[ga] Proposed Transfers Policy

[DannyYounger@cs.com]

Dear Dan,

Please convey the following sentiments to the Transfers TF:

The Registrar Constituency has proposed amending current contract language by 
adding one additional instance when a requested change of sponsoring 
Registrar may be denied, such instance referencing the circumstances 
described in the Registrar Transfer Statement of Best Practices document 
cited at http://www.dnso.org/clubpublic/registrars/Arc01/doc00059.doc

These circumstances are predicated upon Losing Registrar arriving at a 
determination that the Gaining Registrar has not appropriately implemented 
the processes contemplated by this document.  Allowing the denial of transfer 
to rest solely upon a determination made by the Losing Registrar exposes the 
registrant to an unacceptable risk factor, as his rights to a decision free 
from arbitrary and capricious action are not guaranteed by this process.

The argument has been put forth that the Losing Registrar may deny a transfer 
request only when either of the following conditions are satisfied:  it 
receives an express objection from a Registered Name holder or an individual 
who has the apparent authority to legally bind the Registered Name Holder, or 
the Gaining Registrar fails to comply with the minimum standards and 
practices contemplated by this document and/or the relevant Registry 
Agreement. 

Such minimum standards call for "a written or electronic copy of reliable 
evidence of authorization by the Registered Name holder or an individual who 
has the apparent authority to legally bind the Registered Name holder."  
Nowhere in this document is apparent authority defined, and evidence of 
authorization, either written or electronic, is subject to dispute based 
solely on Losing Registrar's reasons (including allegations of suspicious 
transaction patterns) and determination.

While both Gaining and Losing registrars are imbued with many rights in this 
process, there are no rights to review or appeal accorded to the registrant.

Further, if the Gaining Registrar fails to respond to the request from the 
Losing Registrar, the Losing Registrar may choose not to honor all future 
transfer requests from the Gaining Registrar until such time that the Gaining 
Registrar can provide the Losing Registrar with a copy of the FOA as set 
forth in the Transfers document.  This places all other such registrants at 
risk of a denial of transfer solely based upon the failure of registrars to 
abide by their own best practices, again with no right of appeal. 
 
In similar fashion, if the Gaining Registrar provides evidence of compliance 
not consistent with the minimum standards and processes contemplated by this 
document, the Losing Registrar may choose not to honor all future transfer 
requests from the Gaining Registrar until such time that the Gaining 
Registrar can satisfy the Losing Registrar that they have adopted the minimum 
standards and processes contemplated by this document.  Once more, this 
unacceptably places a potentially large class of registrants at the mercy of 
the unappealable decisions of Losing Registrars without due process 
provisions. 

The rights of registrants have not been considered by this document as 
tendered by the Registrars.  In addition to these concerns, registrants need 
to be mindful of the possibility of capricious use of registrar lock 
processes that have not been contemplated by this document.  There are no 
penalties proposed for a registrar failure to comply with the terms of the 
document, either monetary or by way of disaccreditation.  A contract without 
enforcement provisions does not suit the needs of the registrant community 
that must be protected from the continued prospect of registrar abuse.







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