Consideration of Expert Determination Re: Objection to Application for .HOSPITAL

The Board's action today, addressing how to deal with inconsistent and/or unreasonable Expert Determinations from the New gTLD Program LPI process, is part of the Board's role to provide general oversight of the New gTLD Program. The action being approved today is to direct re-evaluation of the .HOSPITAL LPI objection proceeding which resulted in the .HOSPITAL Expert Determination. Pursuant to the Applicant Guidebook (Guidebook), the Board has the discretion to individually consider an application for a new gTLD. (Guidebook Module 6.3, http://newgtlds.icann.org/en/applicants/agb/terms-04jun12-en.pdf [PDF, 130 KB].) The Board's action arises from Ruby Pike's arguments that the .HOSPITAL Expert Determination deviates from all other health-related LPI expert determinations and that the result is inconsistent and unreasonable such that it warrants further action. (See Letter from J. Genga to A. Stathos, dated 15 April 2015, at 8, attached as Attachment A to the Reference Materials.) As set forth in further detail in the Reference Materials, which are incorporated herein by reference, Ruby Pike, an affiliate of Donuts, Inc., argues that the Board (via the New gTLD Program Committee (NGPC)) has previously taken steps to address other inconsistent and unreasonable results by initiating a re-evaluation of a certain string confusion objection (SCO) expert determinations (SCO Final Review Mechanism) and should do so here as well. (See id.)

The Board notes that when it provided for a limited SCO Final Review Mechanism for just a very few expert determinations from string confusion objection proceedings, the NGPC specifically considered, but excluded its application to other forms of objections.

The NGPC considered whether it was appropriate, as suggested by some commenters, to expand the scope of the proposed review mechanism to include other Expert Determinations, such as some resulting from Community and Limited Public Objections, as well as other String Confusion Objection Expert Determinations, and possibly singular and plural versions of the same string. The NGPC determined that to promote the goals of predictability and fairness, establishing a review mechanism more broadly may be more appropriate as part of future community discussions about subsequent rounds of the New gTLD Program. Applicants have already taken action in reliance on many of the Expert Determinations, including signing Registry Agreements, transitioning to delegation, withdrawing their applications, and requesting refunds. Allowing these actions to be undone now would not only delay consideration of all applications, but would raise issues of unfairness for those that have already acted in reliance on the Applicant Guidebook.

(See https://www.icann.org/resources/board-material/resolutions-new-gtld-2014....)

Here, although not directly on point, the Board is uniquely swayed, as was the BGC, by Ruby Pike's assertions that the .HOSPITAL Expert Determination is inconsistent with the other eight health-related LPI Expert Determinations, thereby rendering it potentially unreasonable, and thereby warranting re-evaluation. As part of its deliberations, the Board took into consideration the following factors, which the BGC had previously evaluated in making its recommendation:

The .HOSPITAL Expert Determination is inconsistent with the results of the eight other health related LPI objections that resulted in expert determinations, all of which were filed by the IO. The materials submitted by the IO and the Applicant to the Expert Panels in each instance were very similar and, in some instances, nearly identical (i.e., .HOSPITAL, .MEDICAL, and .HEALTHCARE).
The .HOSPITAL Expert Determination is the only LPI objection, out of the total of ten LPI objections that resulted in expert determinations, where the expert determination was in favor of the objector rather than the applicant.
The .HOSPITAL Determination is the only LPI expert determination with a split panel decision.
The .HOSPITAL Determination is the only LPI expert determination where a dissenting opinion was issued.
Four of the nine health related LPI objections filed by the IO were against applications by subsidiaries of Donuts, Inc. (Steel Hill, LLC (.MEDICAL); Goose Fest, LLC (.HEALTH); Silver Glen, LLC (.HEALTHCARE); and Ruby Pike, LLC (.HOSPITAL). The objections filed by the IO in all four objections are virtually identical. The .HOSPITAL Determination is the only determination in favor of the objector.
The .HOSPITAL Expert Panel is the only health related LPI expert panel that evaluated the sufficiency of certain protections and safeguards as part of its determination while other expert panels deferred to ICANN to implement and enforce such safeguards as necessary. (See http://newgtlds.icann.org/sites/default/files/drsp/06dec13/determination... [PDF, 437 KB]).
Because there are no other competing applications of the .HOSPITAL TLD, this action would not impact other .HOSPITAL applications and therefore would not contradict the NGPC's concern that expanding that re-review would delay consideration of competing applications. (See https://www.icann.org/resources/board-material/resolutions-new-gtld-2014...).

Given these circumstances, the Board is a persuaded, as was the BGC, that, consistent with the manner in which the Board had addressed previous inconsistent or unreasonable expert determinations, a re-evaluation of the objection proceedings against Ruby Pike's application for .HOSPITAL is warranted at this time. The re-evaluation proceeding will be administered in accordance with the ICC Expert Rules for Administration of Expert Proceedings, which include the following:

The review panel will consist of three members appointed by the ICC (the "Review Panel").
The only issue subject to review shall be the .HOSPITAL objection proceedings and the resulting Expert Determination.
The record on review shall be limited to the documentary evidence admitted into evidence during the original proceeding. No additional documents, briefs or other evidence may be submitted for consideration, except that the Review Panel shall also consider the identified "Related LPI Expert Determinations" in the above chart as part of its review of the .HOSPITAL objection proceeding and resulting Expert Determination.
The standard of review to be applied by the Review Panel is: whether the original Expert Panel could have reasonably come to the decision reached in the underlying .HOSPITAL LPI objection proceeding through an appropriate application of the standard of review as set forth in the Guidebook.
ICANN will pay the applicable fees of the Review Panel.
The possible outcomes of the review are: (1) the original .HOSPITAL Expert Determination is supported by the standard of review and reference to the identified Related LPI Expert Determinations, and will stand as is; or (2) the original .HOSPITAL Expert Determination reasonably cannot be supported based on the standard of review and reference to the identified Related LPI Expert Determinations, and will be reversed. The Review Panel will submit a written determination including an explanation and rationale for its determination.

There will be a fiscal impact associated with the adoption of this resolution, but nothing that will not or cannot be covered by the existing New gTLD Program budget. Approval of the resolution will not impact security, stability or resiliency issues relating to the DNS.

This is an Organizational Administrative Action not requiring public comment.