2016-03-21

New gTLD AFRICA: DotConnectAfrica Trust vs ICANN, End of the Line?

UPDATE June 16, 2016New gTLD AFRICA Litigation: Defendant ZACR Dismissed as a Party.

UPDATE April 13, 2016: The U.S. District Court grants DotConnectAfrica Trust's Motion for Preliminary Injunction--see Will ICANN File An Interlocutory Appeal in DCA Trust gTLD AFRICA Case?.

UPDATE April 4, 2016: "The Court issued the following docket text entry: "SCHEDULING NOTICE TO ALL PARTIES AND ORDER by Judge R. Gary Klausner. Plaintiff DotConnectAfrica Trust's Motion for Preliminary Injunction, calendared for hearing on April 4, 2016, has been taken under submission and off the motion calendar. No appearances by counsel are necessary. The Court will issue a ruling after full consideration of properly submitted pleadings. IT IS SO ORDERED"[March 29, 2016]. Note also that ICANN has moved to dismiss Plaintiff DotConnectAFRICA Trust's case, which motion is noticed for April 25, 2016. Update(s) will be posted here once the Court rulings are published.--end of April 4, 2016 update--

"Whereas, on 17 February 2016, an Extended Evaluation report was posted and indicated that the resumed evaluation of DCA's application for .AFRICA had concluded, and that DCA had failed to submit information and documentation sufficient to meet the criteria described in AGB [Applicant Guide Book] Section 2.2.1.4.3, rendering it ineligible for further review or evaluation. Resolved (2016.03.03.01), the Board authorizes the President and CEO, or his designee(s), to proceed with the delegation of .AFRICA to be operated by ZACR pursuant to the Registry Agreement that ZACR has entered with ICANN. All members of the Board present voted in favor of Resolution 2016.03.03.01. Two members of the Board were unavailable to vote on the Resolution. The Resolution carried."--Preliminary Report | Regular Meeting of the ICANN Board 03 Mar 2016 (emphasis added).

The long drawn-out saga of ICANN's new gTLD .AFRICA and applicant DotConnectAfrica Trust (domain name: dotconnectafrica.org), may be (with emphasis on "may") coming to end, at least as far as being able to proceed with delegation of the new gTLD .AFRICA to be operated by ZACR. Two weeks from now, on April 4, 2016, there will be a hearing in Los Angeles Federal Court on DotConnectAfrica's Motion for Preliminary Injunction to stop ICANN from further proceeding with delegation of the new gTLD .AFRICA. DotConnectAfrica Trust is an unsuccessful applicant for the new gTLD, but successfully challenged ICANN and its process in awarding the new gTLD through a precedent-setting IRP (Independent Review Proceeding)--the IRP documents are available on the ICANN website here: DCA Trust v. ICANN (.AFRICA) [IRP].

Following issuance of the IRP Final Declaration on, July 9, 2015, there were complaints of misconduct about ICANN, its officers, staff, and Board of Directors, and others, including claims that ICANN's redactions from the Final Declaration, were an attempt to cover-up the misconduct -- see: former ICANN staffer Keiren McCarthy's series of articles in The RegisterUnredacted: ICANN's hidden role in fierce battle over .Africa rights and Having been slammed and embarrassed, ICANN tells the world: We've done nowt wrong and ICANN further implicated in .Africa controversy.

See also on DomainMondo.comICANN dot AFRICA IRP: WHO Redacted WHAT In the Final Declaration? and DCA Trust IRP Decision: ICANN Failed the Global Internet Community.

You won't find any mention of DCA Trust, DotConnectAfrica, or new gTLD .AFRICA in former ICANN CEO Fadi Chehade's recent "Farewell Letter" (pdf), to the ICANN Board, though there should have been since all of the alleged misconduct occurred "on his watch" as ICANN CEO, and there are many lessons to be learned about ICANN's propensity for "insider dealing," favoritism, conflicts of interest, and other conduct unbecoming of ICANN directors, officers, and staff illuminated in the DCA Trust IRP case. As Kieren McCarthy reported last July: "To date, ICANN's board has not made a statement about the appropriateness of its actions or those of its staff. Nor has it suggested an investigation or other review into the activities highlighted in the review panel's final report." This must be why ICANN wasted $106,000 on Fadi Chehade's Tribute party in Marrakech! Whatever happened to ethical leadership?

Nonetheless, 'having won the battle' DCA Trust a/k/a DotConnectAfrica may have 'lost the war' when it failed the subsequent evaluation referred to in the ICANN Board Resolution first above, which ICANN counsel relies upon in opposing Plaintiff DotConnectAfrica's Motion for Preliminary Injunction, set for Hearing April 4, 2016, in U.S. District Court in Los Angeles:
"When Plaintiff’s Application was returned to processing, it was sent back to exactly the same stage (as the IRP Panel had recommended), the Geographic Names Panel review. The Application was not  returned to the “beginning of the process” as Plaintiff alleges (an argument for which Plaintiff provides no evidence). Rather, the Geographic Names Panel reviewed Plaintiff’s previously-provided documentation, gave Plaintiff two chances to supplement its documentation, and ultimately determined that Plaintiff had not provided sufficient documentation of support or non-objection. If an applicant fails to submit sufficient documentation of support or non-objection, even with the chance to supplement its documentation, “the application will be considered incomplete and will be ineligible for further review.” (Guidebook at 174 (§ 2.2.1.4.4).) Accordingly, following the IRP Panel’s Declaration, ICANN’s Board lifted its stay on the delegation of .AFRICA. This was all entirely in accord with the IRP Panel’s recommendation that Plaintiff’s Application be “permit[ted] . . . to proceed through the reminder of the new gTLD application process.” (IRP Panel Declaration at 67-68 (¶ 149).) In sum, ICANN complied in full with the Declaration. There is no basis for declaratory relief because the only “controversy” between Plaintiff and ICANN is based on Plaintiff’s misrepresentation of the IRP Panel’s findings. ICANN fully complied with those findings, ICANN gave Plaintiff an extended opportunity to meet the conditions of the Guidebook, and Plaintiff failed to do so. Even if Plaintiff had not released ICANN of this claim, the claim provides no basis for the Court to issue a preliminary injunction. (ICANN filing embedded below, [Document 35, pp. 23-24 of 25], emphasis added, most citations deleted from quoted text.) (emphasis added)
ICANN’s Opposition to Plaintiff DotConnectAfrica's Motion for Preliminary Injunction (highlighting added) in full:



This post will be updated when the Court has ruled following the hearing on April 4th. The case has also been set for a scheduling conference on June 6, 2016, at 09:00 AM.  All litigation documents filed in this matter are available on the ICANN website

See also on Domain Mondo: US Federal Court Enjoins ICANN From Delegating New gTLD dot AFRICA (March 5, 2016).

For more background, see also: DotConnectAfrica - Wikipedia




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