Economist would sue ICANN if it publishes private emails

The Economist Intelligence Unit has threatened to sue ICANN if it publishes emails related to its evaluations of “community” gTLDs.
That’s according to a document published by ICANN this week, in which the organization refused to reveal any more information about a controversial probe into the Community Priority Evaluations the EIU conducted on its behalf.
EIU “threatened litigation” should ICANN publish emails sent between the two parties, the document states.
New gTLD applicant DotMusic, which failed its CPE for .music but years later continues to fight for the decision to be overturned, filed a Documentary Information Disclosure Policy request with ICANN a month ago.
DIDP is ICANN’s equivalent of a Freedom of Information Act.
DotMusic’s request among many other items sought the release of over 100,000 emails, many sent between ICANN and the EIU, that ICANN had provided to FTI Consulting during FTI’s investigation into whether the CPEs were fair, consistent and absent ICANN meddling.
But in its response this week, ICANN pointed out that its contract with EIU, its “CPE Provider”, has confidentiality clauses:

ICANN organization endeavored to obtain consent from the CPE Provider to disclose certain information relating to the CPE Process Review, but the CPE Provider has not agreed to ICANN organization’s request, and has threatened litigation should ICANN organization breach its contractual confidentiality obligations. ICANN organization’s contractual commitments must be weighed against its other commitments, including transparency. The commitment to transparency does not outweigh all other commitments to require ICANN organization to breach its contract with the CPE Provider.

DotMusic’s DIDP sought the release of 19 batches of information, which it hopes would bolster its case that both the EIU’s original reviews and FTI’s subsequent investigation were flawed, but all requests were denied by ICANN on various grounds.
In more than one instance, ICANN claims attorney-client privilege under California law, as it was actually ICANN’s longstanding law firm Jones Day, rather than ICANN itself, that contracted with FTI.
The FTI report cleared ICANN of all impropriety and said the EIU’s CPE process had been consistent across each of the gTLD applications it looked at.
The full DIDP request and response can be found here.
ICANN has yet to make a decision on .music, along with .gay, .hotel, .cpa, and .merck, all of which were affected by the CPE reviews.

Full $185,000 refunds offered to risky new gTLD applicants

ICANN is to offer applicants for three new gTLDs identified as too risky to go live full refunds of their application fees.
Its board of directors acknowledged at its weekend retreat that it has no intention of delegating .corp, .home and .mail, and that each applicant should be able to get their entire $185,000 application fee back.
The applicants will have to withdraw their applications in order to get the refund.
Ordinarily, withdrawing an application would only qualify the applicants for a partial refund.
The ICANN board said in its resolution that it “does not intend to delegate the strings .CORP, .HOME, and .MAIL in the 2012 round of the New gTLD Program”.
It added that “the applicants were not aware before the application window that the strings .CORP, .HOME, and .MAIL would be identified as high-risk, and that the delegations of such high-risk strings would be deferred indefinitely.”
The three strings are considered risky because they already receive vast amounts of “name collision” traffic, largely from DNS queries that leak out from private networks.
There’s a concern that delegating any of them would create a big security risk in terms of confidential data leakage and stuff just generally breaking.
It’s been six years since the last new gTLD application window was open, and some applicants for the strings abandoned their bids years ago.
There are five remaining .corp applicants (and one withdrawal), five for .mail (two withdrawals) and ten for .home (one withdrawal).
The refunds will be taken from ICANN’s separate new gTLD program budget so presumably will not have an impact on its current operating budget woes.
The board noted that technically it did not have to give full refunds, under the terms of the Applicant Guidebook, but that it was doing so in the interest of “fairness”.
This may come as little comfort to applicants whose money has been tied up in limbo for the last six years.

