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DCA Trust disagrees with ICANN on “refine that GAC Advice” Post-IRP Board Resolution

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DotConnectAfrica Trust (DCA Trust) which was recently declared as the prevailing party in the DCA Trust Vs ICANN IRP seems to have disagreed with ICANN on the post-IRP solution to the dispute between the parties.
 
The IRP Panel had unanimously ruled “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”; and further recommended that ICANN should continue to refrain from delegating the .AFRICA gTLD to ZACR and that ICANN bear the totality of the costs of the IRP and the totality of the costs of the IRP provider.
 
Brief history of .Africa application and GAC: Dakar Communiqué
During the ICANN 42 meeting in Dakar, Senegal, an extraordinary request was tabled by the AU-supported African Ministerial Round-Table to: “Include (.Africa, .Afrique, .Afrikia,) and its representation in any other language on the ‘List of Top-Level Reserved Names’ in order to enjoy the level of special legislative protection, so that these names can be managed and operated by “the structure” that is “selected and identified, by the African Union”. However DCA Trust vigorously opposed the proposal and it resulted in ICANN agreeing that “ICANN is not able to take actions that would go outside of the community-established and documented guideline of the program”.
 
However, even though ICANN did not accept the reserve name idea, ICANN in its March 8, 2012 response to African Union Communiqué also suggested that the AUC utilize the Community Objection and GAC Policy Advice provisions of the new gTLD Program to influence the delegation outcome of .Africa when the ICANN Board Chairman Dr. Stephen Crocker wrote in his letter to the AUC:
 
“While ICANN is not able to offer the specific relief requested in the Communiqué, the robust protections built into the New gTLD Program afford the African Union (and its individual member states), through the Government Advisory Committee, the opportunity to raise concerns that an applicant is seen as potentially sensitive or problematic, or provide direct advice to the Board. In addition, the African Union (and its individual member states) can avail itself of any of the appropriate objection processes mentioned above in the event an application is received for any string – even those beyond representations of .Africa – that may raise concern”
 
This advice appears to have culminated in the controversial Beijing GAC advice that was heavily criticized for what was called erroneous advice.
 
GAC Advice criticized by .Africa IRP Panel

One of the many reasons why DCA Trust prevailed in the IRP is that ICANN Board did not seek further information from the ICANN GAC for the rationale behind the GAC Objection Advice that was issued against DCA Trust’s application for .Africa.
 
Based on the transcript of the IRP hearing that was conducted in May 2015, ICANN’s own witness, Ms. Heather Dryden, former ICANN GAC Chairperson, caused the IRP Panel to believe that the GAC did not act with transparency or in a manner designed to insure fairness. Instead, she clarified during her testimony that “in our business, we talk about creative ambiguity. “We deliberately leave things unclear so we don’t have conflict”; and that “GAC did not provide a rationale. And that was not a requirement for issuing a GAC”.
 
The fact that the ICANN GAC acts with no rules or rationale regarding the objections that it issued against specific new gTLD applications has now caused problems with how its own advice is rendered, meaning that DCA Trust was a victim of machinations.

Heather Dryden former ICANN GAC Chair  Photo by ICANN
Heather Dryden former ICANN GAC Chair
Photo by ICANN

 
DCA Trust opposition to Board advice for refining GAC Advice
DCA in its July 21, 2015 letter that was sent to the ICANN Board Chairman after the IRP Final ruling, have opposed the resolution taken by the ICANN Board to send the issue back to the ICANN GAC for another consideration; which was seen by the IRP Panel as one major failure by ICANN in the way they handled DCA’s .Africa new gTLD application by allowing GAC to give an Objection Advice without any rationale.
 

  1. We disagree with the present attempts by the ICANN Board based on its Resolution 07.16.04 to send the issue back to the Governmental Advisory Committee to enable the ICANN GAC body “refine that GAC Advice and/or provide the Board with further information regarding that advice and/or otherwise address the concerns raised in the Declaration” (See ICANN announcement of July 16, 2015); which would wittingly give DCA’s competitors an opportunity to muster a new threat of Community Objection or GAC Objection Advice against DCA’s application.
  1. We would like to remind ICANN that the strategic push by DCA’s competitors to administer or achieve a coup de gráce against DCA Trust’s aspirations for .Africa new gTLD – can be readily traced to events that happened prior to the ICANN-42 international meeting in Dakar, Senegal in October 2011. At Dakar, there was an orchestrated attempt (as part of the ‘African Agenda’) to achieve a reservation of the .Africa name string – and its representation in other languages – in the List of Top Level Reserved Names List. This attempt was successfully defeated largely on account of DCA’s strong opposition to the idea of including the .Africa name in the Reserved Names List; which would have enabled the African Union Commission to benefit from a special legislative protection, so that the domain name can be managed and operated by the structure that is selected and identified by the African Union. ICANN could not therefore approve the AUC’s request in violation of stipulated new gTLD Program guidelines.

  1. DCA Trust believes that ICANN would not be acting justly if the ICANN GAC is given a fresh opportunity to either refine a GAC Objection Advice that has already been criticized (because of its doubtful validity) by an IRP Panel; or allow renewed efforts to be mobilized by DCA’s competitors to orchestrate another Community Objection against DCA’s application. For emphasis, we strongly believe that such Community Objection and GAC Objection Advice avenues have already been foreclosed. Therefore, we fault the insinuation contained in ICANN Board Resolution of July 16, 2015, namely: “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.”

Given this response to the ICANN Board resolutions, it appears DCA Trust is being very careful to ensure that ICANN does not recycle the ‘old’ GAC Objection Advice to be refined or clarified by the ICANN GAC; or attempt to go back to the same process without any solid assurances of a changed system that is more accountable.

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Brent Donald

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