RE: [nc-transfer] FW: Briefing on Legal Conditions for PolicyImplementation

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

I just re-read my post....I left out the words "how."  In essence, we do
prescribe the how by stating the "what."  In other words, we are saying that
ICANN must enter into a contractual arrangement with either the Registry or
the Registrars (or both) in order to implement the policy.

If ICANN were to implement this as part of the Accreditation Agreement with
the Registrars, then ICANN would have to enter into a contract with all of
the Registrars to modify the existing accreditation agreement.  I believe it
could only do so after the terms of all the agreements have expired, and may
only do so upon renewal of those agreements in four or five years from now.

If ICANN were to mandate that the Registries implement the changes, then the
following must happen:

1)  ICANN would have to amend its agreement with the Registry Operators to
account for the changes; and
2)  The Registry Operators would all have to have new Registry-Registrar
Agreements implemented with each of the Registrars.  

My point was, by stating that a Registry or Registrar SHALL or SHALL NOT
engage in some sort of behavior, it contemplates contractual changes with
one or more of the contracted parties.  Therefore, we need to be sure that
(i)the changes have the type of support necessary among the contracted
parties to ensure the success of the recommendations, (ii) the contracted
parties believe that the implementation of the changes are feasible from
both an operational as well as business perspective.  

Jeff 

-----Original Message-----
From: Dan Steinberg [mailto:synthesis@videotron.ca]
Sent: Monday, October 21, 2002 2:57 PM
To: Neuman, Jeff
Cc: Cade,Marilyn S - LGA; Transfer TF (E-mail)
Subject: Re: [nc-transfer] FW: Briefing on Legal Conditions for
PolicyImplementation


Jeff,
With respect, I believe I clearly stated that we do prescribe 'what' and
that is
what we should be doing.
If you re-read the first line in my post it says "With respect to Transfers,
the
way I see it, we are making recommendations
on *what* to change...the 'how to implement' is something we skated on a few
times and always specifically backed away from as far as I can remember."

The 'how' is what ICANN has to figure out. Do you have examples of the
'how'? If
not....


"Neuman, Jeff" wrote:

> Dan,
>
> With all due respect, the Transfers TF does prescribe to the Registrars
and
> Registries "what" they must do.
>
> A few examples are that Registrars:
>
> 1)  must use a standard FOA before initiating a transfer
> 2)  must give out an Auth-code within 72 hours of request
> 3)  may not deny a transfer for:
>         i)      Nonpayment for a pending or future registration period
>         ii)     No response from the Registrant or Administrative contact
> unless the Losing Registrar shows evidence of Express           Objection
> from the Registrant or Administrative Contact as described in section
3.e.vi
>         iii)    Domain name in Registrar Lock Status
>         iv)     Domain name registration period time constraints other
than
> during the first 60 days of initial registration.
>         v)      General payment defaults between registrar and business
> partners / affiliates in cases where the registrant for
the
> domain in question has paid for the registration.
> 4)  must submit to alternate dispute resolution
>
> In addition, Registries must have a dispute mechanism (even if they are
> compensated for it)
>
> Now, all of these things may be good things and they all may be accepted
by
> the Registry and Registrar communities, I just don't have enough feedback
on
> these yet.  However, whether they are implemented through the Registrar
> Accreditation Agreement or whether they are implemented through the
> Registry-Registrar Agreements does not change the fact that there are new
> affirmative obligations on the Registrars and Registries.
>
> Again, let me stress that I am not offering a value judgment on whether
> these things are good or bad, but just an observation that we do prescribe
> the "what" as well as the "how."
>
> Jeff
>
> -----Original Message-----
> From: Dan Steinberg [mailto:synthesis@videotron.ca]
> Sent: Monday, October 21, 2002 2:31 PM
> To: Cade,Marilyn S - LGA
> Cc: Transfer TF (E-mail)
> Subject: Re: [nc-transfer] FW: Briefing on Legal Conditions for
> PolicyImplementation
>
> Marilyn,
> I have read the attached document, and at first glance see no where that
we
> need to make any changes. It may be more relevant to the whois task force
> given the particular nature of that requirement but I dont feel at all
> qualified to make any statements
> on that issue.
>
> With respect to Transfers, the way I see it, we are making recommendations
> on *what* to change...the 'how to implement' is something we skated on a
few
> times and always specifically backed away from as far as I can remember.
> If we map Louis' requirements in the document to the changes in Appendix
A,
> I can't find anything that needs changing on the *what* front. What he
> appears to be discussing...is the *how* and the *can we?*  He has not come
> out and said "I dont think we
> should implement para x.xx.y.a (1)" so I have to assume there is nothing
> glaringly impossible or illegal that struck him in his role as General
> Counsel.
>
> So we are down from specifics that need be addressed...to generalities and
> possibilities and implementation issues.  Were we to change things...we
> would be changing recommendations.  I believe our task was to take input
and
> formulate recommendations on
> changes...not to tell ICANN how to implement them.
>
> If our recommendations are accepted, I am sure they will find the right
way
> to implement them as Louis Touton puts it..."to proceed in a manner that
> addresses the reasoned objections and concerns of these entities."  And if
> there are things we recommended
> that they cannot implement...so be it. At least we tried and came up with
> what we thought was best after considering every possible angle and (most
> important) taking input from wherever we could find it.
>
> Thoughts?
>
> "Cade,Marilyn S - LGA" wrote:
>
> > As I had indicated I would, I asked Louie to consult with us on the
issues
> related to the contracts for implementation of a policy recommendation by
> registrars and/or registries.  He prepared the attached and forwarded to
the
> Names Council last night.
> > Please review before our calls.
> >
> > We need to assess our recommendations against this legal clarification,
> and determine if there is additional work needed.
> >
> > I think it will be helpful, after we digest this, to be able to also
> consult with Louis Touton, General Counsel.
> >
> >
------------------------------------------------------------------------
> >                                               Name:
> general-counsel-briefing-20oct02.doc
> >    general-counsel-briefing-20oct02.doc       Type: WINWORD File
> (application/msword)
> >                                           Encoding: base64
> >                                        Description:
> general-counsel-briefing-20oct02.doc
>
> --
> Dan Steinberg
>
> SYNTHESIS:Law & Technology
> 35, du Ravin  phone: (613) 794-5356
> Chelsea, Quebec  fax:   (819) 827-4398
> J9B 1N1                 e-mail:synthesis@videotron.ca

--
Dan Steinberg

SYNTHESIS:Law & Technology
35, du Ravin  phone: (613) 794-5356
Chelsea, Quebec  fax:   (819) 827-4398
J9B 1N1                 e-mail:synthesis@videotron.ca