.gay, .music and others in limbo as ICANN probes itself

Several new gTLD applicants have slammed ICANN for conducting an investigation into its own controversial practices that seems to be as opaque as the practices themselves.
Seven proposed new gTLDs, including the much-anticipated .music and .gay, are currently trapped in ICANN red tape hell as the organization conducts a secretive probe into how its own staff handled Community Priority Evaluations.
The now broad-ranging investigation seems have been going on for over six months but does not appear to have a set deadline for completion.
Applicants affected by the delays don’t know who is conducting the probe, and say they have not been contacted by anyone for their input.
At issue is the CPE process, designed to give genuine “community” gTLD applicants a way to avoid a costly auction in the event that their choice of string was contested.
The results of the roughly 25 CPE decisions, all conducted by the independent Economist Intelligence Unit, were sometimes divergent from each other or just baffling.
Many of the losers complained via ICANN’s in-house Requests for Reconsideration and then Independent Review Process mechanisms.
One such IRP complaint — related to Dot Registry’s .inc, .llc, .llp applications — led to two of the three-person IRP panel deciding last July that ICANN had serious questions to answer about how the CPE process was carried out.
While no evidence was found that ICANN had coached the EIU on scoring, it did emerge that ICANN staff had supplied margin notes to the supposedly independent EIU that had subsequently been incorporated into its final decision.
The IRP panel majority wrote that the EIU “did not act on its own in performing the CPEs” and “ICANN staff was intimately involved in the process”.
A month or so later, the ICANN board of directors passed a resolution calling for the CEO to “undertake an independent review of the process by which ICANN staff interacted with the CPE provider”.
Another month later, in October, the Board Governance Committee broadened the scope of the investigation and asked the EIU to supply it with documents it used to reach its decisions in multiple controversial CPE cases.
A couple of weeks ago, BGC chair Chris Disspain explained all this (pdf) to the applicants for .music, .gay, hotel, .cpa, .llc, .inc, .llp and .merck, all of which are affected by the delay caused by the investigation.
He said that the investigation would be completed “as soon as practicable”.
But in response, Dot Registry and lawyers for fellow failed CPE applicant DotMusic have fired off more letters of complaint to ICANN.
(UPDATE: Dot Registry CEO Shaul Jolles got in touch to say his letter was actually sent before Disspain’s, despite the dates on the letters as published by ICANN suggesting the opposite).
Both applicants note that they have no idea who the independent party investigating the CPEs is. That’s because ICANN hasn’t identified them publicly or privately, and the evaluator has not contacted the applicants for their side of the story.
DotMusic’s lawyer wrote (pdf):

DotMusic’s rights are thus being decided by a process about which it: (1) possesses minimal information; (2) carried out by an individual or organization whose identity ICANN is shielding; (3) whose mandate is secret; (4) whose methods are unknown; and (5) whose report may never be made public by ICANN’s Board.

He added, pointedly:

The exclusion of directly affected parties from participation eerily reproduces the shortcomings of the EIU evaluations that are under scrutiny in the first place.

Dot Registry CEO Shaul Jolles, in his letter (pdf), quoted Disspain saying at a public forum in Copenhagen this March that a blog post addressing the concerns had been drafted and would be published “shortly”, but wasn’t.
He suggested the investigation is “smoke and mirrors” and, along with DotMusic, demanded more information about the investigator’s identity and methods.
It does strike me as a looking a bit like history repeating itself: ICANN comes under fire for non-transparently influencing a supposedly independent review and addresses those criticisms by launching another non-transparent supposedly independent review.
No matter what I feel about the merits of the “community” claims of some of these applicants, it has been over five years now since they submitted their applications and the courtesy of transparency — if closure itself its not yet possible — doesn’t seem like a great deal to ask.

