Registries rebel against ICANN’s Whois upgrade decree

Registry operators are challenging an ICANN decision to force them to launch a new Whois-style service, saying it will cost them too much money.
The Registries Stakeholder Group has filed a Request for Reconsideration — a low-level appeal — of a decision asking them to launch RDAP services to complement their existing Whois.
RDAP, Registration Data Access Protocol, is being broadly touted as the successor to Whois.
It offers the same functionality — you can query who owns a domain — but the data returned is more uniformly structured. It also enables access control, so not every user would have access to every field.
The RySG now claims that ICANN is trying to sneak an obligation to implement RDAP into its registry agreements through a “backdoor” in the form of the new Consistent Labeling and Display Policy.
That policy, which originated in a formal, community-driven GNSO Policy Development Process, seeks to normalize Whois (or Registration Data Services, in its generic not protocol-specific wording) output to make it easier to machine-read.
It applies to all gTLDs except .com, .net and .jobs (which are “thin” registries) and would come into effect February 1 next year.
Registries appear happy to implement the CL&D policy, but not as currently written. It now contains, almost as an aside, this requirement:

The implementation of an RDAP service in accordance with the “RDAP Operational Profile for gTLD Registries and Registrars” is required for all gTLD registries in order to achieve consistent labeling and display.

The RySG argues in its RfR (pdf) that implementing RDAP was never part of the community-endorsed plan, and that it is not “commercially feasible” to do so right now.

The 2012 new gTLD Registry Agreement specifies that implementation of the protocol now known as RDAP be commercially feasible before it’s required. The RySG can’t even respond as to whether it’s feasible or not since no reasoning to that regard was provided in the notice to implement such services.
Furthermore, some of our members are on record stating that since the RDAP profile replicates the known deficiencies of WHOIS – which is currently being studied by a PDP WG – so it’s not commercially feasible to deploy it to mimic a flawed system.
The introduction of RDAP represents an additive requirement for Registries to operate a new (additive) service. As there are no provisions for the sunset of the legacy Whois service, it’s unclear how this additional requirement can be considered commercially feasible.

In other words, the registries think it could be too costly to deploy RDAP and Whois at the same time, especially given that RDAP is not finished yet.
It’s yet another case of domain companies accusing ICANN the organization of slipping in requirements without community support.
Whether the RfR will be successful is debatable. There’s only been a few Reconsideration requests that have been approved by the ICANN board in the history of the mechanism.
However, the board may be feeling especially diligent when it comes to look at this particular RfR, due to the spotlight that was recently shone on the Reconsideration process by an Independent Review Process panel, which determined that the board just rubber-stamped decisions written by house lawyers.

dotgay loses third .gay appeal

Death warrant or portent of impending legal action?
dotgay LLC has lost its third attempt to get ICANN to reconsider tossing its application for community priority status in the fight for the .gay gTLD.
According to ICANN, on Sunday its Board Governance Committee threw out dotgay’s third Request for Reconsideration, an attempt to give the company an unprecedented third go at the Community Priority Evaluation process.
CPEs allow community gTLD applicants to avoid expensive auctions, but dotgay has lost two primarily on the grounds that its definition of community includes people who are not gay.
Its latest RfR was pretty weak, based on a technicality about which staffers at the Economist Intelligence Unit (which carries out the CPEs) were in charge of verifying its letters of community support.
The rationale for the BGC’s determination, which still needs to be rubber-stamped by the full ICANN board, has not been published yet.
But it seems from a blog post that ICANN now expects .gay to go to auction, where there are four competing applicants in total.
ICANN does not usually publish blog posts on RfR decisions, but in the .gay case it has been keen to avoid being accused of any motivation beyond a dogged pursuit of correct procedure.
So will dotgay go quietly? It remains to be seen.
While all new gTLD applicants had to sign a release promising not to sue ICANN, .africa applicant DotConnectAfrica sued earlier this year and managed to get a sympathetic judge who seems bent on allowing the case to go to trial.

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

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.

Booking.com uses .africa precedent to challenge .hotels ruling

Booking.com has become the first new gTLD applicant to publicly cite the recent .africa Independent Review Process ruling in an attempt to overturn an adverse ICANN decision.
The challenge relates to the decision by ICANN, under the rules of the new gTLD program, to place applications for .hotels and .hoteis into a contention set due to their potential for visual confusion.
The two strings are heading to auction, where the winner will likely have to fork out millions.
In a missive to ICANN (pdf) last week, Booking.com outside attorney Flip Petillion said that the .africa IRP ruling shows that ICANN has to revisit its decision-making over .hotels.
The letter highlights a wider issue — how can ICANN follow community-established rules whilst sticking to its rather less well-defined Bylaws commitment to be “fair”?
Petillion wrote:

ICANN — and the BGC — has maintained the position 1) that the fact the process established by ICANN was followed is sufficient reason to reject that challenge and 2) that the fact that the process allowed neither for Booking.com to be heard nor for a review of the decision by the ICANN Board is of no relevance.
In the interim, IRP panels have confirmed that this process-focussed position is unsustainable. The ICANN Board has an overriding responsibility for making fair, reasoned and non-discriminatory decisions under conditions of full transparency.

