First dot-brand gTLD to go generic after TLS deal

The would-be dot-brand gTLD .observer will actually open as an unrestricted generic after the contract was bought out by Top Level Spectrum.
TLS, which has a small portfolio of gTLDs already, bought out the ICANN contract from UK newspaper publisher Guardian News and Media a couple of months ago, it emerged today.
The Observer is the title of the Guardian’s sister paper, published on Sundays.
But TLS CEO Jay Westerdal said it will be sold as a generic with pricing under $10 per name, as a thematic stable-mate for its gripe-oriented gTLD .feedback.
The price of the TLD has not been revealed, but Westerdal characterized it as a sub-$1 million deal.
It’s the first instance of a dot-brand, albeit one that that not yet gone live, being taken over by a portfolio gTLD player.
Westerdal said he’s looking for more, similar acquisition opportunities.
The gTLD is currently in pre-delegation testing, with no published go-live date.
The Guardian had signed a Registry Agreement containing Specification 9. That allows registries to disregard the Code of Conduct — which obliges them to treat registrars equally.
It seems likely this will have to be removed from the RA before .observer can go to the masses as a proper generic.

Correction: what NTIA said about .com pricing

The US government has not confirmed that it expects to keep Verisign’s .com registry fee capped at the current level until at least 2024, despite what DI reported on Monday.
At this URL we published an article reporting that the US government had confirmed that it was going to keep .com prices frozen at $7.85 for the next eight years.
That was based on a misreading of a letter from the Department of Commerce to Senator Ted Cruz and others, which merely explained how the price cap could be maintained without expressing a commitment to do so.
The letter actually said very little, and nothing of news value, so I thought it best to simply delete the original piece and replace it with this correction.
I regret the error.
Thanks to those readers who got in touch to point out the mistake.

US claims option to delay IANA transition as Cruz launches free speech doomsday clock

The US government has told ICANN that it may extend the current IANA functions contract for a year, should something unexpected happen this month.
The National Telecommunications and Information Administration wrote to ICANN (pdf) yesterday, to provide “preliminary notice” that it could extent the contract until September 30, 2017, if a “significant impediment” should occur before October 1, 2016.
It appears to be a formality. NTIA said:

the department intends to allow the IANA functions contract to expire as of October 1, 2016, barring any significant impediment. This notice preserves the Government’s rights under the contract during this interim period should there be a change in circumstance.

Under the contract, NTIA is allowed to extend the term for another year in the last 15 days of the current term, but it has to give 30 days notice to ICANN if it wants to do so.
NTIA assistant secretary Larry Strickling told ICANN (pdf) a couple weeks ago that it plans to allow the IANA contract to expire — thereby removing NTIA’s piddling influence in root zone management — October 1.
But the move is facing continued criticism from increasingly unhinged elements of the American political right, who have got it into their heads that the transition means Russia and China will be able to take over ICANN and crush free speech online.
The campaign has been spearheaded by Senator Ted Cruz and whoever pulls the strings of Wall Street Journal columnist L Gordon Crovitz, and has roped in a multitude of hard-right think-tanks.
The latest publicity push for the campaign saw Cruz yesterday launch a countdown clock on its Senate web page.

Cruz’s site states:

If that proposal goes through, countries like Russia, China, and Iran could be able to censor speech on the Internet, including here in the U.S. by blocking access to sites they don’t like.

None of that is true, needless to say.
But the anti-transition sentiment is strong enough that it’s not impossible that there will be a “significant impediment” to the transition before October 1 — a legal injunction against the Federal government, perhaps — and the extension will enable ICANN to run IANA under the current regime for another year.

Tata ponders “buy a school” strategy to release .tata from limbo

Tata Group is reportedly considering buying a school for the Moroccan province of Tata in order to unlock the .tata gTLD.
The huge Indian conglomerate has been prevented from acquiring its own dot-brand because it matches the name of the tiny region, which is as protected geographic string under ICANN rules.
Without the express permission of Morocco, Tata will not get its desired domain.
According to the New Indian Express newspaper, the company has now reached out to the Indian government in an attempt to open diplomatic channels with Morocco and finally resolve the issue.
The paper cites an unnamed “official” as stating that buying a new school for the province may be the best way to “open the door” to a formal non-objection.
That has precedent.
New gTLD registry Punto 2012, managed to get a non-objection for its .bar application from Montenegro by offering to pay $100,000, spread over 10 years, to fund a school in the Bar region of the country.
Tata came close to acquiring .tata in 2014.
It was the final new gTLD application to pass its evaluation, after it managed to produce a letter from Morocco that was taken as a non-objection.
But Morocco’s digital minister subsequently objected, denying that the government had permitted the use of the string.
Tata’s application was then returned to its Geographic Names Review, which it flunked last December.
Since then, the bid has been marked “Will Not Proceed”, a status that usually only changes when an application is withdrawn.

