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”.

.club on track to topple .guru?

.CLUB Domains sold an additional 4,904 domain names on its second day — its first full day — of general availability, taking it into the top five new gTLD registries by volume.
The zone started today with 30,680 names, compared to sixth-place .email’s 28,127.
I noted yesterday that in order for .club to hit its target of beating leader .guru to the top spot in the first week, .club would have to move something like 4,500 names per day all week.
While today’s numbers are certainly in line with that target, I doubt .club will hit the number one spot by next Thursday.
Growth typically tails off shortly after general availability begins, and weekends are slow days, generally, for domain name registrations.
The best-performing new gTLDs to date generally add a net couple hundred names per day.

.club tops 25,000 names on day one

The new gTLD .club got to 25,776 domains in its first 10 hours of general availability yesterday.
According to today’s zone file data, that makes it the sixth-largest new gTLD by volume.
It’s the third-best launch day after .berlin and .在线, I believe.
The count does not include any substantial amount of premium or registry-reserved names. Registry CEO Colin Campbell told us yesterday that just 46 names in the zone are owned by the registry.
If .CLUB Domains still expects to beat .guru, which has 54,868 domains today, in its first week it’s going to have to sell something like 4,500 domains every day for the next seven days.
No other new gTLD has anything close to that kind of daily volumes during general availability.

.club “hits top 10” new gTLDs in minutes

The new .club gTLD went into the top 10 new gTLDs by volume in the “first instants” of general availability this afternoon, according to the registry and partner Go Daddy.
.CLUB Domains CEO Colin Campbell told DI, about two hours after the 1500 UTC GA launch, “We’ll let the zone files speak for themselves, but we were well within the top 10 a few minutes after we opened up.”
Based on today’s zone file data, that means .club moved at least 15,000 names. It will presumably be a somewhat bigger number by the time today’s zones are published at 0100 UTC.
.CLUB CMO Jeff Sass said that pre-registrations at registrars including Go Daddy were responsible for the initial spike.
“We would be in the top 10 based just on those pre-registrations in the first instant,” he said.
While over 50 registrars are signed up to sell .club, the registry is pretty tight with Go Daddy.
The two companies have been conducting joint marketing, some of which involved .CLUB pushing buyers to GoDaddy.club.
“We’ve worked closely on cooperative marketing efforts,” Sass said. “We’ve done a lot of campaigns where the call to action has been to Go Daddy.”
The GA launch, which was briefly webcast live, actually came from Go Daddy’s Arizona headquarters.
While I get the distinct impression that money changed hands in order for Go Daddy to throw its weight behind .club, VP Mike McLaughlin gave some reasons why he likes the gTLD.
“We like to see that the registry is invested,” he said. “That the business plan isn’t just to put it out there and hope for the best.”
Sass said that .CLUB has been marketing to nightclubs, sports clubs, high-end members clubs and others.
McLaughlin said the price point — $14.99 retail, the same as Go Daddy’s .com renewals — and the fact that there are no registration restrictions, were attractive.
.CLUB has reserved over 6,000 premium names. They’re all listed for sale at Sedo, perhaps showing that its relationship with rival auction platform Go Daddy/Afternic is not all that tight.
If you try to register a premium .club via Go Daddy today you’ll be told it’s unavailable.
Sass said that examples of premiums already sold to anchor tenants include shaving.club, which is launching today, as well as beauty.club, makeup.club and skincare.club, which were all sold to Mary Kay Cosmetics and are expected to launch at a later date.
.CLUB has previously predicted that it would beat .guru (currently at 54,616 names) in the first week and that it would sell five million names in the first five years.
The first aspiration seemed, to me, plausible. I’ve had countless arguments about whether the second is too.

ICANN split between GNSO and GAC on IGO names

ICANN’s board of directors has refused to choose between the Generic Names Supporting Organization and the Governmental Advisory Committee on the issue of intergovernmental organization protections.
In a resolution last week, the board decided to approve only the parts of the GNSO’s unanimous consensus recommendations that the GAC does not disagree with.
The GNSO said last November that IGOs should not have their acronyms blocked forever at the second level in new gTLDs, going against the GAC consensus view that the acronyms should be “permanently protected”.
The GAC wants IGOs to enjoy a permanent version of the Trademark Claims notifications mechanism, whereas the GNSO thinks they should only get the 90 days enjoyed by trademark owners.
Instead of choosing a side, ICANN passed a resolution last Wednesday requesting “additional time” to reach a decision on these points of difference and said it wants to:

facilitate discussions among the relevant parties to reconcile any remaining differences between the policy recommendations and the GAC advice

The decision is not unexpected. Board member Bruce Tonkin basically revealed the board’s intention to go this way during the Singapore meeting a couple of months ago.
The differences between the GAC and the GNSO are relatively minor now, and the board did approve a large part of the GNSO’s recommendations in its resolution.
IGOs, the Olympics, Red Cross and Red Crescent will all get permanent blocks for their full names (but not acronyms) at the top level and second level in the new gTLD program.
International nongovernmental organizations (INGOs) will also get top-level blocks for their full names and protection in the style of the Trademark Claims service at the second level.
The dispute over acronyms was important because many obscure IGOs, which arguably don’t need protection from cybersquatters, have useful or potentially valuable acronyms that new gTLD registries want to keep.

Millions spent on new gTLDs as 11 auctions settled

New gTLD portfolio applicants settled at least 11 new gTLD contention sets last week, sharing the spoils of a private auction that looks to have totaled seven figures in sales.
Applicant Auction carried out auctions for 13 contested strings last week, which I believe lasted at least three days.
I’ve been able to determine that Donuts won six sets, Uniregistry won three and Minds + Machines won two. Radix seems to have lost at least five auctions, walking away with a great big pile of cash instead.

