Gmail Sivasubramanian M <isolatedn@gmail.com>

Decision

Sivasubramanian M <isolatednet@gmail.com> Thu, May 23, 2013 at 10:30 PM
To: Chris LaHatte <chris.lahatte@icann.org>
Dear Ombudsman,

I reached the Ombudsman's Office actually directed by the Chair of the Board Governance Commitee, Bruce Tonkin's remarks: "... on the issue of ICANN's accountability mechanisms to clarify that the reconsideration process does not actually allow for a full-scale review of a new gTLD application. The Independent Review Process is for areas where there are alleged breaches by the Board of ICANN's Articles of Incorporation or Bylaws. The ICANN Ombudsman has a broader remit, to provide an evaluation of complaints that the ICANN Board, staff or a constituent body has treated the complainant unfairly."  As noted in http://www.icann.org/en/ groups/board/documents/prelim- report-11apr13-en.htm#2.c Bruce Tonkin, encouraged the community to use the Ombudsman where they have complaints of potential unfairness.

This is also echoed on the Board Governance Committee's recommendation:  "The grounds cited make clear that Nameshop is asking for a re-determination of its Change Request, and a decision that the Change Request should be granted. That is not a proper
use of the reconsideration process. As Bruce Tonkin noted at the 11 April 2013 Board meeting, the reconsideration process does not allow for a full-scale review of a new gTLD application. (Preliminary Report of 11 April 2013 meeting, at http://www.icann.org/en/ groups/board/documents/prelim- report-11apr13-en.htm.) The focus instead is on the process followed in reaching decisions on New gTLD Applications."

I could not find the verbatim transcript of the Board Meeting on 11th April, but the essence of the suggestion is that the issues brought up by Nameshop would rather be dealt with by the Ombudsman's Office.

The Accountability and Review process can not toss this issue out of reconsideration process to the Ombudsman and at the same time limit the Ombudsman's Office from acting upon the issue. As mentioned earlier, throughout the process of the the Nameshop's requests for review, it has been a situation of ICANN's unwillingness to review unfair and prejudicial decisions within ICANN.

Besides, the issues are midway in process at the Ombudsman's Office, it has progressed to indicate a draft decision for discussion, some exchanges, submission of additional material and at this stage, it would be fair for the Ombudsman to carry the investigation to its logical conclusion.

I request the Ombudsman to a) not to discontinue the process and b) continue the process as thoroughly as possible and c) offer a fair and impartial and fair solution from the process.

Thank you.
Sivasubramanian M








On Thu, May 23, 2013 at 9:51 AM, Chris LaHatte <chris.lahatte@icann.org> wrote:

Dear Mr Muthusamy

 

I am not sure if you are aware that my jurisdiction has some limits. My bylaw says “The charter of the Ombudsman shall be to act as a neutral dispute resolution practitioner for those matters for which the provisions of the Reconsideration Policy set forth in Section 2 of Article IV or the Independent Review Policy set forth in Section 3 of Article IV have not been invoked.”

 

So in this case my powers are in fact not strictly available where reconsideration has been sought. But there would be no point now in revisting this, because now there has been a reconsideration, there is nothing further I can do. I suggest you consider this, and if you see that I do I have jurisdiction, please let me know your views.

 

Regards

 

 

Chris LaHatte

Ombudsman

Blog  https://omblog.icann.org/

Facebook http://www.facebook.com/ ICANNOmbudsman

Webpage http://www.icann.org/en/help/ ombudsman

 

 

Confidentiality

All matters brought before the Ombudsman shall be treated as confidential.  The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint.  The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint

 

From: isolatedn@gmail.com [mailto:isolatedn@gmail.com] On Behalf Of Sivasubramanian M
Sent: Thursday, May 23, 2013 8:14 AM
To: Chris LaHatte
Subject: Re: Decision

 

Dear Ombudsman

Thank you for enabling this discussion by sending me the draft decision and for your willingness to consider the submitted complaint and additional material being submitted further. I also wish to thank you for following the International Ombudsman Association guidelines to emphasize the need for informality in the approach to decisions by the Ombudsman.

