Panel slaps ICANN in .africa case

A panel of arbitrators had some stern words for ICANN as it handed controversial .africa gTLD applicant DotConnectAfrica another win in its Independent Review Process case.
In a 33-page procedural ruling (pdf) published by ICANN late Friday, the IRP panel disagreed with ICANN’s lawyers on almost every argument they made, siding with DCA instead.
The panel strongly indicated that it believes ICANN has attempted to render the IRP toothless, after losing the first such case against ICM Registry a few years ago.
The ruling means that ICANN’s top executives and board may have to face hostile cross-examination by DCA lawyers, rather than simply filing written statements with the panel.
It also means that whatever the IRP panel ultimately decides will in all likelihood be binding on ICANN.
DCA filed the IRP with the International Center for Dispute resolution after ICANN, accepting Governmental Advisory Committee advice, rejected the company’s application for .africa.
The ICDR panel has not yet ruled on the merits of the case — personally, I don’t think DCA has a leg to stand on — but last week’s ruling is certainly embarrassing for ICANN.
On a number of counts, ICANN tried to wriggle out of its accountability responsibilities, the ruling suggests.
Primarily, ICANN lawyers had argued that the eventual outcome of the IRP case should be advisory, rather than binding, but the panel disagreed.
The panel noted that new gTLD applicants sign away their rights to sue when they apply for a gTLD, meaning IRP is their last form of appeal against rejection.
It also called into question ICANN’s ability to police itself without a binding decision from an independent third party, pointing to previously reported accountability problems (my emphasis):

The need for a compulsory remedy is concretely shown by ICANN’s longstanding failure to implement the provision of the Bylaws and Supplementary Procedures requiring the creation of a standing panel. ICANN has offered no explanation for this failure, which evidences that a self-policing regime at ICANN is insufficient. The failure to create a standing panel has consequences, as this case shows, delaying the processing of DCA Trust’s claim, and also prejudicing the interest of a competing .AFRICA applicant.
Moreover, assuming for the sake of argument that it is acceptable for ICANN to adopt a remedial scheme with no teeth, the Panel is of the opinion that, at a minimum, the IRP should forthrightly explain and acknowledge that the process is merely advisory. This would at least let parties know before embarking on a potentially expensive process that a victory before the IRP panel may be ignored by ICANN.

The decision is the opposite of what the IRP panel found in the ICM Registry case, which was ruled to be “non-binding” in nature.
While deciding that its own eventual ruling will be precedential, the panel said it did not have to follow the precedent from the ICM case, due to changes made to the IRP procedure in the meantime.
ICANN had also argued against the idea of witnesses being cross-examined, but the panel again disagreed, saying that both parties will have the opportunity “to challenge and test the veracity of statements made by witnesses”.
The hearing will be conducted by video ink, which could reduce costs somewhat, but it’s not quite as streamlined as ICANN was looking for.
Not only will ICANN’s top people face a grilling by DCA’s lawyers, but ICANN’s lawyers will, it seems, get a chance to put DCA boss Sophia Bekele on the stand.
I’d pay good money for a ticket to that hearing.

Was panel wrong to put .africa on ice or does ICANN have an accountability problem?

Did an Independent Review Process panel get it wrong when it accused ICANN of failing to implement proper accountability mechanisms, or did it actually highlight a more serious problem?
As we reported yesterday, an IRP panel has ordered ICANN to not delegate ZA Central Registry’s .africa gTLD until it’s heard an appeal by failed rival bidder DotConnectAfrica.
IRP is ICANN’s last avenue of appeal for organizations that believe they’ve been wronged by ICANN decisions. Due to the duration of the process and the need for legal representation, it’s extremely expensive.
The IRP panel in the .africa case based its decision largely on the fact that ICANN has failed to create a “standing panel” of would-be IRP panelists, something the panel said would have sped up the process.
A “standing panel” is supposed to be six to nine panelists-in-waiting — all respected jurists — from which three-person IRP panels could be selected when needed in future.
DCA would not have needed to file for an emergency injunction against .africa’s delegation had this standing panel been created, the panel said.
According to the IRP panel, the creation of a standing panel has been “required” by the ICANN bylaws since April 2013, and ICANN has “failed” to follow its own rules by not creating one. It wrote:

the Panel is of the view that this Independent Review Process could have been heard and finally decided without the need for interim relief, but for ICANN’s failure to follow its own Bylaws… which require the creation of a standing panel

But ICANN disagrees, getting in touch with us today to point out that the panel only partially quoted the ICANN bylaws.
This is the bit of the bylaws the panel quoted:

There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN’s mission and work from which each specific IRP Panel shall be selected.

