The court ruling that granted DotConnectAfrica a preliminary injunction preventing ICANN delegating .africa seems to be based to a large extent on a huge error by the judge.
In explaining why he was allowing DCA v ICANN to proceed, despite DCA’s signing away its right to sue when it filed its new gTLD application, California district judge Gary Klausner seems to have confused DCA with rival .africa applicant ZACR.
In his Tuesday ruling, Klausner said that evidence supports the claim that ICANN was determined to flunk DCA’s application no matter what.
The key evidence, according to the judge, is that the Initial Evaluation of DCA’s application found that it did have enough support from African governments to pass its Geographic Names Review, but that ICANN subsequently reversed that view in Extended Evaluation.
DCA claims that “the process ICANN put Plaintiff through was a sham with a predetermined ending – ICANN’s denial of Plaintiff’s application so that ICANN could steer the gTLD to ZACR.”
In support, DCA offers the following evidence. ICANN’s initial evaluation report in July 2013 stated that DCA’s endorsement letters “met all relevant criteria in Section 220.127.116.11.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) After the IRP Decision, ICANN performed a second evaluation on the same information originally submitted by DCA. In the second evaluation, however, ICANN found that the endorsement letters did not meet the same criteria applied in the first evaluation
He later writes:
Despite ICANN’s contention, the evidence presents serious questions pointing in favor of DCA’s argument. First, a March 2013 email from ICC to ICANN stated that ICANN needs to clarify AUC’s endorsements since AUC properly endorsed both DCA and ZACR. (Bekele Decl. ¶ 30, Ex. 19, ECF No. 17.) Subsequently, ICANN’s July 2013 initial evaluation report found that the endorsement letters have “met all relevant criteria in Section 18.104.22.168.3 of the Applicant Guidebook.” (Bekele Decl. ¶ 40, Ex. 27, ECF No. 17.) Because ICANN found DCA’s application passed the geographic names evaluation in the July 2013 initial evaluation report, the Court finds serious questions in DCA’s favor as to whether DCA’s application should have proceeded to the delegation stage following the IRP Decision.
The document “Bekele Decl. ¶ 40, Ex. 27” referred to is exhibit 27 of DCA CEO Sophia Bekele’s March 1 declaration, filed in support of its preliminary injunction motion.
The problem is that that exhibit is not the Initial Evaluation report for DCA’s .africa bid, it’s the IE report for rival ZACR (aka UniForum).
Read it here (pdf).
DCA’s own application never received a scored IE report. At least, one was never published.
It only got this (pdf), which states simply “Overall Initial Evaluation Summary: Incomplete”. That document is dated July 3, 2013, almost two weeks before the ZACR report.
Bekele’s declaration even states that exhibit 27 is the IE report for the ZACR application.
It’s not clear to this non-lawyer how important this pretty basic error is to Klausner’s thinking, but as a layman it looks pretty crucial.
It certainly seems like something that needs to be addressed, given that the apparent misunderstanding plays into both the decision to allow the lawsuit to proceed and the decision that DCA’s complaint may have merit.
Several other exhibits cited in the ruling — including emails from the InterConnect Communications evaluators who carried out the Geographic Names Review — have been redacted by the court.
It’s possible there are smoking guns contained within these censored documents that were more influential on the ruling.
It’s also notable that ICANN is continuing to redact the court documents it publishes on its web site, beyond those filed under seal and censored by the court.
ICANN has signed a Registry Agreement with ZA Central Registry for the new gTLD .africa, despite the string being subject to a legal dispute.
The RA was signed with the South African applicant on Monday.
Rival .africa applicant DotConnectAfrica filed an Independent Review Process complaint against ICANN in January, claiming the rejection of its bid, which came because it lacked government support, was “unfair, discriminatory, and lacked appropriate due diligence and care”.
Now that ZACR is a contracted party — meaning that .africa is likely to hit the root in two or three months — it will be very difficult for DCA to get appropriate recompense should it win the IRP.
Fortunately for ICANN, I think there’s a better chance of me getting elected Pope.
Failed .africa gTLD applicant DotConnectAfrica has filed an Independent Review Process appeal against ICANN, it emerged today.
