DotConnectAfrica thinks it is going to get the .africa gTLD, following its successful Independent Review Process case against ICANN.
In a press release today, the company hailed last week’s ruling as a “resounding victory”.
DCA CEO Sophia Bekele is quoted as saying:
Going forward, we now expect ICANN to accept the binding IRP outcome, refrain from any further plans to delegate .Africa to the ZA Central Registry who should now be removed immediately from the new gTLD program; and cooperate fully with DCA Trust to ensure that the IRP Panel ruling is implemented so that .Africa can be delegated to DotConnectAfrica Trust
That’s right, Bekele reckons the IRP win means ICANN has to kick rival .africa applicant ZACR — which has already signed a Registry Agreement for the string — out of the new gTLD program.
Needless to say, it doesn’t.
The IRP panel refused DCA’s demands that ZACR be kicked out, and by ruling against DCA on a number of other counts, it essentially signed its application’s death warrant.
Bekele goes on to make three startling assertions about the case that have little to no basis in the IRP panel’s ruling:
During the IRP, DotConnectAfrica Trust clearly established three major findings: that ZA Central Registry lacked any valid endorsements for the .Africa string that it applied for; and that the purported Governmental Advisory Committee Objection Advice against our .Africa application was not by consensus; and that the ICANN Board had seriously erred in accepting the GAC Advice. The truth has prevailed and we are absolutely happy with the IRP Panel decision.
“I also give thanks to God for helping to correct this act of victimization that was committed against DCA Trust,” she added.
I’m not making that up. She really said that.
In Bekele’s opinion, DCA “established” three major findings, but “alleged” would be a better word. The IRP panel largely disagreed with or ignored the claims.
First, there’s nothing in the IRP’s decision that shows ZACR “lacked any valid endorsement” for its .africa bid.
ZACR has the unambiguous support of the African Union and says on its web site it has backing from 78% of African nations. The IRP declaration doesn’t even mention these endorsements, let alone question them.
Second, the IRP panel does not say that the GAC’s advice against DCA’s application lacked consensus. It says it lacked fairness and transparency, but did not dispute that it had consensus.
Third, the IRP did not conclude that ICANN should not have accepted that GAC advice, just that it should have carried it a bit more due diligence.
Finally, there’s nothing in the IRP’s declaration that gives DCA a chance of winning the .africa gTLD. In fact, the panel specifically decided not to give DCA that chance.
The closest the panel came to addressing any of DCA’s myriad accusations of ICANN wrongdoing is described in its ruling:
DCA Trust has criticized ICANN for its various actions and decisions throughout this IRP and ICANN has responded to each of these criticisms in detail. However, the Panel, having carefully considered these criticisms and decided that the above is dispositive of this IRP, it does not find it necessary to determine who was right, to what extent and for what reasons in respect to the other criticisms and other alleged shortcomings of the ICANN Board identified by DCA Trust.
So what happens to .africa now?
ICANN’s board of directors will discuss the IRP declaration at its next meeting, July 28, so we don’t yet know for certain how things will proceed.
However, some things seem safe bets.
The IRP panel suggested that ICANN should continue to refrain from delegating .africa, which has been on hold since May 2014, to ZACR. I think it likely that ICANN will follow this recommendation.
It also seems possible that ICANN may decide to reconsider (that is, consider again, rather than necessarily overturn) its decision to accept the GAC’s consensus objection to DCA’s .africa bid.
The panel’s key criticism of ICANN was that it failed to seek a rationale from the GAC for its objection. So ICANN may decide to seek such a rationale before reconsidering the advice.
The panel also told ICANN that DCA’s application, which had been rejected, should re-enter the application process.
Assuming ICANN accepts this recommendation (and I think it will, given the political climate), the first step would to be for DCA to finish its Initial Evaluation. ICANN rejected the DCA bid, based on GAC advice, before the IE panels finalized their evaluation DCA’s application.
Part of the IE process is the Geographic Names Review, which determines whether a string is “geographic” under ICANN’s definition and whether the applicant has the necessary support — 60% of national governments in .africa’s case — to be allowed to proceed.
DCA does not have this support, and it knows that this means its application is on life support.
It had asked the IRP panel to rule that ICANN should either give it 18 months to try to gather support, or to rule that it already has the support, essentially trying to lawyer itself into a position where it had a shot of winning .africa.
But the panel rejected both of these demands.
While DCA seems to have given up trying to convince people that its 2009 letter of support from the AU is still valid, it still holds that a 2008 letter from the executive secretary of the United Nations Economic Commission for Africa shows the requisite 60% support.
I don’t know whether this letter was ever formally withdrawn, but UNECA is today listed as a ZACR supporter.
However, even if the Geographic Names Panel ruled that DCA had passed its 60% threshold, the application would still fail the geographic review.
