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.phone will be restricted after Dish gTLD auction win

Kevin Murphy, December 21, 2015, Domain Registries

The new gTLD .phone is going to be tightly restricted, after Dish DBS won the contested string at auction.

The American satellite communications firm beat Donuts to the gTLD, judging by Donuts’ withdrawal from the two-horse on Friday.

This means that if you’re not a licensed telecoms or voice-over-IP service provider, you won’t be able to register a .phone domain, at least at first.

Dish originally applied for .phone as what became known as a “closed generic” — a non-trademark, dictionary word that would nevertheless be operated as a dot-brand, with a single eligible registrant.

Due to Governmental Advisory Committee advice against such business models, Dish changed its application this September to describe .phone instead as a “controlled” gTLD.

Its application states that only Dish, its affiliates and “Qualified Applicants” will at first be able to register .phone domains.

“Qualified Applicants” basically means any company licensed to run a telecommunications service anywhere in the world. The eligibility gate appears to be the “license”.

The application says Dish will reserve the right to open up the gTLD to further classes of registrants at a later date.

While it also says that Dish will not give itself or friendly registrars any “undue preference”, the telecoms industry is suspicious.

USTelecom, the industry body representing large and small US-based telecoms companies, wrote to ICANN in November to say Dish’s volte face was “unconvincing” and its proposals “simply fail to satisfy” ICANN’s rules banning closed generics.

It said in its letter (pdf):

While Dish purports in its amended application that the .phone gTLD will be operated as a “controlled gTLD,” it is in reality an exclusive generic TLD, prone to discriminatory and subjective determinations on which entities are “Qualified Applicants,” and a discretionary reservation “to open this TLD to additional classes of registrants in the future,” who “will not be considered members.”

USTelecom says it negotiated with Dish, in an attempt to resolve its earlier formal objection against the bid, to have Dish include some reassuring Public Interest Commitments in its application, but Dish refused.

ICANN, responding to USTelecom, said that any Registry Agreement Dish signs for .phone will include the clauses that prevent it operating as a closed generic.

Now that the contention set has been settled, Dish’s next step is to proceed to contract negotiations with ICANN.

More dirty tricks questions raised in .africa saga

Kevin Murphy, September 2, 2015, Domain Policy

DotConnectAfrica leaned on a former employee and used suspected astroturf in an unsuccessful attempt to have the Kenyan government support its .africa bid, newly published documents reveal.

Evidence to the .africa Independent Review Process case published for the first time by ICANN Monday night shows how DCA CEO Sophia Bekele attempted to secure Kenyan backing via a former chair of its own advisory board, who had gone on to be an adviser for Kenya on the ICANN Governmental Advisory Committee.

Emails suggest that this adviser tried to support DCA, against the wishes of his superiors in the Kenyan government, while they were distracted by a contested presidential election result.

They also show that Bekele on at least two occasions sent “news” stories published on web sites she has links to to another senior Kenyan official.

The full story is not yet on the public record — ICANN is still refusing to un-redact anything that the GAC has deemed confidential, including discussions on the GAC mailing list — but some interesting questions have nevertheless emerged.

Kenya divided

Three sets of emails were published.

One was between Bekele and a newly appointed Kenyan GAC adviser, Sammy Buruchara, dating to the ICANN meeting in Beijing, April 2013.

That was the meeting at which the GAC decided, by consensus, to issue advice to the effect that DCA’s .africa application should be trashed.

If Kenya, or any other single government, had disagreed with that proposed GAC advice, it would not be “consensus” advice and would therefore be substantially weakened when the ICANN board came to consider it.

Until his GAC appointment, Buruchara had been chair of DCA’s Strategic Leadership Advisory Board. DCA press released his move in March 2013.

It’s significant that Buruchara was not Kenya’s GAC voting “representative” — that was Michael Katundu — rather merely an “adviser”.

When Bekele (pictured here with Buruchara, March 7, 2013) was cross-examined during the IRP hearings in May this year, she was asked:

Bekele Buruchara

Q. Are you and he friends?

A. No.

Emails show that Buruchara had forwarded the proposed text of the GAC advice to Bekele, who then suggested three paragraphs of text saying the advice was “inappropriate” because the African Union Commission, as backer of the rival ZACR .africa bid, was a GAC member.

That email was dated April 10 — the Wednesday of the Beijing meeting — as the GAC was preparing its communique for submission to the ICANN board the following day.

It’s not clear from the emails published so far what, if anything, Buruchara did in response.

However, the next day, April 11, it seems his Kenyan government superiors were on his case. Buruchara told Bekele:

The matter has been escalated to our Government in Kenya with false information that I am contradicting the AUC.

I have responded accordingly.

Due to the sensitivity of this matter, I wish to leave it at the level of my previous post to the GAC until the matter settles.