There seems to me to be little ambiguity in that paragraph; ICANN “shall” create a standing panel.
But ICANN reminds us that the IRP panel ignored a second bit of this paragraph, which states:

In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding.

Basically, the bit of the bylaws stating that ICANN “shall” create a standing panel is almost immediately negated by a bit that explains what is supposed to happen if ICANN does not create a standing panel.
It’s confusing.
Is ICANN “required” (the panel’s word) to create this standing panel or not? ICANN seems to think not, but the panel thinks otherwise.
I have no opinion because, luckily, I’m not a lawyer.
But I did a bit of digging into the public record to figure out why the bylaws are so confusing on this issue and what I found is slightly worrying if you’re concerned about ICANN accountability.
The bylaws paragraph in question was added in April 2013, but it has its roots in the findings of the first Accountability and Transparency Review Team, which is the key way ICANN’s accountability is reviewed under the 2009 Affirmation of Commitments with the US government.
The ATRT said in 2010 (pdf) that ICANN should “seek input from a committee of independent experts on the restructuring of the three review mechanisms” including the IRP.
ICANN did this, convening a three-person Accountability Structures Expert Panel, made up of widely respected corporate/legal brains Mervyn King, Graham McDonald and Richard Moran
It was this ASEP that came up with the idea for a standing panel, which it said would speed up IRP decisions and reduce costs.
Members of the standing panel would be paid an annual retainer even when not working on an IRP, but it would be cheaper because IRP complainants and ICANN wouldn’t have to repeatedly explain to a new panel of doddery old ex-judges what ICANN is and does.
The ASEP, in its report (pdf) did not specify what should happen if ICANN decided not to implement its recommendation on the standing panel.
I can’t know for sure, but from the public record it seems that the confusing second part of the bylaws amendment was the creation of the ICANN board, possibly based on a single comment from gTLD registries.
The provision about a standing panel was formally added to the bylaws with an April 2013 resolution of ICANN’s board of directors, which followed a December 2012 resolution that approved the change in principle.
The second part of the amendment, the bit about what happens if ICANN does not institute a standing panel, was added at some point between those two resolutions.
The April resolution sheds a little light on the reason for the addition, saying (with my added emphasis):

Whereas, as contemplated within the [December 2012] Board resolution, and as reflected in public comment, further minor revisions are needed to the Bylaws to provide flexibility in the composition of a standing panel for the Independent Review process (IRP).
Resolved (2013.04.11.06), the Bylaws revisions to Article IV, Section 2 (Reconsideration) and Article IV, Section 3 (Independent Review) as approved by the Board and subject to a minor amendment to address public comments regarding the composition of a standing panel for the IRP, shall be effective on 11 April 2013.

The notes to the resolution further explain (again with my emphasis):

The Bylaws as further revised also address a potential area of concern raised by the community during the public comments on this issue, regarding the ability for ICANN to maintain a standing panel for the Independent Review proceedings. If a standing panel cannot be comprised, or cannot remain comprised, the Bylaws now allow for Independent Review proceedings to go forward with individually selected panelists.