However, in the draft decision it was mentioned that the Ombudsman's jurisdiction is limited to finding unfairness and/or delay and elsewhere it was mentioned that the role of the Ombudsman is "not to review the reasons [for the arbitrary and discriminatory decisions] but only to see if the process for reaching those reasons was conducted fairly" and also, "it is not part of the Ombudsman's role to act as an appellate body, but only to assess the fairness of the process".  This echoes the objectionable position taken by the Board Governance Committee that it would not look into the substance of the issue, but would attend to the request only if there is a violation of the process.  The Ombudsman might please not consider his Office limited in any manner.

The issue presented for the Board Reconsideration and to the Ombudsman is this:  ICANN tries to suppress the application for a legitimate and valuable gTLD string, .INTERNET, for unstated reasons, in ways and methods unbecoming of its own high standards of Governance. ICANN perhaps has unstated reasons and unwritten rules related to this generic string, and not finding any reasons within the published guidelines or the available process, attempts to find circumlocutory arguments to suppress this application.

Even on its contention that it followed the due process, if a process is seen on record to have been followed, it is only made to appear as followed or recorded as followed for the sake of documentation. For example, "careful review of the application" is not quantifiable, it could mean a scientific, thorough review of the various aspects of the application at length by a body of fair and neutral evaluators without prejudice" or it could also mean the evaluators opened the application packet, flipped through the pages, brushed it aside to announce the premeditated conclusion.  ( This is not stated here at this portion of this letter to allege the later, but what is attempted here is to draw the Ombudsman's attention to the limitations of a vague statement such as "the process was followed" or "the application was rejected after careful consideration". )

I wish to request the Ombudsman to note, examine and look into the following:

Change Request Decision:


a) No reasons were assigned for the Change request decision; No reasons were assigned for rejecting this specific change request against approval of hundreds of other change requests including some string change requests
b) there was a vague statement that the decision was made after "careful consideration" What was considered and what was not considered and what was wrong with this Change request in particular?

Applicant Support Decision:

a) The published criteria was listed and there was a vague statement that the application for support was rejected because it did not comply with all the criteria as listed. In response, it was shown, point by point, as to how the application confirmed to all the criteria as listed, but was not taken note.

b) The process was not transparent and was cloistered in secrecy.

c) It is not known if there was any member of the SARP panel was negatively prejudiced towards this particular application.

d) An adverse applicant support request carries the implication of  a peculiar and unnatural rule of disqualifying the entire application out of the present round apart from denying support. The decision is not a refusal to bridge the gap in application fees, but to remove the application altogether. The timing of the SARP decision was so that the hurdles to the nameshop application by way of the Change Request decision were reinforced and compounded by the SARP decision. It is difficult to rule out the possibility that the SARP decision was another indirect way of suppressing the request for the string .INTERNET.

Pertaining to the Nameshop requests for reconsideration, by email to Staff and Board on various dates, by the formal reconsideration process and even in the Ombudsman process by early indications, several pertinent facts and arguments have been skipped, and several questions were left unanswered. There is a refusal to look into the questions citing flimsy procedural limitations, while in the case of the answered questions, there is a visible attempt to make vague statements such as "process was followed", the matter was "carefully considered" while in reality ICANN grossly ignores the  merits of the requests as submitted and the requests submitted for reconsideration.  ICANN actually takes advantage of the limitations of this applicant and grossly attempts to suppress this application and its merits in a manner that it would not think of in the case of any large applicant had this been a problem experienced by one of such large applicants.

