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OMG! gTLD applicant actually wins objection appeal

Kevin Murphy, March 24, 2014, 08:57:10 (UTC), Domain Policy

Medistry has become the first new gTLD applicant to win an appeal to ICANN over an objection decision that went against it.

The .med hopeful has also become the first entity in years to successfully use the much-derided Reconsideration Request process to get ICANN’s board of directors to revisit a decision.

The company’s application received a Community Objection filed by the new gTLD program’s Independent Objector, Alain Pellet, along with a bunch of other healthcare-related gTLD bids.

Medistry lost, meaning its application should be dead in the water.

But it appealed using the Reconsideration process, arguing that Pellet failed to follow the rules laid out for the IO in the program’s Applicant Guidebook.

These rules state that the IO can only object on Community grounds if there is at least one informal objection from a community member on the public record, for example filed as ICANN comments.

Medistry claims that the IO did not pass that test in its case and the ICANN board’s Board Governance Committee, which handles Reconsideration Requests, reckons that claim merits further review.

Judging by the International Chamber of Commerce decision (pdf), comments filed by the National Association of Boards of Pharmacy and the American Hospital Association were critical in showing “substantial opposition” from the healthcare community.

Without such opposition, the IO would have had no right to object.

Medistry argued during the objection case that the NABP comment, which talks about the need for patient safety, was purely “advisory” in nature and did not represent an objection to its .med application.

The ICC panelist, Fabian von Schlabrendorff, disagreed, writing:

The Expert Panel accepts that the comments made by the National Association of Boards of Pharmacy (NABP), on which the Independent Objector relies for the purpose of demonstrating substantial opposition, represent an expression of opposition, i.e. resistance or dissent, to the Application, going beyond merely having an advisory character as the Applicant suggests.

The problem with that interpretation is that it turns out to be dead wrong. Von Schlabrendorff read too much into the original NABP comment.

Medistry submitted as part of its Reconsideration Request a letter from NABP saying:

We wish to clarify that NABP’s comment was intended to be advisory in nature, stressing that health-related gTLDs should account for patient safety and implement protections against fraud and abuse. In submitting this comment, NABP did not oppose Medistry’s application to be the Registry Operator for the .MED gTLD, nor take any position as to whether Medistry’s .MED application contained appropriate safeguards.

The second public “objection” used by the IO to allege substantial opposition, an argument that von Schlabrendorff accepted, came from the America Hospital Association.

Except the AHA did not file a comment on the Medistry application (well, it did, but it was withdrawn two days later in September 2012, long before the objection process began).

The AHA did object to the other three applications for .med, filed by Google, Hexap and DocCheck, but not to Medistry’s application.

Remarkably, von Schlabrendorff chose to interpret the absence of an AHA objection as the existence of an AHA objection, speculating that it did not object to Medistry’s application due to nothing more than an oversight, and applied its objections against Medistry regardless.

even if the Applicant had established in understandable and verifiable detail that the AHA on purpose decided not to oppose the Application, such decision of the AHA would and could not change the fact that the NABP expressed opposition to the Application on grounds of public health concerns, and that the AHA raised essentially identical concerns with regard to all other .med applications.

To me, this looks like Medistry was given the Kafkaesque challenge of proving that the AHA had not objected to its application, even though there was no such objection on record.

Using a von Schlabrendorff level of speculation, I’m guessing that the AHA did file an objecting comment originally, but withdrew it a couple of days later when informed that Medistry’s parent company is an AHA member.

Given that the NABP and AHA “objections” both turned out to be non-existent, the ICANN BGC has naturally enough decided that the Medistry Reconsideration Request merits further consideration.

The BCG wrote (pdf):

the BGC finds that Request 14-1 should be granted to provide sufficient time to further evaluate whether any actions were taken in contravention of established policy or procedure, such as whether the threshold requirement set forth in Section 3.2.5 of the Guidebook was satisfied. The BGC will ensure that ICANN further evaluates this issue and provides a report to the BGC for consideration

It is important to note that the BGC’s acceptance of this Reconsideration Request should in no way reflect poorly on the IO or be seen as a finding that the IO failed to properly discharge his duties. Rather, this determination is a recognition that the Requester has submitted substantial information indicating that the IO’s assessment of what could be described as vague comments (particularly those of NABP), may not have been consistent with what the commenters intended.

What this seems to mean is that the Medistry application for .med is undeaded and that von Schlabrendorff’s increasingly dodgy-looking decision is going to be looked at.

It also means that Reconsideration Requests are not entirely useless.

No Reconsideration Request of any consequence has been accepted by the BCG in the 15 years the procedure has been active.

Generally, they’re thrown out because the requester fails to provide any new information that wasn’t available at the time the offending decision is made, which is a prerequisite for success.

In this case, Medistry’s production of the NABP letter of clarification seems to have been critical.

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