News Review: New gTLD .AFRICA Plaintiff Files for New TRO vs ICANN

Domain Mondo's weekly review of internet domain news:

Feature • New gTLD .AFRICA Plaintiff Files for new TRO vs ICANN: 
UPDATE 3 Feb 2017: On Feb 3, 2016 ICANN updated its litigation page to indicate that on 4 January 2017, Court Order: Plaintiff's Ex Parte Application for Temporary Restraining Order is denied; Plaintiff's papers are deemed to be a new preliminary injunction motion; Parties are to submit supplemental briefs; and Preliminary Injunction hearing set for 31 January 2017 (which the Court later moved to 3 February 2017).  No further update as to the Feb 3rd hearing (as of Feb 4, 2017, 00:00 UTC).

Original post:
According to the website for the California State Superior Court, in the case involving new gTLD .AFRICA, Plaintiff DotConnectAfrica Trust (DCA) filed for a Temporary Restraining Order (TRO) on January 4, 2017, to which responses were filed that same date by Defendant ICANN and Intervenor ZA Central Registry (ZACR):

• 01/04/2017 Ex-Parte Application (FOR TRO, ETC; ) Filed by Plaintiff DCA
• 01/04/2017 Declaration (OF SOPHIE BEKELE ESHETE, ETC; ) Filed by Plaintiff DCA
• 01/04/2017 Declaration (OF ETHAN J. BROWN, ETC; ) Filed by Plaintiff DCA
• 01/04/2017 Opposition Document (TO PLFF'S EXPARTE APPL, ETC; ) Filed by Intervenor ZA Central Registry (ZACR)
• 01/04/2017 Declaration (OF DAVID W. KESSELMAN, ETC; ) Filed by Intervenor ZACR
• 01/04/2017 Opposition Document (TO DCA'S EXPARTE APPL, ETC; ) Filed by Defendant ICANN

According to the California State Superior Court website, Plaintiff's application for TRO has been scheduled for a hearing on January 31, 2017, at 08:30 A.M. in department 53 at 111 North Hill Street, Los Angeles, CA 90012.

As previously reported in an update to New gTLD AFRICA Redux: DotConnectAfrica Trust v. ICANN and ZACR | DomainMondo.com, the  California State Superior Court denied Plaintiff DCA's motion for preliminary injunction in an Order dated December 22, 2016. As of 11pm UTC, January 7, 2017, ICANN has not published on its litigation web page any of the TRO filings referenced above.

Other Internet Domain News:

•   Another flawed ICANN policy is about to take effect which could adversely impact domain name registrants--Putting your rights on the clock: The IRP supplementary rules | InternetGovernance.org: "... Each IOT [Implementation Oversight Team] member must bear responsibility ... ICANN staff also played a role in the procedural fail. ... The IRP has to protect registrants, not just contracted parties ... Send public comments to this email address: comments-irp-supp-procedures-28nov16 @ icann.org. The deadline is 25 January, 2016." More information at the link above, and here (open comment period) and here (pdf).

•  ICYMI: LogRhythm.com predicts the internet will shut down for 24 hours in 2017 | BusinessInsider.com: "If you can prove that you can take down massive sites and a large chunk of the US internet for a few hours, a 24-hour outage seems pretty easy to do."

•  Riding the ICANN gravy train:  In 2016, ICANN spent $2.5 million for a select number of people to attend 3 meetings. Details here and here.

• ICANN and NTIA on January 6, 2017, formally terminated (pdf) the Affirmation of Commitments entered into by the U.S. government and ICANN on September 30, 2009.

•  Jamie Hedlund to Take on Senior Contractual Compliance and Consumer Safeguards Role at ICANN | ICANN.org: "Duncan Burns, SVP, Global Communications, will take on Hedlund's former responsibilities overseeing U.S. government relations and management of ICANN's Washington D.C. office. As part of this change, Hedlund will become a member of the Executive Team and report to [ICANN President & CEO] Göran Marby."

