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CPE probe: “whitewash” or “fig leaf”?

Kevin Murphy, January 31, 2018, Domain Policy

A few weeks ago, when I was reporting the conclusions of a probe into ICANN’s new gTLD program, I wrote a prediction on a piece of paper and placed it into a sealed envelope.*

I wrote: “They’re gonna call this a whitewash.”

And I was correct! Ta-dah! I’m here all week.

The lawyer for applicants for .music and .gay gTLDs has written to ICANN to complain that a purportedly independent review of the Community Evaluation Process was riddled with errors and oversights and should not be trusted.

In a letter on behalf of dotgay LLC, Arif Ali calls the report a “whitewash”. In a letter on behalf of DotMusic, he calls it a “fig leaf”.

Both companies think that the CPE probe was designed to give ICANN cover to proceed with auctions for five outstanding gTLD contention sets, rather than to get to the bottom of perceived inconsistencies in the process.

Both of Ali’s clients applied for their respective gTLDs as “community” applicants, trying to avoid auctions by using the Community Priority Evaluation process.

During their CPEs, both carried out by the Economist Intelligence Unit, neither applicant scored highly enough to win the exclusive right to .gay or .music, meaning the next stage was to auction the strings off to the highest bidder.

After repeated complaints from applicants and an Independent Review Process finding that ICANN lacked transparency and that staff may have had inappropriate influence over the EIU, ICANN hired FTI Consulting to look into the whole CPE process.

FTI’s report was finally delivered late last year, clearing ICANN on all counts of impropriety and finding that the EIU’s evaluations had been consistent across each of the applications it looked at.

The remaining gTLDs affected by this are .music, .gay, .hotel, .cpa, and .merck.

ICANN’s board of directors is due to meet to discuss next steps this weekend, but Ali says that it should “critically evaluate the [FTI] Report and not accept its wholesale conclusions”. He wrote, on behalf of DotMusic:

The report reveals that FTI’s investigation was cursory at best; its narrow mandate and evaluation methodology were designed to do little more than vindicate ICANN’s administration of the CPE process.

It is evident that FTI engaged in a seemingly advocacy-driven investigation to reach conclusions that would absolve ICANN of the demonstrated and demonstrable problems that afflicted the CPE process.

Among the applicants’ list of complaints: their claim that FTI did not interview affected applicants or take their submissions seriously, and the fact that ICANN was less than transparent about who was conducting the probe and what its remit was.

The same letter quotes ICANN chair Cherine Chalaby, then vice-chair, saying in a January 2017 webinar that he had observed inconsistencies in how the CPEs were carried out; inconsistencies FTI has since found did not occur.

That should be enough to provoke discussion when the board meets to discuss this and other issues in Los Angeles on Saturday.

* I didn’t actually do this of course, I just thought about it, but you get my point.

“We own your name” government tells Amazon in explosive slapdown

Kevin Murphy, October 29, 2017, Domain Policy

Amazon suffered a blistering attack from South American governments over its controversial .amazon gTLD applications this weekend.

A Peruvian official today excoriated Amazon’s latest peace offering, telling the tech giant in no uncertain terms that the word “Amazon” is not its property and demanding an apology for the company’s alleged behavior during recent legal proceedings.

“We will be giving you permission to use a certain word, not the other way around,” she said. “We are the owners of the Amazonian region.”

Speaking for almost 10 minutes during a session at the ICANN 60 meeting in Abu Dhabi this afternoon, Peru’s representative to the Governmental Advisory Committee pulled rank and scolded Amazon like a naughty schoolchild.

She claimed that Amazon had been bad-mouthing Peru by saying former GAC reps had “lied to and manipulated” the rest of the GAC in order to get support for its objection. She then demanded an apology from the company for this.

She was speaking in support of the idea that the string “Amazon” belongs to the people of the Amazonas region, which covers as many as eight South American countries, rather than the American company, despite the fact that none of those countries use the English word to describe the region.

Her remarks drew applause from parts of the audience.

Amazon had showed up at the session — described by two GAC reps later as a “lion’s den” — to offer a “strong, agreed-upon compromise that addresses the needs of the governments”.

The proposed deal would see the GAC drop its objections to .amazon in exchange for certain safeguards.

Amazon is promising to reserve geographically and culturally sensitive words at the second level in .amazon.

The domain rainforest.amazon, its associate general counsel Dana Northcott said by way of example, would be never be used by anyone.

Affected governments would get to negotiate a list of such terms before .amazon went live and there’d be an ongoing consultation process for more such terms to be protected in future.

The company has also promised not to object to — and in fact to actively support with hard resources — any future applications for .amazonas or other local-language variants by the people of the region.

But Peru was not impressed, telling the company that not only is the English version of the name of the region not its property but also that it must show more respect to governments.

“No government is going to accept any impositions from you,” she said, before appealing to fellow GAC members that the issue represents a kind of existential threat.

