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Sorry, you still can’t sue ICANN, two-faced .africa bidder told

Kevin Murphy, September 9, 2019, Domain Policy

Failed .africa gTLD applicant DotConnectAfrica appears to have lost its lawsuit against ICANN.

A California judge has said he will throw out the portions of DCA’s suit that had not already been thrown out two years ago, on the grounds that DCA was talking out of both sides of its mouth.

DCA applied for .africa in 2012 but lost out to rival applicant ZA Central Registry because ZACR had the backing of African governments and DCA did not.

It filed an Independent Review Process complaint against ICANN in 2013 and won in 2015, with the IRP panel finding that ICANN broke its own bylaws by paying undue deference to Governmental Advisory Committee advice.

It also emerged that ICANN had ghost-written letter of government support on behalf of the African Union, which looked very dodgy.

DCA then sued ICANN in 2016 on 11 counts ranging from fraud to breach of contract to negligence.

The Los Angeles Superior Court decided in 2017 that five of those charges were covered by the “covenant not to sue”, a broad waiver that all new gTLD applicants had to sign up to.

But the remaining six, relating to ICANN’s alleged fraud, were allowed to go ahead.

ICANN relied in its defense on a principle called “judicial estoppel”, where a judge is allowed to throw out a plaintiff’s arguments if it can be shown that it had previously relied on diametrically opposed arguments to win an earlier case.

The judge has now found that estoppel applies here, because DCA fought and won the IRP in part by repeatedly claiming that it was not allowed to sue in a proper court.

It had made this argument on at least seven occasions during the IRP, Judge Robert Broadbelt found. He wrote in his August 22 ruling (pdf):

DCA’s successfully taking the first position in the IRP proceeding and gaining significant advantages in that proceeding as a result thereof, and then taking the second position that its totally inconsistent in this lawsuit, presents egregious circumstances that would result in a miscarriage of justice if the court does not apply the doctrine of judicial estoppel to bar DCA from taking the second position in this lawsuit. The court therefore exercises its discretion to find in favor of ICANN, and against DCA, on ICANN’s affirmative defense of judicial estoppel and to bar DCA from bringing or maintaining its claims against ICANN alleged in the [First Amended Complaint] in this lawsuit.

In other words, ICANN’s won.

The case is not yet over, however. DCA still has an opportunity to object to the ruling, and there’s a hearing scheduled for December.

ZADNA CEO suspended for “hybrid misconduct”

The CEO of South Africa’s ccTLD registry has reportedly been suspended amid claims of “acts of misconduct”.

According to reports in the local tech press, Vika Mpisane was suspended in early December and has been subject to a delayed disciplinary process since January.

“Mr Vika Mpisane was suspended for serious hybrid acts of misconduct including mismanagement of ZADNA funds and others,” ZADNA chair Motlatjo Ralefatane told MyBroadband.

While details are rather thin on the ground, there are local rumors that some of the allegations relate to Mpisane’s salary and bonuses.

Ralefatane reportedly said that forensic accounting investigations are ongoing.

ZADNA, the ZA Domain Name Authority, is a non-profit organization and official ccTLD manager for .za. It answers to the South African government, but is not funded by it. It should not be confused with ZACR, the commercial entity that actually runs the .za registry on ZADNA’s behalf.

Mpisane has come under increased scrutiny this week as it turns out he is running unopposed for the Southern Africa seat on the board of AFRINIC, the Regional Internet Registry responsible for handing out IP addresses on the continent, apparently without ZADNA’s knowledge.

According to MyBroadband, Ralefatane believes Mpisane should not be representing that he has ZADNA’s support for his run.

His CV (pdf), posted to the AFRINIC web site in April, states that he is the current CEO of ZADNA, with no reference to his suspension.

Ralefatane reportedly added that she is not sure if AFRINIC or ICANN are aware of the allegations against him. They are now.

Mpisane is still listed on ZADNA’s web site as its CEO, also with no reference to the suspension.

His bio on the site reads, in its entirety (errors from the original): “The voice of reason and wisdom An outstanding leader with passion about the internet and what is has to offer. He walks the talk and talks the talk”.

After slow launch, .africa looks to add hundreds of resellers

Kevin Murphy, September 1, 2017, Domain Registrars

ZA Central Registry is opening up .africa and its South African city gTLDs to potentially hundreds of new registrars via a new proxy program.

The company today announced that its new registrar AF Proxy Services has received ICANN accreditation, which should open up .africa, .joburg, .capetown and .durban to its existing .za channel.

ZACR is the ccTLD registry for South Africa and as such it already has almost 500 partners accredited to sell .za names. But most of these resellers are not also ICANN accredited, so they cannot sell gTLD domains.