Famous Four chair pumps $5.4 million into AlpNames to settle COO lawsuit

Famous Four Media chair Iain Roache has bought out his former COO’s stake in AlpNames, its affiliated registrar, settling a lawsuit between the two men.
He’s acquired Charles Melvin’s 20% stake in the company for £3.9 million ($5.4 million), according to a press release.
A spokesperson confirmed that the deal settles a lawsuit in the companies’ home territory of Gibraltar, which we reported on in December.
Roache said in the press release that he has a plan to grow AlpNames into a “Tier 1 registrar”:
“I’ve got a 10 year strategic plan, which includes significant additional investment, to set the business up for future growth and success,” he said. “We’re going to bring the competition to the incumbents!”
AlpNames is basically the registrar arm of Famous Four, over the last few years supporting the gTLD portfolio registry’s strategy of selling domains in the sub-$1 range and racking up huge market share as a result.
But it’s on a bit of a slide, volume-wise, right now, as hundreds of thousands of junk domains are allowed to expire.
According to today’s press release, AlpNames has 794,000 gTLD domains under management. That’s a far cry from its peak of 3.1 million just under a year ago.
Seller Melvin, according to the press release, “has decided to pursue other interests outside of the domain name industry”.
It appears he left his COO job at Famous Four some time last year, and then sued Roache and CEO Geir Rasmussen (also an AlpNames investor) over a financial matter. Previous attempts to buy him out were rebuffed.
Last October, the Gibraltar court ruled that the defendants has supplied the court with “forged documents” in the form of inaccurately dated invoices between the registry and AlpNames.
The pair insisted to the court that the documents were an honest mistake and their lawyer told DI that there was no “forgery” in the usual sense of the word.
But it appears that Melvin’s split from the companies was less than friendly and the £3.9 million buyout should probably be viewed in that light.

New gTLD revenue cut by HALF in ICANN budget

The new gTLD industry is performing terribly when compared to ICANN’s predictions just six months ago.
ICANN budget documents published over the weekend show that by one measure new gTLDs are doing just 51% of the business ICANN thought they would.
The new budget (pdf) shows that for the fiscal year 2018, which ends June 30, ICANN currently expects to receive $4.6 million in registry transaction fees.
These are the fees registries must pay for each new registration, renewal or transfer, when the TLD has more than 50,000 domains under management.
In a draft budget (pdf) published March 2017, its “best estimate” for these fees in FY18 was $8.9 million, almost double its newest prediction.
That prediction lasted until the approved budget (pdf) published last August.
The budget published at the weekend expects this transaction revenue to increase 31.1% to $6 million by June 30, 2019, still a long way off last year’s estimate.
At the registrar level, where registrars pay a transaction fee regardless of the size of the customer’s chosen gTLD, ICANN expects new gTLD revenue to be $3.9 million in FY18.
That’s just 52% of its March/August 2017 estimate of $7.5 million.
Looking at all reportable transactions — including the non-billable ones — ICANN’s projection for FY18 is now 21.9 million, compared to its earlier estimate of 41.7 million.
ICANN even reckons the number of new, 2012-round gTLDs actually live on the internet is going to shrink.
Its latest budget assumes 1,228 delegated TLDs by the end of June this year, which appears to be a couple light on current levels (at least according to me) and down from the 1,240 it expected a year ago.
It expects there to be 1,231 by the end of June 2019, which is even lower than it expected have in June 2017.
I suspect this is related to dot-brands cancelling their contracts, rather than retail gTLDs going dark.
Revenue from fixed registry fees for FY18 is expected to be $30.6 million, $200,00 less than previous expectations. Those numbers are for all gTLDs, old and new.
Overall, the view of new gTLDs is not pretty, when judged by what ICANN expected.
It shows that ICANN is to an extent captive to the whims of a fickle market that has in recent years been driven by penny deals and Chinese speculation.
By contrast, legacy gTLDs (.com, .info, etc) are running slightly ahead of earlier projections.
ICANN now expects legacy registry transaction fees of $48.6 million for FY18, which is $200,000 more than predicted last year.
It expects registrar transaction fees of $29.5 million, compared to its earlier forecast of $29.4 million.
This is not enough to recoup the missing new gTLD money, of course, which is why ICANN is slashing $5 million from its budget.

A new gTLD kills itself off for the second time

British pharmacy chain Boots has applied to ICANN to terminate its dot-brand contract for the second time.
The company asked for its .boots Registry Agreement, signed in 2015, to be ended in December and ICANN opened the request for public comment this week.
What’s weird about the request is that Boots had already asked for self-termination last April, but that request was subsequently withdrawn by the company.
Boots seems to have changed its mind, twice, in a year.
As I noted first time around, .boots was the first example of a dot-brand that also matches a generic class of goods to chose the easy way out.
It’s quite likely the two-year freeze on re-applying for the string, should anyone want to, will be over by the time the next new gTLD application window opens.
.boots only had the contractually mandated placeholder domain nic.boots live.

