“At no time until after it had rejected DCA’s application, did ICANN assert that the AUC had properly “withdrawn” its endorsement. – DCA
Geographic new gTLDs in the ICANN application round were required to have endorsements of upto 60% from counties in the applying region.
Many applications in the new gTLD program were therefore victims of contentious endorsements, most were affected by the political factor. Given the composition of Governmental Advisory Committee (GAC) where ICANN receives input from governments there were many controversies on how some of what the GAC calls consensus objections were reached at. Several affected applicants including .Amazon, and .Africa have however contested the GAC’s decisions.
In .Africa’s case specifically, the disconnect is traced to the geographic evaluation contrator ICC, ICANN in the middle and GAC. In a revelation during an IRP the GAC Advice was 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.
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”.
During the court case ICANN has included in its arguments a bit to raise the endorsement question of .Africa applicant DCA Trust from Africa Union. ICANN states quite erroneously that AUC had withdrawn DCA’s endorsements.
However DCA states
“ICANN failed to follow that ruling when it reconsidered DCA’s endorsements, rejected DCA’s application on pretext, and then tried to justify that rejection by pointing to a purported withdrawal of the endorsement that was not permitted by ICANN rules. Moreover, the withdrawal letter from the AUC was not written by the same AUC representative that wrote the endorsement, included ambiguous language, and was sent to ICANN, without any response from ICANN noting that it constituted a withdrawal until ICANN used this as a post-IRP justification for DCA’s rejection.”
DCA expounds further that ICANN’s action on withdrawal is a rearguard action, saying:
“At no time until after it had rejected DCA’s application, did ICANN assert that the AUC had properly “withdrawn” its endorsement. Even so, Section 18.104.22.168.3 of the Guidebook states that a governmental entity may only withdraw its endorsement if “the registry operator has deviated from the conditions of original support or non-objection.” ER 930 (emphasis added). There were no conditions on the AUC or UNECA endorsements to DCA. ER 1312 and 1316. This rule is necessary because otherwise an applicant could spend valuable resources collecting endorsements, only to become disqualified at the last minute because a country pulls an endorsement for political reasons or reasons of self-interest, such as was the case with the AUC/ZACR application. ER 1764. Few entities would be willing to make the investment necessary to apply for a gTLD if their groundwork could be invalidated at such a whim. Additionally, the purported withdrawal letter came from an individual, Moctar Yedaly, and not from the AUC Chairman’s office which granted the endorsement. ER 1715.”
It remains to be seen how the appellate court will study ad rule on the case bearing in mind the glaring actions and inactions of ICANN that affected the applications from being processed independently and transparently.
The case appeal document is found here
About the .Africa case:
On March 4 2016, the court granted Interim Relief for DotConnectAfrica by issuing a decision [PDF Case No: CV 16-00862 RGK (JCx)] below that ICANN should hold off from delegating the .AFRICA top-level domain (TLD) for ZA Central Registry (ZACR.
On 13th April, 2016, DCA Trust won a preliminary injunction, .Africa will therefore remain undelegated until the lawsuit by DotConnectAfrica is resolved in its entirety