DotConnectAfrica schools ICANN in its response to the London GAC Advice – States Don’t accept this advice

August 11, 2014August 12, 2014

DotConnectAfrica has submitted yet another response to the GAC. This is the third response after the response to the GAC Early Warning in November 2012, and the detailed response to the GAC Objection Advice that came out of the ICANN GAC Meeting in Beijing, China. All the responses are well articulated defense to the unending controversies that have shrouded the .africa.

The latest advice is a strong schooling to ICANN, given the circumstances of GAC advice. It should be remembered that DotConnectAfrica is currently dueling with ICANN (‘DCA Trust vs. ICANN’) IRP in the Arbitration Process that is being governed by the International Dispute Resolution Procedures (ICDR) rules and the Supplementary Procedures for ICANN IRP Process. Weil, Gotshal & Manges LLP represents DotConnectAfrica in the proceedings.

The GAC in their ICANN London Advice of 25th June 2014 noted the recent action taken to put on hold the ZACR African Union Commission endorsed application due to the Independent Review Panel (IRP) mandated by ICANN Bylaws. And therefore advices the ICANN Board to

1. “…to provide timely communication to the affected parties, in particular to provide clarity on the process and possible timelines;” and

2. “…that, following the release of the IRP recommendation, the Board should act expeditiously in prioritizing their deliberations and delegate .africa pursuant to the registry agreement signed between ICANN and ZACR.”

DotConnectAfrica notes that

“The GAC Advice given to ICANN during ICANN 50 in London concerning the dispute over .africa, as well as other recent communications between the GAC and ICANN regarding this dispute, demonstrates both the AUC’s inappropriate efforts to determine the outcome of the applications for .africa and ICANN’s improper acquiescence to the GAC’s demands. We strongly urge ICANN not to accept this advice.”

The GAC Advice comes at a time when the AUC and GAC are seen to exert undue pressure upon ICANN to accelerate the IRP proceedings, It is however sad that as the demands are being made, the GAC and AUC seem not to understand the ICANN new gTLD process that the IRP is an independent process that cannot be influenced in anyway.

During the GAC London meetings an AUC GAC member unashamedly exposed the ignorance of the ICANN rules saying

” Is the IRP something reviewing the bylaws of ICANN, or will they be ‐‐ is it something a big brother watching the board, what they are doing? We so far don’t understand….But let me tell you something about people, frustration….”

However DotConnectAfrica has scolded ICANN stating that

“Remarkably, in the GAC’s view, “the affected parties” to the IRP are not DCA and ICANN, the actual parties to the IRP, but the GAC, the AUC, and UniForum/ZACR,” that “Indeed, ever since the Panel issued its order on interim measures, the GAC has been sending a steady message to ICANN that it must ensure that the IRP does nothing to interfere with the presumptive delegation of .africa to UniForum/ZACR.”

DCA notes that the IRP details are in the open and there is no need for asking for publicly available information, as all documents filed in the IRP and decisions made by the IRP Panel are posted to ICANN’s website (as well as DCA’s website http://www.dotconnectafrica.org/icann-related-2/independent-review-process-dca-vs-icann).

The response also notes the glaring discovery that ICANN has given every indication that it agrees with the AUC that the IRP is merely a dilatory tactic to push back what is treated as the inevitable delegation of .africa to ZACR.

DCA’s response questions the competences of the GAC representatives and draws from the experiences of past decisions that have adversely affected DCA’s application from the onset stating

It is our understanding that GAC representatives are officials sent by their own governments on the assumption that they are or will become sufficiently knowledgeable in the ICANN processes to provide educated feedback to ICANN on how its processes relate to the laws and international agreements of each government. Where the New gTLD Program is concerned, this role requires the representatives to understand the gTLD Applicant Guidebook, the ICANN Bylaws and the IRP process contained therein, a process which as noted is independent of both ICANN and the applicants.

In contrast to this understanding, many of the GAC members who opposed DCA’s application through the April 2013 Advice were new to the ICANN system, with the African Union Commission joining as a member in June 2012 during the Prague meetings, after the application process closed in March 2012. Based upon the discussions during ICANN 46 in Beijing and ICANN 50 in London, these new members do not appear to have been educated by ICANN on the critical documents namely, the gTLD Applicant Guidebook, the ICANN Bylaws and the IRP process which is—by contract—the only independent method of review available to any applicant under the new gTLD program.

From the questions raised in the GAC Advice and in the available transcripts of the various GAC meetings during ICANN 50 and during past ICANN meetings, it is our deep concern that ICANN allows the GAC to intervene in ICANN’s evaluation and delegation of new gTLDs without ensuring that the GAC representatives actually understand ICANN processes. A lack of proper education is the clear explanation for certain GAC members urging ICANN to truncate the IRP and/or compromise the independence of the proceeding, which is according to ICANN, an applicant’s only method of legal recourse

DCA Trust has raised the following important issues to ICANN concerning the position of GAC:

GAC representatives’ knowledge and competence: Is there a proper mechanism within the GAC rules to ensure individuals with the requisite knowledge and experience are recommended to represent governments? A minister of agriculture meets the requirement of “official” representation but likely would not be informed on ICANN. Likewise, even an expert understanding of computers and coding does not guarantee that an official will be familiar with ICANN’s policies.
GAC Training: Does the GAC have a mechanism to train its members’ representatives in ICANN’s rules and constitutive documents? What mechanisms does ICANN make available to GAC representatives to educate them on ICANN programs and procedures?
GAC Voting: How exactly does ICANN assess whether advice was obtained by consensus? Asking members to indicate if they vote against certain consensus advice does not mean that all others are in favor of the advice. A non-vote could be an abstention. Likewise many items of GAC advice are published by way of communiqués without noting whether they are offered following consensus. What mechanism does ICANN have to communicate to the GAC and clarify challenged consensus?
GAC Conflicts of Interest: DCA is not the only applicant to publicly notify ICANN that a competing applicant is utilizing a legitimate ICANN process or organ—like the GAC—to quash its competition. Does ICANN anticipate putting in place any mechanisms to protect against the misuse of the GAC or politicization of GAC Advice by applicants to defeat competing applications?

You will find the a complete unabridged version of DCA’s GAC Response available here http://www.dotconnectafrica.org/wp-content/uploads/2014/08/DotConnectAfrica-Trust-GAC-Response-August-3-2014.pdf