ICANN loses another IRP — .sport gTLD fight reopens as panel finds “apparent bias”

The future of the .sport gTLD was cast into turmoil this week after an independent panel ruled that there was “apparent bias” in the decision that awarded the string to a group linked to the Olympics.
The new Independent Review Panel ruling found that ICANN broke its own bylaws by refusing to allow Famous Four Media to appeal a 2013 decision that essentially awarded .sport to rival bidder SportAccord.
FFM claims the expert panelist tasked with deciding SportAccord’s Community Objection had undisclosed conflicts of interest that made him much more likely to rule in favor of SportAccord, which is backed by the International Olympic Committee, than FFM, which is a purely commercial operator.
And the IRP panel did not disagree, ruling this week that ICANN should have taken FFM’s claims into account before rejecting its requests for an appeal in 2014.
The ruling means that ICANN may be forced to throw out the Community Objection decision from 2013 and order it to be re-tried with a new expert, potentially allowing FFM back into the .sport contest.
As usual with IRP cases, the ruling is a complex and very dry read, involving multiple layers of objections, appeals, panels and experts.
FFM and SportAccord were the only two applicants for .sport in the 2012 application round.
SportAccord, which has the backing of dozens of sporting organizations in addition to the IOC, claims to represent pretty much all organized sport and wants to run .sport with restrictions on who can register.
FFM, conversely, wants to keep it open to everyone with a passing interest in sport.
In an attempt to kick FFM out of the contest without a potentially expensive auction, SportAccord filed, and then won, a Community Objection in 2013.
To win, it had to prove that the interests of the sport community would be harmed if FFM got to run it. The objection expert panelist, Guido Tawil, came down on SportAccord’s side.
FFM naturally enough disagreed with his conclusion, and vowed to fight to overturn it.
The registry later discovered that Tawil had undisclosed ties to the IOC, which it said should have disqualified him from acting as an independent expert.
First, Tawil attended a conference of the International Bar Association in Rio de Janeiro in 2011 called “Olympic‐Size Investments: Business Opportunities and Legal Framework”, where he co‐chaired a panel entitled “The quest for optimising the dispute resolution process in major sport‐hosting events”.
Second, the law firm he works for, Argentina-based M & M Bomchil, counts DirecTV among its key clients and at the time of the Community Objection DirecTV was negotiating with the IOC for Latin America broadcasting rights for the Sochi 2014 and Rio 2016 Olympics, rights it subsequently obtained.
Third, a partner in Tawil’s law firm is president of Torneos y Competencias, a sports broadcaster with ties to DirecTV.
FFM has claimed: “Guido Tawil’s own legal practice and business is built around a company for whom IOC broadcasting rights are a core aspect of its business.”
While FFM filed two Requests for Reconsideration with ICANN in late 2013 and early 2014, raising the possibility of conflicts of interest and demanding ICANN have Tawil’s ruling thrown out, both were rejected by ICANN’s Board Governance Committee.
It also took its claims to the ICANN Ombudsman, who drafted (but did not finalize) a finding that agreed with FFM that the Community Objection should be retried with a new expert.
The subsequent IRP filing challenged the two RfR decisions and, two years later, the IRP panel has now ruled:

the IRP Panel is of the view that in order to have upheld the integrity of the system, in accordance with its Core Values, the ICANN Board was required properly to consider whether allegations of apparent bias in fact gave rise to a basis for reconsideration of an Expert Determination. It failed to do so and, consequently, is in breach of its governing documents.

The panel also said that ICANN should have taken the Ombudsman’s draft report into account.
It declared:

that the action of the ICANN Board in failing substantively to consider the evidence of apparent bias of the Expert arising after the Expert Determination had been rendered was inconsistent with the Articles, Bylaws and/or the Applicant Guidebook.