Active new gTLD domains drop below 20 million

The number of domain names recorded in new gTLD zone files has dipped below 20 million for the first time in 18 months.
The total crossed the milestone in the wrong direction January 1, according to DI’s records.
As of today, there are 19.8 million domains in zone files, down from a peak of 26 million in March 2017.
The count has gone down by about half a million names in the last 90 days, largely as a result of declines in .top, .xyz and .kiwi, which have each recorded six-figure losses.
It’s the first time that the zone files have showed the number of domains going below 20 million since the beginning of June 2016, when XYZ.com sold millions of .xyz domains for a penny each. Most of those names did not renew a year later.
Zone files do not record every domain that has been registered, just those with active name servers. Others may be registered but unused or on hold for various reasons.

.web closer to reality as antitrust probe ends

Verisign has been given the all-clear by the US government to go ahead and run the new gTLD .web, despite competition concerns.
The Department of Justice told the company yesterday that the antitrust investigation it launched almost exactly a year ago is now “closed”.
Verisign’s secret proxy in the 2016 auction, the original .web applicant Nu Dot Co, now plans to try to execute its Registry Agreement with ICANN.
That contract would then be assigned to Verisign through the normal ICANN process.
The .com registry operator today filed this statement with the US Securities and Exchange Commission:

As the Company previously disclosed, on January 18, 2017, the Company received a Civil Investigative Demand from the Antitrust Division of the United States Department of Justice (“DOJ”) requesting certain material related to the Company becoming the registry operator for the .web gTLD. On January 9, 2018, the DOJ notified the Company that this investigation was closed. Verisign previously announced on August 1, 2016, that it had provided funds for Nu Dot Co’s successful bid for the .web gTLD and the Company anticipates that Nu Dot Co will now seek to execute the .web Registry Agreement with ICANN and thereafter assign it to Verisign upon consent from ICANN.

This basically means that Justice disagrees with anyone who thinks Verisign plans to operate .web in a way that just props up its .com market dominance, such as by burying it without a trace.
People clamoring to register .web domains may still have some time to wait, however.
Rival applicant Donuts, via subsidiary Ruby Glen, still has a pending lawsuit against ICANN in California.
Donuts had originally sued to prevent the .web auction going ahead in mid-2016, trying to force Nu Dot Co to reveal who was really pulling its strings.
After the auction, in which Verisign committed to pay ICANN a record-setting $125 million, Donuts sued to have the result overturned.
But in November 2016, a judge ruled that the no-suing covenant that all new gTLD applicants had to sign was valid, throwing out Donuts’ case.
Donuts is now appealing that ruling, however, filing its most-recent brief just a few weeks ago.
Whether that will stop ICANN from signing the .web contract and delegating it to Verisign is an open question. It managed to delegate .africa to ZA Central Registry despite the existence of an ongoing lawsuit by a competing applicant.
If history is any guide, we may see a rival applicant apply for a temporary restraining order against .web’s delegation before long.

New gTLD to increase prices 10x, add blockchain voting service

The new gTLD .voting is to suffer a steep price increase as its registry bakes a new “e-voting solution” into its offering.
Valuetainment, the Germany-based registry, informed registrars of its decision recently.
While I don’t know the exact figures involved, it appears the annual wholesale cost of a .voting domain will rise more than tenfold.
Currently, the retail price of a .voting domain can range from $60 to $100 per year. After June 1, that price is likely to start around the $600 mark.
But the registry also told registrars it plans to bundle in with each domain an “e-voting solution” in which “votes are anchored in the blockchain”. There would be no additional charge for this service.
This actually smells a bit like innovation, something the new gTLD program has lacked to date but which sometimes scares away registrars that see mainly implementation and support costs.
Steep price increases also have a track record of scaring away registrars, as Uniregistry discovered last year.
I understand the plan is to apply the price increase to renewals for all existing .voting domains, which currently number a little under 1,000.
At the last count, two thirds of .voting domains had been sold via German reseller platform RegistryGate, with GoDaddy a distant second.
Registry representatives have not responded to a request for information about the blockchain-based voting service, so I can’t tell you much more about it other than blockchain-based systems are in vogue right now due to the popularity of speculation in electronic “currencies” such as Bitcoin.