•  Adding up the costs of ICANN's new gTLDs: It's Official: 2016 Was a Record Year for Domain Name Disputes | circleid.com by IP attorney Doug Isenberg.

• The Public Interest and ICANN--CCWG-ACCT WS2 Jurisdiction Subgroup Mail List--"Lets take and decide issues on merit, of public interest, of justice, equality, democracy, and the such. Let issues not get decided by which parties have the most resources, including time, to invest in these so-called 'open processes' . Obviously, the most well-resourced will have the most resources and time. Governance and policy spaces are meant more to side with those who otherwise have less means and resources, not to augment the power of who already are better off in this matter. That is the tragedy of open multistakeholder processes that are not framed within democratic principles and concepts. Public interest is not the sum of private interests that can assemble, and elbow out others, on a designated space/table, it is meant to be  a different, much higher, thing."

•  Warning Domain Name Registrants: Malware Purveyor Serving Up Ransomware Via Bogus ICANN Blacklist Removal Emails | Techdirt.com.

•  ICANN new gTLDs second round: it may be too late to "get it right this time" but some think not:

"... I’d like to think that a second time round, in whatever form the second time takes, we’re going to do a better job than the first time. We learned an awful lot in the first time round. There were a whole host of changes that were introduced really only after we saw what the applications were like. Now presumably we have an idea, you know, the balance may change but we’re not likely to see absolutely brand new types of applications. So I’m sure we’re still going to have some corrections to make along the way because we will be - almost certainly will be introducing a lot of changes, and some of those may have an issue with them as we go forward. I think we’re going to do a lot better than the last time ..."--Alan Greenberg, ALAC member, New gTLD Subsequent Procedures Working Group, Monday, 19 December 2016 transcript (pdf).

•  Internet Freedom | Free Speech Online:

• Turkey--′Worst country′ for media freedom in 2016 | DW.COM | 27.12.2016--"... According to the Turkish Journalists' Association, 148 journalists are currently imprisoned and many media outlets have been shut down ..."
• Africa--Govts Adopt Internet Shutdowns to Quell Crises in 2016 | allAfrica.com--"Governments in Africa are becoming increasingly intolerant to freedom of speech, with Internet shutdowns now a common occurrence in many countries, a new report shows."
• More African governments blocked the internet to silence dissent in 2016 | Quartz | qz.com: "For years, the internet has had a transformative effect on the economic and financial progress of the African continent. The availability of mobile broadband and fiber optic cable connections encouraged the growth of innovative industries ranging from e-commerce to education, health, insurance and beyond. But in 2016, the reverse became the reality, as government-directed internet outages became the rule rather than the exception."
• UK--This threat to Press freedom is so wrong ... | dailymail.co.uk--"... Under Section 40 of the Crime and Courts Act [UK], rushed into law after the Leveson Inquiry, any relevant newspapers or news websites - from MailOnline to The Guardian, Huffington Post and Buzzfeed - which refuse to join a regulator approved under the Government's Royal Charter for the Press, and are sued for libel, will be forced to pay the other side's legal costs — even if they win ..."

•  Most popular posts (# of pageviews Sun-Sat) this past week on DomainMondo.com:

1. TechReview | Tech Story of the Year: Tay, Microsoft's AI Chatterbot*
2. News Review: ICANN Busy Proving IANA Transition Was A Terrible Mistake
3. Predictions for 2017: Amazon $AMZN, Google $GOOG, Facebook $FB
4. Scott Galloway: 2016 Digital Winners & Losers, 2017 Predictions (video)
5. MacroView | Market Outlook for 2017: Trump Effect, Optimism, Risks
6. TechReview | 2017 Will Be The Year Of Amazon $AMZN (video)

*"Tay" post #1 for two weeks in a row!

-- John Poole, Editor, Domain Mondo 

feedback & comments via twitter @DomainMondo
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DISCLAIMER

News Review: IANA Implementation, GNSO Open House, .COM Q1 2016

Domain Mondo's review of the past week and look ahead: 
• The most important ICANN webpage right now is here--that is the page with links and information about the ongoing IANA Transition implementation work, including this graphic:

See also Friday's CCWG-Accountability Co-Chair Update: ICANN, IANA Transition, Implementation, WS2, CCWG-Accountability | Domain Mondo.