.hotel losers gang up to threaten ICANN with legal bills

The six losing applicants for the .hotel new gTLD are collectively threatening ICANN with a second Independent Review Process action.
Together, they this week filed a Request for Reconsideration with ICANN, challenging its decision earlier this month to allow the Afilias-owned Hotel Top Level Domain Sarl application to go ahead to contracting.
HTLD won a controversial Community Priority Evaluation in 2014, effectively eliminating all rival applicants, but that decision was challenged in an IRP that ICANN ultimately won.
The other applicants think HTLD basically cobbled together a bogus “community” in order to “game” the CPE process and avoid an expensive auction.
Since the IRP decision, the six other applicants — Travel Reservations, Famous Four Media, Radix, Minds + Machines, Donuts and Fegistry — have been arguing that the HTLD application should be thrown out due to the actions of Dirk Krischenowski, a former key executive.
Krischenowski was found by ICANN to have exploited a misconfiguration in its own applicants’ portal to download documents belonging to its competitors that should have been confidential.
But at its August 9 meeting, the ICANN board noted that the timing of the downloads showed that HTLD could not have benefited from the data exposure, and that in any event Krischenowski is no longer involved in the company, and allowed the bid to proceed.
That meant the six other applicants lost the chance to win .hotel at auction and/or make a bunch of cash by losing the auction. They’re not happy about that.
It doesn’t matter that the data breach could not have aided HTLD’s application or its CPE case, they argue, the information revealed could prove a competitive advantage once .hotel goes on sale:

What matters is that the information was accessed with the obvious intent to obtain an unfair advantage over direct competitors. The future registry operator of the .hotel gTLD will compete with other registry operators. In the unlikely event that HTLD were allowed to operate the .hotel gTLD, HTLD would have an unfair advantage over competing registry operators, because of its access to sensitive business information

They also think that HTLD being given .hotel despite having been found “cheating” goes against the spirit of application rules and ICANN’s bylaws.
The RfR (pdf) also draws heavily on the findings of the IRP panel in the unrelated Dot Registry (.llc, .inc, etc) case, which were accepted by the ICANN board also on August 9.
In that case, the panel suggested that the board should conduct more thorough, meaningful reviews of CPE decisions.
It also found that ICANN staff had been “intimately involved” in the preparation of the Dot Registry CPE decision (though not, it should be noted, in the actual scoring) as drafted by the Economist Intelligence Unit.
The .hotel applicants argue that this decision is incompatible with their own IRP, which they lost in February, where the judges found a greater degree of separation between ICANN and the EIU.
Their own IRP panel was given “incomplete and misleading information” about how closely ICANN and the EIU work together, they argue, bringing the decision into doubt.
The RfR strongly hints that another IRP could be in the offing if ICANN fails to cancel HTLD application.
The applicants also want a hearing so they can argue their case in person, and a “substantive review” of the .hotel CPE.
The HTLD application for .hotel is currently “On Hold” while ICANN sorts through the mess.

Are .mail, .home and .corp safe to launch? Applicants think so

ICANN should lift the freeze on new gTLDs .mail, .home and .corp, despite fears they could cause widespread disruption, according to applicants.
Fifteen applicants for the strings wrote to ICANN last week to ask for a risk mitigation plan that would allow them to be delegated.
The three would-be gTLDs were put on hold indefinitely almost three years ago, after studies determined that they were at risk of causing far more “name collision” problems than other strings.
If they were to start resolving on the internet, the fear is they would lead to problems ranging from data leakage to systems simply stopping working properly.
Name collisions are something all new TLDs run the risk of creating, but .home, .corp and .mail are believed to be particularly risky due to the sheer number of private networks that use them as internal namespaces.
My own ISP, which has millions of subscribers, uses .home on its home hub devices, for example. Many companies use .corp and .mail on their LANs, due to longstanding advice from Microsoft and the IETF that it was safe to do so.
A 2013 study (pdf) showed that .home received almost 880 million DNS queries over a 48-hour period, while .corp received over 110 million.
That was vastly more than other non-existent TLDs.
For example, .prod (which some organizations use to mean “production”) got just 5.3 million queries over the same period, and when Google got .prod delegated two years it prompted an angry backlash from inconvenienced admins.
While .mail wasn’t quite on the same scale as the other two, third-party studies determined that it posed similar risks to .home and .corp.
All three were put on hold indefinitely. ICANN said it would ask the IETF to consider making them officially reserved strings.
Now the applicants, noting the lack of IETF movement to formally freeze the strings, want ICANN to work on a thawing plan.
“Rather than continued inaction, ICANN owes applicants for .HOME, .CORP, and .MAIL and the public a plan to mitigate any risks and a proper pathway forward for these TLDs,” the applicants told ICANN (pdf) last Wednesday.
A December 2015 study found that name collisions have occurred in new gTLDs, but that no truly serious problems have been caused.
That does not mean .home, .corp and .mail would be safe to delegate, however.

