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African Union slams “dysfunctional” IRP as ICANN tries to fend off cover-up claims

Kevin Murphy, August 5, 2015, Domain Policy

The African Union Commission has criticized ICANN’s “dysfunctional accountability process” that has kept the proposed .africa gTLD in limbo for the last few years.

In a communique yesterday (pdf), the AUC also reiterated that .africa applicant ZA Central Registry has the support of both the AUC and its member states, and that governments used almost every avenue available to them to object to the rival DotConnectAfrica bid.

The letter reads:

The Africa region, African Internet stakeholders, the ZACR and AUC are the unfortunate victims of a dysfunctional accountability process and an independent review panel that did not delve more deeply to understand the new gTLD process, the role of governments in that process, and how the ICANN multistakeholder model functions in general.

A few weeks ago, an Independent Review Process panel controversially ruled that ICANN had treated DCA’s application unfairly, in violation of its bylaws, when it accepted Governmental Advisory Committee advice to reject it.

The panel said that ICANN should have at least asked the GAC for the rationale behind its advice, something that the new gTLD program’s rules did not require it to do.

One of the issues at the heart of the subsequent debate is whether ICANN inappropriately helped out ZACR’s bid by drafting an AUC letter of support and then tried to cover its actions up by inappropriately redacting information from the IRP ruling before publication.

On Friday, ICANN published a new version of the ruling that had these references restored, while retaining redactions related to the actions of Kenyan government officials.

We know what the still-redacted text says because Kieren McCarthy, writing for The Register, obtained a clean copy and published it a couple of weeks ago.

ICANN also promised to publish its reasoning if it makes redactions to any documents in future.

In a blog post on Friday, general counsel John Jeffrey said that ICANN helping the AUC draft its letter of support was not a unique case, nor was it inappropriate:

ICANN staff has helped many applicants and their supporters understand how to properly document support. Not only did we make a template support letter publicly available to all as part of the New gTLD Program Applicant Guidebook (see Appendix to Module 2), we have answered questions, received through our customer service channel, as to how interested parties can document support for a given gTLD application. In the case of ZA Central Registry, ICANN appropriately assisted the applicant in documenting support from the AUC.

Our actions surrounding the .AFRICA applications were not unique, since we assist any applicant who requests assistance, or who needs clarification in learning how best to document support or other matters. We have provided assistance to all applicants regarding their applications to the maximum extent possible.

On the claims that ICANN tried to “cover up” this assistance by redacting the IRP’s ruling and previous IRP filings, Jeffrey said that the information was covered by a confidentiality agreement agreed to by itself and DCA and endorsed by the IRP panel.

He said that ICANN was “motivated by our obligation to the community to post the document quickly and the competing, yet mandatory obligation, to respect confidential information while being as transparent as possible.”

He said ICANN attempted to reach out to those affected by the “confidential” parts of the ruling to seek permission to remove the redactions.

But McCarthy also seems to have seen emails exchanged between DCA and ICANN, and he says that ICANN redacted it over DCA’s objections.

McCarthy further says that ICANN only became interested in removing the redactions after he had already published the clean version of the ruling at The Reg — five days after the initial publication by ICANN.

Jeffrey’s post, which refers to “erroneous reporting” in an apparent allusion to McCarthy’s articles, nevertheless fails to address this claim, lending credibility to the cover-up allegations.

The .africa gTLD has been contracted to ZACR, but DCA’s rejected application has been returned to evaluation per the IRP’s ruling, where it is broadly expected to fail for want of governmental support.

Disclosure #1: I recently filed a Documentary Information Disclosure Policy request seeking the release of all the unredacted exhibits in DCA v ICANN. Given ICANN’s wont to usually respond to such requests only at the end of the full 30 days permitted by the policy, I should not expect to see an answer one way or the other until the last week of August.

Disclosure #2: As regular readers may already be aware, due to my long-held and never-disguised view that DCA was mad to apply for .africa without government support, I was once accused of being a part of a “racial conspiracy” against DCA on a blog I believe to be controlled by DCA. Naturally, after I stopped laughing, this libelous allegation pissed me off no end and enhanced my belief that DCA is nuts. Around the same time DCA also, under its own name, filed an “official complaint” (pdf) with ICANN, omitting the race card, alleging that I was part of a conspiracy against it.

New gTLDs not an illegal conspiracy, court rules

Kevin Murphy, August 5, 2015, Domain Policy

ICANN has beaten off a lawsuit from alternate root provider for a second time, with a US appeals court ruling that the new gTLD program was not an illegal conspiracy. sued ICANN in 2012, claiming that the program broke competition laws and that “conflicted” ICANN directors conspired with the industry in an “attack” on its business model.

The company runs an alternate DNS root containing hundreds of TLDs that hardly anyone knows about, cares about, or has access to.

Almost 200 of the strings in its system had matching applications in the 2012 new gTLD round; many have since been delegated.

The company’s complaint asked for an injunction against all 189 matching TLDs.

