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Amazon’s bid for .amazon is dead

ICANN has killed off Amazon’s application for the new gTLD .amazon, based on longstanding but extremely controversial advice from its Governmental Advisory Committee.

According to a New gTLD Program Committee resolution passed on Wednesday and published last night, the applications for .amazon and Chinese and Japanese translations “should not proceed”.

That basically means all three applications are frozen until Amazon withdraws them, wins some kind of appeal, manages to change the GAC’s mind, or successfully sues.

Here’s the last bit of the resolution:

Resolved (2014.05.14.NG03), the NGPC accepts the GAC advice identified in the GAC Register of Advice as 2013-07-18-Obj-Amazon, and directs the President and CEO, or his designee, that the applications for .AMAZON (application number 1-1315-58086) and related IDNs in Japanese (application number 1-1318-83995) and Chinese (application number 1-1318-5581) filed by Amazon EU S.à r.l. should not proceed. By adopting the GAC advice, the NGPC notes that the decision is without prejudice to the continuing efforts by Amazon EU S.à r.l. and members of the GAC to pursue dialogue on the relevant issues.

The NGPC noted that it has no idea why the GAC chose to issue consensus advice against .amazon, but based its deliberations on the mountain of correspondence sent by South American nations.

Peru and Brazil, which share the Amazonia region of the continent, led the charge against the bids, saying they would “prevent the use of this domain for the purposes of public interest related to the protection, promotion and awareness raising on issues related to the Amazon biome”.

Amazon had argued that “Amazon” is not a geographic term and that it was against international law for governments to intervene and prevent it using its trademark.

ICANN commissioned a legal analysis that concluded that the organization was under no legal obligation to either reject or accept the applications.

Under the rules of the new gTLD program, the NGPC could have rejected the GAC’s advice, which would have led to a somewhat lengthy consultation process to resolve (or not) their differences.

The big question now is what Amazon, which has invested heavily in the new gTLD program, plans to do next.

A Reconsideration Request would be the simplest option for appeal, though almost certainly a futile gesture. An Independent Review Process complaint might be slightly more realistic.

There’s always the courts, though all new gTLD applicants have to sign legal waivers when they apply.

A fourth option would be for Amazon to negotiate with the affected governments in an attempt to get the GAC advice reversed. The company has already attempted this — offering to protect certain key words related to the region at the second level, for example — but to no avail.

.club misses first target but hopes to be #1 new gTLD “within days”

.CLUB Domains failed to overtake .guru in its first week of general availability as promised, but the company is nevertheless upbeat about taking the number one spot “within days”.

The last zone file available for .club shows 41,203 names, but that’s the May 14 file. The company, or its back-end, has been having trouble keeping its zone file current in the ICANN system this week.

That was an increase of of 10,523 over five days, or 2,104 per day on average.

As of 1500 UTC yesterday, the company reckoned it had 44,450 sales.

That would still place it at #3 in the league table behind .guru with 56,097 (up 200 names today) and .berlin with 47,079 (up 60 names).

If the growth rates stay roughly the same, .club may well overtake .guru in less than a week.

CEO Colin Campbell told us in March that “I firmly believe that .CLUB will exceed all other new generic top level domains in the first week of launch in registrations and overtake .GURU as the leader.”

The company is hosting a party in New York with celebrity endorser 50 Cent next Thursday (disclosure: I’m attending on .CLUB’s dime) which may or may not lead to a spike.

DNA has new plan for gTLD auctions: give us your money!

The Domain Name Association is hoping to raise funds for marketing by hosting private new gTLD auctions, according to executive director Kurt Pritz.

Chair Adrian Kinderis made the pitch at a meeting of the New TLD Applicants Group today.

The DNA is hoping to tempt applicants that are reluctant to participate in existing private auction schemes because they don’t want their money going to competitors.

Instead, the winning bid in an auction managed by the DNA would go straight into the DNA’s marketing and operations budget, to the potential benefit of the whole new gTLD industry.

Participating applicants would get to choose how the money would be split been marketing and the general DNA kitty.

The organization hasn’t picked an auction provider yet, and no applicants are yet committed to the plan, Pritz said.

Was panel wrong to put .africa on ice or does ICANN have an accountability problem?

Kevin Murphy, May 13, 2014, Domain Policy

Did an Independent Review Process panel get it wrong when it accused ICANN of failing to implement proper accountability mechanisms, or did it actually highlight a more serious problem?