Currently I am expecting a call from the President any time.

Expecting a call from the president was a big deal — Uhuru Kenyatta had been inaugurated just two days earlier following a month-long “hanging chads”-style legal challenge to his March 9 presidential election victory.

Buruchara elaborated in a subsequent email:

Someone from AUC called Ndemo and made a lot of noise to the effect that I have contradicted the Heads of State agreement in Abuja, which is obviously lies.

So Ndemo is beside himself with madness owing to the current transition process.

Anyhow I will try and manage the situation as I have not anywhere contradicted AUC’s position.

The “transition” he refers to is Kenyatta’s transition into government, not the ICANN/IANA transition.

“Ndemo” was actually Bitange Ndemo, then the Kenyan permanent secretary for information and communications, somebody Bekele had been simultaneously lobbying for Kenyan government support.

Buruchara was not in Beijing. The actual GAC rep, Katundu, went along with the GAC consensus against DCA.

In fact, Kenya had already issued a GAC Early Warning (pdf) against DCA, so it was significant that Buruchara was expressing support for the company.

In a second email thread, dated July 8, 2013, Buruchara seems to acknowledge that he aided DCA in some way but suggests that was only possible because of political instability in Kenya:

I am glad to note that DCA application passed all the stages except the GNP [Geographic Names Panel].

As you know I stuck my neck out for DCA inspite of lack of Govt support by Ndemo.

Going forward, I would certainly be ready to support DCA so long as the Kenya Govt is behind me as I do not think I will have the same chances as I had last time which was because the govt was in transition

In these July emails, which came less than a week after DCA’s application was rejected by the ICANN board, Bekele encourages Buruchara to file a challenge on behalf of Kenya, and to try to recruit other friendly governments to its cause.

Nothing ever came of that.

Buruchara’s alleged actions were one of the controversial points argued over in the DCA Independent Review Process case.

Many pages of the relevant evidence and argument related to Buruchara’s actions (or lack thereof) are still redacted by ICANN as “GAC Confidential”, so we don’t have all the facts.

However, the IRP proceedings revealed that Buruchara had emailed the GAC mailing list just before Beijing kicked off with reference to .africa.

According to DCA, Buruchara “explained that Kenya supported the AUC’s application for .AFRICA but did not think it was appropriate for the AUC to utilize the GAC to eliminate competition”.

Complicating matters further, there was a third Kenyan GAC “representative” in the mix, Alice Munyua.

She had been the Kenyan GAC rep, but according to DCA had left the position prior to Beijing. She was also involved in the ZACR application and the AUC .africa project.

The record shows that she spoke strongly against DCA’s application, as Kenyan GAC rep, during a meeting between the ICANN board and GAC in Beijing, April 9.

Buruchara, according to DCA, had told the GAC mailing list that Munyua was no longer a GAC rep and that the Kenyan government did not agree with her position. He was then evidently talked out of his position by other GAC members.

It’s not clear from the record whether Munyua was an authorized Kenyan GAC rep in Beijing or not. Archive.org shows her listed on the GAC’s member list in January 2013 but not May 2013.

It’s all very confusing, in other words.

What we seem to have in Beijing, at the least, is a Kenyan GAC delegation deeply divided and the possibility that one or more delegates tried to capitalize on political distractions back home.

With a partial record, it’s difficult to tell for sure.

.africa belongs to America

What’s more clear from the emails published by ICANN this week is that despite her claims to represent the African people, Bekele on at least two occasions told Kenyan officials that African governments had no right to .africa.

In one email to Ndemo, Bekele asserts that the US, rather than African governments, “owns” .africa. She wrote:

we do not believe that it is the place of African Presidents to give AU any sort of mandate for custodianship over a .africa resource that is owned by ICANN or US… the AU cannot do an RFP that is parallel to the ICANN process to appoint a registry on behalf of Africa as if they “own the resource”, which belongs to ICANN

This is in tune with Bekele’s repeated outreach to the US Congress to intervene in the .africa controversy.

While DCA is based in Mauritius, Bekele has stated in interviews that she’s lived in California for the better part of two decades.

More astroturf?

The newly published emails also show Bekele unsuccessfully lobbying Ndemo for Kenyan government support, in part by sending him links to purportedly independent domain “news” blogs that are widely believed to be under her own control.

In February 2013, Bekele sent Ndemo links to articles published on domainnewsafrica.com and domainingafrica.com.

These two domains were originally registered by Bekele, at her California business address, on November 21, 2011.

The Whois details for both domains disappeared behind Go Daddy’s privacy service on May 12, 2012, records archived by DomainTools show.

Both web sites take strongly pro-DCA views in matters relating to .africa and ICANN. Neither covers African domain name news except to the extent it relates to DCA or .africa.

