.africa frozen by panel after ICANN screwup

ZA Central Registry’s bid for the .africa new gTLD has been put on ice by an arbitration panel which admonished ICANN for failing to follow its own bylaws.
An Independent Review Panel ruled yesterday that ICANN should not carry on processing .africa until it has ruled on a complaint filed by failed .africa applicant DotConnectAfrica.
If .africa were to be delegated, which could have happened as early as Thursday — ZACR and ICANN have already signed a Registry Agreement — it would render the IRP’s decision moot, the panel found.
This ruling doesn’t mean ICANN has lost the case, just that it’s temporarily enjoined from delegating .africa until the final decision has been made by the IRP panel.
However, the panel had some stern words for ICANN, saying that the matter could have been settled months ago had ICANN only followed its own bylaws.

In the Panel’s unanimous view, it would be unfair and unjust to deny DCA Trust’s request for interim relief when the need for such a relief by DCA Trust arises out of ICANN’s failure to follow its own bylaws.

ICANN’s board of directors passed a resolution in April 2013 calling for the creation of a “standing committee” of nine potential IRP panelists, from which each three-person IRP panel could be drawn.
But, over a year later, it has not created this committee, the current IRP panel said. This led to the delay that forced DCA to request the emergency injunction.
ICANN’s basically been told by one of its own accountability mechanisms that that accountability mechanism is inadequate, at a time when its accountability mechanisms are under the world’s spotlight.
Just last week, the organization launched an accountability review that it said it “interdependent and interrelated” to the process of transitioning IANA away from US government stewardship.
Yeah, it’s embarrassing for ICANN. Doubly so because it’s been beaten by a company so incompetent it accidentally applied for the wrong gTLD.
For ZACR, the panel reckons the delay in getting .africa delegated will likely last “a few months”.

Applicant claims “rogue” GAC rep killed its gTLD

The unsuccessful applicant for the .thai top-level domain has become the third new gTLD hopeful to file an Independent Review Process complaint against ICANN.
Better Living Management had its bid for the restricted, Thailand-themed TLD rejected by ICANN in November due to a consensus objection from the Governmental Advisory Committee.
Now the company claims that the Thailand GAC representative who led the charge against its bid has never been formally authorized to speak for the Thai government at ICANN.
BLM says it has sued Wanawit Ahkuputra, one of three Thailand GAC reps listed on the GAC’s web site, in Thailand and wants ICANN to unreject its application pending the case’s outcome.
In the IRP request, BLM claims that Ahkuputra was appointed to the GAC by previous rep Thaweesak Koanantakool without the authorization of the Thai government.
It further claims that while Koanantakool was “invited” by the Thai government to be Thailand’s GAC rep, he was never formally “appointed” to the role. He was “erroneously recruited by the GAC”, BLM alleges.
Following that logic, Ahkuputra could not claim to be a legitimate GAC rep either, BLM claims.
From the IRP alone it looks like a bit of a tenuous, semantics-based argument. Is there any real difference between “invited” and “appointed” in the platitude-ridden world of diplomacy?
Nevertheless, BLM claims that by pushing the rest of the GAC to object to the .thai bid at the ICANN Beijing meeting a year ago, Ahkuputra acted against the wishes of the Thai government.
BLM says it has letters of support from five Thai government ministries — including the one Koanantakool works for — all signed during the new gTLD application and evaluation periods in 2012 and 2013.
Those letters were apparently attached to its IRP complaint but have not yet been published by ICANN.
BLM says it has sued Koanantakool and Ahkuputra, asking a Thai court to force them to drop their objections to the .thai bid.
This is not the first time that an unsuccessful new gTLD applicant has alleged that a GAC member was not properly appointed. DotConnectAfrica has level similar accusations against Kenya.
DCA claims (pdf) that Alice Munyua spoke against its .africa application in the GAC on behalf of Kenya but against the wishes of Kenya, which DCA says did not oppose the bid.
However, ICANN and GAC chair Heather Dryden rubbished these claims in ICANN’s reply (pdf) to DCA’s complaint, citing evidence that Kenya did in fact oppose the application.

