RE: [nc-transfer] RE: [registrars] Pandora's Box (as it relates to transfers)

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

Ross, 

I am sending this note on behalf of the Registry Constituency.  The Registry
Constituency has reviewed your post and is very concerned that our position
has been misstated.  We believe that there is an important distinction to be
made between enforcement of the Registry-Registrar Agreements (RRA) and
taking on the role of arbitrator for registrar disputes.  

The constituency would like to clarify its position by noting that the
Registries do enforce its RRAs when they involve clear violations.  However,
our Registry Agreements with ICANN do not require us to provide a forum for
adjudicating disputes between registrars.  We are not equipped to resolve
such disputes and have no mechanism for collecting or requiring production
of relevant information, assessing the relative weight, authenticity and
credibility of such information, and rendering a decision.  Imposing such
responsibilities on Registries would not only be inconsistent with our
essential role as a registry service provider, but also put us in an
untenable position and jeopardize our ability to comply with equivalent
access requirements.  For these and other reasons, the RRAs include a "no
third party beneficiaries" clause, which provides that third parties have no
right to seek enforcement of any particular provision of the agreements. 

This is not to say that we are unconcerned with registrar compliance with
the RRA, and in fact, most Registries conduct routine and systematic
compliance evaluations.  They are conducted, however, according to Registry
internal compliance program guidelines, and not at the insistence of any
particular registrar.  In addition, under appropriate circumstances,
information presented by a third party is considered in determining whether
a registrar is in compliance when that information includes clear evidence
of a specific violation.

Again, all of this should be distinguished from providing dispute resolution
services, which is what the task force is referring to when discussing
implementation of the new proposed transfer policy.  Such services are not
appropriate at the Registry level and were definitely not contemplated in
the existing Registry fees.  Accordingly, this constituency takes issue with
your suggestion of any Registry fee reduction related to this issue. 

I hope this clarifies the position of the gTLD Registry Constituency and
invite you to contact me personally should you have any questions or
additional comments. Thank you.

Jeffrey J. Neuman, Esq.
Chair, gTLD Registry Constituency

The views expressed herein are the views of the gTLD Constituency as a whole
and do not necessarily represent the views of NeuStar, Inc.



-----Original Message-----
From: Ross Wm. Rader [mailto:ross@tucows.com]
Sent: Friday, September 06, 2002 8:33 AM
To: registrars@dnso.org
Cc: nc-transfer@dnso.org
Subject: [nc-transfer] RE: [registrars] Pandora's Box (as it relates to
transfers)


[Note to TF: This is just an FYI at this point]

> The slippery slope that I am specifically concerned about is 
> the growing demand list that we are potentially imposing upon 
> registries within the context of ICANN policy. My concern is 
> based upon the registry contracts which the registries have 
> with ICANN.


I've been meaning to send an update to the list around this point since
Wednesday - thanks for the indirect reminder.

Folks - 

This week, the Registry Constituency has taken an explicit position that
they will not be party to enforcing their contracts as it relates to
individual registrars. As a general point, I find this to be a
ridiculous position for them to be taking - they signed up to manage a
TLD and part of that contract spells out what the obligations of each
party to the contract are. They are unwilling to enforce the portions of
the contract that they may find "inconvenient". As a side note, I wish I
had that luxury as it related to my resellers and registrants. If anyone
is wondering where the laxness surrounding the contracts within the
ICANN structure comes from, I submit that you should first look at the
members of this constituency.

Now as to the specific as to what this means for the transfers policy.
Let me run through a quick analysis (sorry for the impending length of
this message)

Fact: Registries are unwilling to enforce the contracts
Implication: Transfer policy that falls under the "jurisdiction" of the
registry/registrar contracts is unlikely to be enforced.
Fact: Without appropriate enforcement, even the most perfect policy is
useless.
Implication: We must find a party willing to undertake appropriate
enforcement of the new transfers policy.
Fact: Registry Operators have contracted for the obligations outlined in
their contract at a per unit price of roughly $6 (with minor variations
from registry to registry)
Implication: If the burden of enforcement is removed from the registry
operators, then they should no longer be entitled to the portion of the
per unit funds that would normally be allocated to enforcement of the
contracts (as it specifically relates to transfers).

Proposal: I would like to take a proposal back to the task force that
removes all responsibility for enforcement of the transfers policy from
the registry contracts and place it with ICANN as part of our Registrar
Accreditation Agreement. Further, as part of this transfer of this
transfer of responsibility moves the burden from the registries to
ICANN, I will be proposing that the fee cap of ~$6 be universally
dropped by roughly 1/3 in order that the registrars have sufficient
funds at their disposal to assist ICANN in underwriting the costs of
their new enforcement responsibilities. This will also have the
side-benefit of having a universal transfer policy in place regardless
of which gTLD registry we are engaged with.

As Mike points out, there is give and take in every relationship,
however I find it troublesome that the registries assume that we will
bear the costs of their decisions. In this case, I am disappointed that
the registry operators that we have selected have been found incapable
of performing their obligations under the contracts. But rather than
crying over spilt milk, we need to find a way to fix this serious
problem. I believe that this proposal provides a reasonable and
appropriate way for both constituencies to achieve their goals with the
transfers policy.

I will be taking comments on this proposal until just before our TF
conference call next Wednesday. I will be unofficially closing comment
on Tuesday night, but all opinions and input that get to me up to the
point that I actually make a concrete proposal to the TF will be taken
into account in some way. (This is a roundabout way of saying that if
you really want to have an impact, please get me your thoughts sooner
than later ;)

I can be reached at 416.538.5492 throughout the work week or via email
through the weekend if you wish to consult offline...


                       -rwr




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