.hosting — Uniregistry won after Radix (which owns .host) withdrew.
.click — Uniregistry beat Radix.
.property — Uniregistry won after withdrawals from M+M and Donuts.
.yoga — M+M won, beating Donuts and Uniregistry.
.garden — M+M beat Donuts and Uniregistry again.
.娱乐 — Donuts won this string (Chinese for “.entertainment”) after Morden Media withdrew.
.deals — Donuts beat M+M and Radix.
.city — Donuts beat TLD Registry and Radix.
.forsale — Donuts beat DERForsale.
.world — Donuts beat Radix.
.band — Donuts beat What Box?

Minds + Machines disclosed this morning that the four auctions in which it was involved cost it $5.97 million.
It’s not possible to work out how much .garden and .yoga cost the company; the $5.97 million figure is net of the money it won by losing .property and .deals, ICANN refunds and auctioneer commissions.
However, it seems reasonable to assume that the average price of a gTLD, even not particularly attractive ones (.garden? Really?), has sharply risen from the $1.33 million I calculated from the first 14 auctions.
In January, M+M raised roughly $33.6 million for auctions with a private share placement. The company is listed on London’s Alternative Investment Market.
The company said it now has an interest in 28 uncontested applications.
Also today, the Canadian Real Estate Association withdrew its Community application for .mls, but this is not believed to be related to the auctions. It has a non-Community application for the same string remaining.

101domain shifts blame to Google as premium buyers offered 50% discount

101domain has offered a 50% discount to customers that were sold premium new gTLD domains for a vastly reduced price, and has tried to shift some of the blame to the registry, Google.
The offer was made in a letter (pdf) to affected registrants — previously hit with delayed invoices for thousands of dollars for domains they bought for $12.99 — sent yesterday.
It indicates that the registrar is prepared to eat at least part of its pricing error on both first-year registrations and subsequent annual renewals.
101domain told customers:

• You now have until June 23, 2014 to make a decision whether to delete the name or pay for the premium name.
• If you want to keep the name(s), 101domain will offer you a 50% discount on the first year premium price and a 25% discount on premium annual renewals.
• If you give up your name(s), we will give you a credit on 101domain.com for any future purchases equal to 25% of the price of the premium name.

Previously, affected registrants had been told to pay up or have their domains deleted the following day.
As we reported last week, almost 50 domains in Google’s .みんな (“.everyone”) were sold for $12.99, despite some being earmarked by the registry as “premiums” with annual fees of up to $7,000.
In its letter to customers yesterday, 101domain characterized Google’s system for handling premiums as non-standard and difficult for registrars to work with.
Google’s list of premium names was circulated to registrars via an email, and the registry had no EPP commands for checking out whether a name was premium in real-time, the registrar says.
There was also no way for registrars to prevent the registration of premiums and no way to check with the registry for premium sales, it added.
It seems clear from the letter that the discounts now on offer mean that if registrants choose to keep their names they’ll be getting them at less than the registry fee — 101domain will eat the difference.

We contacted Google and requested them to work with us on the matter since we felt strongly that both sides were responsible to right the situation. Google offered no assistance other than extending the date to delete the names — telling us it was our problem.

Despite this seemingly generous response to domainer outrage, at the least one affected customer is not impressed.
In an email to DI last night the original registrant that first alerted us to the pricing problem described the latest 101domain offer as “lame”.

Microsoft dumps .live gTLD bid

Microsoft has abandoned its application for the .live new gTLD, leaving the erstwhile dot-brand in the hands of either Donuts or Google.
I found this quite surprising initially, as “Live” has been a core, cross-platform brand for the company, covering services such as Windows Live, Xbox Live and Office Live. The company also owns live.com.
But it recent years the brand has started to be phased out.
While Xbox Live is still a thing, Windows Live was closed down in April 2013 and Office Live seems to have suffered a similar fate in 2012, after the new gTLD application phase ended.
The withdrawal means that the .live contention set now only comprises Google’s Charleston Road Registry and a Donuts subsidiary. It’s likely headed to ICANN auction.
Unlike Microsoft, both remaining applicants propose open-registration spaces.

.nokia — a dot-brand without a brand?

Will .nokia be the next withdrawal from the new gTLD program?
It seems possible, if reports about the death of the Nokia brand are to be believed.
The news blog Nokia Power User reported yesterday that Nokia the company will be renamed Microsoft Mobile following the close of the $7.2 billion acquisition of Nokia by Microsoft this Friday.
The blog, which may live to regret its own choice of brand, quoted from a memo from the company to business partners, reading:

Please note that upon the close of the transaction between Microsoft and Nokia, the name of Nokia Corporation/Nokia Oyj will change to Microsoft Mobile Oy. Microsoft Mobile Oy is the legal entity name that should be used for VAT IDs and for the issuance of invoices.

However, in a blog post confirming the April 25 close date, Microsoft general counsel Brad Smith did not mention a rebranding.
The domain name nokia.com will live for up to a year, he said:

While the original deal did not address the management of online assets, our two companies have agreed that Microsoft will manage the nokia.com domain and social media sites for the benefit of both companies and our customers for up to a year.

What does that mean for the .nokia gTLD application?
According to the ICANN web site, Nokia is currently “in contracting” for the dot-brand.
It would not be unprecedented if it were to withdraw its application, however. Back in February 2013, the American insurance company AIG withdrew its bid for .chartis after a rebranding.