He cites the .africa IRP decision to support this assertion.
Booking.com is the applicant for .hotels, while a different company, Travel Reservations (formerly Despegar Online), has applied for .hoteis, the Portuguese translation.
While both applicants are happy for the two gTLDs to co-exist on the internet, ICANN’s third-party String Similarity Review panel, part of the new gTLD evaluation process, ruled that they cannot.
They’re just too similar — in standard browser sans-serif fonts they can be indistinguishable — and would likely lead to user confusion, the panel decided in February 2013.
Booking.com challenged this decision with a Request for Reconsideration, which was dismissed.
It then filed an IRP, but that concluded this March with the panel awarding a grudging win to ICANN, which it orders should split the costs of the case.
In April, the ICANN board adopted the IRP panel’s findings, saying that the two applicants should remain in the contention set.
Booking.com, along with Travel Reservations, filed a second RfR, challenging the board’s decision, but this was rejected by ICANN’s Board Governance Committee in June.
The ICANN board has not yet formally adopted the BGC’s recommendations — I expect it to consider them at its next scheduled meeting, July 28 — hence Booking.com’s last-ditch attempt to get ICANN to change its mind.
Petillion wrote:

Simply following the processes and procedures developed by ICANN cannot alone be sufficient grounds for declining to review a decision. If the requirements of fairness, reasoned decision making, non-discrimination and transparency have not been met in the implementation of the process and procedures, the ICANN Board must, when invited to, conduct a meaningful review.

In the .africa case, the IRP panel ruled that ICANN should have asked the Governmental Advisory Committee for its rationale for objecting to DotConnectAfrica’s .africa bid, even though there’s nothing in the new gTLD rules or ICANN Bylaws specifically requiring it to do so.
However, in the Booking.com case, the IRP panel raised serious questions about whether the String Similarity Review rules were consistent with the Bylaws, but said that the time to challenge such rules had “long since passed”.
In both cases, ICANN followed the rules. Where the two panels’ declarations diverge is on whether you can win an IRP challenging the implementation of those rules — for DotConnectAfrica the answer was yes, for Booking.com the answer was no.
In a new gTLD program that has produced long lists of inconsistencies; IRP panel decisions appear to be but the latest example.
The question now is how the ICANN board will deal with the BGC recommendation to reject Booking.com’s latest RfR.
If it summarily approves the BGC’s resolution, without doing some extra due diligence, will it be breaking its Bylaws?

.gay is gay enough after all? ICANN overturns community panel decision

One of the applicants for .gay has won a significant battle in the fight for the controversial new gTLD.
In a shock move, a committee of ICANN’s board of directors has overturned the rejection of dotgay LLC’s Community Priority Evaluation, ordering that the case should be re-examined by a new panel of experts.
As you may recall, dotgay’s CPE was kicked out in October after the Economist Intelligence Unit panel decided that the company’s defined community was too broad to be described by “gay” as it included a lot of people who aren’t gay, such as straight people.
The decision — which I thought was probably correct — caused an uproar from dotgay’s myriad supporters, which include dozens of international equal rights and gay community organizations.
dotgay filed a Request for Reconsideration, ICANN’s cheapest but least reliable form of appeal, and today found out it actually won.
ICANN’s Board Governance Committee, which handles the RfR process, this week ruled (pdf):

The BGC concludes that, upon investigation of Requester’s claims, the CPE Panel inadvertently failed to verify 54 letters of support for the Application and that this failure contradicts an established procedure. The BGC further concludes that the CPE Panel’s failure to comply with this established CPE procedure warrants reconsideration. Accordingly, the BGC determines that the CPE Panel Report shall be set aside, and that the EIU shall identify two different evaluators to perform a new CPE for the Application

The successful RfR appears to be based on a technicality, and may have no lasting impact on the .gay contention set.
Under the EIU’s process rules: “With few exceptions, verification emails are sent to every entity that has sent a letter(s) of support or opposition to validate their identity and authority”.
It seems that the EIU was sent a bundle of 54 letters of support for dotgay, but did not email the senders to verify they were legit. The BCG wrote:

Over the course of investigating the claims made in Request 14-44, ICANN learned that the CPE Panel inadvertently did not verify 54 of the letters of support it reviewed. All 54 letters were sent by the Requester in one correspondence bundle, and they are publicly posted on ICANN’s correspondence page.36 The 54 letters were deemed to be relevant by the EIU, but the EIU inadvertently failed to verify them.

If an applicant wins a CPE it means all the other applicants are automatically excluded, and the door is now open for the EIU to rethink its earlier decision.
So do competing applicants Rightside, Minds + Machines and Top Level Design now have genuine cause for concern? Not necessarily.
CPE applicants need to score at least 14 out of 16 available points in order to win, and dotgay only scored 10 points in its original evaluation.
Crucially, the EIU panel said that because the “community” as defined by dotgay included transgender, intersex, asexual and straight “allies” of equal rights, it was too broad to score any of the available four points on the “Nexus” criteria.
The BCG could find no fault with the EIU’s determination on Nexus, so even if dotgay’s letters of support are verified according to procedure, it would not necessarily lead to dotgay picking up any more Nexus points.
The BCG wrote on Nexus: “Requester’s substantive disagreement with the CPE Panel’s conclusion does not support reconsideration”.
However, given that the EIU is going to do the entire CPE all over again with new panelists, it seems entirely possible that dotgay could win this time.