The “minor amendment” referred to in the resolution seems to have enabled ICANN to basically ignore the ASEP recommendations, which (remember) stem from the ATRT review, for the last 12 months.
The April 2013 resolution was on the consent agenda for the meeting, so there was no minuted discussion by the board, but it seems pretty clear that “public comments” are responsible for the second part of the bylaws amendment.
But whose public comments?
When the ASEP report was open for comment, only two people responded — the Registries Stakeholder Group and former ICANN director Alejandro Pisanty, apparently commenting in a personal capacity.
On the subject of the proposed standing panel, the RySG said it wasn’t happy:

We also are concerned with the concept of standing panels for the IRP. A key component of the IRP is that the review is “independent.” To keep this independence, we believe that service on an IRP tribunal should be open to all eligible panelists, not just those with previous experience with or knowledge of ICANN. Determining whether an organization has complied with its bylaws or articles of incorporation should not require historic knowledge of the organization itself, and we believe that any jurist generally qualified by the IRP provider should be more than capable of acting as a panelist for an IRP.

It wasn’t the RySG’s main concern, and it wasn’t given much space in its comment.
Pisanty, commenting during the comment-reply period, seemed to disagree with the RySG, saying that the ongoing institutional knowledge of a standing panel could be a boon to the IRP.
When the ASEP report was discussed at a lightly attended early-morning session of the ICANN Toronto meeting in October 2012, the only person to comment on the standing panel was Neustar lawyer Becky Burr, and she liked the idea (transcript).
It’s not what you’d call a groundswell of opposition to the standing panel idea. There were few opinions, those opinions were split, and if anything the balance of commentary favors the notion.
In any event, when ICANN compiled its usual compilation report on the public comments (pdf) its legal staffer said:

After review of the comments, no changes to the ASEP recommendations are recommended, and the report will be forwarded to the Board for consideration and action, along with the proposed Bylaws amendments.

ICANN staff, it seems, didn’t think the RySG’s (lone?) opposition to the standing panel concept was worth messing with the ASEP’s recommendations.
And yet the ICANN board added the text about what happens in the event of a standing panel not existing anyway.
I could be wrong, but it does look a little bit like the ICANN board giving itself a carte blanch to ignore the recommendations of the ASEP, and therefore, indirectly, the ATRT.
ICANN may well have a point about the .africa IRP panel inappropriately ignoring some key sentences in the ICANN bylaws, but I can’t help but wonder how those sentences got there in the first place.

.africa frozen by panel after ICANN screwup

ZA Central Registry’s bid for the .africa new gTLD has been put on ice by an arbitration panel which admonished ICANN for failing to follow its own bylaws.
An Independent Review Panel ruled yesterday that ICANN should not carry on processing .africa until it has ruled on a complaint filed by failed .africa applicant DotConnectAfrica.
If .africa were to be delegated, which could have happened as early as Thursday — ZACR and ICANN have already signed a Registry Agreement — it would render the IRP’s decision moot, the panel found.
This ruling doesn’t mean ICANN has lost the case, just that it’s temporarily enjoined from delegating .africa until the final decision has been made by the IRP panel.
However, the panel had some stern words for ICANN, saying that the matter could have been settled months ago had ICANN only followed its own bylaws.

In the Panel’s unanimous view, it would be unfair and unjust to deny DCA Trust’s request for interim relief when the need for such a relief by DCA Trust arises out of ICANN’s failure to follow its own bylaws.

ICANN’s board of directors passed a resolution in April 2013 calling for the creation of a “standing committee” of nine potential IRP panelists, from which each three-person IRP panel could be drawn.
But, over a year later, it has not created this committee, the current IRP panel said. This led to the delay that forced DCA to request the emergency injunction.
ICANN’s basically been told by one of its own accountability mechanisms that that accountability mechanism is inadequate, at a time when its accountability mechanisms are under the world’s spotlight.
Just last week, the organization launched an accountability review that it said it “interdependent and interrelated” to the process of transitioning IANA away from US government stewardship.
Yeah, it’s embarrassing for ICANN. Doubly so because it’s been beaten by a company so incompetent it accidentally applied for the wrong gTLD.
For ZACR, the panel reckons the delay in getting .africa delegated will likely last “a few months”.

DotConnectAfrica files for ICANN independent review

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”.
DCA has been alleging a conspiracy — often involving DI — at almost every juncture of the process, even before it filed its application. Read more here, here and here.
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”.

