Stephen Coates (Head Trademark Counsel, Twitter Inc.) and Scott R. Austin (Attorney, VPL Law Group LLP), members of INTA’s New gTLD Issues Subcommittee of the Internet Committee, provide the following analysis of the much-anticipated .Africa decision.
In its Final Declaration issued July 9, 2015, a three-member Independent Review Process (“IRP”) Panel found that the ICANN Board’s conduct was inconsistent with ICANN’s Bylaws and Articles of Incorporation in rejecting the application by the DotConnectAfrica Trust (DCA) for the .AFRICA new generic top-level domain name (gTLD). This decision will create numerous implications for ICANN governance. The IRP Panel, which affirmed its own authority to recommend specific action by the Board, recommended that ICANN must refrain from delegating .AFRICA to DCA’s competitor, the ZA Central Registry (ZACR), and must reopen DCA’s .AFRICA application. The Panel also ordered ICANN to pay the administrative and Panel fees associated with the IRP (under the IRP Rules the parties must pay their respective attorneys’ fees). The ICANN Board has subsequently acted on the Panel recommendations.
Background. DCA was one of two applicants for the .AFRICA gTLD. The African Union Commission supported the other .AFRICA applicant, ZACR, and 17 members of the Governmental Advisory Committee (“GAC”) issued Early Warnings against DCA’s .AFRICA application. In April 2013, the GAC issued consensus advice that DCA’s .AFRICA application should not proceed. Less than two months later, the ICANN Board accepted the GAC’s advice. It did so even though the ICANN Applicant Guidebook–created Geographic Names Panel had not completed its evaluation of whether DCA’s .AFRICA application had the required documentation of support from at least 60% of the national governments in Africa. DCA sought relief under ICANN’s Bylaws-mandated accountability mechanisms: it filed a Request for Reconsideration, which was denied, and then pursued the IRP. In the interim, ICANN signed the Registry Agreement for .AFRICA with the other applicant, ZACR.
IRP Panel Findings. Two findings by the Panel warrant particular attention. First, the Panel, concluding that it was empowered to consider the actions of the GAC and not just those of the Board, found that the GAC failed to operate in a transparent and fair manner, despite a requirement to do so as a constituent body of ICANN. In particular, the GAC did not reveal, and ICANN did not request, a rationale for the GAC’s advice on DCA’s application. In summarizing the testimony of former GAC chair Heather Dryden, the Final Declaration found that “the GAC made its decision to issue consensus advice against DCA’s .AFRICA application without providing any rationale and primarily based on politics and not on potential violations of national laws and sensitivities.” Further, the GAC did not provide notice or allow DCA to defend its .AFRICA application before issuing its advice against the application.
Second, but equally important, the Panel interpreted ICANN’s transparency obligations to require the New gTLD Program Committee (NGPC) of the ICANN Board to conduct diligence on the level of transparency and the manner in which the advice was developed by the GAC, before accepting it. Furthermore, ICANN’s Board Governance Committee (BGC) failed to conduct any meaningful review of that decision when considering DCA’s Request for Reconsideration, and there was a further failure by the NGPC in then accepting that BGC decision without challenge.
The Panel’s Final Declaration also addressed DCA’s allegations that ICANN staff provided support to assist DCA’s competitor, ZACR, in obtaining the .AFRICA gTLD. DCA evidence supporting these allegations with testimony were initially included by the Panel, but redacted by ICANN’s staff at 39 locations within the Final Declaration as first published.
Beyond its current reflection on Board and GAC operations, the Panel’s Declaration must be viewed against a questionable history of how ICANN has managed past GAC advice on new gTLD applications. Most notably, Amazon claims that the application for .AMAZON was denied under similar circumstances. According to Amazon, the GAC and ICANN Board based their decisions on geopolitical considerations, contrary to the clear process outlined in the ICANN Applicant Guidebook and to established community policy developed through consensus (see Amazon’s Testimony to the House Judiciary Committee).
Finally, the Panel’s Final Declaration should prove highly beneficial to the ICANN community because it focuses on the importance of accountability mechanisms to prepare for the Internet Assigned Numbers Authority (IANA) transition and a possible second round of gTLD applications. While the Panel’s recommendations are now being implemented with delegation of .AFRICA on hold and the DCA application referred back to evaluation, the Panel repeatedly had to assert its authority during the course of these proceedings in order to correct ICANN’s decisions, even while ICANN opposed that authority at every stage. The DCA IRP magnifies the need for strong accountability reforms before the IANA transition.