The nature of the complaint is not entirely clear, but in a press release DCA said it’s related to “ICANN Board decisions and actions taken with regard to DCA Trust’s application for the .africa new gTLD”.
It’s only the third time an IRP has been filed. The first two were related to .xxx; ICM Registry won its pioneering case in 2009 and Manwin Licensing settled its followup case last year.
DCA said that it’s an “amended” complaint. It turns out the first notice of IRP was sent October 23. ICANN published it December 12, but I missed it at the time.
I’d guess that the original needed to be amended due to a lack of detail. The “Nature of Dispute” section of the form, filed with the International Center for Dispute Resolution, is just a sentence long, whereas ICM and Manwin attached 30 to 60-page legal complaints to theirs.
The revised notice, which has not yet been published, was filed January 10, according to DCA.
DCA applied for .africa in the current new gTLD round, but lacked the government support required by the Applicant Guidebook for strings matching the names of important geographic regions.
Its rival applicant, South African ccTLD registry Uniforum, which does have government backing, looks set to wind up delegated, whereas ICANN has designated DCA’s bid as officially “Not Approved”.
To win an IRP, it’s going to have to show that it suffered “injury or harm that is directly and causally connected to the Board’s alleged violation of the Bylaws or the Articles of Incorporation”.
New gTLD applicant DotConnectAfrica is not happy with DI, again.
The nutty .africa applicant took issue with a recent post describing the company as “nutty” and trying to make sense of a rambling conspiracy-laden letter it had sent to the US Congress.
As a reminder, DCA is competing with South Africa’s ccTLD registry operator UniForum, which has the support of African governments and the African Union, for the .africa gTLD.
DCA has been in denial about the fact that its application is doomed for many months, scrabbling for any opportunity to cling to its .africa dream, and DI is its latest windmill.
DCA requested that I publish its lengthy “rejoinder” to our last blog post here, so I have, albeit interspersed with my own commentary.
I apologize in advance for leaving DCA’s formatting intact.
Dear Mr. Kevin Murphy,
Subject: Our Rejoinder to your article on DCA’s Complaint to U.S. Congress
The attention of DotConnectAfrica (DCA) Trust has been drawn to your recent Blog article with the title: ‘Nutty DCA Complains to US Congress about .Africa’ (http://domainincite.com/11958-nutty-dca-complains-to-us-congress-about-africa).
Even though you have continued to demonstrate your penchant for biased and negative reporting against DCA Trust, we think that the use of the pejorative ‘nutty’ is uncalled for and shows your disrespect and disdain for our organization and we believe you owe us an apology.
I don’t believe an apology is required.
DCA is the laughing stock of the industry, a status it will continue to hold until its .africa bid is killed off a few weeks from now.
“Nutty” is a generous, whimsical way to describe the company’s recent antics, which have included:
- nuttily wasting >$185,000 on a gTLD application that has no chance of being approved,
- nuttily applying for the wrong gTLD (.dotafrica),
- using fake online identities to make it appear that DCA has grass-roots support for its nutty ideas,
- throwing around nutty allegations of “wholesale illegality” without a) specifying what laws have been broken b) by whom and c) presenting any credible evidence to back up the allegations,
- overabundant use of bold text, underlined text, colored text and font changes to distract from the fact that its nutty missives lack substance — a tactic favored by online conspiracy theorists since the dawn of the ‘net.
In short, if you think “nutty” is bad, trust me when I say it was the least antagonistic adjective I could come up with.
However, even though we already feel a sense of righteous indignation by your mocking tone and the fact that you have openly engaged in unnecessary name-calling simply to aggravate DCA Trust; we are actually more interested in setting the records straight for the benefit of your readers, and wish only to focus on the substantive issues in this rejoinder.
You cannot write to deliberately misrepresent the facts contained in our letter to the 113th United States Congress. For example, you have stated that “according to information in Bekele’s letter, the AU wanted an experienced, Africa-based registry operator to run the TLD, and UniForum, which runs South Africa’s .za ccTLD, was the only qualified candidate.”
