ICANN has been caught with the hand in the new gTLDs cookie jar again.
The domains overseer faces a second loss after a panel in July 2015 ruled that the applicant for .Africa, DotConnectAfrica was the prevailing party. A Kansas company Dot Registry LLC, applied for the gTLDs .llc, .llp, and .inc as a “Community” applicant however, the company lost its Community Priority Evaluations after ICANN’s decision to refuse “community” status for three applications.
The major similarity in the both cases is that ICANN and Staff were involved deeply in the evaluation of various stages of the evaluation leading to breaking of transparency and accountability rules.
“In one of the most startling examples, internal emails showed that ICANN’s legal team wrote the language used to disqualify the applications and then attempted to pass it off as the view of the “independent” evaluator it had hired to look into the applications. ICANN’s legal team even injected the argument that “research” carried out by the EIU had led to its decision to not award critical points to the applications for .inc, .llp and .llc. In reality, no such research had been carried out.”
“That conclusion fits with an earlier judgment of the IRP in a different case and with a different evaluator. In the case brought by DotConnectAfrica (DCA) over the .africa name, ICANN’s staff not only intervened repeatedly with the “independent” evaluator – in that case InterConnect – to undermine DCA’s application, but redacted all mention of its interference from the record and even in the final IRP judgment.” – The UK Register
In the latest case of Dot Registry, LLC v. ICANN (.INC/.LLC/.LLP), the ICANN Board Governance Committee (BGC) in particular was blamed for having blatantly and repeatedly failed to carry out its oversight duties. This is despite the serious allegations made against ICANN’s staff and the “independent” evaluator Economist Intelligence Unit (EIU) selected to do a review. The the panel found that the BGC did not carry out any investigation but instead relied solely on material supplied by ICANN’s legal team – the very people at the center of the complaints.
“The BGC failed to address any of these assertions,” the judgment reads. Later: “The BGC admittedly did not examine whether the EIU or ICANN staff engaged in unjustified discrimination or failed to fulfill transparency obligations.”
The Panel noted that the BCG’s analysis was “simply not credible.” saying “the record makes it exceedingly difficult to conclude that the BGC exercised independent judgment” and that its actions “raise serious questions in the minds of the majority of the Panel members about the BGC’s compliance with mandatory obligations.”
It was discovered in the document production where internal emails showed that ICANN’s legal team wrote the language used to disqualify the applications and then attempted to pass it off as the view of the “independent” evaluator it had hired to look into the applications.
From the IRP report:
While noting that ‘research’ supported its conclusions, the EIU failed to identify the research conducted, what the results of the research were, or how such results supported its conclusions.
In the .Africa’s case it was found that ICANN specifically ghost wrote an endorsement letter for ZACR the competing .Africa applicant then passed the company based on the internally drafted letter. ICANN’s staff not only coordinated repeatedly with the “independent” geographic evaluator InterConnect to undermine DCA’s application, but later redacted all records of its interference from the final ruling. The Panel in .Africa’s case declared that
“148. Based on the foregoing, after having carefully reviewed the Parties’ written submissions, listened to the testimony of the three witness, listened to the oral submissions of the Parties in various telephone conference calls and at the in-person hearing of this IRP in Washington, D.C. on 22 and 23 May 2015, and finally after much deliberation, pursuant to Article IV, Section 3, paragraph 11 (c) of ICANN’s Bylaws, the Panel declares 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.
149. Furthermore, pursuant to Article IV, Section 3, paragraph 11 (d) of ICANN’s Bylaws, the Panel recommends that ICANN 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.
DCA Trust eventually went to court in January 2016 and has won two injunctions (temporary, March 4th 2016 and preliminary, April 12, 2016) making sure the .Africa domain remains undelegated after ICANN put DCA’s application through a secondary “sham” process that continued to deny its right to the .africa registry. The case is scheduled for jury trial in February 2017.
There seems to be very little question that the odor of corruption and impropriety hung over the air of DCA review; it was the fact that decision presented a direct and blunt assault on the integrity of the entire process, that led to the DCA conclusion, not the distinctions that might be presented in some state law between constituents, affiliates agents, independent contractors and the like
It is not known how many more applicants will come forward to fight for a rightful evaluation and management of its applications, a process that ICANN has been shown to repeatedly ad notoriously meddle with.
ICANN just like in the .Africa case will bear the total cost of the independent review process that amounts to 461, 38.70 USD.