Despite IRP, .africa gets a new gTLD contract

Kevin Murphy, March 26, 2014, Domain Registries

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.

DotConnectAfrica files for ICANN independent review

Kevin Murphy, January 22, 2014, Domain Policy

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”.

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.

Plural gTLDs could be a casualty as ICANN accepts big chunk of GAC advice

ICANN has accepted nine pieces of Governmental Advisory Committee advice pertaining to new gTLDs, essentially killing off two applications and putting question marks over many more.

Notably, the question of whether plural and singular versions of the same string should be allowed to coexist has been reopened for debate, affecting as many as 98 applications.

ICANN’s New gTLD Program Committee, which carries board powers but does not include directors with conflicts of interest, this week passed a resolution that addresses a good chunk of the GAC’s Beijing communique.

It does not discuss any of the amorphous “safeguard” advice from the document, which was subject to a recently closed public comment period and is likely to take much longer to resolve.

By far the line item with the broadest immediate impact is this:

The NGPC accepts this advice and will consider whether to allow singular and plural versions of the same string.

That’s right folks, singular and plural gTLDs (eg, .car and .cars) may not be allowed to coexist after all.

Using a broad interpretation (that treats .new and .news as clashes, for example), 98 applications could be affected by this decision.

Singular vs plural is a contentious issue with some strongly held religious views. Whether you come down on one side or the other depends largely on how you see new gTLDs being used in future.

Proponents of coexistence see a future of 30,000 gTLDs being used as direct navigation and search tools, while opponents worry about the risk of freeloading plural registries making a killing from unnecessary defensive registrations.

The NGPC did not say how the debate would be moved forward, but I’d be surprised if it didn’t involved the broader community through public comments or meetings in Durban next month.

Ding dong…?

Two line items appear to put the final nails in the coffins of two new gTLD applications: DotConnectAfrica’s .africa and GCCIX WLL’s .gcc.

Both clash with the names of geographic regions (.gcc is for Gulf Cooperation Council, a name often associated with nations in the Arabian/Persian Gulf) and received the GAC’s strongest possible form of objection.

In both cases, the NGPC said the applications “will not be approved” and invited the applicants to withdraw.

However, it gave both applicants the right to appeal using “ICANN’s accountability mechanisms”.

Islamic strings on life support

Some governments in the GAC had taken issue with the applications for strings such as .islam and .halal, and the NGPC said it “stands ready to enter into dialogue with the GAC on this matter”.

That’s the Applicant Guidebook-mandated response when the GAC cannot reach a consensus that an application should be killed off.

Amazon among geo strings delayed

As expected, the NGPC decided to work with the GAC’s extended timetable for the consideration of 19 applications whose chosen strings clash with geographic names such as .thai and .persiangulf.

Basically, the GAC asked for more time to discuss them.

In response, ICANN will not delay Initial Evaluation for these applications, but it will not sign contracts with the applicants until the GAC has issued its final advice.

The list includes two big trademarks: retail giant Amazon and the clothing brand Patagonia.

Both will have to wait until at least Durban to discover their fate.

The list also includes .wine and .vin, because some in the wine industry have been kicking up a stink about the protection of special geographic identifiers (eg Champagne, Bordeaux) at the second-level.

Weasel words on community objections

There’s one piece of advice that the NGPC said it has “accepted” but which it clearly has not.

The GAC had said this:

The GAC advises the Board that in those cases where a community, which is clearly impacted by a set of new gTLD applications in contention, has expressed a collective and clear opinion on those applications, such opinion should be duly taken into account, together with all other relevant information.

I think any reasonable interpretation of this item would require ICANN or somebody else to make a subjective judgement call on which applications should win certain contention sets.

To my mind, the advice captures contested strings such as .book (where publishers hate the idea of Amazon running it as a closed generic) and .music (where the music industry favors a restricted registration policy).

But ICANN, always reluctant to have to pick winners and losers, seems to have chosen to interpret the advice somewhat differently. In its response, it states:

The NGPC accepts this advice. Criterion 4 for the Community Priority Evaluation process takes into account “community support and/or opposition to the application” in determining whether to award priority to a community application in a contention set. (Note however that if a contention set is not resolved by the applicants or through a community priority evaluation then ICANN will utilize an auction as the objective method for resolving the contention.)

I don’t think this covers the GAC’s advice at all, and I think the NGPC knows it.

As the parenthetical comment says, communities’ views are only taken into account if an applicant has filed a formal “Community” bid and chooses to resolve its contention set with a Community Priority Evaluation.

To return to the above examples, this may well capture .music, where at least one applicant intends to go the CPE route, but it does not capture .book, where there are no Community applications.

There are 33 remaining Community applications in 29 contention sets.

Will the GAC accept the NGPC’s response as a proper implementation of its advice? If it’s paying attention and feels strongly enough about the issue, my guess is probably not.

More special favors for the Olympics

The International Olympic Committee holds extraordinary power over governments, which has resulted in the GAC repeatedly humiliating itself by acting an Olympic lobbyist before the ICANN board.

In the Beijing communique, it asked ICANN to make sure that the temporary temporary protections granted to Olympics and Red Cross are made permanent in the Applicant Guidebook.

Prior to April, the Registry Agreement in the Guidebook said that the protected strings “shall be initially reserved”, but this language has been removed in the current version of the RA.

The NGPC said that this was due to the GAC’s advice. Box ticked.

But here’s the kicker: the protections will still be subject to a Generic Names Supporting Organization Policy Development Process.

In other words, the discussion is not over. The rest of the ICANN community will get their say and ICANN will try to reconcile what the GNSO decides with what the GAC wants at a later date.

While “accepting” the GAC’s advice, it’s actually proposing something of a compromise. The NGPC said:

Until such time as the GNSO approves recommendations in the PDP and the Board adopts them, the NGPC’s resolutions protecting IOC/RCRC names will remain in place. Should the GNSO submit any recommendations on this topic, the NGPC will confer with the GAC prior to taking action on any such recommendations.

New gTLD registries will not be able to argue in future that their contracts only require them to “initially” protect the Olympic and Red Cross strings, but at the same time the GNSO as a whole gets a say in whether permanent protections are warranted.

It seems like a pretty nice compromise proposal from ICANN — particularly given the problems it’s been having with the GNSO recently — but I doubt the GAC will see it that way.

Other stuff

There were two other items:

  • The GAC had advised that no new gTLD contracts should be approved until the 2013 Registrar Accreditation Agreement is finalized. ICANN agreed. It’s already built into the timetable.
  • The GAC wanted its existing views taken into account in the current, ongoing, formative discussions about a replacement service for Whois. That’s already happening.

In summary…

…it’s a pretty sensible response from the NGPC, with the exception of the weaselly response to the “community views” advice.

Taken as a whole, it’s notable for its respect for other stakeholders and processes, which is admirable.

Even in the case of .africa and .gcc, which I firmly believed would be dead today, it’s given the applicants the opportunity to go through the appropriate appeals channels.

The GAC, it seems, doesn’t even get the last word with its kiss of death.