Reconsideration Request 13-7, DISH DBS Corp.

ICANN's Bylaws call for the BGC to evaluate and make recommendations to the Board with respect to Reconsideration Requests. See Article IV, Section 2 of the Bylaws. The New gTLD Program Committee ("NGPC"), bestowed with the powers of the Board in this instance, has reviewed and thoroughly considered the BGC Recommendation on Request 13-7 and finds the analysis sound.

Having a reconsideration process whereby the BGC reviews and, if it chooses, makes a recommendation to the Board/NGPC for approval positively affects ICANN's transparency and accountability. It provides an avenue for the community to ensure that staff and the Board are acting in accordance with ICANN's policies, procedures, Bylaws, and Articles of Incorporation.

Request 13-7 is about trademark rights. The requestor asks ICANN to disregard the Panel's decision to sustain DirecTV's objection to Dish's application for the .DIRECT new gTLD and requests that the decision be reviewed by a new expert panel. Dish also requests that ICANN provide applicants of "inconsistent or erroneous DRSP panel determinations with an avenue of redress that is consistent with ICANN's mandate to act with fairness." In the event that ICANN will not immediately reverse the decision, Dish requests that it be provided an opportunity to respond to the BGC, before the BGC makes a final recommendation. (Request, Section 9.) Dish also requests a hearing. (Request, Page 11.)

The Request calls into consideration: (1) whether the Panel's alleged influence by media accounts constitutes a process violation; and (2) whether ICANN's automatic accept of Dispute Resolution Service Provider ("DRSP") panel decision is contrary to ICANN's mandate to act transparently and fairly.

In consideration of the first issue, the BGC reviewed the grounds stated in the Request, including the attachment, and concluded that Dish failed to adequately state a Request for Reconsideration of staff action because they failed to identify any policy or process that was violated by staff. (BGC Recommendation, Pgs. 8-9, 13-13.) The NGPC agrees. Dish claims that the Panel, in reaching its conclusion that Dish's application for .DIRECT was not a "bona fide application," failed to accord proper weight to a declaration presented, and instead, was improperly influenced by Dish advertisements that were not part of the record. (Request, Section 10.) The BGC determined that, contrary to Dish's contention, there is no provision in the New gTLD Dispute Resolution Procedures (the "Procedure") that restricts a panel's ability to refer to or rely upon media advertisements. (BGC Recommendation, Pg. 7.)

The BGC noted that the relevant standard for evaluating a Legal Rights Objection is set out in Section 3.5.2 of the Applicant Guidebook ("Guidebook"). Section 3.5.2. sets forth eight non-exclusive factors that a panel will need to consider in cases where the objection is based on trademark rights. (Guidebook, Section 3.5.2.) The Procedure also makes clear that, in addition to applying the standards that have been defined by ICANN, the panel "may refer to and base its findings upon the statements and documents submitted and any rules or principles that it determines to be applicable." (Procedure, Art. 20(b).) The BGC found that the Panel applied the eight non-exclusive factors to Dish's LRO as required by the Guidebook and determined that the balance of factors favored DirecTV. (Determination, Pages 5-8.)

The BGC found that Dish misstated the alleged influence of media "accounts" on the Panel in rendering its determination. The Panel referenced television advertisements to illustrate the fact that Dish and DirecTV are direct competitors in the satellite television industry. (Recommendation, Pg. 7; Determination, Pgs. 4-5.) The BGC noted that Dish does not dispute the fact that the two are competitors, and both parties acknowledge that they provide satellite television services. (Recommendation, Pg. 7; Determination, Pgs. 2-3.) Thus, even if the Panel's reference to television advertisements was somehow improper, there does not appear to be any prejudice to Dish. The BGC also noted that the "media accounts" at issue are advertisements produced by the parties to the objection proceedings, and not statements of journalists, so Dish's opposition to the decision because of these "media accounts" seems misplaced in any event. (BGC Recommendation, Pg. 7.)

In consideration of the second issue, the BGC concluded, and the NGPC agrees, that Dish's attempt to claim that the procedures set forth in the Guidebook, which followed years of inclusive policy development and implementation planning, are inconsistent with ICANN's Articles of Incorporation and Bylaws (or the recommendations of the GNSO) is not supported. The Guidebook sets out the standards used to evaluate and resolve objections. The Expert Determination shows that the Panel followed the evaluation standards. ICANN's acceptance of that Expert Determination as advice to ICANN is also in accordance with the established process. (Guidebook, Section 3.4.6.) Dish's disagreement as to whether the standards should have resulted in a finding in favor of DirecTV's objection does not mean that ICANN (or the Panel) violated any policy or process in reaching the decision (nor does it support a conclusion that the decision was actually wrong).

Moreover, the BGC found that Dish does not suggest that that the dispute resolution procedures set out in Module 3 of the Applicant Guidebook, or under the Procedure, were not followed. In its Request, Dish contends that ICANN's automatic acceptance of DRSP panel decisions, including those that are "erroneous or inconsistent," is contrary to ICANN's mandate to act transparently and fairly. (Request, Section 8, Page 4.) The BGC concluded that Dish's assertions are not accurate and do not support Reconsideration.

For the same reasons, the BGC found that ICANN's purported inaction in implementing new controls does not demonstrate a violation of any ICANN policy or process.

While parties to a dispute resolution proceeding may not always be satisfied with the determinations of the DRSP panels – and there may be divergence in the conclusions reached between the various panels – the Reconsideration process is not intended to reexamine the established dispute resolution process. Dish's belief that the objection and dispute resolution procedures should be changed does not constitute a policy or process violation that supports reconsideration. Rather, the Request challenges the Panel's substantive determination. In the context of the New gTLD Program, Reconsideration is not a mechanism for direct, de novo appeal of panel decisions with which the requester disagrees, and seeking such relief is, in fact, in contravention of the established processes within ICANN.

The NGPC had the opportunity to consider all of the materials submitted by the requestor, and all letters submitted that relate to Request 13-7. Following consideration of all relevant information provided, the NGPC reviewed and has adopted the BGC's Recommendation on Request 13-7, the full text of which can be found at http://www.icann.org/en/groups/board/governance/reconsideration/recommen... [PDF, 120 KB] and that is attached to the Reference Materials to the NGPC Submission on this matter. The BGC's Recommendation on Reconsideration Request 13-7 shall also be deemed a part of this Rationale.

In terms of timing of the BGC's Recommendation, Section 2.16 of Article IV of the Bylaws provides that the BGC shall make a final determination or recommendation to the Board [or NGPC as appropriate] with respect to a Reconsideration Request within thirty days following receipt of the request, unless practical. See Article IV, Section 2.16 of the Bylaws. To satisfy the thirty-day deadline, the BGC needed to act by 22 September 2013. When Request 13-7 was submitted, the BGC's next meeting was already expected to take place during ICANN's Board workshop, scheduled for 26-28 September 2013. Because the preparations for this meeting had already taken place, and given the travel necessary prior to the workshop, the first practical opportunity for the BGC to take action on this Request was during the workshop; it was impractical for the BGC to consider Request 13-7 sooner. Upon making that determination, staff notified the requestor of the BGC's anticipated timing for review of Request 13-7.

Adopting the BGC's recommendation has no financial impact on ICANN and will not negatively impact the systemic security, stability and resiliency of the domain name system.

This decision is an Organizational Administrative Function that does not require public comment.