The rules state that “there may be no more than one written statement of objection” from an affected government, and DCA received GAC Early Warnings from 16 national governments as well as the AU itself.
No matter what DCA says in its press releases now, its application is still doomed.
ICANN has been opened up to a world of hurt after an independent panel of judges ruled that the organization broke its own bylaws when it kicked DotConnectAfrica’s .africa bid out of the new gTLD program.
The what-the-fuck ruling cuts to the very heart of how ICANN deals with advice from its Governmental Advisory Committee, which comes out of the case looking like a loose canon with far too much power to sway the ICANN board.
Witness testimony published in the panel’s opinion sheds humiliating light on the GAC’s self-defeating habit of supplying ICANN with deliberately vague advice, a practice described by its former chair under oath as “creative ambiguity”.
The ruling does not, however, give DCA a serious shot at winning the .africa gTLD, which has already been contracted to rival ZA Central Registry. More delay is, however, inevitable.
The Independent Review Panel said:
the Panel is of the unanimous view that certain actions and inactions of the ICANN Board (as described below) with respect to the application of DCA Trust relating to the .AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN.
It also unanimously ruled that ICANN should un-reject DCA’s application and allow it to continue through the application process and that ICANN should bear the full $600,000+ cost of the IRP, not including DCA’s legal fees.
It’s an important ruling, especially coming as ICANN seeks to extricate itself from US government oversight, because it implicitly calls on ICANN’s board to treat GAC advice with much less deference.
What’s the backstory?
DCA and ZACR have competing applications for .africa, which is a protected geographic string.
Under new gTLD program rules, only an applicant with support from over 60% of African national governments can be approved. ZACR’s support far exceeds this threshold, whereas DCA enjoys little to no government support at all.
The ICANN board’s New gTLD Program Committee rejected the DCA bid in June 2013, before its Initial Evaluation (which includes the Geographic Names Review) had been completed, based on the GAC’s April 2013 Beijing communique advice.
That advice invoked the GAC’s controversial (and vaguely worded) powers to recommend against approval of any application for any reason, as enshrined in the Applicant Guidebook.
A subsequent Request for Reconsideration (IRP lite) filed by DCA was rejected by ICANN’s Board Governance Committee.
An IRP is the last avenue community members have to challenge ICANN’s actions or inaction without resorting to the courts.
DCA filed its IRP complaint in October 2013 and amended it in January 2014, claiming ICANN broke its own bylaws by rejecting the DCA application based on GAC advice.
The case dragged on, partly because one of the original three-person panel died and had to be replaced, the delay causing much consternation among African GAC members.
What did the IRP panel finally rule?
Yesterday’s ruling avoided deciding on or even commenting on any of DCA’s crazy conspiracy theories, instead limiting itself to the question of whether ICANN’s board and committees acted with bylaws-mandated transparency, fairness and neutrality.
It found that the GAC itself did not act according to these principles when it issued its Beijing advice against DCA.
It found that ICANN did not “conduct adequate diligence” when it accepted the advice, nor did the BGC or NGPC when they were processing the RfR.
In light of the clear “Transparency” obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application.
ICANN did not do that, the panel decided, so it broke its bylaws.
both the actions and inactions of the Board with respect to the application of DCA Trust relating to the .AFRICA gTLD were not procedures designed to insure the fairness required… and are therefore inconsistent with the Articles of Incorporation and Bylaws of ICANN.
Does this mean DCA gets .africa?
No. The IRP panel ruled that DCA’s application must re-enter the application process, presumably at the point it exited it.
DCA’s application never had a final Initial Evaluation result issued. If it were to re-enter IE today, it would certainly be failed by the Geographic Names Panel because it lacks the requisite support of 60% of African governments.
DCA wanted the panel to rule that it should have 18 months to try to secure the needed support, but the panel refused to do so.
The application is still as good as dead, but ICANN will need to go through the motions to actually bury it.
In the meantime, ZACR’s delayed delegation of .africa is to remain on hold.
How embarrassing is this for the GAC?
Hugely. Verbal testimony from Heather Dryden, who was GAC chair at the time of the Beijing meeting, highlights what I’ve been saying for years: GAC advice is regularly so vaguely written as to be useless, inconsistent, or even harmful.
Dryden told the panel at one point: “In our business, we talk about creative ambiguity. We leave things unclear so we don’t have conflict.”
The IRP panel took a dim view of Dryden’s testimony, writing that she “acknowledged during the hearing, the GAC did not act with transparency or in a manner designed to insure fairness.”
The ruling quotes large chunks of text from the hearing, during which Dryden was grilled about the GAC’s rationale for issuing a consensus recommendation against DCA.
Dryden responded by essentially saying that the GAC did not discuss a rationale, and that there was “deference” to the governments proposing consensus objections in that regard.