Throughout the course of these issues, it is a situation of Staff unwillingness to correct a wrong decision by a subcommittee or External Consultants, Board refusal to interfere in Staff decision, BCG's unwillingness to acknowledge a gap in Board Governance or Staff processes.  I hope that the Ombudsman looks into these issues thoroughly, examines and goes way beyond the "draft decision" which rightly or wrongly gives me the impression of a Legal Letter defending ICANN's Actions pertaining to the Nameshop Application from the Office of the ICANN Ombudsman.  I regret to particularly note that many of the facts and reasoning presented are dismissively recorded as "allegations"

However, It is reassuring to note that the draft decision was termed as one that was conveyed to aid discussion. It has indeed served its purpose well as intended, as it has brought up the points as mentioned in this communication

 

During the last one week, the new gTLD committee meeting was announced with the adoption of the BCG recommendations on the Nameshop reconsideration request as one of the agenda items, so I wrote to the new gTLD program Committee Chair to request that the BCG recommendations be returned to the Board Governance Committee for reconsideration. However, the new gTLD program committee has adopted the recommendations without any indication of any attention to the letter sent to them on 17th May.

The letter sent to the new gTLD program committee Chair is attached here with the request to the Ombudsman to consider it as a pertinent document especially in view of the initial impressions conveyed in the Ombudsman's draft decision that "there has been an open and transparent treatment of this application"  This is not true.

1. The Board Governance Committee's dismissal of the Reconsideration Request submitted by Nameshop, with a visible choice of excessive legal parlance (without sound legal basis), is untrue and misleading on several counts:

The BCG argued that the applicant did not provide detailed explanation of the facts presented to the Staff / material information not considered by Board in accordance with the provisions of Bylaws, Art. IV, § 2.6(g and h) on this Request concerning Board Inaction on the Nameshop appeal against the Change Request as well as Staff Action / Inaction concerning the SARP panel decision. Detailed explanation was indeed provided in the Reconsideration Request. So this observation by the Board Governance Committee is false and misleading. (Links to the Reconsideration Request and the Reconsideration attachments are included below the signature of this document to show that sufficiently detailed explanation of the facts were indeed presented)

2. The Board Governance Committee argues that the the portion of the Reconsideration Request related to the Change Request is not timely.

Nameshop reconsideration request was on inaction on the letters of appeal to the Chair and CEO. It was 'on time' as a reconsideration request on 'inaction'. Any time gap can be calculated from a point of action, but an 'inaction' that it by nature inconclusive can not possibly be pinpointed to a particular point of time. For the purpose of a certain rule related to a certain time-line on any inaction, what is relevant is an approximate point of time which can reasonably be considered a point when 'inaction' appears obvious. In this case, Nameshop received the Change Request decision on 19th February 2013. On 27, February, within 8 (eight) days, Nameshop appealed to Chair, CEO and COO and immediately thereafter forwarded to the Board Members of the new gTLD program and the Chair of the At Large Advisory committee. The applicant waited for a response for about a month, and as 'inaction' by the Chair, CEO, COO and the Board Members of the new gTLD program appeared obvious, the reconsideration request was filed on March 29, 2013. The Board Governance Committee has erroneously interpreted the provision as filed 40 days from from the date of the Change Request Decision (action by Staff). The reconsideration request was on 'inaction' on the appeal to Chair, CEO, COO and the Board Members of the new gTLD program, it was very much on time, the request confirmed the norms laid down. If it was convenient for the BCG to claim the reconsideration request as delayed by 10 days, it implies that the BCG was inclined at the outset to find flimsy reasons not to reconsider the request at all.

With the convenient misinterpretation of the provisions of the 30 day time limit, the Board Governance Committee presents an impression of infallible adherence to all time lines of the new gTLD program as if by clock work. This is not the case. Throughout the progress of the new gTLD program implementation, various rules and time lines were laid down, relaxed and compromised as it suited ICANN. The applicant is curious to know if ICANN, for instance, adhered to the $5000 TAS registration fee deadline, application fee deadline, or even the application deadline in all cases. While the possible relaxations in any of these crucial deadlines are matters of internal records not yet transparent, the applicant is aware that ICANN relaxed application deadline by weeks for every applicant, for instance. This indicates that far more crucial time limits have not been considered sacrosanct, especially when it suited ICANN. In this case of a request to reconsider prejudicial and unexplained decisions related to the Nameshop application, it suits the Board Governance Committee to appear to consider an inadequate time limit sacrosanct and inviolable, and also create the impression of a violation by the applicant by an erroneous interpretation of the rule related to the 30 day limit to wrongly and inappropriately apply that rule on 'inaction' so as to decline the reconsideration request on the fair string change, which when denied makes it convenient to argue that a 'string' does not exist, so the other request for Applicant Support is irrelevant.