“The core issue here… is our survival as governments in this pseudo-multi-stakeholder space that has been invented,” she said.

“They want us to believe this is a place where we have dignity but that is increasingly obvious that this is not the case,” she said. “We don’t have it. And that is because of companies like yours… Companies that persist in not respecting the governments and the people they represent.”

The Peruvian GAC rep, listed on the GAC web site as María Milagros Castañon Seoane but addressed only as “Peru” during the session, spoke in Spanish; I’ve been quoting the live interpretation provided by ICANN.

Her remarks, in my opinion, were at least partially an attempt to strengthen her side’s negotiating hand after an Independent Review Process panel this July spanked ICANN for giving too much deference to GAC advice.

The IRP panel decided that ICANN had killed the .amazon applications — in breach of its bylaws — due to a GAC objection that appeared on the face of the public record to be based on little more than governmental whim.

The panel essentially highlighted a clash between ICANN’s bylaws commitments to fairness and transparency and the fact that its New gTLD Applicant Guidebook rules gave the GAC a veto over any application for any reason with no obligation to explain itself.

It told ICANN to reopen the applications for consideration and “make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications”.

That was back in July. Earlier today, the ICANN board of directors in response to the IRP passed a resolution calling for the GAC to explain itself before ICANN 61 in March next year, resolving in part:

Resolved (2017.10.29.02), the Board asks the GAC if it has: (i) any information to provide to the Board as it relates to the “merits-based public policy reasons,” regarding the GAC’s advice that the Amazon applications should not proceed; or (ii) any other new or additional information to provide to the Board regarding the GAC’s advice that the Amazon applications should not proceed.

Other governments speaking today expressed doubt about whether the IRP ruling should have any jurisdiction over such GAC advice.

“It is not for any panelist to decided what is public policy, it is for the governments to decide,” Iran’s Kavouss Arasteh said.

During a later session today the GAC, talking among itself, made little progress in deciding how to formally respond to the ICANN board’s resolution.

A session between the GAC and the ICANN board on Tuesday is expected to be the next time the issue raises its increasingly ugly head.

More delay for Amazon as ICANN punts rejected gTLD

Kevin Murphy, September 26, 2017, Domain Policy

Amazon is going to have to wait a bit longer to discover whether its 2012 application for the gTLD .amazon will remain rejected.

ICANN’s board of directors at the weekend discussed whether to revive the application in light of the recent Independent Review Process panel ruling that the bid had been kicked out for no good reason.

Instead of making a firm decision, or punting it to the Government Advisory Committee (as I had predicted), the board instead referred the matter to a subcommittee for further thought.

The newly constituted Board Accountability Mechanisms Committee, which has taken over key functions of the Board Governance Committee, has been asked to:

review and consider the Panel’s recommendation that the Board “promptly re-evaluate Amazon’s applications” and “make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications,” and to provide options for the Board to consider in addressing the Panel’s recommendation.

The notion of a “prompt” resolution appears to be subjective, but Amazon might not have much longer to wait for a firmer decision.

While the BAMC’s charter requires it to have meetings at least quarterly, if it follows the practice of its predecessor they will be far more frequent.

It’s possible Amazon could get an answer by the time of the public meeting in Abu Dhabi at the end of next month.

ICANN’s board did also resolve to immediately pay Amazon the $163,045.51 in fees the IRP panel said was owed.

The .amazon gTLD application, along with its Chinese and Japanese versions, was rejected by ICANN a few years ago purely on the basis of consensus GAC advice, led by the geographic name collisions concerns of Peru and Brazil.

However, the IRP panel found that the GAC advice appeared to based on not a great deal more than whim, and that the ICANN board should have at least checked whether there was a sound rationale to reject the bids before doing so.

Governments slammed for overreach as Amazon wins gTLD appeal

Kevin Murphy, July 19, 2017, Domain Policy

Amazon has won its appeal against the rejection of its .amazon gTLD application, in a ruling that criticizes ICANN for giving too much deference to government advice.

The Independent Review Process panel’s 2-to-1 ruling, delivered July 11 and published this week, means that .amazon and its Chinese and Japanese translations has been un-rejected and ICANN will have to consider approving it again.

The ruling (pdf) turns on the idea that ICANN’s board of directors rejected the gTLD based on nothing more than the groundless objections of a few South American governments.

Amazon’s applications were rejected three years ago when ICANN accepted the consensus advice of its Governmental Advisory Committee.

That advice, which had no attached rationale, had come largely at the behest of Brazil and Peru, two countries through which the Amazon river flows.

At issue was the word “Amazon”, which the governments protested matched the name of an important geographic region extending into several countries.

But the string was not protected by ICANN’s new gTLD program rules because it does not match the name of an administrative region of any country.

Regardless, Brazil and Peru said that to give .amazon to Amazon would prevent it being used in future by citizens of the informal South American region.