How ICANN could spend its $240 million war chest

Schools, pHD students and standards groups could be among the beneficiaries of ICANN’s nearly quarter-billion-dollar new gTLD auction war chest.
But new gTLD registries hoping for to dip into the fund for marketing support are probably shit out of luck.
Those are among the preliminary conclusions of a volunteer working group that has been looking at how ICANN should spend its new gTLD program windfall.
Over 17 new gTLD auctions carried out by ICANN under its “last resort” contention resolution system, the total amount raised to date is $240,590,128.
This number could increase substantially, should still-contested strings such as .music and .gay go to last-resort auction rather than being settled privately.
Prices ranged from $1 for .webs to $135 million for .web.
ICANN has always said that the money would be held separate to its regular funding and eventually given to special projects and worthy causes.
Now, the Cross-Community Working Group on New gTLD Auction Proceeds has published its current, close-to-final preliminary thinking about which such causes should be eligible for the money, and which should not.
In a letter to ICANN (pdf), the CCWG lists 18 (currently hypothetical, yet oddly specific) example proposals for the use of auction funds, 17 of which it considers “consistent” with ICANN’s mission.
A 19th example, which would see money used to promote TLD diversity and “smells too much like marketing” according to some CCWG members, is still open for debate.
While the list of projects that could be approved for funding under the proposed regime is too long to republish here, it would for example include giving scholarships to pHD students researching internet infrastructure, funding internet security education in developing-world primary schools and internet-related disaster-recovery efforts in risk-prone regions.
The only area the CCWG appears to be reluctant to endorse funding is the case of commercial enterprises run by women and under-represented communities.
The full list can be downloaded here (pdf).
The CCWG hopes to publish its initial report for public comment not too long after ICANN 61 in March. Comment would then need to be incorporated into a final report and then ICANN would have to approve its recommendations and implement a process for actually distributing the funds.
Don’t expect any money to change hands in 2018, in other words.

.music and .gay possible in 2018 after probe finds no impropriety

Five more new gTLDs could see the light of day in 2018 after a probe into ICANN’s handling of “community” applications found no wrongdoing.
The long-running investigation, carried out by FTI Consulting on ICANN’s behalf, found no evidence to support suspicions that ICANN staff had been secretly and inappropriately pulling the strings of Community Priority Evaluations.
CPEs, carried out by the Economist Intelligence Unit, were a way for new gTLD applicants purporting to represent genuine communities to avoid expensive auctions with rival applicants.
Some applicants that failed to meet the stringent “community” criteria imposed by the CPE process appealed their adverse decisions and an Independent Review Process complaint filed by Dot Registry led to ICANN getting crucified for a lack of transparency.
While the IRP panel found some hints that ICANN staff had been nudging EIU’s arm when it came to drafting the CPE decisions, the FTI investigation has found:

there is no evidence that ICANN organization had any undue influence on the CPE Provider with respect to the CPE reports issued by the CPE Provider or engaged in any impropriety in the CPE process.

FTI had access to emails between EIU and ICANN, as well as ICANN internal emails, but it did not have access to EIU internal emails, which EIU declined to provide. It did have access to EIU’s internal documents used to draft the reports, however.
Its report states:

Based on FTI’s review of email communications provided by ICANN organization, FTI found no evidence that ICANN organization had any undue influence on the CPE reports or engaged in any impropriety in the CPE process. FTI found that the vast majority of the emails were administrative in nature and did not concern the substance or the content of the CPE results. Of the small number of emails that did discuss substance, none suggested that ICANN acted improperly in the process.

FTI also looked at whether EIU had applied the CPE rules consistently between applications, and found that it did.
It also dug up all the sources of information EIU used (largely Google searches, Wikipedia, and the web pages of relevant community groups) but did not directly cite in its reports.
In short, the FTI reports very probably give ICANN’s board of directors cover to reopen the remaining affected contention sets — .music, .gay, .hotel, .cpa, and .merck — thereby removing a significant barrier to the gTLDs getting auctioned.
If there were to be no further challenges (which, admittedly, seems unlikely), we could see some or all of these strings being sold off and delegated this year.
The probe also covered the CPEs for .llc, .inc and .llp, but these contention sets were resolved with private auctions last September after applicant Dot Registry apparently decided it couldn’t be bothered pursuing the ICANN process any more.
The FTI’s reports can be downloaded from ICANN.