Re[2]: [ga] domain name owner's bill of rights

["William X. Walsh" <william@userfriendly.com>]

Hello Srikanth,

Thursday, April 26, 2001, 3:02:51 PM, Srikanth Narra wrote:

> On negative side :

> I just come across Register who held up my domain transfer to other registers after receiving my explicit transfer approval. So they can make counter-offer to stay on with them. 

> To top things, I found out they denied my transfer because I did not respond to their counter offer in time.

> Is it even legal to do this ? 

Tucows, Inc, has sent a letter to Verisign asking them to revoke the
accreditation of Register.com over this practice if Register.com does
not come into compliance.

Here is the letter from Tucows to Verisign:

This is a forwarded message
From: Ross Wm. Rader <ross@tucows.com>
To: Christine Russo <crusso@verisign.com>
Date: Friday, April 20, 2001, 2:47:32 PM
Subject: Register.com RL&A Violations

===8<==============Original message text===============
Copy via courier

Dear Ms. Russo;

Over the past few months, Tucows has grown aware of increasingly large
numbers of inbound transfer requests failing from Register.com (relative to
other registrars). Upon further investigation, we discovered that this firm
specifically requires that their clients affirmatively acknowledge a
transfer of registrars prior to releasing the name to Tucows. If the
registrant does not provide a confirmation to Register.com of their intent
to transfer their business within a short period of time, Register.com will
consistently deny the transfer request.

We have engaged Register.com in discussions with the goal of coming to an
agreeable settlement on this matter, but we have failed to achieve a
satisfactory outcome.

Tucows finds these tactics vexatious, anti-competitive and contrary to the
terms of Exhibit B, Policy on Transfer of Sponsorship of Registrations
Between Registrars, which is a part of the NSI-Registrar License and
Agreement.

The terms of Exhibit B are reproduced for your convenience as an appendix to
this letter.

It is evident from a reading of the set of rules that they were designed to
facilitate the easy transfer of a registrant’s business from one registrar
to another. The rules clearly establish that

1.      It is the obligation of the gaining registrar to obtain the authorization
from the SLD holder, and not the losing registrar;
2.      The form of the authorization is at the discretion of each gaining
registrar, not the losing registrar;
3.      Denials of transfers by the losing registrar must take a certain form,
namely:

"the Registrar of record shall notify the prospective gaining Registrar that
the request was denied and the reason for the denial."

Register.com is neither qualifying its actions nor justifying them in terms
consistent with the rules of Exhibit B.

Qualifying the actions of Register.com presents some difficulty, because
either they are, or are not, officially denying the request for a transfer.
Suppose for a moment that Register.com is not officially denying a transfer,
but rather is engaged in an unofficial and unauthorized process designed to
prevent transfers by making them as confusing as possible to registrants.
This is a plausible description of their behaviour. To deny a transfer one
must provide reasons, such as, for instance, confusion as to the identity of
the authorizing registrant. As a matter of fact, Register.com is making no
claim about confusion as to the identity of the authorizing registrant, nor
do they provide any other reason that might justify a denial of the request.
Their behavior is unjustified, irregular, not in compliance with Exhibit B,
and clearly designed to delay, annoy, or prevent a transfer away from them
to a commercial rival.

If Register.com is denying a request, it is obliged to obey the following
rule:

"In those instances when the Registrar of record denies the requested change
of Registrar, the Registrar of record shall notify the prospective gaining
Registrar that the request was denied and the reason for the denial."

Register.com consistently fails to justify its actions as denials, or as
anything else, and to provide reasons for these denials.

The rules further stipulate:

Instances when the requested change of sponsoring Registrar may be denied
include, but are not limited to:

1)      Situations described in the Domain Name Dispute Resolution Policy
2)      A pending bankruptcy of the SLD Holder
3)      Dispute over the identity of the SLD Holder
4)      Request to transfer sponsorship occurs within the first 60 days after the
initial registration with the Registrar

In all cases, the losing Registrar shall respond to the e-mail notice
regarding the "transfer" request within five (5) days. Failure to respond
will result in a default "approval" of the "transfer."

These provisions support the view that the rules are designed to facilitate
transfers, since the gaining registrar need do nothing and the transfer will
be approved by default. The insertion by Register.com of a superfluous
scheme of verification of the authority to transfer is designed to frustrate
the clear intention of the rules in Exhibit B, which is to make transfers as
easy as possible.

        The inserted text is a sample of the messages that registrants are
receiving from Register.com.