GAC consensus was reached only after the US government, for political reasons connected to the then-recent announcement of the IANA transition, decided to withdraw its objection to the advice.

Consensus, under GAC rules means simply that no one government objects to the proposed advice. It does not indicate unanimity.

But at no point in the pubic record of discussions within the GAC or ICANN board did anyone give any substantial public policy reasons for the objection, the IRP panel has now found.

Global Domains Division chief Akram Atallah testified before the panel that consensus GAC advice sets “too high for the Board to say no.”

It seems ICANN sometimes just assumes that GAC advice by default is rooted in sound public policy, even when that is not the case.

Brazil and Peru’s objections “do not appear to be based on well-founded public policy concerns that justify the denial of the applications” the panelists wrote.

The panel wrote:

We conclude that GAC consensus advice, although no reasons or rationale need be given, nonetheless must be based on a well-founded public interest concern and this public interest basis must be ascertained or ascertainable from the entirety of the record…

the Board cannot simply accept GAC consensus advice as conclusive. The GAC has not been granted a veto under ICANN’s governance documents.

So, while the GAC was under no obligation to state its reasons for objecting to .amazon, the ICANN board was obliged to state its reasons for accepting this advice beyond just “the GAC made us do it”.

As somebody who spent much of 2011 arguing that the GAC new gTLD veto was a bad idea, it’s nice to see the panel agree with me.

The GAC itself also erred by refusing to consider Amazon’s arguments in favor of its application, the IRP panel’s majority found.

Peru had publicly claimed that the string “Amazon” was protected under ICANN rules, which was not true, and Amazon did not have the opportunity to correct the record.

Amazon had also pointed out that the Brazilian oil company Ipiranga was granted its application for .ipiranga, despite its name matching the name of a Brazilian river apparently so important that it is referred to in the Brazilian national anthem.

However, the IRP panel decided that because ICANN’s board had not taken any action on .ipiranga, there was no basis for it to consider whether Amazon had been unfairly subject to different treatment.

In conclusion, this is what the panel has sent to the board:

The Panel recommends that the Board of ICANN promptly re-evaluate Amazon’s applications in light of the Panel’s declarations above. In its re-evaluation of the applications, the Board should make an objective and independent judgment regarding whether there are, in fact, well-founded, merits-based public policy reasons for denying Amazon’s applications. Further, if the Board determines that the applications should not proceed, the Board should explain its reasons supporting that decision. The GAC consensus advice, standing alone, cannot supplant the Board’s independent and objective decision with a reasoned analysis.

It seems Amazon’s chances of having .amazon approved have improved. If ICANN wants to reject the applications again it is going to have to come up with some good reasons, some good reasons that possibly do not exist.

The panel also ordered ICANN to reimburse Amazon for the $163,045.51 it spent on the IRP.

ICANN finds no conflict of interest in .sport decision

Kevin Murphy, June 5, 2017, Domain Policy

ICANN has rejected claims that the .sport gTLD contention set was settled by an arbitrator who had undisclosed conflicts of interest with the winning applicant.

Its Board Governance Committee last week decided that Community Objection arbitrator Guido Tawil had no duty to disclose his law firm’s ties to major sports broadcasters when he effectively eliminated Famous Four Media from its fight with SportAccord.

Back in 2013, SportAccord — an applicant backed by pretty much all of the world’s major sporting organizations — won the objection when Tawil ruled that FFM’s fully commercial, open-registration bid could harms its members interests.

FFM complained with Requests for Reconsideration, Ombudsman complaints and then an Independent Review Process complaint.

It discovered, among other things, that Tawil’s law firm was helping broadcaster DirecTV negotiate with the International Olympic Committee (one of SportAccord’s backers) for Olympics broadcasting rights at the time of the Community Objection.

The IRP panel ruled in February this year that the BGC had failed to take FFM’s allegations of Tawil’s “apparent bias” into account when it processed Reconsideration requests back in 2013 and 2014.

So the BGC reopened the two Reconsideration decisions, looking at whether Tawil was required by International Bar Association guidelines to disclosed his firm’s client’s interests.

In a single decision (pdf) late last week, the BGC said that he was not required to make these disclosures.

In each of the three claims of bias, the BGC found that the connections between Tawil and the alleged conflict were too tenuous to have required disclosure under the IBA rules.

It found that the IOC and SportAccord are not “affiliates” under the IBA definition, which requires some kind of cross-ownership interests, even though the IOC is, judging by the .sport application, SportAccord’s most valued supporter.

The BGC also found that because Tawil’s firm was representing DirecTV, rather than the IOC, the relationship did not technically fall within the disclosure guidelines.

For these and other reasons, the BGC rejected FFM’s Reconsideration requests for a second time.

The decision, and the fact that FFM seems to have exhausted ICANN’s appeals mechanisms, means it is now more likely that SportAccord’s application will be allowed to continue negotiating its .sport Registry Agreement with ICANN, where it has been frozen for years.