ICANN overturns new gTLD objection decision!

ICANN has overturned a Community Objection decision, allowing a .med new gTLD applicant back into the game, after a Request for Reconsideration from the applicant.
It’s the first time ICANN has overruled an objection panel during the new gTLD program and the first time in over a decade any RfR of substance has been accepted by the ICANN board of directors.
Medistry lost a CO filed by the program’s Independent Objector, Alain Pellet, back in January.
Under program rules, that should have killed off its application for .med completely.
But the company filed an RfR — ICANN’s first and cheapest appeals mechanism — claiming that Pellet acted outside his jurisdiction by filing the objection when there was not at least one informal objection from a community member on the public record.
Its case, as outlined in its RfR, was quite compelling, as I outlined in a piece in March.
Medistry argued that the International Chamber of Commerce’s panelist, Fabian von Schlabrendorff, had cited two non-existent informal community objections in his decision.
One of them literally did not exist — and von Schlabrendorff went so far as to infer its existence from its absence — while the other was “advisory” in nature and was not intended as an objection.
In March, ICANN’s Board Governance Committee accepted Medistry’s RfR on a preliminary basis, to give it more time to consider whether the IO had acted outside of the new gTLD program’s rules.
Yesterday, the BGC came to its final decision (pdf):

The BGC concludes that, based on information submitted with this Request, there is substantial and relevant evidence indicating that the Objection was inconsistent with ICANN procedures, despite the diligence and best efforts of the IO and staff. Specifically, the Requester [Medistry] has provided the BGC with uncontroverted information demonstrating that the public comments on which the Objection was based were not, in fact, in opposition to the Requester’s application. Accordingly, the BGC concludes that ICANN not consider the Expert Determination at issue and that the Requester’s Application for .MED is therefore permitted to proceed to the next stage of process in the New gTLD Program.

In other words: 1) Pellet inadvertently acted outside of his remit 2) the ICC’s ruling on the objection is simply cast aside and 3) Medistry’s application is back in the .med contention set.
The main reason this RfR succeeded while all others to date have failed is that Medistry managed to provide new information, in the form of clarifying letters from the two non-existent informal objectors, that was not originally available.
The large majority of previous RfR’s have failed because the requester has failed to bring any new evidence to the table.

The public comments from [National Association of Boards of Pharmacies] and [American Hospital Association] that were the basis for the Objection were vague and open to a number of interpretations. Given that there is substantial and uncontroverted evidence from the authors of those public comments, indicating what NABP and AHA intended, the BGC cannot ignore this information in assessing the Request or reaching its determination.

I think ICANN is going easy on the ICC and von Schlabrendorff (how can something that does not exist be “open to a number of interpretations”?) but it seems that the RfR process has in this case nevertheless been a bit of a success, overturning an extremely dodgy decision.
The .med contention set also contains HEXAP and Google.

OMG! gTLD applicant actually wins objection appeal

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.