ARBITRATOR KESSEDJIAN: So, basically, you’re telling us that the GAC takes a decision to object to an applicant, and no reasons, no rationale, no discussion of the concepts that are in the rules?
[DRYDEN]: I’m telling you the GAC did not provide a rationale. And that was not a requirement for issuing a GAC —
HONORABLE JUDGE CAHILL: But you also want to check to see if the countries are following the right — following the rules, if there are reasons for rejecting this or it falls within the three things that my colleague’s talking about.
[DRYDEN]: The practice among governments is that governments can express their view, whatever it may be. And so there’s a deference to that. That’s certainly the case here as well.
This and other quoted sections of the hearing depict the GAC as a body that deliberately avoids substantive discussions and deliberately provides unclear advice to ICANN, in order to avoid offending its members.
Does this mean all GAC advice on new gTLDs is open to appeal now?
Maybe. There are numerous instances of the ICANN board accepting GAC advice without demanding an explanation from the GAC.
At a bare minimum, the applicant for .gcc, which was rejected in the same breath as .africa, now seems to have a case to appeal the decision. The applicant for .thai is in a very similar situation.
Amazon’s lawyers will no doubt also be poring over yesterday’s decision closely; its .amazon bid was also killed off by GAC advice.
But in the case of .amazon, it would be hard to argue it was a .africa-style summary execution. ICANN took extensive advice and delayed its decision for a long time before killing off that application.
The ruling essentially calls the part of the Applicant Guidebook that gives the GAC its strong advisory powers over new gTLD applications into question.
Literally hundreds of new gTLD applications were affected by the Beijing communique.
Anything else of note?
First, large parts of the decision have been redacted. The redactions mostly appear to relate to sensitive documents disclosed between the parties (reading between the lines, I think some of them related to DCA’s purported support from a certain African government) that the panel ruled should remain private last September.
Second, the decision inexplicably quotes the ICANN bylaws text “MISSION AND CORE VALUES” as “MISSION AND CORE (Council of Registrars) VALUES”, in what appears to be a weird search-and-replace error by an unknown party. CORE (Council of Registrars) is of course a registry back-end provider with apparently no involvement in .africa whatsoever.
Third, it seems I’ve been elected Pope. I hereby select “Dave” as my Papal name and will commence my program of donating all Church assets to the poor forthwith.
Ownership of the contested gTLD .cruise will be resolved by auction, despite protests from one applicant that the other left it too late to drop its “closed generic” plans.
Applications from Cruise Lines International Association and Viking River Cruises were both placed in “In Auction” status by ICANN overnight.
Both original applications had been to operate .cruise for the registry’s own exclusive use, a so-called closed generic bid.
However, following objections from its Governmental Advisory Committee in April 2013, ICANN eventually decided to disallow such applications.
CLIA changed its plans in September 2013 as a result of the GAC advice.
But it wasn’t until mid-June this year, around about the same time as ICANN was mulling its final determination on the matter, that Viking changed its application to remove the exclusive access bits.
This prompted an angry response from CLIA.
In a letter to ICANN last month (pdf) the group accused Viking of waiting too long to change its application and said it should be given a chance to formally object.
CLIA further accused Viking of deliberately delaying the .cruise contention set so its own dot-brand, .viking, could get a head-start. The .viking gTLD is contracted and currently in pre-delegation testing.
ICANN dismissed CLIA’s request, however, saying that applicants can amend their applications at any time and that there are no plans to reopen the objection filing period for one special case.
The gTLD now seems set to head to an ICANN auction or private settlement between the two parties.
Wannabe dot-brands that dawdled and lost the chance to sign a new gTLD registry agreement with ICANN have been given a second shot.
ICANN yesterday introduced a new Application Eligibility Reinstatement process that will enable applicants to change their application status from the dead end of “Will Not Proceed”.
To demonstrate they really are committed to signing a contract, eligible applicants will have to submit a tonne of information about things such as their failure bond, pre- and post-delegation technical plans and registrar onboarding.
As we reported back in January, there were 12 applications belonging to 10 applicants that had simply drifted into limbo for failing to sign a contract by their respective deadlines.
There are 45 applications in “Will Not Proceed” status, but only the ones that timed out in contracting are eligible for the new process, obviously.
Chinese registrar name2host.com has had its accreditation terminated by ICANN for failing to comply with an audit.
According to the compliance notice (pdf), ICANN has been chasing the company since March but has encountered only disconnected phones and unanswered emails.
It seems name2host.com’s principals were all using Hotmail or Yahoo email accounts; not exactly the kind of thing you want to see from a domain name registrar.
The registrar had fewer than 5,000 gTLD domains on its books in March, all in .com and .net.
ICANN will initiate a bulk transfer to a new registrar using its usual process.