Office of the Ombudsman
In a matter of a Complaint by AB
Report dated 10th June 2012
This investigation began with a complaint about the objection process to the new gTLD Programme, and specifically a complaint that an objection was actually filed late, in that it was filed after midnight, and received late by the complainant (despite some amelioration of the strictness of the time limit). The significance of the objection process is that the Applicant Guidebook and procedure for the programme factored in the ability for affected individuals to object to applications for particular new gTLDs on a number of grounds. These include string confusion, legal rights objections, limited public interest objections and community objections. Once the objection had been filed then the applicant must respond to the objection, because otherwise the objector would prevail by default. Provided the objection was correctly lodged, and the applicant responded, then the objection would be handled by a panel of qualified experience depending on the category of objection.
The essence of this complaint is that objections were filed late, and it is the position of the complainant that it should not face an objection where the objector was unable to file an objection within the required time. The complainant said that when the objection was copied to them, it was clear the objection had been received at 12:01 a.m. on 14 March 2013 although the Applicant Guidebook stated that the objection had to be filed by midnight on 13 March 2013. On investigation, the applicant then discovered that the dispute resolution provider, in this case ICC, had conferred with other dispute resolution providers and agreed to permit a five minute window after midnight on 13th March, and that it would accept objections during that window. The applicant says specifically about the timing of the objection-
“That means, the employee tasked with the job of filing the objection pressed the send button after midnight, to be precise at 00:01:02 Thursday 14 March 2013 (UTC). I attach the report from (expert) which clearly shows this. The objection was then received by us at 00:04:54 Thursday 14 March 2013 (UTC).”
The complainant was concerned that I note that the objection was actually sent after the filing deadline, and not immediately before and then received late due to the process of sending taking more time.
The complainant then contacted ICANN and subsequently discovered that the providers had conferred among themselves, and was later advised that ICANN did not intervene or give any advice about the five minute window. The complainant has also expressed some frustration that it endeavoured to make enquiries to ICANN about the decision, but had no response. The complainant indicates that this is why it has chosen to ask the ombudsman to investigate this issue.
It should be noted that the objector is a competing applicant, and this needs to be factored into what has happened. The complainant considered that this meant the objector acted in bad faith, by lodging the objection at the very last possible time.
I have discussed this with ICANN staff and was told decisions about the window were left entirely to the dispute resolution providers, and that ICANN did not participate in the decision, and accepted the decision. The perception seems to be from outside observers, that ICANN endorsed this decision, but certainly my investigation indicates that ICANN staff accepted a decision rather than say that it was right or wrong, which would be my understanding of endorsement. The complainant noted to me
“As we have already indicated, we did receive insight from Christine Willet as to ICANN’s decision making process, during webinars and presentations in which Ms. Willet was involved. Essentially the DRSPs asked ICANN for its view on late filed objections, ICANN responded that the DRSPs should decide amongst themselves, but be consistent. The DRSPs then unilaterally decided to extend the previously communicated deadline (after it had passed), presented this solution to ICANN, which agreed.”
To undertake this investigation I have undertaken a number of steps. In particular I discussed this with the applicant with an exchange of emails, I have talked to Christine Willett (VP gTLD Operations) and legal staff at ICANN, and I have also made a call for comments on my blog and Twitter feed. I believe it is important that the community should comment on this issue, both from the perspective of applicants and of objectors. I am grateful to those who have made comments, which have been thoughtful and useful. I am conscious that there have been very substantial investments in the applications, but also of course recognise that objectors also consider that they have economic and other interests affected by awarding a new gTLD to applicants.
The issue which I am required to investigate is the fairness of the decision to permit the filing of the objection within the additional window and beyond the limit prescribed in the Applicant Handbook.
This is a matter where I do need to carefully consider the jurisdiction to investigate the complaint. My jurisdiction is limited to issues between ICANN and the ICANN community. The issue is therefore whether a dispute resolution provider, contracted by ICANN to evaluate objections, can be subject of an investigation by the ombudsman in relation to fairness. Put in another way, is the dispute resolution provider a member of the ICANN community? My jurisdiction is excluded for certain types of contractual relationship with the bylaws says “or issues related to vendor/supplier relations”. However that sort of contractual relationship is intended to deal with issues of procurement rather than the more complex arrangements made in the context of the gTLD programme. The complainant did make the point that ICANN was consulted during the course of the discussion about loosening the rigour of the time for objection. So in the context of the purpose of the exclusion, I do believe that I have jurisdiction. Certainly the applicant/ complainant submitted that I did, and should investigate the decision.
The modern test for dealing with issues of fairness also encompasses the concept of proportionality. In his correspondence with me, the applicant/complainant did say, quoting from the NTAG meeting in Beijing “”The DRSP’s amongst themselves discussed this issue. And due to their own system issues, the synchronization of clocks around the world, and concerns they had, they elected to extend their window by five minutes and accept objections that were filed, according to some clocks in some parts of the world, five minutes after the deadline.” The point that needs to be emphasised is that the objection is not by any means fatal to the success of any of the applications. It is simply a step which has to be undertaken and answered during the course of a long and complex process. In the context of proportionality, and considering the issue of fairness I would pose the question, is it better for the community that applications are properly challenged and debated and succeed therefore on the merits, or should a more prescriptive approach be adopted?
There have been a number of comments made in relation to this issue on blog sites which make it clear that some members of the community have strong views about a prescriptive approach. One comment was “people have spent years and hundreds of thousands of dollars on their applications. A technicality should not determine the outcome.” But another comment was that filing an objection late was not a technicality. Other objectors have agreed commenting that a strict approach should be adopted.
However I also need to bear in mind that my jurisdiction is limited to making a recommendation about the process, which would be to recommend that either a strict approach be adopted or that the decision of the dispute resolution providers is proportionate to the issue. Even if I were to recommend the strict approach, it is open to the dispute resolution providers to maintain their position about the five minute window.
It would also be open for me to suggest to the board that they suspend the objection process, a course urged upon me by this applicant. While I cannot predict what they would decide, I think it likely that they would respect the decision of the dispute resolution providers. The dispute resolution providers are independent, and make their own decisions. For the board to interfere would be controversial.
Of course it would be open to me to comment on the fairness or otherwise of such decisions. Given the circumstances described by the providers and discussed at Beijing, it is my view that a five minute window is a proportionate response and does not create unfairness for the applicants, but does provide fairness given that it is only five minutes. I am told that some objections received later were in fact rejected. I am directly aware of least one. That is perhaps not surprising, in the context of a decision about a five minute window.
There is no doubt that sending an objection by the competing applicant for the same string is perhaps a different matter from an objection by a detached observer. I do not believe that this somehow taints the objection because the very process anticipates objections from competing applicants. They had a right to object, and exercised that right, if a little tardily. But in the context of the decision to accept within a five minute window, then the objection is properly lodged.
As a result of this investigation, I consider that the decision of the dispute resolution providers to permit the five minute window does not create unfairness for the applicant and is a proportionate response. In addition I do not consider that the sending, and for the DRP to accept the objection, of the objection, within the window is unfair.