Wrong – Not DCA’s View to say Uniforum is Only qualified candidate
First, this is not our view, therefore you cannot put words into our mouth, and we do not agree that UniForum was the only qualified candidate to run .Africa. This is not the viewpoint conveyed in our letter to the United States Congress. We only attempted to re-state what is contained in a draft unpublished report on the ‘unofficial history’ of DotAfrica that was written by Ms. Rebecca Wanjiku, a Kenyan journalist and member of the DotAfrica Registry Project Team under the contrived ‘Africainonespace’ structure (http://www.africainonespace.org/); who had purportedly interviewed Mr. Vika Mpisane, then Chairperson of the AfTLD.
My blog post, as DCA accurately quotes, said “according to information in Bekele’s letter”. The “information in Bekele’s letter” is the text she quoted from Wanjiku’s “draft unpublished report”.
I would have cited the report itself but, as DCA says, it’s unpublished.
In a nutshell, Wanjiku reported that the AU endorsed UniForum because it “wanted African ccTLDs to play a crucial role in implementing .Africa” and that UniForum was the only African ccTLD with an EPP registry.
This interview revealed to us that no tender process actually took place, because the name of UniForum was simply put forward by the AfTLD, and this was accepted by the African Union Commission (AUC). This peculiar transaction as recorded in Rebecca Wanjiku’s account apparently contradicts the official AUC position that there was an open and transparent tender process which “attracted both local and international registries interested in managing dotAfrica gTLD.”
Only a nutty reading of the Wanjiku extract suggests that “no tender process actually took place”.
The existence of the African Union’s November 2011 .africa RFP is not open to question. It’s a matter of public record.
You can still download it here.
DCA is on record acknowledging the RFP at the time it was published, ranting: “DCA has decided not to participate in this sham RFP process and also urges prospective bidders to also avoid the RFP.”
And now DCA is openly questioning whether the tender process even happened? Nutty, nutty, nutty.
Therefore, our contention is that UniForum ZA Central Registry, the other competing applicant for .Africa gTLD is the beneficiary of wholesale illegality in the process of winning the endorsement of the African Union (AU) Commission for the .Africa geographic Top-Level Domain name. This is clearly spelt out in our letter to the U.S. Congress and it does not need any further elaboration or an extra-ordinary effort on the part of any educated person to read it several times to understand what DCA Trust is saying.
Everything DCA produces reads like it was written by Google Translate, run through an overenthusiastic thesaurus, then published by a computer science undergraduate in 1995. In my opinion.
I finished reading its letter to Congress wondering: who did the illegal stuff? What was the illegal stuff they did? What laws were broken? Where? When? Is it worth my time even asking?
Given that DCA wants Congressional intervention, one would expect it to state what the alleged illegal acts were, but it doesn’t. It just says “wholesale illegality” and leaves it at that.
It’s my view that the real reason DCA is pissed off is that, having failed to win the support of African ccTLDs, the AU’s 2011 RFP pretty much excluded DCA from getting the AU’s endorsement.
The company lacked the expertise, experience and the support of African ccTLD operators that the RFP specifically asked for and weighted in its scoring criteria.
I’m not going to pretend to be an expert in African procurement law, but I’d guess that the AU would be unlikely to publish such criteria in an open RFP document if such criteria were illegal.
That’s why, in my view, DCA throws around terms like “wholesale illegality” without getting into specifics. As soon as one look at specifics, its argument melts away like warm Nutella.
It may have been unfair, from DCA’s perspective, for the AU to require a competent partner for .africa, but if the alternative was a company that would do something nutty like, I dunno, apply for the wrong string…
Deliberately Obfuscating to confuse your readers
After reading your report, we believe that you have deliberately tried to obfuscate the matter to either confuse your readers or intentionally divert the attention of the global public from understanding the full import and main implications of our letter to the U.S. Congress. You cannot report that “the AU Commission, at the conclusion of its tender process, decided to support the UniForum proposal” when the available evidence profoundly suggests otherwise; that indeed, there was really no tender process. We have always challenged the AU Commission to publish the report of that Tender Process for the entire world to see. We also maintained this in our official response to the ICANN GAC Early Warning that was issued against our .Africa application.
DI has nothing to gain from obfuscating facts or confusing readers. The entire raison d’etre of the site is to do exactly the opposite.
