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“We’re not homophobic!” ICANN pleads as it throws out .gay appeal

Kevin Murphy, February 3, 2016, Domain Policy

ICANN has refused dotgay LLC’s latest appeal against adverse .gay decisions, and has taken the unusual step of preemptively defending itself against probably inevitable accusations from gay rights groups.

On Monday, the Board Governance Committee threw out dotgay’s Request for Reconsideration, in which the company had asked for a third crack at the Community Priority Evaluation process that could have seen it win .gay without paying at auction.

Today, BGC chair Chris Disspain published a blog post that’s basically a defense against accusations that ICANN is somehow intolerant or ignorant of gay issues.

The post explains the RfR process, explains that the latest decision doesn’t mean there won’t be a .gay or that dotgay won’t win the contention set, winding up:

I want to make clear that the denial of the Request for Reconsideration is not a statement about the validity of dotgay LLC’s application or dotgay LLC’s supporters. The decision means that the BGC did not find that the CPE process for dotgay, LLC’s .GAY application violated any ICANN policies or procedures.

It is ICANN’s responsibility to support the community-developed process and provide equitable treatment to all impacted parties. We understand that this outcome will be disappointing to supporters of the dotgay LLC application. We appreciate the amount of interest that this topic has generated within the ICANN community, and we encourage all interested parties to participate in the multistakeholder process to help shape how future application rounds are defined.

dotgay’s two CPEs, which were evaluated by the Economist Intelligence Unit, failed because the company defined its “community” too broadly, to include people who aren’t gay.

The company says that it’s “common sense” that “gay” is an umbrella term not only for lesbian and bisexual people, but also for people with non-standard gender identities and straight people who support equal rights.

(As an aside, I recently learned that former boxing promoter Kellie Maloney, the UK’s poster girl for transgender issues, disagrees with same-sex couples raising kids and once called for gay pride marches to be banned. I wonder how she fits under this umbrella.)

But the second EIU panel “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”.

The CPE application fell apart on that basis. It scored 10 of the available 16 points, four points shy of a winner.

Due to the sensitive nature of this kind of thing, and the fact that dotgay does have a truckload of genuine support from prominent campaigning members of its community, ICANN and the EIU have come in for criticism.

Some of that criticism has implied that ICANN, the EIU, the process or all three are in some way homophobic or at least ignorant.

An article on gay news website The Gayly this week said: “The EIU’s actions contradict all common sense and are being interpreted as the outcome of a hostile environment.”

dotgay encouraged supporters to tweet: “Say NO to unfair & unequal treatment of the gay community at the hands of @TheEIU #Yes2dotgay”.

I’ve seen some tweets from supporters that use stronger language, which I’m guessing is what the BGC is trying to preempt today.

Now that it has exhausted the RfR process without success, expect dotgay to file an Independent Review Process appeal with ICANN, delaying the .gay contention set resolution for a year or more.

DCA sues ICANN for fraud, demands cash

Kevin Murphy, February 3, 2016, Domain Policy

New gTLD applicants may have signed away all their rights to sue ICANN, but that doesn’t seem to be a concern for loose-cannon .dotafrica .africa applicant DotConnectAfrica.

The company has filed suit in California, trying to kill off rival ZACR’s application as “fraudulent” and demanding a load of cash from ICANN.

The suit was filed January 20, and DCA’s request for an emergency restraining order has already been thrown out by the judge.

DCA is basically attempting to re-litigate the Independent Review Process case it won against ICANN last year.

The company claims that ICANN, ZACR, independent evaluator InterConnect Communications, and the Governmental Advisory Committee improperly ganged up on it, in breach of contract.

It also claims fraud, negligence, and a few other alleged violations of the law on the same grounds.

It’s looking for three flavors of monetary damages and “rescission of ICANN’s registry agreement with ZACR as a null and void contract predicated on fraud.”

The IRP panel ruled last year that ICANN breached its bylaws by kicking out DCA’s application based on GAC advice that had not been properly and transparently explained.

The case revealed that ICANN had drafted a letter of support for the African Union Commission to submit in order to show its support for ZACR.

ICANN claims there was nothing improper about that — and the IRP panel did not express an opinion — but it looked pretty dodgy.

The organization says it has not yet been formally served with DCA’s complaint, but told the court that there’s no need for an emergency TRO against .africa being delegated because it’s not an imminent possibility.

Indeed, there’s no danger of ZACR getting .africa live while DCA’s application is undergoing a second round of InterConnect scrutiny for evidence of governmental support (which it does not have).

ICANN added in its filing, almost as an aside, that DCA has signed away its right to sue.

DCA’s new choice of law firm, post-IRP, may be an indication of either the fragile nature of its standing or dwindling cash reserves.

Pricey ICANN-killer Arif Ali is out. Replacing him, a dude who runs a website-free, six-month-old, one-man show from his home in a California cul-de-sac.

Disclosure: DCA thinks I’m a racist, and I think it’s mad. The long, sordid history of the company’s shenanigans can be perused at your leisure with this search.

