RE: [ga] FW: Comment from the gTLD Registry Constituency

["Neuman, Jeff" <Jeff.Neuman@neustar.us>]

Danny,

Its amazing that you can make such comments without having participated in
the open Transfers calls these past few weeks.  Of course that is all you
are seeing because you have not been participating.

Over the past few weeks/months, had you been paying attention to the task
force, the Registrars and User groups have been asking that the Registries
take a more active role in transfer disputes precisely because ICANN is not
a signatory to the Registry/Registrar Agreement.  If that were to happen,
then as you know, there will be costs incurred by the Registries in
implementing a dispute process.

The question then becomes who bears the costs of such processes.  If the
dispute is that one registrar is not providing the correct documentation (as
required under the RRA), then it is pretty easy to state that the Registry
should enforce its agreement to require the production of such documents.
In those types of circumstances, it may be appropriate that the Registries
to foot the bill, since it is merely an issue of enforcing our own
agreements.

However, if there is a dispute as to whether the registrant had apparent
authority to transfer a particular domain name, the issue becomes a lot more
complicated and more expensive.  Initially, it was the position of any on
the TF that the Registries should foot the entire bill for these disputes
and that the Registries should be the arbiter of these disputes.  However,
these types of disputes could cost a lot of money for a Registry to preside
over.  Certainly a lot more than the $5.00 - $6.00 that a Registry collects
from a typical domain name registration. 

This could be handled in several manners, which need to be explored.  The
idea that I have floated, which seems to have gained some acceptance, is
that any fees for such dispute processes should be borne by the registrar
that loses the dispute process.  This could deter certain registrars from
engaging in behavior that discourages the free portability of domain names.
On the other hand, in a matter that is a close call (or a legitimate
dispute), is it fair to put the entire burden on the registrar that loses
the good faith dispute?  Some say yes, others say no.

The bottom line is that if there are disputes that are not strict contract
interpretations, then costs should not be borne by the Registries especially
because the registries are not part of the dispute.  Who pays the costs?  

That being said, the bulk of the TF Report deals with best practices aimed
at making transfers easier for the users and the users that have joined the
public calls seem to be supportive.  Only a small fraction deals with
dispute resolution.  I, for one, am optimistic that transfer questions can
be solved by relying on the bulk of the document without ever getting to a
dispute resolution phase.  That may be too optimistic, I realize.

While you are correct that I am speaking in terms of Registries and
Registrars, the reality is that the members of the TF are looking towards
making the transfer process more efficient, predictable and reliable for
users.  Hopefully with the TF document that is coming out soon, there will
be improvements in the process for users/registrants.  If not, then give us
a concrete proposal on how we can improve the draft other than stating that
ICANN should be involved.  How should ICANN be involved?  What should ICANN
do when an end-user comes to them?  Please comment on the draft from a user
perspective.  I for one am interested in getting your feedback.

Thanks. 



-----Original Message-----
From: DannyYounger@cs.com [mailto:DannyYounger@cs.com]
Sent: Tuesday, October 01, 2002 2:47 PM
To: Jeff.Neuman@neustar.us; michael@palage.com; ross@tucows.com;
ga@dnso.org
Subject: Re: [ga] FW: Comment from the gTLD Registry Constituency


Jeff, 

It continues to be your intent to draft transfers policy within the context 
of the registry-registrar agreement to which ICANN is not a signatory.  By 
deeming the proposal to constitute "new policy" your goal is to ensure that 
registries receive payment for adjudication services under the Prices for 
Registry Services clause.  This serves only your own self-interest.  
Meanwhile, registrants are not empowered to appeal to ICANN should their 
requested transfer be denied because ICANN in the context of this contract 
has no enforcement obligations.  

This is not a user-friendly approach, and user needs would better be served 
by placing the policy language within the Registrar Accreditation Agreement 
to which ICANN is indeed a party and in which they are obliged to take an 
enforcement role.  Your current plan makes no provision for registrant
appeal 
(as only registrars may initiate the appeals process, and these registrars 
may choose not to invoke such process should they be daunted by the prospect

of having to pay significant fees to a registry should their appeal fail).  
Again, user interests are not being put at the forefront of such discussion;

rather the debate has centered solely upon which constituency gets stuck 
paying the bill for enforcement.  

Instead of seeing a concern for users, all that I am seeing is registries 
attempting to devise yet another way of making a buck.  
--
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