Today’s new gTLD updates: two withdrawals and two “Not Approved”

DotConnectAfrica and GCCIX WLL have become the first new gTLD applicants to have their applications — for .africa and .gcc respectively — officially flagged as “Not Approved” by ICANN.
Both were killed by Governmental Advisory Committee advice.
While GCC had passed its Initial Evaluation already, DCA’s IE results report (pdf), which were published last night, simply states: “Overall Initial Evaluation Summary: Incomplete”.
In both cases the decision to flunk the applications was taken a month ago by ICANN’s New gTLD Program Committee.
DCA filed a formal Reconsideration Request (pdf), challenging the decision in typically incomprehensible style, on June 19, threatening to take ICANN to an Independent Review Panel (ICANN’s very expensive court of appeals) if it does not overturn its decision.
Here’s a sample:

We have no intention of withdrawing our application against the backdrop that we rightly believe that the Board decision is injudicious, very wrong and injurious to our application and to our organizational aspirations. We are placing faith in the possibility that this particular communication will serve the purpose of causing the ICANN Board to have a rethink, and see the wisdom in allowing DCA Trust to continue to participate in the new gTLD Program without the necessity of going to an Independent Review Process (IRP) Panel to challenge the ICANN Board Decision which we presently disagree with in the most absolute terms.

The Board Governance Committee, which handles Reconsideration Requests, has a sturdy track record of denying them, so I think the chances of DCA’s being approved are roughly zero.
But if the company is nutty enough to try its hand at an IRP, which could quite easily set it back a few million dollars in legal fees, the story might not be over yet.
The GAC didn’t like DCA’s .africa bid because African governments back UniForum, DCA’s South Africa-based competitor for the string.
Had the application made it to Initial Evaluation — its processing number wasn’t up for a few weeks — it would have been flunked by the Geographic Names Panel due to its lack of support anyway.
GCC’s application for .gcc was also rejected by the GAC on geographic grounds. It stands for Gulf Cooperation Council, and the Persian/Arabian Gulf nations in question didn’t support the bid.
Also today, the American insurance company Allstate withdrew its applications for .carinsurance and .autoinsurance. Both were single-registrant “closed generics”, which ICANN has indicated might not be approved, also due to GAC advice.

ICANN says DotConnectAfrica’s .africa bid is officially “Not Approved”

Nutty DotConnectAfrica gives DI a good kicking

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.

Fair point.
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.

Sure thing.

We thank you in anticipation of your cooperation.
Yours sincerely,
DCA Public Communications Team
Nairobi, Kenya

Nutty DCA complains to US Congress about .africa

DotConnectAfrica’s increasingly unhinged campaign for the .africa gTLD has seen it take the unusual step of complaining to the US Congress about “wholesale illegality” in the contest.
The company also appears to be running an astroturf campaign on Twitter and bogus blogs to advance its case.
In a rambling nine-page letter (pdf) to the chairs of the House and Senate telecommunications committees this week, DCA chief Sophia Bekele outlines a series of “corruption” claims against rival .africa applicant UniForum.
DCA and UniForum are both applying for .africa. UniForum, per ICANN rules, has the support of the African Union and over 60% of the national governments in Africa. DCA has no support.
As far as I can tell, DCA thinks the way the African Union went about picking a favored applicant for .africa was “corrupt” but the letter needs to be read several times in order to even begin to figure out what the allegations are.
The allegations seem to stretch back to 2011, when the AU publicly stated that it did not support DCA‘s claims to .africa, and that it had opened up an Expressions of Interest process to pick a preferred registry.
At the time, an organization called AfTLD, which represents African ccTLD operators, said it was preparing a bid for .africa. This bid later morphed into the UniForum bid.
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.
DCA goes on to say that Vika Mpisane, who was both chair of AfTLD and CEO of .za policy overseer ZADNA, worked within AfTLD to have UniForum put forward as its preferred applicant for .africa.
The AU Commission, at the conclusion of its tender process, decided to support the UniForum proposal.
So what’s DCA’s beef?
Where exactly is the alleged corruption, according to DCA?
It’s almost impossible to tell from Bekele’s letter, which seems to deliberately confuse the process AfTLD used to back UniForum and the process the AU Commission used to select UniForum.
By DCA’s maddening logic, if Mpisane used his influence as chair of AfTLD to push for AfTLD to support UniForum’s bid, that means the AU Commission’s subsequent tender process was somehow corrupt.
It makes no sense to me, and I doubt it will make any sense to the dozens of US Congressmen DCA has carbon-copied on the letter.
My understanding is that DCA didn’t even bother to respond to the AU Commission’s tender anyway.
The second main prong of DCA’s new attack concerns the fact that UniForum’s bid for .africa is not a “Community” application, as defined under ICANN’s rules.
Again, DCA attempts to confuse the reader by conflating the normal everyday use of the word “community” with the special meaning of “Community” in the new gTLD program.
Bekele writes (emphasis removed):

