.africa applicant responds to ICANN Attorney Blog, says revoke ZACR’s Registry contract

.AFRICA IRP Declaration Credit ICANN

.AFRICA IRP Declaration Credit ICANN

DCA Trust has responded inline to the ICANN’s General Counsel & Secretary, John Jeffrey’s recent article. “.AFRICA IRP Declaration – Clearing Up Some Facts” here is a summary of the clarification

Issue of Redaction of Parts of Final IRP Declaration

On the thorny issue of many redactions that rocked ICANN immediately after the IRP final ruling was made in favor of DCA,

DCA notes that ICANN has now changed its procedures on how it will post future IRP decisions. Mr. Jeffrey gives a long list of tests on how to decide what will be published, which are fairly obvious and adds length to his argument taking us away from the central point that the initial publication of the IRP decision was misleading. ICANN tacitly acknowledges this by deciding to change the procedures.

DCA trust also says that

ICANN did not allow a negotiated process to govern the redaction of the IRP Final Declaration between DCA and ICANN, but decided on its own to perform deep redactions that amounted to expurgation. Excessive redaction of the document as was done by ICANN, which made the IRP Declaration rather opaque and not transparent.

ICANN staff assisted ZACR on .Africa Application who did not meet the established criteria as defined by the guidebook

The DCA Trust vs ICANN IRP established that ICANN had indeed assisted ZACR to pass by ghost writing a letter of endorsement, however in his blog John Jefrey states that the DCA IRP Declaration does not address this allegation. In response, DCA Trust states that

“It is not correct to dismiss DCA’s allegation by confusing what is an allegation and what was effectively concluded by the IRP proceedings. There is little doubt that DCA was treated unfairly otherwise it would not have prevailed at the IRP. DCA repeatedly explained to ICANN where the board had failed but was forced to go to an IRP — that alone was unfair.”

DCA also continues that

“it is now public knowledge that all the letters submitted by ZACR to the new gTLD application did not meet the established criteria as defined by the guidebook. ZACR had simply appropriated the letters for itself;”

ICANN is just a mail box not a co-applicant

DCA Trust also emphasized that ICANN’s role in the application period as just a facilitator, stating “clearly states responsibility lies with the applicant. ICANN has no part in the process other than acting as a mailbox between the GNP and the parties that may issue an endorsement; otherwise the “independent” process is compromised

Adding

“We are very surprised that ICANN continues to downplay these serious irregularities that led it to unfairly award the .Africa new gTLD to ZACR simply because ICANN does not want to admit any wrong-doing on its part.”

Impact on .AFRICA Delegation, revoke ZACR’s Registry agreement that ICANN has already signed with ZACR

In his blog, the ICANN counsel is of the view that “decision does not remove the ZA Central Registry from the New gTLD Program”. DCA on its part notes that

“the current status of delegation is legally problematic. How could ICANN evaluate DCA’s application at the GNP while ICANN has already signed a new gTLD Registry agreement for the same domain name string that DCA’s application would be evaluated for? i.e. the Africa new gTLD name string that is ‘technically unavailable’ for ICANN to delegate as of this writing. What would be the purpose of such a ‘resumed evaluation processes for DCA Trust’s application’ which the ICANN Board resolved to do? Surely this anomaly has to be corrected immediately.

No bidder for any Invitation for Bids (IFB) process would agree to participate in an open/competitive bid (or tender) opportunity which the goods or services that are being tendered have already been awarded and contracted out to a particular supplier. Even as a lawyer, something should tell Mr. Jeffrey that this situation is not right and needs to be corrected immediately.

Therefore, the initial step for ICANN to take would be to revoke the current new gTLD Registry Services Agreement that ICANN has already signed with ZACR, so that the string can then be free for evaluation and possible delegation to DCA Trust — based on the outcome of any fair and non-discriminatory re-evaluation process.”

DCA Trust also concludes that the blog by Jeffrey has created more confusion on ICANN’s handling of the new gTLD process in general saying that

“Rather than clarify matters Mr. Jeffrey has created more doubt about how ICANN actually conducted the new gTLD application process in general and with respect to .Africa in particular. The rules to be followed were clearly stated in the guidebook. The fact that it is named a “guidebook” doesn’t alter the fact that it contained prescriptive and definitive rules to be followed. The procedures do not indicate that ICANN was provided any assistance to an applicant in any manner whatsoever. The responsibility is the applicants.”

ICANN could have worsened it reputation by continuously acting defensive rather thatn accepting its wrong doing and compensating DCA Trust for all the wrong doing. It is worth noting that other applicants are now in hot pursuit of ICANN following the DCA Trust vs ICANN IRP ruling and are seeking more answers as to what transpired in their applications.

 

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