This is the second GAC Advice and a third response by DCA to a GAC Advice that initially was issued during the ICANN GAC Meeting in Beijing China, and prior to that, as a GAC Early Warning.
DCA has noted below in brief the main responses to the GAC advice. A complete unabridged version of DCA's GAC Response is available here [PDF].
The ICANN 50 GAC Advice as well as other recent communications between the GAC and ICANN concerning the dispute over .africa, demonstrates both the African Union's inappropriate efforts to determine the outcome of the applications for .africa and ICANN's improper acquiescence to the GAC's demands. We strongly urge ICANN not to accept this advice.
ICANN halted the processing of DCA's application in June 2013 on the basis of advice from the GAC — rendered at the request of the AUC, but contested by the Kenyan GAC representatives — to reject DCA's application because it allegedly did not have enough governmental support. DCA subsequently initiated an Independent Review Process ("IRP") challenging ICANN's acceptance of that advice. The IRP Panel issued an interim order directing ICANN not to take any further action on the UniForum/ZACR application, since delegation of .africa to ZACR would effectively deny DCA any remedy whatsoever. The IRP is currently ongoing.
DCA notes that the AUC has once again begun using the GAC to pressure ICANN to take actions favoring its own candidate for .africa, UniForum/ZACR and it is in this context that the GAC is advising the ICANN Board as below:
"The Affected Parties"
Remarkably, in the GAC's view, "the affected parties" to the IRP are not DCA and ICANN, the actual parties to the IRP, but the GAC, the AUC, and UniForum/ZACR. Indeed, ever since the Panel issued its order on interim measures, the GAC has been sending a steady message to ICANN that it must ensure that the IRP does nothing to interfere with the presumptive delegation of .africa to UniForum/ZACR. Thus, the GAC's second item of advice urges ICANN to "expeditiously" delegate .africa to UniForum/ZACR as soon as the IRP is completed, regardless of what the IRP Panel recommends. ICANN can and must reject this advice.
DCA finds it is surprising for the GAC to advise ICANN to keep the so-called "affected parties" informed of what is going on in the .africa IRP yet all documents filed in the IRP and decisions made by the IRP Panel are posted to ICANN's website (as well as DCA's website). The AUC and UniForum/ZACR have only to monitor these sites in order to be fully informed as to the status of the IRP.
GAC's Request for Confidential Information: DCA notes that to the extent that the GAC is advising ICANN to provide confidential information to the AUC and UniForum/ZACR concerning this proceeding, such advice is highly inappropriate and jeopardizes the integrity of the IRP proceedings. The IRP is independent of ICANN and the GAC, and neither the AUC nor UniForum/ZACR has any right to confidential information concerning this dispute resolution process.
Misleading Information by ICANN: ICANN, in its communications with the AUC, has provided very misleading information concerning the nature of the IRP. ICANN has given every indication that it agrees with the AUC that the IRP is merely a dilatory tactic to push back what is treated as the inevitable delegation of .africa to ZACR. Please see DCA's full response to GAC Advise.
The GAC's advice that ICANN should simply delegate .africa to ZACR once the IRP has been completed (regardless of what the Panel decides) is highly inappropriate. It assumes that the IRP concerning .africa is mere window dressing, an empty formality put in place so that ICANN can claim that it is meeting its obligations of transparency and accountability, but which will have no effect whatsoever on the presumptive delegation of .africa to the party favored by the GAC.
However, pursuant to ICANN's Bylaws and the rules applicable to the IRP, the Board must give due consideration to and act on the Panel's decision. Indeed, it is DCA's position that the IRP Panel's decision is binding on ICANN. Thus, ICANN cannot simply delegate .africa to ZACR as the GAC urges it to do. ICANN must comply with the Panel's decision.
"Additional observation": Lack of Proper Education of GAC Representatives
It is DCA's understanding that many of the GAC members who opposed DCA's application through the April 2013 Advice were new to the ICANN system, with the African Union Commission joining as a member in June 2012 during the Prague meetings, after the application process closed in March 2012. Based upon the discussions during ICANN 46 in Beijing and ICANN 50 in London, these new members, including the AUC, do not appear to have been educated by ICANN on the critical documents namely, the gTLD Applicant Guidebook, the ICANN Bylaws and the IRP process which is — by contract — the only independent method of review available to any applicant under the new gTLD program.
Therefore, it is DCA's deep concern that ICANN allows the GAC to intervene in ICANN's evaluation and delegation of new gTLDs without ensuring that the GAC representatives actually understand ICANN processes. DCA has raised various questions to ICANN based upon the GAC's recent actions and advice, which is also included in DCA's full version of DCA's GAC Response.
Finally, based upon these concerns and for the above noted reasons, we object to the GAC's advice as improper and betraying a failure on the part of ICANN to adequately educate and inform GAC representatives. We expect ICANN to decline to follow the London GAC Advice with regard to .africa, consistent with its obligations under the Bylaws and other documents governing ICANN and the IRP.
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