UniForum contrived to obtain a highly valuable endorsement for a geographic name string under the pretext that it would be submitting an application on behalf of the African Community, but after obtaining the endorsement from the African Union Commission, not only failed to prepare and submit a Community TLD application for .Africa, but also failed, rather deliberately, to acknowledge the same African Community in its application that was submitted to ICANN for the .Africa gTLD name. DCA Trust believes that this was a very serious infraction on the part of UniForum ZA Central Registry.

Of course no applicant was obliged to submit a big-C Community application under ICANN’s rules, even if their gTLD purports to represent a small-c community.
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. There’s no need to take advantage of the mechanism if you’re applying for a geographic string and have the necessary government support.
Note also that DCA did not apply as a Community applicant either.
What does DCA want from Congress?
DCA is based in Mauritius. It appears to be complaining to the US Congress due to the US’ special oversight relationship with ICANN, and because its complaints to African governments have fallen on deaf ears.
It wants Congressional oversight of the new gTLD program, through the appointment of a special Ombudsman.
The letter says (again, emphasis removed):

We are hereby appealing directly to the United States Senate as the Upper House of the United States Congress, its Judiciary Committee, and other important Congressional committees that have a relevant stake in a successful outcome of the new gTLD process; to 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.

ICANN already has an Ombudsman, of course, Chris LaHatte. DCA complained to him late last year about two perceived conflicts of interest on the ICANN board of directors.
The complaint was dismissed last December because DCA was unable to provide LaHatte with any information about any improper actions.
LaHatte did however ask Bekele to simmer down the tone of her attacks, which she “readily agreed to”.
More fake identities?
Almost as an aside, I noticed today that a lot of similar-looking Twitter accounts (pictured) have been tweeting links with the hashtag #dotafrica this week.
The accounts all appear to have been created on Monday, using silhouette-based avatars, and have tweeted the same stuff at roughly the same time.
Is this more DCA astroturfing?
Bekele was caught out using a fake identity on the AfrICANN mailing list a few months ago.
Two of the “news blogs” these Twitter accounts have been linking to, domainingafrica.com and domainnewsafrica.com, were originally registered on November 21 2011, before disappearing behind Whois privacy last June.
The original registrant of both? Why, it’s Sophia Bekele.

Ombudsman asks DCA to simmer down after .africa conflict of interest complaint

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.

.africa gTLD applicant caught using fake identity

DotConnectAfrica executive director Sophia Bekele has been rumbled using a fake identity to post to an ICANN mailing list, but says she did so due to “hatred” from other posters.
Members of the AfrICANN list discovered this week that a poster going by the name of “Lerato Ma” had Bekele’s name in her email headers.
Over several months, “Ma” had frequently defended DCA, which is locked in a bitter contention battle over the .africa gTLD.
Bekele told DI that she had been forced to used a pseudonym due to the hostility she’s experienced on the list when posting under her real name.
“The open display of hatred, aggression and personal anonymity [sic] towards my person and DCA is compelling me to post under Lerato Ma,” she said in an email.
“There is nothing to hide, it is just to protect myself from all that aggression,” she added. “It is not an important issues for us.”
AfrICANN is not an official ICANN mailing list, nor does it have any power. It’s hosted by Afrinic, the African IP address registry, and is used to discuss issues related to ICANN in Africa.
Unlike most ICANN mailing lists, which operate under a code of acceptable behavior, it has a fairly rough-and-tumble tone to it. Bekele and DCA are sometimes mocked by name.