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DotConnectAfrica still barking mad after IRP win

Kevin Murphy, July 13, 2015, 12:56:24 (UTC), Domain Policy

DotConnectAfrica thinks it is going to get the .africa gTLD, following its successful Independent Review Process case against ICANN.
In a press release today, the company hailed last week’s ruling as a “resounding victory”.
DCA CEO Sophia Bekele is quoted as saying:

Going forward, we now expect ICANN to accept the binding IRP outcome, refrain from any further plans to delegate .Africa to the ZA Central Registry who should now be removed immediately from the new gTLD program; and cooperate fully with DCA Trust to ensure that the IRP Panel ruling is implemented so that .Africa can be delegated to DotConnectAfrica Trust

That’s right, Bekele reckons the IRP win means ICANN has to kick rival .africa applicant ZACR — which has already signed a Registry Agreement for the string — out of the new gTLD program.
Needless to say, it doesn’t.
The IRP panel refused DCA’s demands that ZACR be kicked out, and by ruling against DCA on a number of other counts, it essentially signed its application’s death warrant.
Bekele goes on to make three startling assertions about the case that have little to no basis in the IRP panel’s ruling:

During the IRP, DotConnectAfrica Trust clearly established three major findings: that ZA Central Registry lacked any valid endorsements for the .Africa string that it applied for; and that the purported Governmental Advisory Committee Objection Advice against our .Africa application was not by consensus; and that the ICANN Board had seriously erred in accepting the GAC Advice. The truth has prevailed and we are absolutely happy with the IRP Panel decision.

“I also give thanks to God for helping to correct this act of victimization that was committed against DCA Trust,” she added.
I’m not making that up. She really said that.
In Bekele’s opinion, DCA “established” three major findings, but “alleged” would be a better word. The IRP panel largely disagreed with or ignored the claims.
First, there’s nothing in the IRP’s decision that shows ZACR “lacked any valid endorsement” for its .africa bid.
ZACR has the unambiguous support of the African Union and says on its web site it has backing from 78% of African nations. The IRP declaration doesn’t even mention these endorsements, let alone question them.
Second, the IRP panel does not say that the GAC’s advice against DCA’s application lacked consensus. It says it lacked fairness and transparency, but did not dispute that it had consensus.
Third, the IRP did not conclude that ICANN should not have accepted that GAC advice, just that it should have carried it a bit more due diligence.
Finally, there’s nothing in the IRP’s declaration that gives DCA a chance of winning the .africa gTLD. In fact, the panel specifically decided not to give DCA that chance.
The closest the panel came to addressing any of DCA’s myriad accusations of ICANN wrongdoing is described in its ruling:

DCA Trust has criticized ICANN for its various actions and decisions throughout this IRP and ICANN has responded to each of these criticisms in detail. However, the Panel, having carefully considered these criticisms and decided that the above is dispositive of this IRP, it does not find it necessary to determine who was right, to what extent and for what reasons in respect to the other criticisms and other alleged shortcomings of the ICANN Board identified by DCA Trust.

So what happens to .africa now?
ICANN’s board of directors will discuss the IRP declaration at its next meeting, July 28, so we don’t yet know for certain how things will proceed.
However, some things seem safe bets.
The IRP panel suggested that ICANN should continue to refrain from delegating .africa, which has been on hold since May 2014, to ZACR. I think it likely that ICANN will follow this recommendation.
It also seems possible that ICANN may decide to reconsider (that is, consider again, rather than necessarily overturn) its decision to accept the GAC’s consensus objection to DCA’s .africa bid.
The panel’s key criticism of ICANN was that it failed to seek a rationale from the GAC for its objection. So ICANN may decide to seek such a rationale before reconsidering the advice.
The panel also told ICANN that DCA’s application, which had been rejected, should re-enter the application process.
Assuming ICANN accepts this recommendation (and I think it will, given the political climate), the first step would to be for DCA to finish its Initial Evaluation. ICANN rejected the DCA bid, based on GAC advice, before the IE panels finalized their evaluation DCA’s application.
Part of the IE process is the Geographic Names Review, which determines whether a string is “geographic” under ICANN’s definition and whether the applicant has the necessary support — 60% of national governments in .africa’s case — to be allowed to proceed.
DCA does not have this support, and it knows that this means its application is on life support.
It had asked the IRP panel to rule that ICANN should either give it 18 months to try to gather support, or to rule that it already has the support, essentially trying to lawyer itself into a position where it had a shot of winning .africa.
But the panel rejected both of these demands.
While DCA seems to have given up trying to convince people that its 2009 letter of support from the AU is still valid, it still holds that a 2008 letter from the executive secretary of the United Nations Economic Commission for Africa shows the requisite 60% support.
I don’t know whether this letter was ever formally withdrawn, but UNECA is today listed as a ZACR supporter.
However, even if the Geographic Names Panel ruled that DCA had passed its 60% threshold, the application would still fail the geographic review.
The rules state that “there may be no more than one written statement of objection” from an affected government, and DCA received GAC Early Warnings from 16 national governments as well as the AU itself.
No matter what DCA says in its press releases now, its application is still doomed.

