Booking.com has become the first new gTLD applicant to publicly cite the recent .africa Independent Review Process ruling in an attempt to overturn an adverse ICANN decision.
The challenge relates to the decision by ICANN, under the rules of the new gTLD program, to place applications for .hotels and .hoteis into a contention set due to their potential for visual confusion.
The two strings are heading to auction, where the winner will likely have to fork out millions.
In a missive to ICANN (pdf) last week, Booking.com outside attorney Flip Petillion said that the .africa IRP ruling shows that ICANN has to revisit its decision-making over .hotels.
The letter highlights a wider issue — how can ICANN follow community-established rules whilst sticking to its rather less well-defined Bylaws commitment to be “fair”?
ICANN — and the BGC — has maintained the position 1) that the fact the process established by ICANN was followed is sufficient reason to reject that challenge and 2) that the fact that the process allowed neither for Booking.com to be heard nor for a review of the decision by the ICANN Board is of no relevance.
In the interim, IRP panels have confirmed that this process-focussed position is unsustainable. The ICANN Board has an overriding responsibility for making fair, reasoned and non-discriminatory decisions under conditions of full transparency.
He cites the .africa IRP decision to support this assertion.
Booking.com is the applicant for .hotels, while a different company, Travel Reservations (formerly Despegar Online), has applied for .hoteis, the Portuguese translation.
While both applicants are happy for the two gTLDs to co-exist on the internet, ICANN’s third-party String Similarity Review panel, part of the new gTLD evaluation process, ruled that they cannot.
They’re just too similar — in standard browser sans-serif fonts they can be indistinguishable — and would likely lead to user confusion, the panel decided in February 2013.
Booking.com challenged this decision with a Request for Reconsideration, which was dismissed.
In April, the ICANN board adopted the IRP panel’s findings, saying that the two applicants should remain in the contention set.
Booking.com, along with Travel Reservations, filed a second RfR, challenging the board’s decision, but this was rejected by ICANN’s Board Governance Committee in June.
The ICANN board has not yet formally adopted the BGC’s recommendations — I expect it to consider them at its next scheduled meeting, July 28 — hence Booking.com’s last-ditch attempt to get ICANN to change its mind.
Simply following the processes and procedures developed by ICANN cannot alone be sufficient grounds for declining to review a decision. If the requirements of fairness, reasoned decision making, non-discrimination and transparency have not been met in the implementation of the process and procedures, the ICANN Board must, when invited to, conduct a meaningful review.
In the .africa case, the IRP panel ruled that ICANN should have asked the Governmental Advisory Committee for its rationale for objecting to DotConnectAfrica’s .africa bid, even though there’s nothing in the new gTLD rules or ICANN Bylaws specifically requiring it to do so.
However, in the Booking.com case, the IRP panel raised serious questions about whether the String Similarity Review rules were consistent with the Bylaws, but said that the time to challenge such rules had “long since passed”.
In both cases, ICANN followed the rules. Where the two panels’ declarations diverge is on whether you can win an IRP challenging the implementation of those rules — for DotConnectAfrica the answer was yes, for Booking.com the answer was no.
In a new gTLD program that has produced long lists of inconsistencies; IRP panel decisions appear to be but the latest example.
The question now is how the ICANN board will deal with the BGC recommendation to reject Booking.com’s latest RfR.
If it summarily approves the BGC’s resolution, without doing some extra due diligence, will it be breaking its Bylaws?
The DNS has been growing by, on average 1.1 top-level domains per day for the last 18 months or so, but that trajectory is set to change briefly next week when a TLD is removed.
The ccTLD .an, which represented the former Netherlands Antilles territories, is expected to be retired on July 31, according to published correspondence between ICANN and the Dutch government.
Three territories making up the former Dutch colony — Sint Maarten, Curaçao, and Bonaire, Sint Eustatius and Saba — gained autonomy in 2010, qualifying them for their own ccTLDs.
They were granted .sx, .cw and .bq respectively. While the first two are live, .bq has not yet been delegated, though the Dutch government says it is close to a deal with a registry.
The Dutch had asked ICANN/IANA for a second extension to the removal deadline, to October 31, but this request was either turned down or retracted after talks at the ICANN Buenos Aires meeting.
Only about 20 registrants are still using .an, according to ICANN.
The large majority of .an names still showing up in Google redirect to other sites in .nl, .com, .sx or .cw.
.an is the second ccTLD to face removal this year after .tp, which represented Portuguese Timor, the nation now known as East Timor or Timor Leste (.tl).
Did the African Union Commission really use a letter written by ICANN to express its support for ZA Central Registry’s .africa bid?
Having now obtained and read it, I have my doubts.
I’m publishing it, so you can make your own mind up. Here it is (pdf).
That’s the letter that The Register’s Kieren McCarthy reported yesterday was “ICANN-drafted” and “duly signed by the AUC”
“Essentially, ICANN drafted a letter in support of ZACR, gave it to the AUC, and the AUC submitted the letter back to ICANN as evidence that ZACR should run dot-africa,” The Reg reported.
I don’t think that’s what happened.
What I see is a two-page letter that has one paragraph indisputably written by ICANN and whole bunch of other stuff that looks
incredibly remarkably like it was written by the AUC and ZACR.
And that one ICANN paragraph was drawn from the new gTLD program’s Applicant Guidebook, where it was available to all governments.
The Reg reported that ICANN, in the unredacted ruling of the Independent Review Panel, admitted it drafted the letter.