Despite IRP, .africa gets a new gTLD contract

ICANN has signed a Registry Agreement with ZA Central Registry for the new gTLD .africa, despite the string being subject to a legal dispute.
The RA was signed with the South African applicant on Monday.
Rival .africa applicant DotConnectAfrica filed an Independent Review Process complaint against ICANN in January, claiming the rejection of its bid, which came because it lacked government support, was “unfair, discriminatory, and lacked appropriate due diligence and care”.
Now that ZACR is a contracted party — meaning that .africa is likely to hit the root in two or three months — it will be very difficult for DCA to get appropriate recompense should it win the IRP.
Fortunately for ICANN, I think there’s a better chance of me getting elected Pope.

.hotels applicant files IRP on ICANN

New gTLD applicant Booking.com has filed an Independent Review Process complaint against ICANN.
ICANN and Booking.com attorney Flip Petillion of Crowell & Moring confirmed the filing with DI this evening. Earlier Belgian newspaper reports of a full-on lawsuit appear to be inaccurate.
The IRP — ICANN’s final appeals process, designed to avoid lawsuits — is related to the .hotels contention set.
Booking.com’s uncontested application for .hotels was placed into a contention set with Despegar Online’s bid for .hoteis (the Portuguese translation) by ICANN’s independent String Similarity Panel in February 2013.
The panel ruled that the two strings are too confusingly similar to coexist on the internet, due to the similarity between the letters I and L.
That means the two applicants either had to resolve their differences privately, which apparently hasn’t happened, or enter into a potentially expensive ICANN auction of last resort.
Booking.com seemingly wants to avoid that auction, hence the IRP.
It’s the second IRP to be filed by a new gTLD applicant in this round, after DotConnectAfrica’s January filing.
ICANN tells me the IRP documents will be posted on its web site later today.

DotConnectAfrica files for ICANN independent review

Failed .africa gTLD applicant DotConnectAfrica has filed an Independent Review Process appeal against ICANN, it emerged today.
The nature of the complaint is not entirely clear, but in a press release DCA said it’s related to “ICANN Board decisions and actions taken with regard to DCA Trust’s application for the .africa new gTLD”.
It’s only the third time an IRP has been filed. The first two were related to .xxx; ICM Registry won its pioneering case in 2009 and Manwin Licensing settled its followup case last year.
DCA said that it’s an “amended” complaint. It turns out the first notice of IRP was sent October 23. ICANN published it December 12, but I missed it at the time.
I’d guess that the original needed to be amended due to a lack of detail. The “Nature of Dispute” section of the form, filed with the International Center for Dispute Resolution, is just a sentence long, whereas ICM and Manwin attached 30 to 60-page legal complaints to theirs.
The revised notice, which has not yet been published, was filed January 10, according to DCA.
DCA applied for .africa in the current new gTLD round, but lacked the government support required by the Applicant Guidebook for strings matching the names of important geographic regions.
Its rival applicant, South African ccTLD registry Uniforum, which does have government backing, looks set to wind up delegated, whereas ICANN has designated DCA’s bid as officially “Not Approved”.
DCA has been alleging a conspiracy — often involving DI — at almost every juncture of the process, even before it filed its application. Read more here, here and here.
To win an IRP, it’s going to have to show that it suffered “injury or harm that is directly and causally connected to the Board’s alleged violation of the Bylaws or the Articles of Incorporation”.

Our unpredictions for 2014

Over the close to four years we’ve been publishing, DI has so far resisted running annual prediction lists.
As a reader, they always strike me as being largely holiday-period filler guff. As a writer, they kind of obligate you to revisit and score yourself a year later. Hugely embarrassing pain in the bum.
But this year we’ve had a change of heart.
It’s really, really quiet out there today.
So here’s our list of events we think will definitely, definitely, definitely happen in 2014.