The panel has ordered ICANN to pay FFM’s share of the $152,673 IRP costs.
ICANN’s board will now have to consider the IRP decision, and it seems very possible that a new Community Objection review might be ordered.
On the face of it, it looks like a big win for FFM.
That does not mean that SportAccord will not prevail in its objection for a second time, even with a different presiding expert, however.
One fact in its favor is that it now has three years’ worth of evidence of how Famous Four conducts its business — selling domains at super-cheap prices, some say at the expense of the cleanliness of its namespaces — with which to attempt to show the likelihood of harm.
What seems certain is that the .sport gTLD is not going to see the light of day any time soon.
Read the ruling as a PDF here.

Could ICANN reject Verisign’s $135m .web bid?

ICANN is looking into demands for it to throw out Verisign’s covert $135 million winning bid for the highly prized .web gTLD.
ICANN last week told the judge hearing Donuts’ .web-related lawsuit that it is “currently in the process of investigating certain of the issues raised” by Donuts through its “internal accountability mechanisms”.
Donuts is suing for $22.5 million, claiming ICANN should have forced Nu Dot Co to disclose that its .web bid was being secretly bankrolled by Verisign and alleging that the .com heavyweight used NDC as cover to avoid regulatory scrutiny.
ICANN’s latest filing (pdf), made jointly with Donuts, asked for an extension to October 26 of ICANN’s deadline to file a response to Donuts’ complaint.
It was granted, the second time the deadline has been extended, but the judge warned it was also the final time.
The referenced “internal accountability mechanism” would seem to mean the Cooperative Engagement Process — a low-formality bilateral negotiation — that Donuts and fellow .web bidder Radix initiated against ICANN August 2.
The filing states that the “resolution of certain issues in controversy may be aided by allowing [ICANN] to complete its investigation of [Donuts’] allegations prior to the filing of its responsive pleading.”
In other words, Donuts is either hopeful that ICANN may be able to resolve some of its complaints in the next month, or it’s not particularly impatient about the case progressing.
Meanwhile, fellow .web applicant Afilias has demanded for the second time that ICANN hand over .web to it, as the second-highest bidder, throwing out the NDC/Verisign application.
In a September 9 letter, published last night, Afilias told ICANN to “disqualify and reject” NDC’s application, alleging at least three breaches of ICANN rules.
Afilias says that by refusing to disclose Verisign’s support for its bid, NDC broke the rules and should have its application thrown out.
The company also confirmed on the public record for what I believe is the first time that it was the second-highest bidder in the July 27 auction.
Afilias would pay somewhere between $57.5 million and $71.9 million for the gTLD, depending on what the high bid of the third-placed applicant was.
In its new letter, Afilias says NDC broke the rule from the Applicant Guidebook that does not allow applicants to “resell, assign or transfer any of applicant’s rights or obligations in connection with the application”.
It also says that NDC was obliged by the AGB to notify ICANN of “changes in financial position and changes in ownership or control”, which it did not.
It finally says that Verisign used NDC as a front during the auction, in violation of auction rules.
“In these circumstances, we submit that ICANN should disqualify NDC’s bid and offer to accept the application of Afilias, which placed the second highest exit bid,” Afilias general counsel Scott Hemphill wrote (pdf).
Hemphill told ICANN to defer from signing a Registry Agreement with NDC or Verisign, strongly implying that Afilias intends to invoke ICANN accountability mechanisms (presumably meaning the Request for Reconsideration process and/or Independent Review Process).
While Afilias and Donuts are both taking issue with the secretive nature of Verisign’s acquisition of .web, they’re not necessarily fighting the same corner.
Donuts is looking for $22.5 million because that’s roughly what it would have received if the .web contention set had been resolved via private auction and $135 million had been the winning bid.
But Afilias wants the ICANN auction outcome to stand, albeit with NDC’s top bid rejected. That would mean Donuts, Radix, and the other applicants would still receive nothing.
There’s also the question of other new gTLD applications that have prevailed at auction and been immediately transferred to third-party non-applicants.
The most notable example of this was .blog, which was won by shell company Primer Nivel with secretive backing from WordPress maker Automattic.
Donuts itself regularly wins gTLD auctions and immediately transfers its contracts to Rightside under a pre-existing agreement.
In both of those cases, the reassignment deals predated, but were not disclosed in, the respective applications.
There’s the recipe here for a messy, protracted bun fight over .web, which should come as no surprise to anyone.