If the Board Governance Committee has chosen to take recourse to this rule, invent a violation of this rule where there was none, and cite it as a compelling reason for not considering this request to review the harm done to this applicant, it amounts to a blatant compromise of the high standards expected in ICANN Governance.

3. The Board Governance Committee cites another module of the Bylaws to argue that The Reconsideration The AGB does not set forth any “appeal” process, for the convenience of dismissing Nameshop's notice on February 27, which was within 8 days of the Change Decision, to the new gTLD via Customer Service Center on its intent to appeal and the timely appeal by email to ICANN’s President and CEO and two other Board members requesting an “appeal” of the ruling on the Change Request. (27 February 2013 email to Fadi Chehadé.) This was also sent to the Chair of the Board new gTLD program Committee. The Chair of the new gTLD program replied to say that “Your letter will be handled appropriately by ICANN staff.” However there was inaction by Staff and inaction by the Board on this matter, so the reconsideration request was filed after waiting for 30 days. As shown earlier, the Reconsideration Request was on inaction, and was reasonably prompt, not at all delayed, but the Board Governance Committee conveniently cites AGB Module 6 (Terms and Conditions) to attempt to suppress, strike away or erase from record, the applicant's communication to the Chair of the Board, Chair of the new gTLD program Committee and the Board Members of the new gTLD program committee which was filed by the applicant within 8 (eight) days from the date of the Change Request decision, in order to wrongly record the Reconsideration Request as a request on the Change Decision dated February 19, and not a Reconsideration Request on inaction on the communication to the Board on February 27. This again is not in tune with the high standards expected of ICANN Board Governance.

4. The Board Governance Committee takes a legally defensive posture out of excessive caution and fails to acknowledge that the Change Request decision and the SARP panel decisions are unexplained and arbitrary:

The evaluation of the Change Request was not explained, the letter from Christine Willet on February 19, 2013 communicating the prejudicial, discriminatory and unfair Change Request decision did not assign reasons, it was an arbitrary rejection with the vague and false claim for record that the the Request was rejected 'after careful evaluation of the criteria'.

The letter from Chrintine Willet on March 11, 2013 to Nameshop notified that Nameshop’s application failed to meet the Public Interest Benefit, Financial Need and Financial Capabilities criteria, in multiple ways. This also amounts to a vague claim that the request was denied because the application did not meet the criteria, but did not assign reasons.

5. The “Analysis of the Request.” in the BCG Recommendation is misleading and grossly inadequate. It points to a determined will to find reasons not to review the prejudicial internal decisions / inactions by ICANN, with an ill-fitting emphasis on non-existent “delays”, and by an argument that “there are no failures [by ICANN] to meet documented process” to recommend that the Request be denied in full. This indicates that the Board Governance Committee was perhaps inclined at the outset to deny the request and thereafter found a way to list flimsy reasons.

6. The Board Governance Goes back to argue that there is no “appeal mechanism set forth”. It also observes : “That some members of the Board received communications from Nameshop regarding the appeal does not create Board action or inaction on an item.” The assertion here is that Board could ignore a paramount matter concerning a gap in ICANN governance, even without a response from one of the Staff Assistants of the Board that the Board would not act upon it. More disturbing is the observation by Chair of the Board Governance Committee, Bruce Tonkin as noted at the 11 April 2013 Board meeting, that the reconsideration process does not allow for a full-scale review of a new gTLD application.

All this is contrary to the principles of natural justice. Throughout the course of these issues, it is a situation of Staff unwillingness to correct a wrong decision by a subcommittee or External Consultants, Board refusal to interfere in Staff decision, BCG's unwillingness to acknowledge a gap in Board Governance or Staff processes (and what if the Ombudsman would not want to look at any of the above?). This pattern of the whole organization standing by the actions of the internal decisions, with a weak, but convenient misinterpretation of the various provisions of the ByLaws and the perceived or purported limitation of the Accountability framework, apparently arguable, but contrary to the spirit of the laid down standards of ICANN Governance and its Accountability and Transparency framework.

