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.gay applicant appeals community loss, again

Kevin Murphy, October 28, 2015, Domain Policy

dotgay LLC has appealed its Community Priority Evaluation defeat again, filing a new Request for Reconsideration with ICANN this week.

It’s an unprecedented second use of the RfR process to appeal its CPE loss, in which the Economist Intelligence Unit panel decided the applicant’s definition of “gay” was far too broad to award dotgay enough points to pass the evaluation.

But dotgay wants ICANN to initiate a third CPE, to be carried out by anyone other than the EIU.

The EIU panel said earlier this month that it had “determined that the applied-for string does not sufficiently identify some members of the applicant’s defined community, in particular transgender, intersex, and ally individuals”.

Basically, EIU was pointing out, for the second time, that transgender people and straight “allies” aren’t “gay”.

It awarded dotgay 0 out of the possible 4 points available on “Nexus” criteria, meaning the applicant failed to hit the 14 points required to win.

While the RfR dodges the transgender issue altogether, dotgay has some interesting arguments in response to the “ally” question.

It’s now claiming that “ally” refers to companies and organizations that support the equal rights cause (because non-human legal entities don’t have a gender identity or sexual preference) and to proxy registrars:

Now, since an organization or company in itself can impossibly be “lesbian” or “gay”, Requester has been seeking for a way to also position these companies and organizations in this community definition. For this reason, Requester has referred to these organizations as “allies” in the context of the LGBTQIA definition.

Furthermore, as stated in the Application, LGBTQIAs are a vulnerable group in many countries and societies, and too often still the subject of prosecution for who they are. In order to put in place safeguards for those gay community members who do not wish to be directly associated with a domain name registration, organizations and companies who in essence cannot be “non-heterosexual” should have the possibility to act as a proxy service, which is common practice in the domain name industry.

In any case, any such “ally” must be approved by an Authentication Partner in order to be able to register a domain name in its own name or in the name or on behalf of a third party who meets the LGBTQI requirements.

It’s an interesting argument, but I can’t see anything in its original application that would support such a position.

dotgay may be on stronger ground with its claim that it unfairly lost one point on the “Opposition” criteria of the CPE.

Two points were available there. Applicants could lose one point immediately if there was a single letter of opposition from a relevant, non-negligible organization.

The EIU seems to have been in possession of such a letter, though its CPE ruling does not name the opponent.

dotgay thinks the opponent was the Q Center, a community center in Portland, Oregon, which opposed dotgay in writing in 2014 but, following a change in its board of directors, retracted that opposition (pdf).

So it may be the case that dotgay unfairly lost a point.

Regaining that point would not be enough to give the company a winning CPE score, but if the EIU screwed up that may be grounds for ICANN to initiate another rerun of the CPE.

However, it’s quite rare for ICANN’s board of directors to approve an RfR.

If dotgay loses, it will either have to go to auction against its rival applicants or file an Independent Review Process complaint, its final avenue of appeal.

Read its RfR here.

Is the ICC ripping off new gTLD objectors?

Kevin Murphy, June 27, 2013, Domain Policy

New gTLD applicants have reportedly complained to ICANN about the unexpectedly high cost of dealing with objections.

The International Chamber of Commerce has apparently been quoting objectors prices as high as €150,000 for a three-person panel to handle a formal community objection.

At $195,000, that’s almost $10,000 more than the original ICANN application fee.

Because Community Objections run on a loser-pays basis, the stakes are high indeed. An applicant could lose its application, most of its application fee, and still have to pay the objector’s fees.

The complaints emerged during a session with ICANN new gTLD program head Christine Willett at a meeting in Brussels earlier this week, according to consultant and occasional DI contributor Stephane Van Gelder.

Writing on the NetNames blog yesterday, Van Gelder quoted Willett as saying:

We are aware that ICC fees are more than people were expecting. Some applicants have been quoted around 50,000 Euros for a one expert panel and 150,000 Euros for a three expert panel. Although in the same order of magnitude as the cost estimate listed in the applicant guidebook, they are still higher. In some cases, significantly higher. In fact, we had one applicant write to us last week saying that their quoted expert fee was more than the ICANN fees for submitting their application in the first place! So we have reached out to ICC and are hoping they can provide some rationale for the costs they are quoting.

The Applicant Guidebook does not detail the fees charged by dispute resolution providers, but materials provided by the ICC (pdf) say that its admin costs are €12,000 and €17,000 for a one-person and three-person panel respectively. The hourly rate for the panelists is €450, it says.

With a €150,000 total cost, back of the envelope doodling suggests that each panelist expects to spend around 100 hours working on each case — over two weeks at seven hours a day.

By contrast, the World Intellectual Property Organization’s fees for handling Legal Rights Objections with a three-person panel start at $23,000 ($3,000 for WIPO, $20,000 for the panelists).

Rejected .gay gTLD objection ruled “unfair”

Kevin Murphy, June 27, 2013, Domain Policy

dotgay LLC could be hit by another formal new gTLD objection from gay Republicans.

ICANN Ombudsman Chris LaHatte today said that it was “unfair” that a community objection filed by GOProud, a gay lobby group, was rejected by the International Chamber of Commerce.

The ICC screwed up, it seems, judging by LaHatte’s decision.

Washington DC-based GOProud, which seeks to show that not all gay rights advocates have liberal views on other issues, had filed a community-based objection to dotgay’s .gay gTLD application.

While the substance of the objection is not known, I suspect it’s politically motivated. The other objection to dotgay’s application was filed by another gay Republican organization, the Metroplex Republicans of Dallas (formerly Log Cabin Republicans Dallas).

The ICC rejected the objection because it was about 500 words over the prescribed limit, but it sent the notification to the wrong email address, according to LaHatte’s blog.

Had GOProud received the notification, it would have had time to amend its objection to rectify the mistake. However, by the time it discovered the problem the filing deadline had passed.

LaHatte wrote:

there is some unfairness in the subsequent rejection given the apparent error in the use of the wrong email. It seems to me that it would be relatively easy to unwind that decision, and permit the late filing of the objection. I can of course only make a recommendation, but in this case where there is some unfairness I think the matter should be revisited.

The Ombudsman’s role is to handle complaints about unfairness in ICANN’s actions, so it’s not entirely clear what’s going to happen in this case, given that the ICC is an ICANN subcontractor.

LaHatte’s recommendation is certainly not binding in either case. Whether the ICC changes its mind may depend on whether ICANN asks it to or not.

dotgay is the New York-based applicant founded by Scott Seitz. It’s one of four companies applying for .gay.

The other three applicants — Top Level Domain Holdings, Top Level Design and Demand Media — have each received community objections from the International Lesbian Gay Bisexual Trans and Intersex Association, a dotgay supporter.