Dot Registry backs .africa loser, batters on the ICANN lawsuit floodgates

Rejected community gTLD applicant Dot Registry has waded into the lawsuit between DotConnectAfrica and ICANN.
Filing an amicus brief on Friday in support of the unsuccessful .africa applicant, Dot Registry argues that chagrined new gTLD applicants should be allowed to sue ICANN, despite the legal releases they all signed.
The company is clearly setting the groundwork for its own lawsuit against ICANN — or at least trying to give that impression.
If the two companies are successful in their arguments, it could open the floodgates for more lawsuits by pissed-off new gTLD applicants.
Dot Registry claims applicants signed overly broad, one-sided legal waivers with the assurance that alternative dispute mechanisms would be available.
However, it argues that these mechanisms — Reconsideration, Cooperative Engagement and Independent Review — are a “sham” that make ICANN’s assurances amount to nothing more than a “bait-and-switch scheme”.
Dot Registry recently won an Independent Review Process case against ICANN that challenged the adverse Community Priority Evaluation decisions on its .inc, .llc, and .llp applications.
But while the IRP panel said ICANN should pay Dot Registry’s share of the IRP costs, the applicant came away otherwise empty-handed when panel rejected its demand to be handed the four gTLDs on a plate.
The ICANN board of directors has not yet fully decided how to handle the three applications, but forcing them to auction with competing applications seems the most likely outcome.
By formally supporting DotConnectAfrica’s claim that the legal waiver both companies signed is “unconscionable”, the company clearly reckons further legal action will soon be needed.
DotConnectAfrica is suing ICANN on different grounds. Its .africa bid did not lose a CPE; rather it failed for a lack of governmental support.
But both companies agree that the litigation release they signed is not legally enforceable.
They both say that a legal waiver cannot be enforceable in ICANN’s native California if the protected party carries out fraud.
The court seems to be siding with DotConnectAfrica on this count, having thrown out motions to dismiss the case.
Dot Registry’s contribution is to point to its own IRP case as an example of how ICANN allegedly conned it into signing the release on the assumption that IRP would be able to sort out any disputes. Its court brief (pdf) states:

although claiming to provide an alternative accountability mechanism, the Release, in practice, is just a bait-and-switch scheme, offering applicants a sham accountability procedure
…
Indeed, the “accountability” mechanism is nothing of the sort; and, instead of providing applicants a way to challenge actions or inactions by ICANN, it gives lip-service to legitimate grievances while rubber-stamping decisions made by ICANN and its staff.

That’s an allusion to the IRP panel’s declaration, which found no evidence that ICANN’s board of directors had conducted a thorough, transparent review of Dot Registry’s complaints.
Dot Registry is being represented by the law firm Dechert. That’s the current home of Arif Ali, who represented DotConnectAfrica in its own original IRP, though Ali is not a named lawyer in the Dot Registry brief.

Spurned applicant crowd-funding to fight ICANN for .gay gTLD

The community-driven applicant for .gay is attempting to raise hundreds of thousands of dollars via crowd-funding to challenge a series of adverse decisions that look set to lock it out of running the gTLD.
Alongside the fundraising, dotgay LLC has launched an extraordinary broadside at its frustrators, accusing ICANN of “discrimination” and rival applicants of trying to “exploit” the gay community.
The company wants to raise $360,000 via this Generosity.com page, “to challenge decisions that have stalled community efforts for .GAY.”
Although the campaign has been running for 23 days, so far only three people (including a former employee) have donated a total of $110.
Given the vast number of LGBTQIA organizations that have lent their support to dotgay, I can only assume a lack of publicity is to blame for the $359,890 shortfall.
A five-minute video announcing the campaign has been on YouTube since August 3, but at time of writing has only been viewed 100 times.
In the video, embedded below, dotgay says that only it can properly represent the LGBTQIA (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Ally) community.

ICANN is dividing the community by accepting the Economist Intelligence Unit’s decision that the company should fail its Community Priority Evaluation (largely because the TQIA are not necessarily “gay”), the video voiceover suggests.