• Take note of ICANN GNSO Working Group Newcomer Open House Session | 5 April at 20:00 UTC - RSVP via this form--remote participation details will be sent on 4 April 2016. Learn how to effectively participate in ICANN's Generic Names Supporting Organization (GNSO)--"these informal sessions provide an ideal opportunity for participants to ask questions about the GNSO Policy Development Process and the specifics of taking part in a Working Group"--Reading Materials for review in connection with the session: Annex A of the ICANN Bylaws; PDP Manual (pdf); PDP Overview; Consensus Policy; GNSO Working Group Guidelines Summary (pdf); GNSO Working Group Guidelines (pdf).

Here's the GNSO Project List (pdf)  (as of March 4, 2016):

See also: http://gnso.icann.org/en/

• The DotConnectAFRICA Trust vs ICANN hearing in U.S. District Court, Los Angeles, on Plaintiff's Motion for Preliminary Injunction to stop ICANN from further proceeding with delegation of the new gTLD .AFRICA is scheduled for April 4. In the meantime, ICANN has moved to dismiss Plaintiff DotConnectAFRICA Trust's case, which motion is noticed for April 25, 2016. Updates will be posted on Domain Mondo at New gTLD AFRICA: DotConnectAfrica Trust vs ICANN, End of the Line?.

• With the end of Q1 2016, this past week, earnings season has begun. Domain Mondo will provide coverage of a select group of technology and domain name industry companies: Apple, Facebook, Alibaba, Amazon.com, Alphabet (Google), Yahoo, Neustar, Twitter, Verisign, Web.com, Rightside, GoDaddy. The schedule for each earnings release, once announced, will be posted on Domain Mondo's Stock Links page.

• Speaking of end of the first quarter of 2016, Verisign, registry operator of .COM and .NET gTLDs, posted this information on Friday:

.COM & .NET DOMAIN NAME BASE AS OF 04/01/2016

.com 126,596,055

.net 15,858,054

Total 142,454,109

The active zone as of 04/01/2016 contains 125,622,442 .com domain names and 15,654,074 .net domains totaling 141,276,516 domain names.

Largest Top 20 gTLDs at scale, .COM far left (8.8.2014)

.COM, still by far the largest Top-level Domain in the world (see chart at left), as of  December 31, 2015, had a reported Domain Name Base of 123,998,138, so "net adds" for Q1 2016 were 2.6 million domain names for .COM alone.

Which reminds me that not only are the Chinese still actively registering .COM domain names, but notwithstanding the misinformation spread by ICANN & new gTLD operators, you can still find and register good exact match dot COM domain names--just this past Friday an old friend contacted me for advice concerning a new business he was starting in a highly-regulated industry. He included in his email the name he had in mind for the business. I immediately checked, and the exact match .COM domain name was available for registration, as well as 3 alternative .COM domain names I also suggested he immediately register before proceeding further.

This past week's five most popular posts on Domain Mondo (# of pageviews Sun-Sat):

1. News Review [March 27]: France Blasts IANA Proposal, Berkman to Assess ICANN
2. ISIS and the Internet: Networks, IP Addresses, Domains (videos)
3. Ben Horowitz on the Lessons He Learned From Intel's Andy Grove (video)
4. Is This The Time For Americans To Invest In Cuba? (videos)
5. Domain Names, New gTLDs, Present & Future Perspectives, SSIG Video

If you haven't seen the video in #5 above, I highly recommend it, particularly the presentations given by Philipp Grabensee, Chairman of the Board of Directors, Afilias, and Keith Drazek, Vice President of Public Policy & Government Relations, Verisign.

Have a great week!

-- John Poole, Editor, Domain Mondo


Follow @DomainMondo

DISCLAIMER

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

UPDATE June 16, 2016: New 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 Register: Unredacted: 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.com: ICANN 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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