Given that Bekele has a admitted history of using bogus identities to fake support for DCA, it’s my view that the sites are nothing more than astroturf/sock-puppetry.

domainingafrica.com is the site that accused me of being part of a racial conspiracy.

It’s worrying that this site was also being used to lobby government officials.

It’s perhaps fitting that Bekele’s email signature, in the newly unredacted emails, is “Nobody believes the official spokesman… but everybody trusts an unidentified source.”

All documents in the IRP case of DCA v ICANN, many still significantly redacted, can be found here.

.food could be heading for limbo after closed generic applicant wins auction

Kevin Murphy, September 1, 2015, Domain Policy

The future of the .food gTLD is up in the air after single-registrant applicant Lifestyle Domain Holdings won its contention set.

The applicant, a subsidiary of Scripps Networks, is the sole remaining .food applicant after withdrawals from Donuts and Dot Food LLC.

It’s also a recalcitrant “closed generic” applicant, which continues to insist it has the right to exclude all third-party registrants from the .food namespace.

The company seems to have won .food at auction, even though ICANN recently slapped a ban on closed generics in the current application round.

Scripps will not be able to launch .food any time soon, unless it changes its planned registration policies.

The company may have essentially just paid to have .food placed on hold until the next new gTLD round.

Scripps runs a cable TV station in the US called Food Network, which it says is famous. It also runs Food.com, which it describes as “the third largest food site on the web”.

The current version of its application states:

Applicant intends to function in such a way that all domain name registrations in the TLD shall be registered to and maintained by Applicant and Applicant will not sell, distribute or transfer control of domain name registrations to any party that is not an Affiliate of Applicant

When ICANN asked applicants if they would like to revise their closed generic applications to allow third-party registrants, due to adverse Governmental Advisory Committee advice, Scripps was one of half a dozen applicants to decline.

Audaciously, the company told ICANN that an open registration policy for .food would hurt its brand:

To open the top level domain means that anyone could register a domain for a small annual amount of money and exploit, confuse and infringe upon the brand equity and goodwill of the famous FOOD, FOOD NETWORK and FOOD.COM brands established by Scripps with more than twenty years and hundreds of millions of dollars in investment.

Yes, Scripps thinks that when people think of “food”, they automatically think of the “third largest food web site” or a cable TV network that gets a 0.21% audience share in the UK.

A nonsense position, in other words.

So will Scripps get to run .food as a closed dot-brand? Probably not.

In June, ICANN ruled that the remaining closed generics applications (.food, .hotels, .grocery, .dvr, .data, and .phone) had the choice of either withdrawing, dropping their exclusivity plans, or carrying their applications over to the next gTLD application round.

Having just paid its competing applicants to go away, one assumes that Scripps’ withdrawal is off the cards.

Most governments keep restrictions on country names in new gTLDs

Kevin Murphy, July 31, 2015, Domain Policy

Just one out of every 10 governments in the ICANN Governmental Advisory Committee is happy for people to register its country name in new gTLDs.

That’s according to a new GAC database detailing which countries want to keep tabs on how their names are being used.

Out of 80 GAC members contributing to the database, just eight have said registries can sell their country names with no restrictions.

The eight countries and territories are the UK, the USA, Denmark, Finland, Netherlands, Sweden, Guernsey and Pitcairn.

New gTLD registries will therefore be able to auction off, for example, finland.guru or pitcairn.news, to whoever wants them.

Another 10 governments — Belgium, Brazil, Bulgaria, Czech Republic, Georgia, Montenegro, New Zealand, Romania, Spain and Switzerland — have relinquished oversight in the case of dot-brand registries that have signed Specification 13 of the ICANN Registry Agreement.

So if Sony wants to register brazil.sony to itself, it can without restrictions.

Under the new gTLD Registry Agreement, all country and territory names in the six official UN languages have to be reserved by all registries unless they can reach agreement with the applicable government.

The 18 governments mentioned above have basically waived this right to be notified in whole or in part.

The remaining 62 governments say they still wish to be notified when a registry wants to release its name.

GAC chair Thomas Schneider told ICANN (pdf) that countries not yet listed in the database should be treated as if they’re still restricted, so the actual number is closer to 200.

In short, this database is not a lot of help to dot-brands and other registries that want to start using or selling country names.

Critics have pointed out that many governments wanting to regulate their names in new gTLDs have not done so in their own ccTLDs.

Of the 62, ownership of country names is mixed. Italy owns italy.it and italia.it, for example, while germany.de and deutschland.de appear to be in private hands.

Booking.com uses .africa precedent to challenge .hotels ruling

Kevin Murphy, July 21, 2015, Domain Policy

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”?

Petillion wrote:

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.

It then filed an IRP, but that concluded this March with the panel awarding a grudging win to ICANN, which it orders should split the costs of the case.

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.

Petillion wrote:

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?