The AF Proxy service is intended to give these existing resellers the ability to sell ZACR’s four gTLDs without having to seek out an ICANN accreditation themselves.

“Effectively, all users of the AF Proxy service become resellers of the Proxy Registrar which is an elegant technical solution aimed at boosting new gTLD domain name registrations,” ZACR CEO Lucky Masilela said in a press release.

While reseller networks are of course a staple of the industry and registries acting as retail registrars is fairly common nowadays, this new ZACR business model is unusual.

According to ZACR’s web site, it has 489 accredited .za registrars active today, with 52 more in testing and a whopping 792 more in the application process.

Depending on uptake of the proxy service, that could bring the number of potential .africa resellers to over 1,300.

And they’re probably needed.

The .africa gTLD went into general availability in July — after five years of expensive legal and quasi-legal challenges from rival applicant DotConnectAfrica — but has so far managed to put just 8,600 names in its zone file.

That’s no doubt disappointing for TLD serving a population of 1.2 billion and which had been expected to see substantial domain investor activity from overseas, particularly China.

ZACR to delete 12,000 .za domains next week

Kevin Murphy, August 24, 2017, Domain Registries

South African ccTLD registry ZACR is to delete more than 12,000 domains, many of them English dictionary words, ending in .org.za next week.

That’s more than a third of the current count of .org.za domains, which stands at about 33,000 today.

The list includes many English dictionary-word domains very possibly worth more than the standard registration fee, such as sex.org.za, accountant.org.za, comedy.org.za, vodka.org.za, casino.org.za and cash.org.za.

The domains will be deleted and then become available for first-come, first-served registration on September 1.

The current registrants have had fair warning. The company migrated to a new EPP-based registry back-end a few years ago and told its customers they had to migrate to an accredited registrar.

A year ago, it suspended 15,420 domains, cutting off their ability to resolve in the DNS, as way to bring the impending deletion to their owners attention, but since then only 2,394 suspended domains have become compliant with the new rules.

That means 12,677 .org.za domains face the chop Friday next week, unless their owners mount an eleventh-hour rescue operation.

ZACR has published a full list of the soon-to-be-deleted names here

The .org.za space is far less popular than commercial counterpart .co.za, which has over a million registered names.

Chinese to invade .africa? CEO thinks so

Kevin Murphy, April 11, 2017, Domain Registries

While .africa finally went on sale last week after years of legal fights, it seems Africans may find themselves in the minority of registrants.

A combination of awareness, pricing and anticipated interest from Chinese domain investors, means that Africans could account for as few as 1 in 10 .africa registrations, according to Lucky Masilela, CEO of .africa registry ZA Central Registry.

The domain went into its sunrise period last week, and has a multi-phased launch planned out that will last until July 1, 2018.

After the trademark owners have had their crack at the domain — Masilela tells us that South Africa brands such as Nando’s are among the first to grab theirs — there will be five phases in which domains will be open to all but priced at a premium.

Starting June 5 there will be five landrush periods of five day, each a kind of hybrid between the traditional landrush period and the kind of Early Access Period offered by Donuts and others.

Each landrush will see all names priced at a certain amount, with the amount going down at the start of each period — $5,000 to $2,000 to $1,000 to $500 (all USD).

In the event that any name is claimed by more than one registrant, there will be an auction for that name at the end of the period.

Then on July 4 comes the first period of “general availability”, from which point all domains will be first-come, first-served.

But for the first 28 days of GA, domains will be priced at $150, other than domains categorized by the registry as premium.

Domains then come down to a more affordable $18 wholesale.

But that’s not the end. ZACR has baked in a price reduction to $12.50 wholesale, due to kick in July 1 2018. From then on out, it’s business as usual.

Unlike similar TLDs such as .eu, there are to be no geographic restrictions on who can register .africa names, and Masilela said he expects registrants from Africa to be in a minority.

“I think were are looking at about 10% from the continent, growing gradually over the years,” Masilela said. “The next wave is going to be international registrars.”

“We have a big suspicion that we will probably see a huge uptake coming from the east, which is the China market,” he said. “They’ll probably come in and grab a large number of domain names.”

He said that Chinese investment in Africa offline is likely to be mirrored online.

Pricing is also likely to be a factor. While .africa will bottom out, ignoring periodic discounts, at $12.50, that’s still quite a lot more than you’d expect to pay for African ccTLDs. ZACR’s own .za costs about $4 per year.

The relatively high price of becoming ICANN accredited has also meant that while Africa has 50-something countries, there are currently only about half a dozen gTLD registrars based there.

ZACR proposes to counter this by offering a gateway service rather like the one it already offers in .joburg and .capetown, that would help bring its own .za registrars on board.