7. In its rationale for rejecting a review of the SARP panel decision, the Board Governance Committee selectively cites convenient portions from the Reconsideration Request drafted by the Applicant without legal help or any professional help, drafted in defenseless faith in the ICANN process, omitting the emphatic arguments for reconsideration. The facts were strong, the arguments were emphatic but the BCG argues that “Nameshop failed to identify any process that the SARP or the ICANN failed to follow in the consideration of the financial assistance application.” In particular, SARP did not assign specific reasons for rejecting the application for applicant support, except for a vague note that the application did not confirm to the list of criteria. BCG did not take note of the absence of reasons, nor did it take note of or comment on the point by point explanation by the applicant as how the application confirmed to the criteria.

8. BCG also makes a contradictory observation that .IDN was not allowed, the request to change the string to .INTERNET hasn't yet gone through, so the application for support was also “moot”.

Together, all this points to the possibly that new gTLD program visibly and blatantly discriminates against the Nameshop application with its request for .INTERNET. The applicant wishes to ask the new gTLD Program Committee pointedly if ICANN has unstated reasons and unwritten rules related to this generic string, which as stated in the Change request, is relevant to the purpose of this new gTLD application, not a reserved or prohibited string, not a geographic string, and not an already applied for or contented string. Within the framework of the new gTLD program and within the stipulated guidelines, there are no provisions to discriminate this application for this string, which is duly applied for by the published Change Request process. While several other change requests have been approved, this request in place is treated unfairly, so a specific response is requested on ICANN's position on this specific string and a specific statement is requested reasons if any, to discriminate (if true) this applicant from being successful with the application for .INTERNET. It requires an assurance that ICANN is not going beyond the norms established nor creating new norms to suit its arbitrary decision on this string, which would be most unfair.

The business prospects of the Nameshop application arises from the business idea which is that of offering an ASCII domain name for every International Domain Name (Domain name in a local language script) registrant to point to their IDN (local language) web space. The idea is to make the Web Spaces in local language scripts identifiable and accessible by users from other language communities and thereby contribute to the Community's efforts to keep the Internet as One Internet. With this business idea, the string .Internet has the prospects of several million registrations which is under threat. (The 'value' of an applied for string, especially as an uncontested string, is well understood by ICANN, based on its knowledge of the business value of existing strings such as .com. It is ICANN's knowledge of the value of applied for strings that gave rise to a process that led to an application process that was safe-guarded from 'gaming the application system' and to rules such as restriction of eligibility to bid for a contested string to only those who have applied for that specific string. If .INTERNET were to be unfairly denied, it would amount to an action that is materially unfair to this applicant who has first thought of and applied for it by the available process; Delays in evaluation of .INTERNET affects the business prospects in augmented proportion to the length of the delay.

More importantly, Nameshop's new gTLD application is interlaced with and somewhat centered on a larger purpose of materially and substantially contributing to the Internet Community's good efforts as narrated in the section on the mission and purpose of the applied for string and as committed in the documented Public Interest Commitments. (It is once again emphasized that the Applicant would make legally binding commitments to ICANN on the Public Interest commitments made, whether or not ICANN has a suitable process in place to bind the Public Interest Commitments). These pursuits are threatened.

The new gTLD program decisions, as decisions of the ICANN Board are required to be fair decisions of the highest standard, especially because ICANN Board is visible center-stage on the multi-stakeholder form of Governance that ICANN exemplifies. Beyond an applicant's scope of this request to return the BCG recommendations, this applicant wishes to make a specific request to ICANN to resist any unseen inclinations to go beyond established norms to obstruct this application for .INTERNET by visible violations of its Accountability and Transparency standards of Board Governance.

Despite the arguments presented above, the Board Governance Committee has adopted the BCG recommendations. The BCG recommendations are adopted "as Organizational Administrative Function not requiring public comment." This attempts to preempt a review of this action.