What The Reg didn’t report is that ICANN merely admitted to sending the AUC a letter based on the aforementioned AGB template, and that it was subsequently heavily revised by the AUC.
It was not, I believe, a simple case of the AUC putting its letterhead and John Hancock on an ICANN missive.
I believe that ZACR had quite a big hand in the redrafting too. The stylized “.africa (dotAfrica)” is not how ICANN refers to gTLDs, but it is how ZACR refers to its own brand.
The letter was written in order to satisfy the requirements of the Geographic Names Panel, which reviews new gTLD applications for the required government support.
The original AUC letter (read it here) was simply one paragraph confirming that ZACR had been appointed .africa registry, as the winner of an African Union RFP process.
It didn’t have enough information, or was not specific and formal enough, for the GNP, which issued a “Clarifying Question”.
In response to the CQ, it seems AUC reached out to ICANN, ICANN sent over something not dissimilar to its AGB template, the AUC and ZACR redrafted, edited and embellished it and sent it to ICANN to support their .africa application.
Did ICANN act inappropriately? Maybe. But I’m losing my enthusiasm for thinking about this as a massive scandal.
ICANN’s board of directors has un-rejected DotConnectAfrica’s application for the new gTLD .africa.
Speaking at the Internet Governance Forum USA in Washington DC in the last half hour, ICANN chair Steve Crocker revealed the following:
We passed a resolution acknowledging the panel’s report — decision — accepting it and taking action. The primary action is to put the the DotConnectAfrica Trust application back in to the evaluation process. And there are other aspects of the panel’s decision that we will have to deal with later. This does not represent a final decision about anything. It just moves that process forward. There will be posting of the resolution and press release probably as we are sitting here.
If you want to catch it yourself, rewind the live stream here to roughly 59 minutes.
This story will be updated just as soon as the press release and resolution are published.
The resolution has been published.
In it, the board agrees to continue to delay the delegation of .africa to ZA Central Registry, which is the contracted party for the gTLD, to pay the IRP costs as ordered by the panel, and to return DCA’s application to the evaluation process.
It also addresses the fact that the Governmental Advisory Committee has given formal advice that the DCA bid should not be approved.
The ICANN board says that because it has not decided to approve or delegate .africa to DCA, it’s technically not going against GAC advice at this time.
It will also ask GAC to respond to the IRP panel’s criticism of it for providing advice against DCA without transparent justification. The resolution says:
the Board will ask the GAC if it wishes to refine that advice and/or provide the Board with further information regarding that advice and/or otherwise address the concerns raised in the Declaration.
It was essentially the GAC’s lack of explanation, and ICANN’s lack of curiosity about that lack of explanation, that cost ICANN the case and hundreds of thousands of dollars in fees.
How the GAC responds will be interesting. There’s now a solid case to be made that it’s going to have to start putting its rationales in its advice, rather like the ICANN board does with its resolutions.
Top ICANN executives helped the African Union Commission win the .africa gTLD on behalf of its selected registry, according to a report.
Kieren McCarthy at The Register scooped last night that Dai-Trang Nguyen, head of gTLD operations at ICANN, drafted the letter that the AU used to demonstrate governmental support for ZA Central Registry’s bid.
The basis of the report is the unredacted version of the Independent Review Process panel’s ruling in the DotConnectAfrica case.
McCarthy reports that the uncensored document shows ICANN admitting that Nguyen wrote the AU’s letter, but that “did not violate any policy” and that there was “absolutely nothing wrong with ICANN staff assisting the AUC.”
Apparently, the original AU-drafted letter did not meet the requirements of the Geographic Names Panel, generating a “Clarifying Question”, so the AU reached out to ICANN for help creating a letter that would tick the correct boxes.
The unredacted ruling also contains an allegation that ICANN told InterConnect — one of the three corporate members of the GNP — that the AU’s letter should be taken as representing all of its member states, El Reg reports.
DotConnectAfrica is expected to be shortly returned to the new gTLD application process, and then kicked out again due to its failure to meet the GNP’s criteria of support from 60% of African governments.
I’m in two minds about how damaging these new revelations are.
On the one hand, ICANN staff intervening directly in an Initial Evaluation for a contested gTLD looks incredibly bad for the organization’s neutrality.
One would not expect ICANN to draft, for example, a letter of support for a Community Priority Evaluation applicant.
I don’t think it changes the ultimate outcome for DCA, but it may have inappropriately smoothed the path to approval for ZACR.
On the other hand, the new gTLD program’s Applicant Guidebook actually contains a two-page “Sample Letter of Government Support” that governments were encouraged to print off on letterheaded paper, sign, and submit.
Giving governments assistance with their support letters was in fact baked into the program from the start.
So did the AUC get special treatment in this case, or did Nguyen just send over the AGB sample letter (or a version of it)? That may or may not become clear if and when McCarthy publishes the unredacted ruling, which he has indicated he hopes to do.
A related question might be: how did the AUC screw up its original letter so badly, given the existence of a compliant sample letter?
The optics are many times worse for ICANN because all this stuff was originally redacted, making it look like ICANN was trying to cover up its involvement.
But the redactions were not a unilateral ICANN decision.
ICANN, DCA and the IRP panel agreed after negotiation that some documents revealed during disclosure should be treated confidentially, according to this September 2014 order (pdf). References to these documents were redacted in all of the IRP’s documents, not just the ruling.
What the revelations certainly seem to show is another example of ICANN toadying up to governments, which really has to stop.