trust relating to the .AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN.

It also unanimously ruled that ICANN should un-reject DCA’s application and allow it to continue through the application process and that ICANN should bear the full $600,000+ cost of the IRP, not including DCA’s legal fees.

It’s an important ruling, especially coming as ICANN seeks to extricate itself from US government oversight, because it implicitly calls on ICANN’s board to treat GAC advice with much less deference.

What’s the backstory?

DCA and ZACR have competing applications for .africa, which is a protected geographic string.

Under new gTLD program rules, only an applicant with support from over 60% of African national governments can be approved. ZACR’s support far exceeds this threshold, whereas DCA enjoys little to no government support at all.

The ICANN board’s New gTLD Program Committee rejected the DCA bid in June 2013, before its Initial Evaluation (which includes the Geographic Names Review) had been completed, based on the GAC’s April 2013 Beijing communique advice.

That advice invoked the GAC’s controversial (and vaguely worded) powers to recommend against approval of any application for any reason, as enshrined in the Applicant Guidebook.

A subsequent Request for Reconsideration (IRP lite) filed by DCA was rejected by ICANN’s Board Governance Committee.

An IRP is the last avenue community members have to challenge ICANN’s actions or inaction without resorting to the courts.

DCA filed its IRP complaint in October 2013 and amended it in January 2014, claiming ICANN broke its own bylaws by rejecting the DCA application based on GAC advice.

Despite the IRP, ICANN went ahead and signed a Registry Agreement with rival ZACR in the May and was just days away from delegating .africa when the IRP panel ordered the process frozen.

The case dragged on, partly because one of the original three-person panel died and had to be replaced, the delay causing much consternation among African GAC members.

What did the IRP panel finally rule?

Yesterday’s ruling avoided deciding on or even commenting on any of DCA’s crazy conspiracy theories, instead limiting itself to the question of whether ICANN’s board and committees acted with bylaws-mandated transparency, fairness and neutrality.

It found that the GAC itself did not act according to these principles when it issued its Beijing advice against DCA.

It found that ICANN did not “conduct adequate diligence” when it accepted the advice, nor did the BGC or NGPC when they were processing the RfR.

In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application.

ICANN did not do that, the panel decided, so it broke its bylaws.

both the actions and inactions of the Board with respect to the application of DCA Trust relating to the .AFRICA gTLD were not procedures designed to insure the fairness required… and are therefore inconsistent with the Articles of Incorporation and Bylaws of ICANN.

Does this mean DCA gets .africa?

No. The IRP panel ruled that DCA’s application must re-enter the application process, presumably at the point it exited it.

DCA’s application never had a final Initial Evaluation result issued. If it were to re-enter IE today, it would certainly be failed by the Geographic Names Panel because it lacks the requisite support of 60% of African governments.

DCA wanted the panel to rule that it should have 18 months to try to secure the needed support, but the panel refused to do so.

The application is still as good as dead, but ICANN will need to go through the motions to actually bury it.

In the meantime, ZACR’s delayed delegation of .africa is to remain on hold.

How embarrassing is this for the GAC?

Hugely. Verbal testimony from Heather Dryden, who was GAC chair at the time of the Beijing meeting, highlights what I’ve been saying for years: GAC advice is regularly so vaguely written as to be useless, inconsistent, or even harmful.

Dryden told the panel at one point: “In our business, we talk about creative ambiguity. We leave things unclear so we don’t have conflict.”

The IRP panel took a dim view of Dryden’s testimony, writing that she “acknowledged during the hearing, the GAC did not act with transparency or in a manner designed to insure fairness.”

The ruling quotes large chunks of text from the hearing, during which Dryden was grilled about the GAC’s rationale for issuing a consensus recommendation against DCA.

Dryden responded by essentially saying that the GAC did not discuss a rationale, and that there was “deference” to the governments proposing consensus objections in that regard.

ARBITRATOR KESSEDJIAN: So, basically, you’re telling us that the GAC takes a decision to object to an applicant, and no reasons, no rationale, no discussion of the concepts that are in the rules?

[DRYDEN]: I’m telling you the GAC did not provide a rationale. And that was not a requirement for issuing a GAC —

HONORABLE JUDGE CAHILL: But you also want to check to see if the countries are following the right — following the rules, if there are reasons for rejecting this or it falls within the three things that my colleague’s talking about.

[DRYDEN]: The practice among governments is that governments can express their view, whatever it may be. And so there’s a deference to that. That’s certainly the case here as well.

This and other quoted sections of the hearing depict the GAC as a body that deliberately avoids substantive discussions and deliberately provides unclear advice to ICANN, in order to avoid offending its members.

Does this mean all GAC advice on new gTLDs is open to appeal now?

Maybe. There are numerous instances of the ICANN board accepting GAC advice without demanding an explanation from the GAC.

At a bare minimum, the applicant for .gcc, which was rejected in the same breath as .africa, now seems to have a case to appeal the decision. The applicant for .thai is in a very similar situation.

Amazon’s lawyers will no doubt also be poring over yesterday’s decision closely; its .amazon bid was also killed off by GAC advice.

But in the case of .amazon, it would be hard to argue it was a .africa-style summary execution. ICANN took extensive advice and delayed its decision for a long time before killing off that application.

The ruling essentially calls the part of the Applicant Guidebook that gives the GAC its strong advisory powers over new gTLD applications into question.

Literally hundreds of new gTLD applications were affected by the Beijing communique.