The best way to avoid confusing readers would be to simply no longer report on DCA’s nutty pronouncements. Believe me, nothing would give me greater pleasure.
Only ICANN can determine a qualified candidate to operate .africa
Second, our fixed position is that only the ICANN can determine the “qualified candidate” to operate .Africa based on the outcome of the new gTLD program. This is not for the AfTLD or the AU to decide contrary to the dictates of the new gTLD program and the sacrosanct stipulations contained in the new gTLD Applicant’s Guidebook. By attempting to decide, as a fait accompli, the registry operator for the new .Africa gTLD, the AU acted ultra vires, and this is a clear usurpation, and an inexcusable violation, of ICANN’s roles, responsibilities, privileges and authority under the officially sanctioned new gTLD program. This is a viewpoint that we have already communicated officially to ICANN and also in our public comments posted against the .Africa new gTLD application submitted by UniForum ZA Central Registry.
Has DCA read the Guidebook?
ICANN makes it abundantly clear throughout that it will defer to governments on geographic gTLDs.
It won’t approve any geographic gTLDs that don’t have the support of the relevant government. For regions such as Africa, that support has to come from 60% of the region’s governments.
DCA presumably knows all this, and yet it nuttily applied for .africa (.dotafrica) without that government support, dooming its $185,000 application to certain failure.
UniForum, on the other hand, does have that governmental support, giving it a shot at being approved.
Does DCA honestly believe that ICANN’s board of directors will favor DCA over UniForum, ignoring the wishes of the governments of Algeria, Benin, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Cote d’Ivoire, D.R.Congo, Djibouti, Egypt, Gabon Gambia, Ghana, Guinea, Kenya, Liberia, Mali, Mauritania, Mauritius, Moroco, Mozambique, Namibia, Niger, Nigeria, Senegal, Seychelles, Sierra Leone, South Africa, South Sudan, Sudan, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, Zimbabwe and the African Union itself?
Good luck with that.
Even if all of Uniforum’s support were to evaporate tomorrow, DCA’s application would still be rejected under ICANN’s “sacrosanct” rules, because DCA doesn’t have government support and is unlikely to get it having spent the last year randomly accusing all those concerned of corruption and law-breaking.
Third, we have always maintained that if UniForum had been endorsed to apply on behalf of the African Community, then it should have submitted an application on behalf of the African Community and acknowledged the same community in its .Africa new gTLD bid to ICANN. We believe that UniForum, after using the African Community as ‘an excuse’ to obtain an important endorsement from the AUC, deliberately failed to acknowledge the same African Community in its bid based on the answers that it provided (or failed to provide by indicating ‘blank’) to ICANN Evaluation Question Nos. 19 and 20 in its .Africa new gTLD application. In DCA’s estimation, this is deceitful and fraudulent. If you obtain an endorsement under the pretext that you intend to, or have agreed to run and operate a geographic TLD on behalf of the African Community, then you should actually apply on behalf of this named community, to wit, the African Community.
UNIFORUM Application is Not on behalf of African Community
For further emphasis, it is necessary for one to refer to the published parts of UniForum’s application and their answers to Evaluation Question Numbers 19 and 20 to indeed verify that UniForum deliberately failed to acknowledge any Community in their official answers to ICANN. In their answer to Question No. 19 (“Is the application for a Community based TLD?”), they unequivocally stated “No”. The question No. 20 (a) – (e) which immediately follows: “(a) Provide the name and full description of the community that the applicant is committing serve”; UniForum intentionally left it blank, thus indicating that they have not actually named any community that they claim to be committing to serve in their new gTLD application for .Africa.
Your redefinition of “Community” against the rule book specifications to support UNIORUM is frivolous and mischievous
Therefore, your attempt to define ‘Big-C’ and ‘small-c’ is quite irrelevant and an unnecessary exercise in frivolity at a time that analytical and professional seriousness are called for. The AU Communiqué published in March 2012 clearly states that “the AU Commission selected UniForum SA (the ZA Central Registry Operator or ZACR), to administer and operate dotAfrica gTLD on behalf of the African community”; which you also previously acknowledged in your report of July 2012. As a matter of fact, we are actually compelled to believe that your statement that “no applicant was obliged to submit a big-C Community application under ICANN’s rules” is not only flippant but also quite mischievous.