Windfalls still biggest money-spinner for M+M

Kevin Murphy, February 3, 2016, Domain Registries

Minds + Machines is still pulling in most of its cash from one-time new gTLD auction defeats, according to its latest trading update.

The company yesterday reported billings for 2015 of $7.92 million, up from $5.03 million in 2013.

But the company brought in $9.15 million by pulling out of private new gTLD auctions, where the winning bid is shared among the losers. That’s down from $37.5 million in 2014.

“Billings” is the money make at the point of sale, rather than audited revenue which is recognized over the life of the registration. Revenue numbers will come in April.

For the fourth quarter, sales of both premium and standard-fee names were up.

Premium names were up 215% at $1.52 million, which standard name billings were up 184% at $2.66 million.

The company said its registry business ended the year with 278,523 names under management, a 158% increase on year-ago numbers.

M+M met or beat its “key performance indicator” targets in terms of average revenue per name (both standard and premium) and sales growth.

However, the Chinese market boom caused it to miss its market share KPI.

It blamed missing the low end of its 3% to 5% new gTLD market share target by half a percentage point on the rapid growth of China.

The money being pumped into domain names from China in the second half of last year tends to favor the budget end of the new gTLD market, where names can be picked up for cents, whereas M+M’s TLD mix is skewed a little higher.

M+M said last week that it plans to open an office in China soon.

$41m auction loser tries to slam brakes on .shop

Kevin Murphy, February 1, 2016, Domain Registries

Lawyer-happy gTLD applicant Commercial Connect has put GMO Registry’s $41 million purchase of the new gTLD .shop in jeopardy by filing an appeal with ICANN.

On January 26 — the day before the .shop auction — the Connecticut-based company filed an Independent Review Process complaint with ICANN, asking a panel of judges to enjoin ICANN from delegating .shop or even signing a registry contract with GMO.

It’s applied for “emergency” relief. Its full IRP complaint has yet to be filed.

GMO won a seven-way ICANN auction for .shop last week, agreeing to pay $41.5 million into ICANN coffers.

The IRP news will not be particularly surprising for anyone who has followed the .shop contention set closely.

Commercial Connect has deployed pretty much every legal avenue available to it in order to win .shop, which had eight competing applications.

It applied as a “community” applicant, but unsurprisingly failed to meet the stringent criteria that a Community Priority Evaluation requires.

It scored a measly 5 out of the 16 available CPE points, missing the 14-point target.

The company also spunked goodness knows how much cash filing 21 formal objections against other gTLD applicants — ridiculous complaints that “.supply” or “.セール” or “.services” were “confusingly similar” to .shop.

It actually managed to win two of its string similarity challenges, when panelists apparently decided to write their judgments before their morning coffee had kicked in.

It was probable that .shopping and .通販 would be confused with .shop in the mind of the average internet user, these panelists decided.

The .通販 decision was thrown out when sanity prevailed, but the .shopping decision stood. Only a recent back-room deal between Uniregistry and Donuts prevented the .shop auction being a head-explodingly confusing mess.

Now, with its IRP, Commercial Connect is claiming that the whole CPE system goes against ICANN rules.

According to its initial complaint, the fact that the CPE adjudicator, the Economist Intelligence Unit, came up with its own supplemental “CPE Guidelines” means that the the CPE system is not “ICANN policy” and should therefore be disregarded.

At first glance, it seems weak. But I said the same about the DotConnectAfrica IRP case, which DCA won.

IRP panels have been known to be somewhat “activist” (not necessarily a bad thing) recently, so it’s hard to call which way they will swing in any specific case.

But it does seem quite possible that the emergency relief that Commercial Connect requests — that is, no .shop contract until the IRP is over — will be granted.

For GMO, that means it’s just spent $41.5 million on a gTLD it probably won’t be able to launch for well over a year.

It’s perhaps interesting that Commercial Connect doesn’t seem to make any reference in its IRP to its original 2000-round application for .shop.

If that comes up in future filings, it could open up an entirely new can of worms.

Donuts adds two millionth domain

Kevin Murphy, February 1, 2016, Domain Registries

Donuts today said that it has added its two millionth new domain name registration.

The domain in question was schedule.holiday, the company said.

The number appears to refer to fresh registrations, not including renewals, across all of its TLDs.

Its first batch of gTLDs launched about two years ago.

The registry currently has 192 new gTLDs, 185 of which are in general availability, according to DI records, making the average haul about 10,000 names per TLD.

If we were talking $20 per registration (an estimate, as Donuts doesn’t publish its registry fees), the company would have made $40 million from new regs.

That’s not including its sunrise fees, renewals, or recurring premium-fee domains, of course.

It spent almost $57 million just on ICANN application fees.

It expects to wind up with about 200 by the time the current application round ends.

Its best performer to date is .guru, one of its first to launch, which has about 65,000 names in its zone file today and, according to Donuts, over 67,000 names in total.