• Bob Parsons will give ten bucks to a homeless guy outside a Scottsdale Starbucks, according to a Go Daddy press release.
• NomCom, hands tied by its gender quotas policy, will be forced to appoint a minor Kardashian to the ICANN board of directors.
• Pat Kane will quit Verisign in order to head up kp.com, the newly launched sub-domain service for North Koreans who couldn’t get the .kp name they really wanted.
• A pseudonymous domainer will send TLDH’s share price into a death spiral by predicting that “all new gltds will fail lol” in a comment on an industry blog.
• Tucows CEO Elliot Noss will accidentally blind four people during a particularly enthusiastic bout of gesticulation.
• An ICANN director will answer Paul Foody’s question during the Public Forum in Singapore. Foody will leave the room moments later, never to be seen again.
• Somebody will write a blog post about 27-year-old .xyz applicant Daniel Negari without mentioning his age.
• ICANN will blame a “glitch” after accidentally delegating .islam to a New York synagogue.
• Mike Berkens will use apostrophes correctly for a week straight.
• After the GNSO dies for the fifth time, the entire Council will regenerate as Peter Capaldi, forcing an immediate structural review.
• 1&1 will start selling pre-registrations in new gTLDs that it expects will probably be applied for at some point between 2018 and 2024.
• Fox will green-light the production of “Jeff Neuman vs Predator”.
• DotConnectAfrica will finally withdraw its application for .africa, but only after failed attempts to withdraw applications for .africas, .africka, and .dotdotafrica.
• Christine Jones will suffer a humiliating wardrobe malfunction during a campaign rally.
• A smartphone-friendly version of DI will be launched.
• During an unannounced visit to ICANN’s LA office, Fadi Chehade will stumble across John Jeffrey fucking an apple pie in the staff kitchen.
• Jennifer Wolfe will speak during a GNSO Council meeting.
• The Intellectual Property Constituency will complain that ICANN’s latest rights protection mechanisms “go too far to protect trademark owners” and demand an immediate rollback.
• Rick Schwartz will invest $200 million in Donuts.
• The sentence “Esther Dyson declined to comment.” will appear in a mainstream media article about new gTLDs.

Happy new year everyone!

ICANN rejects third new gTLD bid

ICANN has formally rejected .thai, only the third new gTLD application to suffer this fate.
It’s been flagged as “Not Approved”, following an objection from a consensus of the Governmental Advisory Committee led by an outcry from Thailand and Thai nationals.
Only DotConnectAfrica’s .africa and GCC’s .gcc have the same designation. Both also were killed off by GAC advice.
Better Living Management Company had applied for .thai, promising to restrict it to people and organizations with a local presence.
Thailand already has the ccTLD .th, of course, as well as the IDN equivalent, .ไทย, which means “Thailand”.
ICANN has not yet rejected any applications that lost crippling objections filed by non-governmental actors.

Is ICANN ready to start rejecting some new gTLDs?

Is ICANN getting ready to give marching orders to new gTLD applicants? It seems likely given recent hints out of LA.
Currently, of the original 1,930 new gTLD applications, 125 have been withdrawn but only two or three have been rejected.
GCC’s .gcc and DotConnectAfrica’s .africa are both “Not Approved” while Nameshop’s .idn failed to pass its applicant support program tests and seems to have been put aside for this round.
But there are at least 22 active applications that are due to be hit with the ban hammer, by my reckoning. That’s not including those that may be killed off by Governmental Advisory Committee advice.
First, there are seven bids (so far) that have failed Community Objections or Legal Rights Objections filed against them, or have lost String Confusion Objections filed by existing TLD operators.
Applications such as Ralph Lauren’s .polo, Dish DBS’ .direct and Demand Media’s .cam have fallen foul of these three objection types, respectively.
Under the Applicant Guidebook rules, these applications are not allowed to proceed.
There are also 10 active applications for .home and five for .corp, two gTLD strings ICANN has said it will not approve due to their substantially higher risk of causing name collisions.
(Personally, I think these applicants should get full refunds — ICANN screwed up by not doing its homework on name collisions before opening the application window last year).
So far, ICANN seems to have been waiting for applicants to withdraw, rather than initiating a formal rejection.
But none of them actually have withdrawn.
The International Union of Architects, which won a Community Objection against Donuts over .architect in September, has noticed this too, and recently wrote to ICANN to find out what was going on.
Responding October 31, Generic Domains Division president Akram Atallah wrote (with my emphasis):

as a result of the objection determination, we have updated the status of the objection on the .ARCHITECT application to “Objector Prevailed” on the Objection Determinations page (http://newgtlds.icann.org/en/program-­‐status/odr/determination) of the New gTLD microsite. Additionally, we will be updating the overall status of this application on the New gTLD microsite (https://gtldresult.icann.org/application-­‐result/applicationstatus) pursuant to Section 1.1.2.9 of the Applicant Guidebook in the near future.