Does DCA really not understand the difference between a “community” and a “Community gTLD application”?
I’ve attempted to explain it before and I’m not sure how to better phrase it than this: one’s a type of gTLD application and the other isn’t.
I suspect DCA does “get it” because its own application for .africa (.dotafrica) states:
DCA believes that DotAfrica does not qualify as a community-based application for two main reasons:
a) There is no clearly delineated, organized and pre-existing community that is targeted by the DotAfrica gTLD.
b) It is difficult to clearly identify who are the ‘members’ of the community, since a ‘community-definition’ of DotAfrica will restrict its use and functionality. Since ‘DotAfrica’ does not necessarily mean a TLD for ‘Africans’, it is difficult to determine the persons or entities that are considered to form the community, and the number of people or entities that make up the community.
In other words, while DCA believes .africa should not be a Community application under ICANN’s rules, it also believes that UniForum had an obligation to submit a Community application anyway? Nutty.
The actual bone of contention is that an endorsement was sought and obtained under the pretext that a Community TLD application would be submitted on behalf of the African Community. The basis cannot change after one has obtained the endorsement. DCA Trust believes that it is not your responsibility to explain why UniForum willfully reneged on the commitment that was implicit in the endorsement that it had received from the African Union Commission.
Nowhere in the African Union’s RFP for .africa does it say that the applicant must submit a Community application.
I’m not aware of any statements from UniForum to the effect that it would submit a Community application.
DCA has never provided any evidence that the AU wanted a Community application nor that UniForum promised one.
Its only tenuous scrap of evidence appears to be a press release (pdf) from the AU that announces UniForum was selected to “operate dotAfrica gTLD on behalf of the African community.”
To read that sentence as “UniForum will submit a Community application” is quite, quite nutty.
Incidentally, if UniForum did lie to the AU and other governments about submitting a Community application, it’s within the governments’ power to withdraw their endorsements at any time.
Uniforum’s Endorsement should be legally invalidated
Our position is that if UniForum has reneged in its commitment, that this fundamental issue must be forced so as to hold it accountable in order to prevent the perpetration of any acts of illegality and outright fraud over the issue of .Africa; and if this is process of accountability is not established by the African Internet Community, the African Union (and its African government member states) or ICANN, then the matter should be rightfully escalated for adjudication to the powerful United States Congress as the highest over-sighting institution of the United States Federal Government. We contend that if UniForum has been fraudulent in its application, this should legally invalidate the endorsement that it has received from the African Union Commission. This determination must be made officially by some authoritative body in order for the cause of justice to be served.
United States Congress has complete jurisdiction over the entire new gTLD program by ICANN
Our understanding is that the .Africa new gTLD is an Internet resource to be delegated by ICANN, and the same ICANN is under U.S. Federal Government Oversight by virtue of its mandate as a federal contractor handling the Internet Technical Management Functions (such as domain names and unique Internet address numbering and assignment) under the IANA Contract. It is therefore our contention that the United States Congress has complete jurisdiction over the entire new gTLD program of ICANN and this cannot be challenged (or scoffed at) by anybody without drawing the ire of Congress. DCA Trust has therefore acted correctly by recognizing the overarching authority of Congress over the entire ICANN new gTLD process and deciding on its own to undertake a necessary due process escalation of this matter to Congress. It is really not our fault if Mr. Kevin Murphy as the Domainincite Blogger lacks the intellectual acuity and analytical acumen to see this matter the same way we see it.
A Dishonest Analysis: Not even ICANN will agree with your opinion – Coomunity applications are not just “a technicality.”.
Furthermore, your explanation that “there’s no need to take advantage of the mechanism if you’re applying for a geographic string and have the necessary government support” is patently dishonest. DCA’s demand for accountability is actually pivoted on this particular point: how the government support was obtained, because the ‘community’ pretext was used by UniForum to obtain the government support from the AUC. Therefore, we believe that it is not your position to justify anything or create new definitions of what ‘community’ is about. Not even ICANN will agree with your opinion that “Community applications are just a technicality of the ICANN program, designed to give advantages to applicants that truly do have the support of a community.”