ICANN overturns new gTLD objection decision!

ICANN has overturned a Community Objection decision, allowing a .med new gTLD applicant back into the game, after a Request for Reconsideration from the applicant.
It’s the first time ICANN has overruled an objection panel during the new gTLD program and the first time in over a decade any RfR of substance has been accepted by the ICANN board of directors.
Medistry lost a CO filed by the program’s Independent Objector, Alain Pellet, back in January.
Under program rules, that should have killed off its application for .med completely.
But the company filed an RfR — ICANN’s first and cheapest appeals mechanism — claiming that Pellet acted outside his jurisdiction by filing the objection when there was not at least one informal objection from a community member on the public record.
Its case, as outlined in its RfR, was quite compelling, as I outlined in a piece in March.
Medistry argued that the International Chamber of Commerce’s panelist, Fabian von Schlabrendorff, had cited two non-existent informal community objections in his decision.
One of them literally did not exist — and von Schlabrendorff went so far as to infer its existence from its absence — while the other was “advisory” in nature and was not intended as an objection.
In March, ICANN’s Board Governance Committee accepted Medistry’s RfR on a preliminary basis, to give it more time to consider whether the IO had acted outside of the new gTLD program’s rules.
Yesterday, the BGC came to its final decision (pdf):

The BGC concludes that, based on information submitted with this Request, there is substantial and relevant evidence indicating that the Objection was inconsistent with ICANN procedures, despite the diligence and best efforts of the IO and staff. Specifically, the Requester [Medistry] has provided the BGC with uncontroverted information demonstrating that the public comments on which the Objection was based were not, in fact, in opposition to the Requester’s application. Accordingly, the BGC concludes that ICANN not consider the Expert Determination at issue and that the Requester’s Application for .MED is therefore permitted to proceed to the next stage of process in the New gTLD Program.

In other words: 1) Pellet inadvertently acted outside of his remit 2) the ICC’s ruling on the objection is simply cast aside and 3) Medistry’s application is back in the .med contention set.
The main reason this RfR succeeded while all others to date have failed is that Medistry managed to provide new information, in the form of clarifying letters from the two non-existent informal objectors, that was not originally available.
The large majority of previous RfR’s have failed because the requester has failed to bring any new evidence to the table.

The public comments from [National Association of Boards of Pharmacies] and [American Hospital Association] that were the basis for the Objection were vague and open to a number of interpretations. Given that there is substantial and uncontroverted evidence from the authors of those public comments, indicating what NABP and AHA intended, the BGC cannot ignore this information in assessing the Request or reaching its determination.

I think ICANN is going easy on the ICC and von Schlabrendorff (how can something that does not exist be “open to a number of interpretations”?) but it seems that the RfR process has in this case nevertheless been a bit of a success, overturning an extremely dodgy decision.
The .med contention set also contains HEXAP and Google.

Registrant complains to ICANN over Uniregistry’s premium names

A would-be new gTLD registrant has appealed to ICANN over the domain name moviestar.photo, which she was unable to register because Uniregistry had reserved it as a premium name.
Danielle Watson filed a formal Request for Reconsideration (pdf) with ICANN last week, in the mistaken belief that ICANN had placed the domain she wanted on one of its block-lists.
She described her predicament thus:

a. Website Name Registration: I purchased one of the new gTLD domain names ending in .photo from 101domain.com on April 2, 2014. Moviestar.photo
b. I received an email on April 14, 2014 stating that ICANN kept this name from being registered in my name, and I would receive a refund in which I did.
c. I cannot understand why this name is being withheld, and being put into your reserve list.
d. I take very old Movie Stars photos and colorize them and put old fashioned frames around them and sell them at craft fairs locally. This name would have been a perfect fit for my use and sales. Please reconsider my request to be reconsidered and the name moviestar.photo reinstated/registered in my name with 101domain.com

Correspondence from 101domain provided by Watson (pdf) does not mention ICANN, so I’m not sure how she came to the conclusion that ICANN was to blame.
I fear she has targeted ICANN incorrectly.
The DI PRO name collisions database shows that the string “moviestar” has been blocked by ICANN’s policy on collisions in 15 new gTLDs, but Uniregistry’s .photo is not one of them.
Whois records show that moviestar.photo is in fact registered to North Sound Names. That’s the name of the Uniregistry affiliate currently in control of tens of thousands of Uniregistry premium names.
The RfR is not the venue for this kind of complaint and it’s likely to be dismissed for that reason. There’s not much ICANN can do about it.
Perhaps Watson would have better luck writing a begging letter to Uniregistry CEO Frank Schilling, who has indicated his willingness to allocate premium names to deserving users.