--- Begin Transfer Acknowledgement Request Sample from register.com ---

Subject: Your Registrar Transfer Request
Date: Thu, 29 Mar 2001 12:11:19 -0500
From: customersupport@register.com
To: <customername>




This message is to confirm your request to transfer the registrar for the
domain name(s) below from register.com to another registrar. We hope you'll
reconsider and renew your domain name with register.com for an additional
year for only $12!

Please click the link below each domain name to renew your registration.

<domainname>
https://secure.register.com/renewals/?_crypt_=7494875e5e7e7e6818c81948a84f63
74f7adf84728487d8a819398483938483e



Don't miss out on the benefits register.com is committed to provide you,
including:

SUPERIOR CUSTOMER SERVICE.  Customer service is of paramount importance at
register.com, and our goal is to help our customers with their domain name
needs every step of the way, 24 hours a day.

EASY MANAGEMENT of all aspects of your online presence.  With our Domain
Manager, you can make changes to your Web site and account whenever you want
to!

CUTTING EDGE TOOLS AND SERVICES. We are continually developing products to
meet your growing domain name needs. Your success is our goal! With every
domain name registered with register.com, you get personalized email, a
customized 3 page Web site, free URL forwarding, and more!

A TERRIFIC VALUE. Comparable packages* will cost you much more at other
registrars!
Network Solutions:  $129
NameSecure:  $64.95
Registrars.com:  $59.95

Please click the link below each domain name to renew your registration.

<domainname>
https://secure.register.com/renewals/?_crypt_=7494875e5e7e7e6818c81948a84f63
74f7adf84728487d8a819398483938483e

If you'd like to proceed with your transfer, please use the reply link(s)
below to confirm your intention. Click on each link or copy and paste into
your browser window. If you do not confirm by March 31, 2001 5:00 PM EST,
the transfer will not be completed. In the event that this occurs, you will
need to reinitiate the transfer through the registrar to which you wish to
transfer.

  <domainname>
http://www.register.com/trans/?crypt=7494875e5e7e7e6818c81948a84f6374f7adf84
728487d8a819398483938483e

If you have any further questions, please contact register.com.

*Products and services contained in different registrars' domain name
packages may vary.

Customer Support
register.com, inc.
http://www.register.com

--- End Transfer Acknowledgement Request Sample from register.com ---


Tucows observes that this process is as confusing as Register.com can make
it. There is no authority for the process, for the time limit within the
process, or for the many blandishments not to quit Register.com.

Remedies
Tucows respectfully requests that Verisign

·       Find Register.com in violation of the letter and spirit of the terms of
Exhibit B of the Registrar License and Agreement;
·       Immediately Require Register.com to be in compliance with the terms of the
Registrar License and Agreement;
·       Immediately require Register.com to desist from imposing the additional
and irregular authorizations complained of in this letter;
·       Further require Register.com to desist from engaging in any similar
vexatious, anti-competitive and unjustified behaviour that contravenes the
RLA;
·       And should Register.com fail to comply with the instructions of Verisign
in this regard, terminate the Agreement with Register.com for cause as
provided by section 6(1)b.

The whole respectfully submitted by,





Ross Wm. Rader
Director, Innovation & Research
Tucows Inc.

cc;
Dan Halloran, Chief Registrar Liaison, ICANN
Jack Kerins, Vice President, Customer Service, Register.com
Brenda Lazare, General Counsel, Tucows
Timothy Denton, External Counsel, Policy, Tucows
Elliot Noss, President & CEO, Tucows
Tucows Reseller Discussion List




Appendix
Exhibit B
Policy on Transfer of Sponsorship of Registrations Between Registrars
 In part
For each instance where an SLD holder wants to change its Registrar for an
existing domain name (i.e., a domain name that appears in a particular
top-level domain zone file), the gaining Registrar shall:
1) Obtain express authorization from an individual who has the apparent
authority to legally bind the SLD holder (as reflected in the database of
the losing Registrar).
a) The form of the authorization is at the discretion of each gaining
Registrar.
b) The gaining Registrar shall retain a record of reliable evidence of the
authorization.
2) In those instances when the Registrar of record is being changed
simultaneously with a transfer of a domain name from one party to another,
the gaining Registrar shall also obtain appropriate authorization for the
transfer. Such authorization shall include, but not be limited to, one of
the following:
a) A bilateral agreement between the parties.
b) The final determination of a binding dispute resolution body.
c) A court order.
3) Request, by the transmission of a "transfer" command as specified in the
Registry Registrar Protocol, that the Registry database be changed to
reflect the new Registrar.
a) Transmission of a "transfer" command constitutes a representation on the
part of the gaining Registrar that:
(1) the requisite authorization has been obtained from the SLD holder listed
in the database of the losing Registrar, and
(2) the losing Registrar will be provided with a copy of the authorization
if and when requested.
In those instances when the Registrar of record denies the requested change
of Registrar, the Registrar of record shall notify the prospective gaining
Registrar that the request was denied and the reason for the denial.
Instances when the requested change of sponsoring Registrar may be denied
include, but are not limited to:
1) Situations described in the Domain Name Dispute Resolution Policy
2) A pending bankruptcy of the SLD Holder
3) Dispute over the identity of the SLD Holder
4) Request to transfer sponsorship occurs within the first 60 days after the
initial registration with the Registrar
In all cases, the losing Registrar shall respond to the e-mail notice
regarding the "transfer" request within five (5) days. Failure to respond
will result in a default "approval" of the "transfer."