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Comments (11)

  1. Richard Funden says:
    July 13, 2015 at 1:28 pm

    Woof, woof!
    Invoking God in anything is already a clear indication of having lost ones marbles.

    Reply
  2. Richard Funden says:
    July 13, 2015 at 5:11 pm

    Her reaction after the decision came down: https://www.youtube.com/watch?v=wbUpGoOjFWw

    Reply
  3. Phil Buckingham says:
    July 13, 2015 at 9:17 pm

    Agreed Kevin,
    Not a cat in hell’s chance.
    IE is “incomplete status”

    Reply
  4. Constantine Roussos (.MUSIC) says:
    July 13, 2015 at 9:31 pm

    Kevin,
    Your statements may not be entirely accurate.
    Point 4 of Page 69 of the AGB states:
    “An application for a string listed as a UNESCO region (See http://www.unesco.org/new/en/unesco/worldwide/) or appearing on the “Composition of macro geographical (continental) regions, geographical sub-regions, and selected economicand other groupings” list (See http://unstats.un.org/unsd/methods/m49/m49regin.htm). In the case of an application for a string appearing on either of the lists above, documentation of support will be required from at least 60% of the respective national governments in the region, and there may be no more than one written statement of objection to the application from relevant governments in the region and/or public authorities associated with the continent or the region.”
    However, according to the AGB (Pg.9):
    “Government Notifications: Governments may provide a notification using the application comment forum to communicate concerns relating to national laws. However, a government’s notification of concern will not in itself be deemed to be a formal objection. A notification by a government does not constitute grounds for rejection of a gTLD application”
    “1.1.2.4 GAC Early Warning: The GAC Early Warning is a notice only. It is not a formal objection, nor does it directly lead to a process that can result in rejection of the application.”
    As far as I understand (please correct me if I am wrong) a formal objection by a government may be funded by ICANN in the amount of $50,000 with other guarantees (See http://newgtlds.icann.org/en/program-status/odr/government-funding):
    “Consistent with the Applicant Guidebook, funding from ICANN for objection filling fees, as well as for advance payment of costs, is available to eligible governmental entities in the amount of USD 50,000 with the guarantee that a minimum of one objection per government will be fully funded by ICANN where requested. ”
    So the question is: What constitutes a “written statement of objection”? As I indicated, Early Warnings are “not a formal objection, nor does it directly lead to a process that can result in rejection of the application.”

    Reply
    • Kevin Murphy says:
      July 13, 2015 at 10:23 pm

      You raise an interesting point Costa, thanks.
      My view would be that a “written statement of objection” would be any written statement that objects to the application, NOT a formal Objection (capital O) as defined by the AGB.
      It’s clear from the text you quote that the mere existence of two “statements of objection” is enough to immediately scupper any continental geographic bid.
      If a formal Objection (a Community Objection, for example) were required, one would expect that Objection to go through the defined process for that type of Objection, rather than the mere filing leading to an automatic win for the Objector.
      If I recall correctly, in the Community Evaluation Process it’s possible to lose points if community members have put objections (small o) on the record in any venue — for example in a press release or a news story. Maybe that same standard applies here.
      The text about Early Warnings you quote I read as an effort to make it clear that an Early Warning is not formal GAC Advice. An Early Warning may not “directly lead to a process that can result in rejection of the application”, but Initial Evaluation and the Geographic Names Review happen regardless. An EW does not initiate the GNR, but I don’t see why an EW could not be used as input to the GNR.
      That said, the flowchart for the GNR process doesn’t even seem to envisage objection letters.
      More stuff to work on for the next round.

      Reply
      • Constantine Roussos (.MUSIC) says:
        July 14, 2015 at 1:06 am

        Kevin,
        Seems we will have to wait and see how this all unravels. No-one can accurately “envisage” the future of the New gTLD Program that is for sure.
        Speaking of Objections, the GAC Advice pertaining to exclusive access and safeguards for regulated strings was not envisaged either, but was still made into ICANN “law” at the expense of some Applicants and the gain of others in a contention set.
        It did unfairly influence Community Objections after their filing at the financial expense of Objectors. For example, we represented some “music-themed objections” against Applications with exclusive access (closed TLDs) or lack of enhanced safeguards (open TLDs for regulated sectors), filed BEFORE the GAC Beijing Advice. A reasonable person would have assumed those Objections would have all consistently prevailed given the GAC Advice and given that the ICANN NGPC accepted the GAC safeguards Cat1 and Cat2 as mandatory requirements. No-one would have filed Objections if such GAC-related Safeguards were integrated in the AGB.
        You also mentioned the .CRUISE example the other day that concerned fairness issues pertaining to GAC exclusive access Advice (http://domainincite.com/18939-cruise-heading-to-auction-despite-closed-generic-protest). There were also other similar cases about GAC Advice influencing contention sets unfairly: the CTIA (https://gtldcomment.icann.org/applicationcomment/commentdetails/12662), US Telecom (https://gtldcomment.icann.org/applicationcomment/commentdetails/12670) and GSMA (https://gtldcomment.icann.org/applicationcomment/commentdetails/12671).
        Certainly more stuff to work on for the 2nd round but my feeling is that I doubt there will be a 2nd round when the current round is still in progress while so many overarching fairness and transparency issues remain unresolved (including IRPs). I am cautiously optimistic that ICANN will do the right thing going forward because so much is at stake.