.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.

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.

ICANN lawyers slam “fire him” story “blogger”

ICANN lawyers have launched an extraordinary attack on a “blogger” who recently wrote an article headlined “ICANN’s general counsel should lose his job over this”.

Early Friday, ICANN’s board of directors issued its response to the recent Independent Review Process case in which new gTLD applicant Dot Registry managed to show that the board had breached its transparency and accountability bylaws.
The board resolution did not say what is going to happen to Dot Registry’s four new gTLD applications, due to lack of guidance from the IRP panel.
But it did contain a surprising retaliation against Chris Williams, a reporter for online news site The Register, referring to “factual inaccuracies that have been reported in online blogged reports”.
(Before going any further, some disclosure: I freelanced for The Register for several months about five years ago, when Williams was the copy editor I sometimes had to work with. I also worked directly under its current group editor for about five years at a different publication in the early-mid 2000s.)
In the rationale accompanying its resolution last week, the board said:

the Board also notes that there have been online blogged reports about what the [IRP] Final Declaration actually says, yet many of the items reported on have been factual inaccuracies

I immediately grew worried that the resolution was having a pop at this site. But it actually refers to The Register, a news site with millions of readers that, despite its tabloid style, is not usually described as a “blog”.
The board ordered the simultaneous release of their staff-prepared briefing notes (pdf) for the meeting at which the resolution was passed, which contain an 800-word rebuttal of Williams’ August 3 article “Simply not credible: The extraordinary verdict against the body that hopes to run the internet”.
The article covers the Dot Registry IRP decision in a tone that is harshly critical of ICANN.
It is particularly critical of ICANN’s legal team and specifically general counsel John Jeffrey and notes that he makes a tonne of cash due to his regular, generous pay rises.
I compared each point in the rebuttal to the original article and I think ICANN is generally on fairly safe ground in some of what it says are inaccuracies.
In other cases, the rebuttal instead takes issue with the opinion of a third party quoted in the piece, or with a different, but in my view fair, characterization of the IRP declaration.
It seems the Reg article did incorrectly conflate “ICANN staff” and the “ICANN legal team” in at least one instance, as the ICANN rebuttal claims.
It also does in fact quote sections of “the [IRP] Panel’s recitation of Dot Registry’s claims as if they are the Panel’s own finding” as the rebuttal says it does.
But the actual findings of the panel were arguably much harsher than the text the Reg quoted.
So why is the ICANN board of directors passing a resolution addressing the veracity of a news report rather than the real concerns raised by the IRP declaration?
Column yards of horseshit are written about ICANN on a daily basis — I’m probably responsible for an inch or two myself — so why has ICANN zeroed in on this particular piece?
Could it be because Williams’ follow-up piece, August 4, leads with Dot Registry CEO Shaul Jolles calling for the head of Jeffrey? Jolles is quoted as saying:

ICANN’s general counsel should lose his job for this. The advice that he gives, everything was processed through him. It’s shocking.

There’s a rich irony at work here.
The main takeaway from the IRP’s declaration was that the ICANN board sometimes rubber-stamps resolutions drafted by ICANN staff without doing its due diligence.
The Reg then reported that fact.
In response, ICANN staff drafted a resolution designed to shoot the messenger, deflecting attention from the IRP’s findings, which the board then approved without amendment.
If somebody over at ICANN is chagrined about inaccurate reporting, I can’t help but feel that the best way to deal with that would be to request a correction or publish a rebuttal in the form of a blog post or some other kind of statement.
Using the very method under scrutiny — staff drafts, board approves — to issue a rebuttal simply serves to highlight the failings outlined by the IRP panel.
Compounding this, the only reason we’re able to see the full rebuttal today is that the board approved a (staff-drafted) resolution authorizing the concurrent publishing of staff briefing materials.
Usually, briefing materials are published alongside formal minutes when they are approved many weeks later.
If the ICANN board is able to publish briefing materials just a couple of days after passing its resolutions, why on Earth does it not do so as a matter of course?
Did any member of the ICANN board raise her or his hand to ask why these materials had to be published with such haste?
Can ICANN only be transparent in a timely fashion when its lawyers have been criticized in the press?

