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Dot GCC Applicant Fights for Survival

Stéphane Van Gelder

Much has been said about the advice ICANN's Governmental Advisory Committee submitted to the Board of directors at the close of last April's Beijing International Meeting.

The recommendations given by governments will probably be the subject of much more discussion in the weeks ahead and the run-up to ICANN's next meeting in Durban (South Africa) in July. Especially now that the comment period opened after Beijing on GAC Advice has closed, and that ICANN has published its summary of the comments received.

Depending on which side of the multi-stakeholder fence you sit on, there seems to be two main points of view on GAC Advice. Risking gross over simplification, one side seems to consider it as a last-minute attempt to redesign a policy that was arrived at after years of community work and is the result of community consensus. The other sees it as a final grasp at sanity in a program that doesn't take much stock of consumer protection, sensitive terms and regulated industries.

Both sides have been arguing past each other since Beijing, and it's not clear they have been getting anywhere. But their discussions remain broadly theoretical. That's because so far, only two applicants have been directly impacted by GAC Advice, those that were the recipents of GAC consensus advice against their proposed TLDs. So what do they think?

Let the objection procedure play out

Having worked with one of them, GCCIX WLL, I am aware of a letter they have just penned to ICANN Board Chair Steve Crocker. Clearly, the applicant is dismayed that GAC Advice threatens to end its bid for Dot GCC before it has even had a chance to respond to an objection currently underway.

"Over the last few months Dot GCC has been the target of concentrated attacks from one specific organisation," says Fahad Al Shirawi, GCCIX WLL CEO, in the June 18 letter. "It has submitted a GAC Early Warning and filed a Legal Rights Objection with WIPO, and now has successfully lobbied the GAC to include our application in its formal advice delivered through the Beijing Communiqué."

The organisation in question is the Cooperation Council for the Arab States of the Gulf which claims in the objection it has filed with WIPO as part of the new gTLD program's Legal Rights Objection procedure to also be "known as the Gulf Cooperation Council or GCC".

Whether it's the applicant or the objector who is right is for WIPO to decide and is certainly not something I want to get into here. But whoever prevails, I am sensitive to the applicant's argument that GAC Advice should not stop the case from being heard. Right now, it looks like that is exactly what will happen as the ICANN Board's New gTLD Program Committee has accepted the GAC Advice on Dot GCC.

GCCIX WLL claim that use of the GCC acronym in the Gulf Region is so widespread as to be impossible to quantify and that the Council has never once objected to its use. "In a sense, it is a pity they have not," writes Al Shirawi. "If such a precedent had existed, we might have been able to anticipate that they would warp the GAC Advice procedure to attempt to block our application. This might have enabled us to have a full picture of the potential political pressures we might be a victim of, before investing significant time and resources (in excess of USD 400,000) to play by the Applicant Guidebook's rules, contract with a registry services provider (Afilias) and a data escrow agent (NCC Group), and go through ICANN's application procedure."

One could also argue that the GAC Advice mechanism is extremely well documented in the Applicant Guidebook and that no applicant should therefore be crying foul when they find themselves on the wrong end of it. GCCIX WLL understandably do not see it that way. "We urge the Board to show its faith in the new gTLD program and the bottom-up, consensus-driven, multi-stakeholder policy development process that led to its creation," its letter states. "Dot GCC should be allowed to proceed through both the ICANN evaluation process and the new gTLD program objection procedure."

Al Shirawi has sent a similar letter to the GAC Chair and is asking for both the GAC and the Board to make its rationale for on the one hand giving the advice and on the other accepting it. It is also asking for a shot at being heard once more through ICANN's reconsideration request procedure and that the WIPO objection procedure be allowed to play out. "If the CCASG is shown to have no right to the string GCC, then our application should be allowed to proceed," says GCCIX WLL.

Reconsideration requests are a way for anyone feeling wronged by a Board decision to ask for it be looked at again. The procedure was used recently by the Non Commercial Stakeholder Group (NCSG) as a protest against ICANN Staff's implementation of new Trademark Clearinghouse rules which the NCSG felt equated to a bypassing of community driven policy development.

The Board Governance Committee (BGC) considered the request and in essence responded that all was well with the world. Something the GNSO Council, of which the NCSG is one of the member groups, now seems upset about. If gTLD applicants start filing reconsideration requests and find the Board dismisses them in a similar fashion, the whole process of asking for a second look at Board decisions may start to come under closer scrutiny.

So if the Dot GCC applicant does file such a request, this might turn out to be an interesting test both of the new gTLD program's procedures and those of ICANN itself.

By Stéphane Van Gelder, Consultant
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Related topics: ICANN, Internet Governance, New TLDs
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