This is an old game that highlights how LGBTQIA continue to be disadvantaged and discriminated against. If .gay is not recognized as a community domain, ICANN will simply auction the namespace to the highest bidder and pocket the proceeds. If ICANN assigns to the right to operate the registry for .gay to a company seeking to exploit it for profit — very possibly without community participation in policy development for the domain, or taking into consideration LGBTQIA interests and concerns — the community will have no assurances .gay will be s safe space on the internet… In the end, ICANN and the three other applicants for the .gay domain have shown no respect for the global gay community’s wishes.

Neither the video not the crowdfunding page specify exactly what the $360,000 would be used for.
However, in order to challenge the CPE decision(s) against it, a lawsuit or an Independent Review Process — either of which could wind up costing over a million dollars — would be the most usual avenues of attack.
Perhaps eager to avoid the possibility of a legal challenge, the three other applicants — Minds + Machines, Rightside and Top Level Design — this week wrote to ICANN to demand a hasty resolution of the long-running saga.
Writing on behalf of all three, Rightside VP Statton Hammock wrote (pdf):

It has been more than FOUR years since the Applicants filed their applications for .GAY. Since this time long ago, dotGay has filed THREE community objections, one against each of the Applicants; TWO community priority applications, ONE Independent Review Panel request (later withdrawn) and ONE motion for reconsideration with the BGC which has been carefully considered by the members of that Committee and found insufficient to be granted. In total dotGay has had SIX “bites of the apple” and has been unsuccessful each time… It is simply time for the Board to affirm these decisions and allow the .GAY applications to proceed to contention set resolution.

The ICANN board had been due to consider dotgay’s latest Request for Reconsideration at at a meeting August 9, but the agenda item was removed, the letter notes. The applicants called on the board to meet again soon to make a decision.
After the board processes the RfR, .gay would presumably go to auction. Whether the auction resulted in ICANN pocketing the cash (as dotgay claims) or being distributed between the three losing applicants remains to be seen.
Whether the auction is public or private, the crowdfunding campaign strongly suggests that dotgay does not currently have the resources to win.

Registries rebel against ICANN’s Whois upgrade decree

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

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

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

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

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

Afilias set to get .hotel despite hacking claims

Afilias is back on the path to becoming the registry for .hotel, after ICANN decided claims of hacking by a former employee of the applicant did not warrant a rejection.
The ICANN board of directors decided last week that HOTEL Top-Level Domain Sarl, which was recently taken over by Afilias, did not gain any benefit when employee Dirk Krischenowski accessed competing applicants’ confidential documents via an ICANN web site.
Because HTLD had won a Community Priority Evaluation, it should now proceed to contracting, barring any further action from the other six applicants.
ICANN’s board said in its August 9 decision:

ICANN has not uncovered any evidence that: (i) the information Mr. Krischenowski may have obtained as a result of the portal issue was used to support HTLD’s application for .HOTEL; or (ii) any information obtained by Mr. Krischenowski enabled HTLD’s application to prevail in CPE.

It authorized ICANN staff to carry on processing the HTLD application.
The other applicants — Travel Reservations, Famous Four Media, Radix, Minds + Machines, Donuts and Fegistry — had called on ICANN in April to throw out the application, saying that to decline to do so would amount to “acquiescence in criminal acts”.
That’s because an ICANN investigation had discovered that Dirk Krischenowski, who ran a company with an almost 50% stake in HTLD, had downloaded hundreds of confidential documents belonging to competitors.
He did so via ICANN’s new gTLD applicants’ portal, which had been misconfigured to enable anyone to view any attachment from any application.
Krischenowski has consistently denied any wrongdoing, telling DI a few months ago that he simply used the tool that ICANN made available with the understanding that it was working as intended.
ICANN has now decided that because the unauthorized access incidents took place after HTLD had already submitted its CPE application, it could not have gained any benefit from whatever data Krischenowski managed to pull.
The board reasoned:

his searches relating to the .HOTEL Claimants did not occur until 27 March, 29 March and 11 April 2014. Therefore, even assuming that Mr. Krischenowski did obtain confidential information belonging to the .HOTEL Claimants, this would not have had any impact on the CPE process for HTLD’s .HOTEL application. Specifically, whether HTLD’s application met the CPE criteria was based upon the application as submitted in May 2012, or when the last documents amending the application were uploaded by HTLD on 30 August 2013 – all of which occurred before Mr. Krischenowski or his associates accessed any confidential information, which occurred from March 2014 through October 2014. In addition, there is no evidence, or claim by the .HOTEL Claimants, that the CPE Panel had any interaction at all with Mr. Krischenowski or HTLD during the CPE process, which began on 19 February 2014.

The HTLD/Afilias .hotel application is currently still listed on ICANN’s web site as “On Hold” while its rivals are still classified as “Will Not Proceed”.
It might be worth noting here — to people who say ICANN always tries to force contention sets to auction so it possibly makes a bit of cash — that this is an instance of it not doing so.