$41m auction loser tries to slam brakes on .shop

Lawyer-happy gTLD applicant Commercial Connect has put GMO Registry’s $41 million purchase of the new gTLD .shop in jeopardy by filing an appeal with ICANN.
On January 26 — the day before the .shop auction — the Connecticut-based company filed an Independent Review Process complaint with ICANN, asking a panel of judges to enjoin ICANN from delegating .shop or even signing a registry contract with GMO.
It’s applied for “emergency” relief. Its full IRP complaint has yet to be filed.
GMO won a seven-way ICANN auction for .shop last week, agreeing to pay $41.5 million into ICANN coffers.
The IRP news will not be particularly surprising for anyone who has followed the .shop contention set closely.
Commercial Connect has deployed pretty much every legal avenue available to it in order to win .shop, which had eight competing applications.
It applied as a “community” applicant, but unsurprisingly failed to meet the stringent criteria that a Community Priority Evaluation requires.
It scored a measly 5 out of the 16 available CPE points, missing the 14-point target.
The company also spunked goodness knows how much cash filing 21 formal objections against other gTLD applicants — ridiculous complaints that “.supply” or “.セール” or “.services” were “confusingly similar” to .shop.
It actually managed to win two of its string similarity challenges, when panelists apparently decided to write their judgments before their morning coffee had kicked in.
It was probable that .shopping and .通販 would be confused with .shop in the mind of the average internet user, these panelists decided.
The .通販 decision was thrown out when sanity prevailed, but the .shopping decision stood. Only a recent back-room deal between Uniregistry and Donuts prevented the .shop auction being a head-explodingly confusing mess.
Now, with its IRP, Commercial Connect is claiming that the whole CPE system goes against ICANN rules.
According to its initial complaint, the fact that the CPE adjudicator, the Economist Intelligence Unit, came up with its own supplemental “CPE Guidelines” means that the the CPE system is not “ICANN policy” and should therefore be disregarded.
At first glance, it seems weak. But I said the same about the DotConnectAfrica IRP case, which DCA won.
IRP panels have been known to be somewhat “activist” (not necessarily a bad thing) recently, so it’s hard to call which way they will swing in any specific case.
But it does seem quite possible that the emergency relief that Commercial Connect requests — that is, no .shop contract until the IRP is over — will be granted.
For GMO, that means it’s just spent $41.5 million on a gTLD it probably won’t be able to launch for well over a year.
It’s perhaps interesting that Commercial Connect doesn’t seem to make any reference in its IRP to its original 2000-round application for .shop.
If that comes up in future filings, it could open up an entirely new can of worms.

ICANN win leaves door open for plural gTLD rethink

ICANN has fought off an appeal by .webs gTLD applicant Vistaprint, in a case that considered the coexistence of singular and plural gTLDs.
While ICANN definitively won the Independent Review Process case, the IRP panel nevertheless invited its board of directors to consider whether Vistaprint should be given a chance to appeal a decision that ruled .webs too similar to .web.
Vistaprint runs a web site building service called Webs.com. It filed two applications for .webs — one “community” flavored, one vanilla — but then found itself on the losing end of a String Confusion Objection filed by rival Web.com, one of the many .web applicants.
It was one of the few instances where a SCO panel decided that a plural string was too confusingly similar to its singular for the two to coexist.
In many other cases, such as .auto(s), .fan(s) and .gift(s), the two strings have been allowed to be delegated.
Not wanting to have to fight for .webs at auction against eight .web applicants — which would likely cost eight figures to win — Vistaprint filed a Request for Reconsideration (which failed), followed by an last-ditch IRP complaint.
But its three-person IRP panel ruled on Friday (pdf) that ICANN did not violate its bylaws by accepting the SCO decision and subsequently rejecting the RfR.
However, the panel handed Vistaprint a silver lining that may eventually give the company what it wants. Even though ICANN won, Vistaprint may not necessarily have lost.
The panel wrote:

the Panel recommends that ICANN’s Board exercise its judgment on the question of whether an additional review mechanism is appropriate to re-evaluate the Third Expert’s determination in the Vistaprint SCO, in view of ICANN’s Bylaws concerning core values and non-discriminatory treatment, and based on the particular circumstances and developments noted in this Declaration, including (i) the Vistaprint SCO determination involving Vistaprint’s .WEBS applications, (ii) the Board’s (and NGPC’s) resolutions on singular and plural gTLDs, and (iii) the Board’s decisions to delegate numerous other singular/plural versions of the same gTLD strings.

In other words, ICANN has been invited to consider whether Vistaprint should be able to appeal, using a similar mechanism perhaps to that which was offered to other applicants that suffered from inconsistent, adverse SCO decisions.
At time when ICANN’s accountability is under international scrutiny, it’s highly likely that the board will give this recommendation some thought.
The IRP declaration does not reflect well on ICANN’s current level of accountability.
As usual, ICANN tried to wriggle out of accountability by attempting to castrate the panel from the outset, arguing again that IRP panels must be “deferential” to the board — that is, assume that its actions were correct by default — and that its declarations are “advisory” rather than “binding”.
And, as usual, the panel disagreed, saying previous IRP cases show this is now “settled” law. It said that it would evaluate the case “objectively and independently”, not deferentially.
But while it said its declaration was binding “in the sense that ICANN’s Board cannot overrule the Panel’s declaration” it agreed with ICANN that it only had the power to “recommend”, rather than order, remedies.
Acknowledging Vistaprint raised important public interest questions, the panel ordered ICANN to pay 40% of IRP costs.
The Vistaprint IRP was one of the things holding up the .web contention set, so Friday’s declaration moves the fabled gTLD one step closer to reality.
If the company gets the ability to appeal its SCO loss, it would add months to the .web runway. If it does not, it will have to remain in the .web contention set, which would head to auction.