        Reply
        • Rubens Kuhl says:
          July 14, 2015 at 1:22 am

          We do not have to wait for this round to start the next, or for the next to start the one after… the only contention between round is for strings: all strings that are still in any kind of resolution can’t be applied for in the next round. The contentions between the first and the following rounds are mandated program reviews, and those reviews have triggers of x number of TLDs or y number of months to be initiated.
          We don’t need to rush, but in order not to be rushed in the future, we need to start ASAP, take whatever time/research we need to do each policy development that is needed, and then move on. If we don’t, Staff/Board will simply take the opportunity policy already gives to them to promove new rounds with the current rules, which are known to have multiple issues, procedural flaws, biases etc.

          Reply
          • Constantine Roussos (.MUSIC) says:
            July 14, 2015 at 6:44 pm

            Rubens,
            There are currently other IRPs that require urgent attention and careful investigation after their resolution because the IRP process is being abused as an anti-competitive tool, costing prevailing applicants lost money, while attempting to “extract” money from smaller players for withdrawal.
            While you mention “multiple issues, procedural flaws, biases” (I cannot agree more with you on these topics), there are also issues of anti-competitiveness in this round which need to be resolved. Controls need to be put in place to prevent such activity.
            Just in case you are unaware, there are some ICANN processes that are being abused by portfolio applicants. This pattern of anti-competitive behavior is predictably followed by Donuts, Minds&Machines, Famous Four Media and Radix, who are continuously filing anti-competitive IRPs against every community applicant that prevails CPE (See .RADIO, .ECO and .HOTEL IRP cases at https://www.icann.org/resources/pages/accountability/irp-en). They have never filed an IRP if a community applicant failed CPE, which speaks volumes.
            Kevin,
            What is your opinion about those IRPs filed against community applicants who have prevailed CPE? Portfolio applicants are generating diverse revenues and making profits by flipping TLDs in private auctions, while single prevailing community applicants are held hostage.
            You are quite passionate about the .AFRICA IRP, DCA and Sophia Bekele but I do not see any reporting or criticism of this type of activity and usage of IRPs. How about shedding some light on this?

          • Kevin Murphy says:
            July 14, 2015 at 10:26 pm

            You’re not the first person to bring this to my attention. I’m looking at it.

          • Rubens Kuhl says:
            July 14, 2015 at 11:18 pm

            My take on the CPE-specific IRPs is that portfolio applicants are smelling the blood that comes out of badly performed CPEs like .gay (reversed in a reconsideration request) and many other processes with lesser or higher involvement of the EIU (string panel, geo names panel) that show a pattern of bad execution. .TATA is such an example where they accepted an authorization to register a trademark as support from local government…
            … my guess is they are trying to make ICANN hostage, filing embarrassing accountability processes while ICANN is under scrutiny for the IANA transition, hoping that ICANN itself (the only one that can reverse staff and EIU decisions such as the ones they are challenging) goes into damage control and give them a chance.
            The fact they are killing single TLD applicants in the way looks more like not caring and having little to lose. But don’t think they haven’t assessed it in a cost-reward fashion; they likely did, which means they see real, although minimal, chance of winning. And we only have EIU and ICANN to blame for that chance.

          • Constantine Roussos (.MUSIC) says:
            July 14, 2015 at 11:46 pm

            Rubens,
            You claim they might have little to lose but I do not see that because no-one has taken any real action against them because of the “private” auction settlement lure (which again was never in envisioned in the AGB). There are anti-competition laws. Holding ICANN “hostage” or single applicants “hostage” will backfire. We have seen NetNames recently filing a Complaint with the European Competition Commission on Vox Populi’s .SUCKS pricing. Expect more of those to pop up on many levels.
            So you believe Donuts, Minds & Machines, Radix and Famous Four et al have made a cost analysis on the benefits of holding both ICANN and single applicants hostage? All it takes is a class lawsuit, some filings to the anti-competition authorities seeking damages from loss of income. At some point the loopholes run out and any reasonable judge can see this.
            The GAC and the Ombudsman have also been made aware of this pattern of behavior. Not sure it is going to end well. So much for enhancing competition and increasing diversity right? Add that to the long To-Do-List for the second round.

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