Direct Comparison of Quotes from MCMC and Ombudsman Emails

Why the Ombudsman’s “Out of Scope” Decision Is Incorrect and Contradictory

The Ombudsman’s 9 December 2025 “out of scope” decision rests on a mischaracterisation of the complaint and constructs self-contradictory barriers to review. The MCMC email of 5 December 2025 — from Malaysia’s Governmental Advisory Committee (GAC) representative — explicitly removes the matter from the category of commercial or contracted-party disputes and assigns the procedural concerns to ICANN’s internal governance framework.

When the two communications are read side by side, each basis relied upon by the Ombudsman to decline jurisdiction is directly contradicted by Malaysia’s sovereign authority or by the Ombudsman’s own stated mandate.

Below, the key issues are presented through side-by-side quotations (Ombudsman on the left, MCMC on the right), followed by the resulting contradiction or Catch-22.

Threshold Error: Mischaracterisation of the Complaint

Before addressing specific points, it is necessary to identify a threshold error that permeates the Ombudsman’s decision.

The complaint is repeatedly framed as a dispute concerning contracted parties, policy outcomes, or requested remedies. In fact, the substance of the complaint concerns ICANN staff conduct — specifically the handling, timing, communication, and procedural fairness of Contractual Compliance and the Ombudsman itself.

This mischaracterisation is outcome-determinative. By re-labelling a staff-conduct complaint as a contracted-party or policy dispute, the Ombudsman excludes it without ever performing the fairness evaluation required under Article V of the ICANN Bylaws.

1. Nature of the Complaint: Internal ICANN Governance vs. Contracted-Party Dispute

2. Ombudsman’s Mandate Over ICANN Staff Conduct

MCMC’s call for stronger transparency and timely engagement directly validates these procedural deficiencies as legitimate governance concerns, squarely within the Ombudsman’s stated jurisdiction.

3. Reviewability of Inaction and Delay

• Review cannot begin until a final decision exists.
• Once a final decision exists, the delay preceding it is no longer reviewable.

Under this logic, prolonged inaction by ICANN staff extinguishes its own reviewability. MCMC’s emphasis on timely engagement highlights the very unfairness rendered inaccessible by this framework.

Documented Circular Delay Between ICANN Compliance and the Ombudsman

The procedural delay in this matter did not begin with the Ombudsman’s involvement. The formal complaint was filed with Namecheap on 11 June 2025 and escalated to ICANN Contractual Compliance on 11 July 2025. ICANN Contractual Compliance has confirmed that the case remains open because the Ombudsman stated it could not proceed until Compliance issued a final decision. The Ombudsman, in turn, relied on the ongoing status of the Compliance case to defer review. This circular dependency created a closed loop in which each body’s inaction was justified by the other’s, rendering the complaint procedurally immobile while delay accumulated without accountability.

4. Remedy Limitation vs. Process Review

By treating the existence of harm or a requested remedy as a jurisdictional bar, the Ombudsman collapses the distinction between process review and outcome reversal, effectively nullifying its oversight function whenever procedural failure causes real damage.

5. Internal Inconsistency in the Ombudsman’s Reasoning

This produces a Catch-22: delay is acknowledged as reviewable unfairness, but once a delayed response is issued, the delay itself becomes untouchable. MCMC’s explicit identification of “timely engagement” as a governance concern underscores that the Ombudsman’s refusal is not compelled by scope, but by internal inconsistency.

6. Failure to Provide a Reasoned Scope Determination

A conclusory “out of scope” finding that ignores both the substance of the procedural allegations and the sovereign authority’s governance framing is not a reasoned determination; it is an unsupported exclusion that defeats the Ombudsman’s oversight function.

7. The Ombudsman’s Own Delay Validates MCMC’s Concern About Timeliness

The MCMC — a sovereign GAC authority — diplomatically highlights the need for improved timely engagement in ICANN’s internal processes, identifying it as a legitimate governance concern.

The Ombudsman’s 70-day delay in issuing its “out of scope” decision—while repeatedly violating its own 3–5 day response guarantee—isn’t just poor administration. It is the operational definition of the very unfairness the office was created to eliminate.

This is more than negligence; it is institutional hypocrisy, enacted. The office that claims authority to judge whether ICANN staff have been “timely” and “responsive” demonstrated, in its handling of this complaint, that it cannot—or will not—adhere to its own most basic standards. The Ombudsman did not merely fail to help; its protracted delay actively compounded the harm, becoming a primary source of the unfair treatment it then refused to investigate.

Thus, the ultimate Catch-22 is not just procedural—it is moral and existential. The fairness mechanism is itself unfair. The office that exists to ensure others follow process cannot follow its own. Its “out of scope” refusal is therefore more than wrong; it is self-incriminating. The Ombudsman’s conduct in this case provides irrefutable evidence that the system is not merely flawed, but self-negating. When the auditor’s own ledger is fraudulent, the entire framework of accountability is revealed as a sham. (Nothing in this section relies on inference, motive, or interpretation; every allegation is grounded in the Ombudsman’s own published standards, correspondence, and documented timelines.)

In short: The Ombudsman’s 70-day delay is not a side detail. It is the core evidence that the office has abandoned its founding purpose. It did not just deny my complaint—it embodied the very injustice I was complaining about. The fixer becomes the proof of the problem.

*Every finding stated above is based exclusively on the Ombudsman’s own correspondence, ICANN-published service standards, and the documented chronology of events, including delays that predate and extend beyond the Ombudsman’s involvement.

Conclusion: The Decision Is Untenable and Warrants Reconsideration

Malaysia’s GAC representative — the sovereign authority whose reserved-name policy triggered the deletion — explicitly:

• rejects characterisation of the matter as a commercial or contracted-party dispute;
• assigns the procedural concerns to ICANN’s internal governance;
• and signals the need for improved transparency and timeliness in ICANN staff handling.

This directly contradicts every basis for the Ombudsman’s “out of scope” finding:

• No contracted-party dispute (per MCMC).
• Pure ICANN staff procedural conduct (within the Ombudsman’s mandate).
• Governmental acknowledgment of deficiencies in transparency and timeliness (the precise unfair treatment to be evaluated).

The decision is not a neutral application of scope. It is a misclassification sustained by circular logic that shields ICANN staff from the oversight the Ombudsman’s office exists to provide.

New evidence from Malaysia’s GAC representative aligns the complaint squarely with the Ombudsman’s jurisdiction. The “out of scope” determination is internally contradictory and should be reconsidered.

The evidence is cataloged here. The structural solution is THE WONG CLAUSE, and it is being institutionalized.