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July 13 — ICANN's board of directors failed to exercise adequate diligence when it accepted government advisor advice regarding an application for the .africa top-level domain (TLD), an Independent Review Panel determined in a decision released late July 10.
The decision could have wide-ranging implications for how the Internet Corporation for Assigned Names and Numbers' board considers the formal advice of its Governmental Advisory Committee, which must be taken into account on matters of public policy. ICANN's bylaws require the board to state reasons when GAC advice is not followed, but the panel determination suggests the board must also establish a record or otherwise when choosing to accept GAC advice.
The DotConnectAfrica Trust (DCA Trust) applied for the .africa TLD in 2012 as did the ZA Central Registry (ZACR). The ZACR bid was the result of a request for proposal issues by the African Union, which collectively supported the ZACR application. The GAC issued consensus advice April 11, 2013 that DCA Trust's application should not proceed. Under the new generic TLD applicant guidebook, such advice created a strong presumption that ICANN's board would not approve the application.
The board's New gTLD Program Committee (NGPC) issued a June 4, 2013 decision that the DCA Trust application would not proceed. DCA Trust sought reconsideration of that decision from the Board Governance Committee, and upon denial, sought an independent review. The panel's determination has been subject to long delays due to procedural battles and the death of one of the initial panelists.
The panel relied heavily on the testimony of former GAC Chair Heather Dryden in finding that the GAC itself did not follow procedures fairly based on an open and transparent process. In response to questioning about the rationale for the DCA Trust advice, Dryden said the GAC did not provide one. In a follow-up regarding whether government representatives followed the proper rules in objecting to the application, Dryden said, “The practice among governments is that governments can express their view, whatever it may be. And so there's a deference to that. That's certainly the case here as well.”
Dryden also testified that GAC communiques are drafted in the language of international diplomacy, with intentional vagueness built in. “In our business, we talk about creative ambiguity. We leave things unclear so we don't have conflict,” she said.
“In light of the clear ‘Transparency' obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application.”
The panel found that as a constituent body of ICANN, the GAC was required under the bylaws to operate in an open and transparent manner with procedures designed to ensure fairness to the maximum extent feasible. In addition to not providing a rationale for its advice, the GAC failed to give DCA Trust notice and opportunity to be heard prior to the issuance of the advice.
The panel also said ICANN's board must ensure that its procedures are being applied fairly. Because the GAC was not operating in accordance with the bylaws, the panel said, the board was bound to do more than merely accept the GAC's advice without further consideration.
“In light of the clear ‘Transparency' obligation provisions found in ICANN’s Bylaws, the Panel would have expected the ICANN Board to, at a minimum, investigate the matter further before rejecting DCA Trust’s application,” the panel said.
The panel also faulted the board for failing to give meaningful review upon reconsideration to the NGPC's initial decision to accept the GAC's advice, and for not addressing the underlying notice and opportunity deficiencies.
The determination may be used by other new gTLD applicants whose bids have been derailed or affected by GAC advice. An application for the .gcc string was terminated based on the same advice as DCA Trust's and is currently tied up in a cooperative engagement process. A reconsideration request is currently pending as to the .doctor string based on separate GAC advice regarding strings in highly regulated industries.
ICANN board chairman Steve Crocker suggested June 21 at the ICANN meeting in Buenos Aires that board deliberation in general is more extensive than the public record suggests, and that figuring out a balance between smooth, predictable processes and openness has been one of his primary challenges as chair.
“When I stepped into the role of chair I had observed some things that I thought were not working best in the way the board operated. We got into late night drafting sessions and we tried to hustle things through and so forth. And so I worked very hard to strip away from the board activity as much as possible happening in that mode and make it all as early as possible,” Crocker said. “An unintended consequence or one that I didn’t foresee is that the outcome of that makes the board look like it was pro forma because things were relatively well baked by the time they came to us.”
As for DCA Trust, the victory may well be Pyrrhic. The panel recommended that the Board reopen its application and continue the current hold on processing ZACR's application. DCA Trust's application, though, has yet to pass the initial processing phase, and is for a geographic TLD that requires support of at least 60 percent of affected governments.
DCA Trust requested 18 months to gather support of affected governments and that ZACR's application be terminated, but the panel did not make either recommendation.
Jones Day LLP represented ICANN. Weil Gotschal & Manges LLP represented DCA Trust.
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