Anger as ICANN’s member flops before board

ICANN’s board of directors came to blows with its key accountability working group this week, over proposals that would give ICANN the community the right to sue ICANN the organization.
An extraordinary three-hour teleconference between the board and the Cross Community Working Group on Enhancing Accountability (CCWG) Wednesday night came across like some kind of weird, Orwellian, passive-aggressive piece of emotional domestic abuse.
The CCWG, a group of volunteers coming from all parts of the ICANN community, has created a set of proposals for improving ICANN’s accountability to the community as part of its transition process away from US government oversight.
The idea is to create sufficient accountability mechanisms so that if in future the entire ICANN board grows goatee beards and turns Eeevil, the community will still be able to hold them to their bylaws commitments.
The CCWG, following the advice of an independent law firm, decided that the best way to do this was to turn ICANN into a membership organization with a “Sole Member”.
This member would be a legal entity run by community members that would have the right under California law to sue ICANN if it ever failed to live up to its bylaws.
For example, if ICANN refused to implement the decisions of an Independent Review Panel, the member could seek to have the ruling enforced by a court.
This is just one of many proposals made by the CCWG currently open for public comment.
Highly unusually for a public comment period, the ICANN board is going to be a commenter in this case. While its comments have not been published yet, it has taken advice from its lawyers at Jones Day that may give an indication of how it is leaning.
Wednesday night’s call was designed to give the board the chance to bring its initial thinking to the CCWG.
Instead, it wound up being almost entirely about the proposed membership model and the board’s statements that while it supported the CCWG’s proposals 100% it also wanted them fundamentally rewritten.
The board wants the idea of a Sole Member model thrown out and replaced with a new arbitration process that would be legally enforceable in California courts.
So, instead of a legal-entity “member” suing ICANN, some as-yet unidentified community entity would take ICANN to arbitration. The decision of the arbitration panel could then be enforced by the courts if ICANN failed to abide by it.
When CCWG members asked who, in the absence of a legal entity, would take ICANN to arbitration and then sue it, the board had no answer. Instead, directors said the CCWG’s legal advisers should talk to Jones Day to hammer out the “technical” details.
Some members claimed that it would be “impossible” to give the community legal standing to sue ICANN without a membership model. Others said that the board’s 11th hour suggested rewrites would make it “impossible” to hit the deadline for a final proposal by the Dublin meeting next month.
At least a third of the 2-hour 47-minute call was wasted as the CCWG struggled to understand the doublespeak the board had brought into the discussion.
Directors continually insisted that they “completely supported” CCWG’s proposals on enforcement “without reservation”, while simultaneously saying the Sole Member model should be thrown out.
Half way through the call, CCWG co-chair Thomas Rickert reflected exasperation among members: “There is obviously difficulty to understand by many on this call how you fully support what we are doing while proposing something which appears like a complete rewrite.”
Shortly thereafter, Chehade responded:

Why don’t we just agree that we are agreeing with you that the community must be able to get enforcement in California courts, that we will ensure that they have the standing to do it without question. And if we are all in agreement that we are in agreement with each other let’s then let the technical people go solve this. If they call come back and tell us that frankly that advice was flawed, then let’s deal with it then in good faith. But that’s what we’re sharing with you.

Directors said that the proposed member model might have unintended consequences, and that the US government may not approve a proposal that overly complicates ICANN’s legal structure.
An hour later, the CCWG was still scratching its head, nerves were beginning to wear, and the tone was getting increasingly testy as the CCWG repeatedly asked the board to explain how it could express support and simultaneously propose an alternative solution.
“There is absolutely no new proposal,” Chehade said, eventually. “We are embracing your proposal and the objectives of the community. Please hear me on this. There is no new proposal.”
He said:

Take your work and break it down: board removal, standing reconsideration, enhancing – getting the IRP back on the track we set, you know, fundamental bylaw, binding arbitration or mechanisms of enforceability. All of the things you have come up with, we are accepting. So when your reaction to our two last hours is that we’re refusing to add any accountability, I don’t know how you come to that frankly…
you yourself in the proposal say that this proposal is not finished, it needs a lot of work. So what we’re saying to you is let’s take this proposal which is not finished and let’s figure out ways to make it real, and real in the next few weeks so we can move forward…
The only area where we are telling you we would like to propose a different mechanism to achieve the same goal is the enforceability.

The whole three hours reminded me of a nightmare-scenario interview where the interviewee has been media-trained up the wazoo and refuses to sway from a set of vaguely scripted talking points.
But which proposal is the right one for ICANN?
Beats me. What does seem quite clear to me is that the board and CCWG are at odds now, despite what ICANN says, and that the expected delivery of a final accountability proposal by Dublin is in serious doubt.
Following the call, ICANN chair Steve Crocker posted a blog post that sought to clarify the board’s position, characterizing it as agreement in principle but disagreement on implementation. He wrote:

We have suggestions on how these [CCWG proposals] could be operationalized. With regards to the mechanisms for community enforceability, where the current proposal still warrants much detail that may not be achievable we have a suggestion on how to deliver on it in a stable way, as increased enforceability must not open up questions of, for example, capture or diminishing of checks and balances.

The Wednesday meeting’s audio, transcript and other notes can all be found here.