Anything else of note?

Yes.

First, large parts of the decision have been redacted. The redactions mostly appear to relate to sensitive documents disclosed between the parties (reading between the lines, I think some of them related to DCA’s purported support from a certain African government) that the panel ruled should remain private last September.

Second, the decision inexplicably quotes the ICANN bylaws text “MISSION AND CORE VALUES” as “MISSION AND CORE (Council of Registrars) VALUES”, in what appears to be a weird search-and-replace error by an unknown party. CORE (Council of Registrars) is of course a registry back-end provider with apparently no involvement in .africa whatsoever.

Third, it seems I’ve been elected Pope. I hereby select “Dave” as my Papal name and will commence my program of donating all Church assets to the poor forthwith.

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.cruise heading to auction despite “closed generic” protest

Ownership of the contested gTLD .cruise will be resolved by auction, despite protests from one applicant that the other left it too late to drop its “closed generic” plans.

Applications from Cruise Lines International Association and Viking River Cruises were both placed in “In Auction” status by ICANN overnight.

Both original applications had been to operate .cruise for the registry’s own exclusive use, a so-called closed generic bid.

However, following objections from its Governmental Advisory Committee in April 2013, ICANN eventually decided to disallow such applications.

CLIA changed its plans in September 2013 as a result of the GAC advice.

But it wasn’t until mid-June this year, around about the same time as ICANN was mulling its final determination on the matter, that Viking changed its application to remove the exclusive access bits.

This prompted an angry response from CLIA.

In a letter to ICANN last month (pdf) the group accused Viking of waiting too long to change its application and said it should be given a chance to formally object.

CLIA further accused Viking of deliberately delaying the .cruise contention set so its own dot-brand, .viking, could get a head-start. The .viking gTLD is contracted and currently in pre-delegation testing.

ICANN dismissed CLIA’s request, however, saying that applicants can amend their applications at any time and that there are no plans to reopen the objection filing period for one special case.

The gTLD now seems set to head to an ICANN auction or private settlement between the two parties.

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World’s fourth-largest bank dumping old domains in switch to dot-brand gTLD

A French bank appears to be the first major company to commence a permanent switch from a legacy TLD to a new dot-brand.

BNP Paribas, the fourth-largest bank in the world, is dumping its .fr and .net domains in favor of .bnpparibas for customers in its domestic market, where it serves close to eight million retail banking customers.

Visitors to the .fr and .net domains are directed to a landing page that informs them that mabanque.bnpparibas (“mybank.bnpparibas”) is the company’s new domain.

BNP Paribas

The new dot-brand site appears to be a fully functional online banking service, not just brochureware.

It’s the ninth most-visited new gTLD domain name, with an Alexa rank today of 6,005, climbing the ranks every day.

As it’s a redesigned web site, customers are able to switch back to the familiar .net site (Alexa rank: 2,543) if they wish.

The domain was registered in January and BNP Paribas began a transition campaign in April. The transition away from the .net and .fr domains appears to have started at some point over the last month, but there hasn’t been a great deal of media coverage.

The .com domain is still live, serving Anglophone customers.

The mabanque.bnpparibas site leaves little doubt about the reason for the transition (translated with Google’s assistance):

BIZARRE, THIS ADDRESS WITHOUT .FR OR .NET? IS IT SECURE?

YES, A 100% SECURE SITE!

Any address ending with .bnpparibas is managed by BNP Paribas and has an advanced security certificate. Even more reliable, this new extension now acts as a signature.

Of course the architecture https and the padlock are still on your URL bar, confirming that the connection is secure.

So you can browse and view your accounts in all serenity!

BNP Paribas is a bit of a big deal, the fourth-largest bank in the world, managing assets of $2.5 trillion.

It’s bigger than Barclays, which earlier this year said it intends to transition away from .com and .co.uk to .barclays. The .barclays and .barclaycard sites are still just brochureware, however, with no transactional features.

Other dot-brands have launched sites at their new gTLDs, but .bnpparibas is the first transfer of a fully transactional web site from a legacy TLD to a dot-brand I’ve seen.

The Chinese conglomerate CITIC dumped its .com for .citic last September, but soon switched back.

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Slacker dot-brands get ICANN reprieve

Wannabe dot-brands that dawdled and lost the chance to sign a new gTLD registry agreement with ICANN have been given a second shot.

ICANN yesterday introduced a new Application Eligibility Reinstatement process that will enable applicants to change their application status from the dead end of “Will Not Proceed”.

To demonstrate they really are committed to signing a contract, eligible applicants will have to submit a tonne of information about things such as their failure bond, pre- and post-delegation technical plans and registrar onboarding.

As we reported back in January, there were 12 applications belonging to 10 applicants that had simply drifted into limbo for failing to sign a contract by their respective deadlines.

There are 45 applications in “Will Not Proceed” status, but only the ones that timed out in contracting are eligible for the new process, obviously.

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Chinese registrar goes AWOL, gets terminated

Chinese registrar name2host.com has had its accreditation terminated by ICANN for failing to comply with an audit.

According to the compliance notice (pdf), ICANN has been chasing the company since March but has encountered only disconnected phones and unanswered emails.

It seems name2host.com’s principals were all using Hotmail or Yahoo email accounts; not exactly the kind of thing you want to see from a domain name registrar.

The registrar had fewer than 5,000 gTLD domains on its books in March, all in .com and .net.

ICANN will initiate a bulk transfer to a new registrar using its usual process.

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