As we reported yesterday, an IRP panel has ordered ICANN to not delegate ZA Central Registry’s .africa gTLD until it’s heard an appeal by failed rival bidder DotConnectAfrica.

IRP is ICANN’s last avenue of appeal for organizations that believe they’ve been wronged by ICANN decisions. Due to the duration of the process and the need for legal representation, it’s extremely expensive.

The IRP panel in the .africa case based its decision largely on the fact that ICANN has failed to create a “standing panel” of would-be IRP panelists, something the panel said would have sped up the process.

A “standing panel” is supposed to be six to nine panelists-in-waiting — all respected jurists — from which three-person IRP panels could be selected when needed in future.

DCA would not have needed to file for an emergency injunction against .africa’s delegation had this standing panel been created, the panel said.

According to the IRP panel, the creation of a standing panel has been “required” by the ICANN bylaws since April 2013, and ICANN has “failed” to follow its own rules by not creating one. It wrote:

the Panel is of the view that this Independent Review Process could have been heard and finally decided without the need for interim relief, but for ICANN’s failure to follow its own Bylaws… which require the creation of a standing panel

But ICANN disagrees, getting in touch with us today to point out that the panel only partially quoted the ICANN bylaws.

This is the bit of the bylaws the panel quoted:

There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN’s mission and work from which each specific IRP Panel shall be selected.

There seems to me to be little ambiguity in that paragraph; ICANN “shall” create a standing panel.

But ICANN reminds us that the IRP panel ignored a second bit of this paragraph, which states:

In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding.

Basically, the bit of the bylaws stating that ICANN “shall” create a standing panel is almost immediately negated by a bit that explains what is supposed to happen if ICANN does not create a standing panel.

It’s confusing.

Is ICANN “required” (the panel’s word) to create this standing panel or not? ICANN seems to think not, but the panel thinks otherwise.

I have no opinion because, luckily, I’m not a lawyer.

But I did a bit of digging into the public record to figure out why the bylaws are so confusing on this issue and what I found is slightly worrying if you’re concerned about ICANN accountability.

The bylaws paragraph in question was added in April 2013, but it has its roots in the findings of the first Accountability and Transparency Review Team, which is the key way ICANN’s accountability is reviewed under the 2009 Affirmation of Commitments with the US government.

The ATRT said in 2010 (pdf) that ICANN should “seek input from a committee of independent experts on the restructuring of the three review mechanisms” including the IRP.

ICANN did this, convening a three-person Accountability Structures Expert Panel, made up of widely respected corporate/legal brains Mervyn King, Graham McDonald and Richard Moran

It was this ASEP that came up with the idea for a standing panel, which it said would speed up IRP decisions and reduce costs.

Members of the standing panel would be paid an annual retainer even when not working on an IRP, but it would be cheaper because IRP complainants and ICANN wouldn’t have to repeatedly explain to a new panel of doddery old ex-judges what ICANN is and does.

The ASEP, in its report (pdf) did not specify what should happen if ICANN decided not to implement its recommendation on the standing panel.

I can’t know for sure, but from the public record it seems that the confusing second part of the bylaws amendment was the creation of the ICANN board, possibly based on a single comment from gTLD registries.

The provision about a standing panel was formally added to the bylaws with an April 2013 resolution of ICANN’s board of directors, which followed a December 2012 resolution that approved the change in principle.

The second part of the amendment, the bit about what happens if ICANN does not institute a standing panel, was added at some point between those two resolutions.

The April resolution sheds a little light on the reason for the addition, saying (with my added emphasis):

Whereas, as contemplated within the [December 2012] Board resolution, and as reflected in public comment, further minor revisions are needed to the Bylaws to provide flexibility in the composition of a standing panel for the Independent Review process (IRP).

Resolved (2013.04.11.06), the Bylaws revisions to Article IV, Section 2 (Reconsideration) and Article IV, Section 3 (Independent Review) as approved by the Board and subject to a minor amendment to address public comments regarding the composition of a standing panel for the IRP, shall be effective on 11 April 2013.

The notes to the resolution further explain (again with my emphasis):

The Bylaws as further revised also address a potential area of concern raised by the community during the public comments on this issue, regarding the ability for ICANN to maintain a standing panel for the Independent Review proceedings. If a standing panel cannot be comprised, or cannot remain comprised, the Bylaws now allow for Independent Review proceedings to go forward with individually selected panelists.

