ICANN Dublin: I’m unto your tricks Mr. Chairman, says Bekele’s letter to Crocker

The applicant for .Africa new gTLD , DCA Trust, has opposed the latest effort by the ICANN board to revert the .Africa application for a Governmental Committee (GAC) at ICANN to “refining” its last advise GAC gave to the ICANN Board.

This comes after the DCA Trust won an Independent Review Panel decision against ICANN in July 2015, where the panel declared that “both the actions and inactions of the Board with respect to the application of DCA Trust relating to the .AFRICA gTLD were inconsistent with the Articles of Incorporation and Bylaws of ICANN.

The Panel further asked ICANN to “continue to refrain from delegating the .AFRICA gTLD and permit DCA Trust’s application to proceed through the remainder of the new gTLD application process and to bear the totality of the costs of this IRP and the totality of the costs of the IRP Provider. ”  All this necessitating the ICANN board to follow the conditions of the panel.

On 29 September 2015 through a letter sent on behalf of the ICANN Board to the Chairman of the ICANN Governmental Advisory Committee (GAC), Mr. Thomas Schneider, the ICANN Chair emphasized four points, namely:

  1. GAC did not act with transparency or in a manner to insure fairness (Declaration 102).
  2. The GAC did not provide a rationale for the consensus objection (Declaration 104, 110)
  3. DCA Trust was not given any notice or an opportunity to make its position known or defend its own interests before the GAC reached consensus advice (Declaration 109)
  4. The GAC reached advice without any discussion of the substance behind the reasons for each country’s objections (Declaration 110).

DCA has however reverted in a strongly worded letter on 14th October- Pre ICANN Dublin that it completely disapprove(s) of the two-pronged strategy that has been designed by the ICANN Board to deny its .Africa application: based on obstacles that have been placed against the resumed GNP evaluation of our application; and sending back the application to the GAC.

DCA notes further that

“the intentions of the ICANN Board are clearly demonstrated in Resolution No. 2015.07.16.05 which states inter alia:

Resolved (2015.07.16.05), in the event that DCA’s application for .AFRICA successfully passes the remainder of the evaluation process, at that time or before, the Board will consider any further advice or information received from the GAC, and proceed as necessary, balancing all of the relevant information and circumstances.

DCA also disagreed on another ICANN Board Resolution of July 16, 2015, which stated

“Parties affected by these resolutions have had, and may continue to have, the ability to challenge or otherwise question DCA’s application through the evaluation and other processes.”

The .africa applicant recons that:

“when put side by side with Resolution No. 2015.07.16.05,  this also reveals without any shadow of doubt, that the ICANN Board is already acting in concert with our competitors to ensure that our application will fail the resumed GNP evaluation; or, in the event that our application passes the resumed evaluation, to use the GAC process to create further difficulties to ensure that our application is unsuccessful.”

From the letter, it is clear that the applicant is wary that ICANN may not be the preferred resolution organization given that the application is being taken through the same process that has not been audited for its previous erroneous decisions that botched the .africa application rendering it to be taken to the IRP for resolution.

DCA has also noted that:

“sending the DCA Trust application file back to the GAC would create room for irregularities to occur, like what happened during the last episode”

confirming that it is aware that the same irregularities that were seen from the previous decisions could inevitably be repeated.

Bekele in her letter to Crocker pointed out:  “There is no provision in the new gTLD Guidebook for this extraordinary approach that you have commenced. The new GTLD Program is a structured process that is based on a fixed time table. The time for GAC Advice and Objections on applications has already passed. Therefore, the process that the ICANN Board has commenced with the ICANN GAC is quite irregular and will cause further violations of policy and existing governing/legal instruments (Bylaws, Articles of Incorporation, etc.).”

It appears that unless ICANN Board adapts a different approach to this post-IRP solution, Africa may not see the light on . africa!.

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