This suggests either a “Not Approved” status for .architect, or a new status we haven’t seen before, such as “Lost Objection”.
So could, for example, Demand Media’s .cam application be rejected? Demand lost a SCO filed by Verisign, but its two competitors for the string prevailed in virtually identical cases.
Would it be fair to reject one but not the others, without any kind of ICANN review or oversight?
Last week at the newdomains.org conference in Munich, I asked Atallah a question during a panel discussion about consistency in the new gTLD program, with reference to objections.
I was on stage and not taking notes, but my recollection is that he offered a not at all reluctant defense of subjectivity in panelists’ decision-making.
It was certainly my impression that ICANN is less troubled by inconsistent rulings than the applicants are.
In the .architect case, Atallah told the UIA that ICANN intends to implement objection rulings, writing:

ICANN will, of course, honor all panel decisions regarding objection determinations, unless directed to do otherwise by some action, for example, by virtue of Reconsideration Requests or other accountability mechanisms or action of the ICANN Board of Directors. To our knowledge, Spring Frostbite [Donuts] has not filed a Reconsideration Request or invoked an Independent Review Process with respect to this objection determination regarding the .ARCHITECT string.

Today’s new gTLD updates: two withdrawals and two “Not Approved”

DotConnectAfrica and GCCIX WLL have become the first new gTLD applicants to have their applications — for .africa and .gcc respectively — officially flagged as “Not Approved” by ICANN.
Both were killed by Governmental Advisory Committee advice.
While GCC had passed its Initial Evaluation already, DCA’s IE results report (pdf), which were published last night, simply states: “Overall Initial Evaluation Summary: Incomplete”.
In both cases the decision to flunk the applications was taken a month ago by ICANN’s New gTLD Program Committee.
DCA filed a formal Reconsideration Request (pdf), challenging the decision in typically incomprehensible style, on June 19, threatening to take ICANN to an Independent Review Panel (ICANN’s very expensive court of appeals) if it does not overturn its decision.
Here’s a sample:

We have no intention of withdrawing our application against the backdrop that we rightly believe that the Board decision is injudicious, very wrong and injurious to our application and to our organizational aspirations. We are placing faith in the possibility that this particular communication will serve the purpose of causing the ICANN Board to have a rethink, and see the wisdom in allowing DCA Trust to continue to participate in the new gTLD Program without the necessity of going to an Independent Review Process (IRP) Panel to challenge the ICANN Board Decision which we presently disagree with in the most absolute terms.

The Board Governance Committee, which handles Reconsideration Requests, has a sturdy track record of denying them, so I think the chances of DCA’s being approved are roughly zero.
But if the company is nutty enough to try its hand at an IRP, which could quite easily set it back a few million dollars in legal fees, the story might not be over yet.
The GAC didn’t like DCA’s .africa bid because African governments back UniForum, DCA’s South Africa-based competitor for the string.
Had the application made it to Initial Evaluation — its processing number wasn’t up for a few weeks — it would have been flunked by the Geographic Names Panel due to its lack of support anyway.
GCC’s application for .gcc was also rejected by the GAC on geographic grounds. It stands for Gulf Cooperation Council, and the Persian/Arabian Gulf nations in question didn’t support the bid.
Also today, the American insurance company Allstate withdrew its applications for .carinsurance and .autoinsurance. Both were single-registrant “closed generics”, which ICANN has indicated might not be approved, also due to GAC advice.

ICANN says DotConnectAfrica’s .africa bid is officially “Not Approved”