The “minor amendment” referred to in the resolution seems to have enabled ICANN to basically ignore the ASEP recommendations, which (remember) stem from the ATRT review, for the last 12 months.

The April 2013 resolution was on the consent agenda for the meeting, so there was no minuted discussion by the board, but it seems pretty clear that “public comments” are responsible for the second part of the bylaws amendment.

But whose public comments?

When the ASEP report was open for comment, only two people responded — the Registries Stakeholder Group and former ICANN director Alejandro Pisanty, apparently commenting in a personal capacity.

On the subject of the proposed standing panel, the RySG said it wasn’t happy:

We also are concerned with the concept of standing panels for the IRP. A key component of the IRP is that the review is “independent.” To keep this independence, we believe that service on an IRP tribunal should be open to all eligible panelists, not just those with previous experience with or knowledge of ICANN. Determining whether an organization has complied with its bylaws or articles of incorporation should not require historic knowledge of the organization itself, and we believe that any jurist generally qualified by the IRP provider should be more than capable of acting as a panelist for an IRP.

It wasn’t the RySG’s main concern, and it wasn’t given much space in its comment.

Pisanty, commenting during the comment-reply period, seemed to disagree with the RySG, saying that the ongoing institutional knowledge of a standing panel could be a boon to the IRP.

When the ASEP report was discussed at a lightly attended early-morning session of the ICANN Toronto meeting in October 2012, the only person to comment on the standing panel was Neustar lawyer Becky Burr, and she liked the idea (transcript).

It’s not what you’d call a groundswell of opposition to the standing panel idea. There were few opinions, those opinions were split, and if anything the balance of commentary favors the notion.

In any event, when ICANN compiled its usual compilation report on the public comments (pdf) its legal staffer said:

After review of the comments, no changes to the ASEP recommendations are recommended, and the report will be forwarded to the Board for consideration and action, along with the proposed Bylaws amendments.

ICANN staff, it seems, didn’t think the RySG’s (lone?) opposition to the standing panel concept was worth messing with the ASEP’s recommendations.

And yet the ICANN board added the text about what happens in the event of a standing panel not existing anyway.

I could be wrong, but it does look a little bit like the ICANN board giving itself a carte blanch to ignore the recommendations of the ASEP, and therefore, indirectly, the ATRT.

ICANN may well have a point about the .africa IRP panel inappropriately ignoring some key sentences in the ICANN bylaws, but I can’t help but wonder how those sentences got there in the first place.

.africa frozen by panel after ICANN screwup

Kevin Murphy, May 12, 2014, Domain Policy

ZA Central Registry’s bid for the .africa new gTLD has been put on ice by an arbitration panel which admonished ICANN for failing to follow its own bylaws.

An Independent Review Panel ruled yesterday that ICANN should not carry on processing .africa until it has ruled on a complaint filed by failed .africa applicant DotConnectAfrica.

If .africa were to be delegated, which could have happened as early as Thursday — ZACR and ICANN have already signed a Registry Agreement — it would render the IRP’s decision moot, the panel found.

This ruling doesn’t mean ICANN has lost the case, just that it’s temporarily enjoined from delegating .africa until the final decision has been made by the IRP panel.

However, the panel had some stern words for ICANN, saying that the matter could have been settled months ago had ICANN only followed its own bylaws.

In the Panel’s unanimous view, it would be unfair and unjust to deny DCA Trust’s request for interim relief when the need for such a relief by DCA Trust arises out of ICANN’s failure to follow its own bylaws.

ICANN’s board of directors passed a resolution in April 2013 calling for the creation of a “standing committee” of nine potential IRP panelists, from which each three-person IRP panel could be drawn.

But, over a year later, it has not created this committee, the current IRP panel said. This led to the delay that forced DCA to request the emergency injunction.

ICANN’s basically been told by one of its own accountability mechanisms that that accountability mechanism is inadequate, at a time when its accountability mechanisms are under the world’s spotlight.

Just last week, the organization launched an accountability review that it said it “interdependent and interrelated” to the process of transitioning IANA away from US government stewardship.

Yeah, it’s embarrassing for ICANN. Doubly so because it’s been beaten by a company so incompetent it accidentally applied for the wrong gTLD.

For ZACR, the panel reckons the delay in getting .africa delegated will likely last “a few months”.