Reconsideration Request 13-8, Merck KGaA

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 13-8 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, Bylaws, and Articles of Incorporation.

Request 13-8 seeks reconsideration of the Resolution that permitted and encouraged dispute resolution panels to use discretion in enforcing the deadlines set forth in the New gTLD Applicant Guidebook. Specifically, the Request challenges the NGPC resolution as it relates to the Objector's community objection to Merck KGaA's application for .MERCK, which was rejected by the Dispute Resolution Service Provider (DRSP) for being filed after the published closing deadline.

The Request calls into consideration: (1) whether the NGPC failed to consider material information in adopting the challenged Resolution; (2) whether the NGPC lacks the jurisdiction to "oversee, appeal or challenge" the procedural decisions of the DRSPs; and (3) whether the NGPC's actions constitute breaches of ICANN's Core Values, including the requirement to make "decisions by applying documented policies neutrally and objectively, with integrity and fairness," and the requirement to employ "open and transparent policy development mechanisms that … ensure that those entities most affected can assist in the policy development process".

In consideration of the first issue, the BGC reviewed the grounds stated in the Request, including the attachment, and concluded that Merck KGaA's failed to adequately state a Request for Reconsideration. Specifically, the BGC found that there is no support for Merck KGaA's claim that the NGPC failed to consider material information because the Resolution was based on "incomplete, and improperly compiled, reports by the ICANN Ombudsman." (Request, Pg. 16.) Contrary to Merck KGaA's claims that the Ombudsman denied Merck KGaA's right to be heard and issued its recommendations to the NGPC on the basis of unilateral communications with only the Objector's position being presented (Request, Pg. 5), the BGC noted that the reports from the Ombudsman that were considered by the NGPC did not address, nor were they intended to address, the Objector's complaint to the Ombudsman regarding the ICC's rejection of the objection to .MERCK. (NPGC Briefing Material.)

The Ombudsman issued only two reports to the Board relating to purportedly missed deadlines. The first report addressed an objection from Axis Communication AB to the Saudi Telecom Company's application for .AXIS (the ".AXIS Report"). (NGPC Briefing Materials 2, http://www.icann.org/en/groups/board/documents/briefing-materials-2-13ju... [PDF, 1.36 MB].) The second report addressed an objection to .GAY by GOProud (the ".GAY Report"). (NPGC Briefing Material, Pg. 10-11.) The BGC noted that based on the .AXIS Report and the .GAY Report, the NGPC adopted two very specific resolutions asking the respective DRSPs to reconsider/revisit their decisions relating to the relevant filings. In addition to the two specific resolutions, the NGPC adopted a resolution that generally permits and encourages DRSPs to exercise discretion in enforcing the deadlines set forth in the Applicant Guidebook. This more general resolution is not directed towards any one specific DRSP or any one specific dispute resolution proceeding or Ombudsman's complaint, including the complaint relating to the .MERCK objection.

The BGC found that because neither report addressed the Objector's complaint to the Ombudsman – or, otherwise reflected a recommendation to the NGPC on how to resolve the Objector's complaint – there is no support for Merck KGaA's assertion that the NGPC failed to consider material information relating to the Objector's complaint. The NGPC agrees.

Moreover, the BGC noted that, in its published rationale for the Resolution, the NGPC acknowledged that, beyond the two Ombudsman reports, ICANN received several other inquiries from objectors, applicants, and the DRSPs about issues related to late filings and whether the DRSPs have the discretion to deviate from the specific deadlines set forth in the Applicant Guidebook. The NGPC concluded, in the interests of fairness and reasonableness, that it is appropriate for the DRSPs to exercise discretion, given the circumstances of each situation, in enforcing dispute resolution deadlines. (13 July 2013 Resolutions.) This grant of discretion is just that, it does not direct any DRSP to reverse any specific decision to accept or reject a late filing. Rather, the Resolution is intended to provide further guidance to the DRSPs on the issue of late submissions.

In consideration of the second issue, the BGC concluded, and the NGPC agrees, that the stated grounds do not constitute a proper basis for Reconsideration under ICANN's Bylaws. However, even if these were proper bases for Reconsideration, the above-stated grounds do not support reconsideration. The BGC noted that Article 23(a) of the New gTLD Dispute Resolution Procedure (the "Procedures") clearly provides ICANN with the jurisdiction to modify the procedures governing the dispute resolution process. (Procedures, Art. 23(a).) Thus, even if the challenged Resolution was considered a modification to the Procedures, the NGPC has the authority to make such modifications, provided the modifications are in accordance with ICANN's Bylaws.

In consideration of the third issue, the BGC determined, and the NGPC agrees, that Merck KGaA's assertions are unsupported and do not constitute a proper basis for Reconsideration under ICANN's Bylaws. As discussed above, the .MERCK complaint to the Ombudsman was not before the NGPC. The NGPC adopted two resolutions specifically addressing issues surrounding objections to the applied-for .AXIS and .GAY strings, and adopted a third resolution generally permitting and encouraging DRSPs to exercise discretion in enforcing dispute resolution procedure deadlines. (13 July 2013 Resolutions.) This general grant of discretion is to be applied neutrally and objectively. Both the .AXIS Report and .GAY Report are publicly posted, and the NGPC clearly stated and published its rationale for the Resolutions (13 July 2013 Resolutions). The NGPC's actions – both the evaluation of the issues and its ultimate resolutions – were at all times open, transparent, and in good faith. Accordingly, there is no support for Merck KGaA's claim that the NGPC's actions were somehow inconsistent with ICANN's Core Values.

In addition to the above, the NGPC had opportunity to consider all of the materials submitted by the requestor, as well as all of the letters summited that relate to Request 13-8. Following consideration of all relevant information provided, the NGPC reviewed and has adopted the BGC's Recommendation on Request 13-8, the full text of which can be found at http://www.icann.org/en/groups/board/governance/reconsideration/recommen... [PDF, 106 KB] and is attached to the Reference Materials to the NGPC Submission on this matter. The BGC's Recommendation on Reconsideration Request 13-8 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 29 September 2013. Due to the volume of Reconsideration Requests received within recent weeks, the first practical opportunity for the BGC to take action on this Request was on 10 October 2013; it was impractical for the BGC to consider the Request sooner. Upon making that determination, staff notified the requestor of the BGC's anticipated timing for the review of Request 13-8.

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.