But a court ruled against it in 2013, saying that had failed to make a case for breaches of antitrust law.

Last week, an appeals court upheld that ruling, saying that the company had basically failed to cross the legal threshold from simply making wild allegations to showing evidence of an illegal conspiracy.

“We cannot… infer an anticompetitive agreement when factual allegations ‘just as easily suggest rational, legal business behavior.’,” the court ruled, citing precedent.

“Here, ICANN’s decision-making was fully consistent with its agreement with the DOC [US Department of Commerce] to operate the DNS and the Root,” it wrote. “In transferring control to ICANN, the DOC specifically required it to coordinate the introduction of new TLDs onto the Root. This is exactly what ICANN did in the 2012 Application Round”.

“The 2012 rules and procedures were facially neutral, and there are no allegations that the selection process was rigged,” the panel ruled.

The court further ruled that ICANN is not a competitor in the markets for domain names as registry, registrar or defensive registration services, therefore it could not be subject to antitrust claims for those markets.

A few other claims against ICANN were also dismissed.

In short, it’s a pretty decisive victory for ICANN. General counsel John Jeffrey said in a statement that ICANN is “pleased” to have won.

All the major documents in the case, including the latest opinion, can be downloaded here.

While the lawsuit has been making its way through the courts, the .space gTLD has actually been delegated and the domain is owned by its new registry, Radix.

There’s some salt in the wounds.

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, or, 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 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 and, for example, while and appear to be in private hands.

Sharp wants dot-brand Whois requirement relaxed

Electronics firm Sharp wants to remove part of its new gTLD registry contract relating to Whois.

The company has filed a Registry Services Evaluation Process request to get its requirement to offer “searchable Whois” dropped. RSEP is the mechanism registries use to amend their contracts.

ICANN’s initial review has not found any security, stability or competition problems and has now opened the request up for public comment.

Because .sharp will be a dot-brand, all the domains would belong to Sharp and its affiliates, reducing the value of searchable Whois.

Searchable Whois is an enhanced Whois service that allows users to search on all fields (such as registrant, email address, etc) rather than just the domain name.

Such services are not mandatory under ICANN’s new gTLD rules, but applicants that said they would offer them could score an extra point in their Initial Evaluation.

In Sharp’s case, a one-point difference would not have affected the outcome of its IE. In any event, it did not score the extra point.

Sharp said it was requesting the change because it’s switching back-ends from GMO Internet to JPRS, which apparently does not or does not want to support searchable Whois.

Neustar becomes “world’s largest registry” with $87m ARI buy

Consolidation in the domain name industry continued last night with Neustar’s $87 million acquisition of Bombora Technologies, the holding group for ARI Registry Services and AusRegistry.

Bombora CEO Adrian Kinderis told DI that the deal makes Neustar the “biggest registry services back-end provider on the market”, as measured by the number of TLDs on its platform, which now weighs in at over 400.

Kinderis and Neustar registry VP Sean Kaine said that the acquisition — conceived as so many deals are, Kinderis joked, in a “drunken ICANN bar” — is not so much about consolidation and more about growth opportunities.

Neustar will be able to cross-sell its suite of identity, security and marketing services, which Bombora does not offer, into ARI’s 100+ TLD client base. It will also be able to pitch ARI’s consulting services to its own clients.

Neustar also gets a “beachhead” in the Asia-Pacific region. While Bombora may not be a hell of a lot closer to Asia than Neustar, it’s in a much more convenient time zone.

Neustar currently faces the losing about half of its annual revenue — some $475 million — due to the loss of its contract to administer telephone number portability in North America.

That contract has been won by Ericsson, but Neustar has sued the US Federal Communications Commission in an attempt to keep it.

The Bombora acquisition won’t exactly fill the gap. The company had $20.6 million in revenue in 2014 and is expected to contribute $8 million to Neustar’s top line in 2015.

The deal is for AUD 118 million, which works out to roughly USD 87 million. Kinderis and business partner Simon Delzoppo will be the primary beneficiaries — between them they held a majority shareholding in Bombora.

The deal includes all of the company’s subsidiaries: ARI, AusRegistry and new gTLD operators such as dotShabaka.

ARI clients will notice a change of branding — the ARI and Bombora brands are to go almost immediately — but no technical changes at first.

“We’re going to continue to operate two registry systems right now,” Kaine said.

One business where there will be even less visible change is AusRegistry, which operates .au.

The AusRegistry brand is staying and .au will continue to be run in Australia, per the terms of the company’s contract with ccTLD policy overseer auDA.

“The .au contract is very important to Bombora,” Kinderis said. “If we had thought there would be any negative impact to that contract we would not have embarked on a deal.”

Kinderis, whose new job title has yet to be agreed, said he expects to take a “prominent role” in Neustar’s registry business. He said he expects to stay with the company “for a long time yet”.

“I want to see Neustar snapping at the heels of Verisign and I’d love to be able to contribute to that,” he said. “We’ve been punching above our weight and now we’re one of the heavyweights.”