Community applications are not just “a technicality”. If UniForum claims to have both community support from the African Internet Community, and the support of African Governments, and has been selected to administer and operate a geographic TLD for the benefit of the African Community (whichever way this community is defined), then why did it not acknowledge this ‘African Community’ in its application? What is UniForum afraid of? We believe that if there is a proper accountability mechanism, then the truth regarding the actual intentions of UniForum can be fully established.
DCA cannot help with your Confusion, but we do not expect Congress NOT to be confused
Again, you have attempted to obfuscate the issues by stating in your Blog that DCA seems to deliberately confuse the process AfTLD used to back UniForum and the process the AU Commission used to select UniForum. We cannot help your confusion, since if you are confused you cannot assist your readers to properly dissect and understand what the pertinent issues are.
We do not expect Congress to be confused. Our understanding is that the process which the AfTLD used to back UniForum clearly caused the ‘No Tender Process’ that was used by the AU to select UNiForum.
For us, there is no confusion since the one connected chain remains evident for anyone to see. Our letter to Congress clearly alludes to the “illegal subversion of what was supposed to be an open and competitive tender process.”
The UNIFORUm Proposal is the same as the failed ARC, which you refereed as ‘Cuckoo Business Model’
We may recall that the African Registry Consortium (ARC) that was formed by the directors of UniForum SA sometime in 2011 had tried to solicit an expression of interest from the AfTLD: “For the provision of a domain name registry solution to the African Top Level Domain Organization (aftld) for purposes of preparing, submitting, funding and promoting a successful bid to ICANN for the dotafrica new gTLD.” (See http://africanregistry.net/index.php#endorse).
The ARC proposal had failed after DCA Trust campaigned vigorously against it as a potential Black Economic Empowerment (BEE) scam and for its ‘carpetbag opportunism’. It is the same proposal of the ARC that was pushed in the name of UniForum, and as you have also acknowledged in your write-up, “the AfTLD bid morphed into the UniForum bid.” The connection is therefore quite unmistakable, and we are not fooled. DCA Trust has always warned the African Union Commission and UniForum ZA Central Registry to beware of any irregularities over .Africa new gTLD and our position has not shifted. We are fully convinced that illegality has occurred and that an accountability mechanism must be established by the United States Congress to look into this.
Your deviation from the Truth, Professionalism and Journalistic integrity
Those who have been following the Domainincite Blog (http://www.domainincite.com) may also recall that Kevin Murphy had written about the ‘Cuckoo Business Model’ which he now thinks does not (or should not) apply in the case of UniForum.
The “Cuckoo Business Model” I once discussed referred to the practice of applying for a new gTLD that you know another company is also going to apply for, not in order to actually operate it but rather to extort money from other applicants in your contention set before withdrawing.
It obviously doesn’t apply to .africa — UniForum has no intention of dropping its application and actually wants to run the .africa registry,
DCA, on the other hand, has no chance whatsoever of getting its .africa bid approved and its best-case-scenario outcome here is getting a pay-off from UniForum.
If anything, DCA would be the cuckoo.
It sucks for DCA, which was pimping the .africa brand long before UniForum, but that’s the risk it took when it broadcast its plans to the world before it knew what the rules were going to be.
Therefore, it is our opinion that you have already deviated from the path of truth, professionalism and journalistic integrity; and by engaging in unbalanced and biased reporting against DCA Trust, you have also become quite neglectful of your scared responsibilities to the global public.
As much as I hate to make ad hominem arguments, I can’t help but point out that this is coming from the company that has been creating unconvincing fake online identities to support its nutty positioning.
Truth ain’t DCA’s strong point.
Downplaying DCA’s request for US congress intervention in serious issues
Finally, we believe that you have been rather disingenuous in your attempts to down-play the reason for DCA’s request for the intervention of the U.S. Congress. We have recommended and clearly stated in our letter that Congress should:
- appoint a new gTLD Ombudsman that would report directly to Congress
- should give the necessary approval and official impetus for the establishment of a new gTLD Program Ombudsman that would handle and look into different forms of grievances reported by new gTLD applicants
- and investigate any forms of alleged irregularities and acts of illegality committed by applicants, especially of the sort that DCA Trust has outlined against its direct competitor for the .Africa gTLD, UniForum ZA Central Registry.