>From section 6 of the Registrar License and Agreement
6.1. Term of Agreement and Termination.
(a) Term of the Agreement. The duties and obligations of the Parties under
this Agreement shall apply from the Effective Date through and including the
last day of the calendar month sixty (60) months from the Effective Date
(the "Initial Term"). Upon conclusion of the Initial Term, all provisions of
this Agreement will automatically renew for successive five (5) year renewal
periods until the Agreement has been terminated as provided herein,
Registrar elects not to renew, or NSI ceases to operate as the registry for
the .com, .org and .net TLDs. In the event that revisions to NSI's Registrar
License and Agreement are approved or adopted by the U.S. Department of
Commerce, or ICANN, as appropriate, Registrar will execute an amendment
substituting the revised agreement in place of this Agreement, or Registrar
may, at its option exercised within fifteen (15) days, terminate this
Agreement immediately by giving written notice to NSI.
(b) Termination For Cause. In the event that either Party materially
breaches any term of this Agreement including any of its representations and
warranties hereunder and such breach is not substantially cured within
thirty (30) calendar days after written notice thereof is given by the other
Party, then the non-breaching Party may, by giving written notice thereof to
the other Party, terminate this Agreement as of the date specified in such
notice of termination.

(c) Termination at Option of Registrar. Registrar may terminate this
Agreement at any time by giving NSI thirty (30) days notice of termination.
(d) Termination Upon Loss of Registrar's Accreditation. This Agreement shall
terminate in the event Registrar's accreditation by ICANN, or its successor,
is terminated or expires without renewal.
(e) Termination in the Event that Successor Registry is Named. This
Agreement shall terminate in the event that the U.S. Department of Commerce
or ICANN, as appropriate, designates another entity to serve as the registry
for the .com, .net. and .org TLDs (the "Successor Registry").

(f) Termination in the Event of Bankruptcy. Either Party may terminate this
Agreement if the other Party is adjudged insolvent or bankrupt, or if
proceedings are instituted by or against a Party seeking relief,
reorganization or arrangement under any laws relating to insolvency, or
seeking any assignment for the benefit of creditors, or seeking the
appointment of a receiver, liquidator or trustee of a Party's property or
assets or the liquidation, dissolution or winding up of a Party's business.
(g) Effect of Termination. Upon expiration or termination of this Agreement,
NSI will complete the registration of all domain names processed by
Registrar prior to the date of such expiration or termination, provided that
Registrar's payments to NSI for Registration Fees are current and timely.
Immediately upon any expiration or termination of this Agreement, Registrar
shall (i) transfer its sponsorship of SLD name registrations to another
licensed registrar(s) of the Registry, in compliance with any procedures
established or approved by the U.S. Department of Commerce or ICANN, as
appropriate, and (ii) either return to NSI or certify to NSI the destruction
of all data, software and documentation it has received under this
Agreement.
(h) Survival. In the event of termination of this Agreement, the following
shall survive: (i) Sections 2.6, 2.7, 6.1(g), 6.6, 6.7, 6.10, 6.12, 6.13,
6.14 and 6.16; (ii) the SLD holder's obligations to indemnify, defend, and
hold harmless NSI, as stated in Section 2.16; (iii) the surety's obligations
under the Surety Instrument described in Section 2.14 with respect to
matters arising during the term of this Agreement; and (iv) Registrar's
payment obligations as set forth in Section 5.2 with respect to initial
registrations or re-registrations during the term of this Agreement. Neither
Party shall be liable to the other for damages of any sort resulting solely
from terminating this Agreement in accordance with its terms but each Party
shall be liable for any damage arising from any breach by it of this
Agreement.




===8<===========End of original message text===========



-- 
Best regards,
 William                            mailto:william@userfriendly.com


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