In view of these quick developments, I wish to draw the Ombudsman's attention to the fact that there is a certain degree of noticeable anxiety on the part of ICANN to rush to set aside this application. On an earlier occasion, Staff responded to a suggestion by a member of the Governmental Advisory Committee in the Board / GAC meeting (on April 9) that the status of the nameshop application would be changed to closed.  I wrote to the CEO to protest against this. Prior to this on two occasions it was indicated that ICANN would initiate the process to refund the application fee, against which also I had posted responses to convey that Nameshop does NOT wished to be rushed to withdraw it application. 

Moments ago, Nameshop received a communication through the Customer Support Portal informing of the new gTLD program Committee adoption of the BCG recommendation with the following suggestion:

"Due to this resolution, your application is not eligible for evaluation under the New gTLD Program. You may withdraw your application in TAS for a refund amount of USD47,000. We will update the New gTLD microsite application status page to reflect the status of your application in the next few days"

I have posted the following response at the CRM as attached. 

Please review the facts presented earlier, together with these developments to offer a fair solution to Nameshop.

As mentioned earlier, the Ombudsman could call me for a face to face meeting or a phone conversation or call for additional material and explanatory information wherever and whenever required, in order to be thorough in pursuing the issues presented.

 

Thank you.
Sivasubramanian Muthusamy

Nameshop

 

 

On Wed, May 15, 2013 at 11:27 PM, Sivasubramanian M <isolatednet@gmail.com> wrote:

D

ear Ombudsman

Thank you for the reply that reassures me that you would consider the issues in detail. As indicated I will submit a detailed reply and additional notes by this weekend.

With continued faith in the process,

Sivasubramanian M

Applicant.

 


---------- Forwarded message ----------
From: Chris LaHatte
Date: Wednesday, May 15, 2013
Subject: Decision
To: Sivasubramanian M <isolatednet@gmail.com>


The reason I send a draft is to enable the issues to be discussed. But you have provided a great deal of material, and if there is more, then I will read that also. The reconsideration has of course highlighted the issues already.
I look forward to your comments.
Regards 
Chris LaHatte

Sent from my iPad
On 15/05/2013, at 8:23 PM, "Sivasubramanian M" <isolatednet@gmail.com> wrote:

Dear Ombudsman

I wish to request time until this weekend to respond to your draft decision. However, as initial reaction, I wish to convey that I expected the Ombudsman process to be thorough, expected an in-depth look at the facts of the case in detail, and especially expected opportunities for the Applicant for meetings with the Ombudsman, if not face to face, by phone. (My meeting with you at Beijing was interrupted with your observation that the Ombudsman would not hear the case as the matter is under Reconsideration and that a complaint with the Ombudsman can not be pursued simultaneously. )

I have now presented the issue to your Office, but the draft decision appears rushed without any inclination to look into the ICANN decisions on which the complaint was made.

With these initial comments, please allow me time until this weekend to respond to your draft decision in detail.

Thank you.


On Wed, May 15, 2013 at 10:20 AM, Chris LaHatte <chris.lahatte@icann.org> wrote:
>
> I attach the draft decision
>
>  
>
> Chris LaHatte
>
> Ombudsman
>
> Blog  https://omblog.icann.org/
>
> Facebook http://www.facebook.com/ ICANNOmbudsman
>
> Webpage http://www.icann.org/en/help/ ombudsman
>
>  
>
>  
>
> Confidentiality
>
> All matters brought before the Ombudsman shall be treated as confidential.  The Ombudsman shall also take all reasonable steps necessary to preserve the privacy of, and to avoid harm to, those parties not involved in the complaint being investigated by the Ombudsman.The Ombudsman shall only make inquiries about, or advise staff or Board members of the existence and identity of, a complainant in order to further the resolution of the complaint.  The Ombudsman shall take all reasonable steps necessary to ensure that if staff and Board members are made aware of the existence and identity of a complainant, they agree to maintain the confidential nature of such information, except as necessary to further the resolution of a complaint
>
>