- the new gTLD Ombudsman will be authorized by Congress with the powers of an Independent Counsel to investigate and adjudicate on issues of illegality that have been reported regarding new gTLD matters.
This is what we are asking Congress to do, and you cannot downplay the precedence-setting significance of this recommendation by stating whimsically that ICANN already has an Ombudsman. ICANN’s Ombudsman has no mandate to investigate alleged irregularities and acts of illegality that have been committed by new gTLD applicants.
Asking Congress for an independent Ombudsman was quite interesting, no matter how self-serving and unjustified the request, and perhaps I should have reported the idea in a little more detail.
We hope that you will publish this rejoinder in your Blog and give it proper visibility to ensure that your readers also have the opportunity to read our response to your article.
We thank you in anticipation of your cooperation.
DCA Public Communications Team
ICANN’s Ombudsman dismissed a complaint from DotConnectAfrica about alleged conflicts of interest on ICANN’s board of directors, but scolded DCA for its “intemperate” blog posts.
DCA complained in October that two members of the board — Mike Silber and Chris Disspain — have conflicts of interest in relation to the contested .africa gTLD.
DCA has applied for .africa without notable government support, whereas South African registry Uniforum has applied with formal backing from most African governments.
According to DCA’s complaint, as described by Ombudsman Chris LaHatte in a new blog post, Disspain and Silber somehow have conflicts of interest related to this contention set.
Silber is treasurer of ZADNA, the South African domain name authority, which oversees .za policy and ergo Uniforum’s ccTLD business, which is arguably a close connection to the .africa applicant.
Disspain is CEO of auDA, which oversees policy for Australia’s .au ccTLD and therefore has a relationship with AusRegistry, a major back-end provider for new gTLD applicants.
It’s not at all obvious what the alleged conflict of interest related to .africa is in Disspain’s case.
When LaHatte asked DCA executive director Sophia Bekele to explain the precise nature of the conflicts, he did not receive any information beyond identification of these two employment connections, both of which are already fully disclosed by ICANN.
Both men are members of the board’s New gTLD Program Committee, which wields the board’s power over the new gTLD program and is designed to comprise only non-conflicted directors.
LaHatte blogged that he was unable to find any discussion of .africa in any board or committee meeting minutes — because ICANN has not discussed any individual gTLD applications yet — and was therefore unable to find any unfair treatment of DCA.
Dealing with unfair treatment is of course the Ombudsman’s job. LaHatte concluded:
I consider that no disqualifying conflict of interest, or indeed any conflict of interest at all, is present in the actions of both Chris Disspain and Mike Silber. It is likely this complaint has led to increased awareness of the possibilities of conflict of interest, which the Board will carefully consider in terms of the existing policy about conflict, when the issue arises. I consider this should continue to be a matter for consideration in gTLD decision making by the Board.
But the Ombudsman also, it seems, had some concerns about the nature of DCA’s lobbying campaign over the last several months, which has been as vitriolic has it has been scattershot.
As previously noted, some of its allegations against its .africa rival have been baffling.
LaHatte clearly picked up on the tone of the debate also, blogging:
There has been considerable amount of discussion on blogs, Twitter and other sites and in comments on the ICANN website in relation to the new .africa gTLDs applications. Regrettably much of the discussion has been intemperate.
An aspect of this application has been the unfortunate tone of much of the debate on various websites blogs and other places. During the course of this investigation I discussed this with Sophia Bekele (at the Toronto meeting) and suggested that perhaps a less aggressive approach would be appropriate. She readily agreed to this.
The discussion and debate continues to be fairly vigorous, but I would suggest to the competing parties for .africa that they should pay attention to the ICANN rules about respectful communication.
As Uniforum has said little, and DCA a lot, I can also assume that the blog posts being referred to are DCA’s.
The company has for several months regularly posted often incomprehensible allegations on its blog, usually in multicolored text with liberal use of italics and bold.
Bekele was also last week rumbled using a fake identity on a mailing list to support DCA’s position.