[registrars] Clarification - XFER Issue

["Michael D. Palage" <michael@palage.com>]

In an series of emails with Louis I have clarified the following regarding
the exchange between David and Rob Hall on apparent authority:

If there was a contractual provision in the ISP subscription agreement
appointing the ISP as an agent/attorney-in-fact for registrar sponsorship,
this would be acceptable as apparent authority. Simple contractual language
absent this agent/attorney-in-fact language would not be sufficient to
convey apparent authority to an ISP. Notwithstanding, the gaining registrar
would still have to provide existence of this documentation to the losing
registrar if requested.

Mike

> -----Original Message-----
> From: owner-registrars@dnso.org [mailto:owner-registrars@dnso.org]On
> Behalf Of Rob Hall
> Sent: Monday, September 24, 2001 1:09 PM
> To: dwascher@iaregistry.com; Registrars Mail List
> Subject: RE: [registrars] Transfer Process Points
>
>
> David,
>
> I disagree.  Louis Touton was very clear in the registrars meeting in
> Montevideo that the ISP or reseller is NOT someone with "Apparent
> Authority".  It must be someone within the company, or there must
> be a legal
> document giving that specific authority to the third party.  Just
> because an
> ISP moves registrars does not give the ISP the authority to move all of
> their domains to the new registrar.
>
> Rob.
>
> -----Original Message-----
> From: owner-registrars@dnso.org [mailto:owner-registrars@dnso.org]On
> Behalf Of dwascher@iaregistry.com
> Sent: Monday, September 24, 2001 11:29 AM
> To: Registrars Mail List
> Subject: FW: [registrars] Transfer Process Points
>
>
> In our industry the definition of the Apparent Authority would be the
> telephone companies that we deal with. These telephone companies
> are agents
> of the domain name holder along with their telephone and many
> other services
> that they provide such as ISP and web hosting services. Almost
> all of these
> Telco's are the admin for the domain and in most cases the billing contact
> also. There are many situations when these Telco-ISP companies buy out
> another which causes a mass displacement of 2,000 to 10,000 Telco
> users. Out
> of these users there may be several hundred domains that now do not have
> their previous email address. The ability for this Telco to request a
> transfer is where the Apparent Authority come into play.
>
> David W.
> IARegistry
>
> -----Original Message-----
> From: owner-registrars@dnso.org [mailto:owner-registrars@dnso.org]On
> Behalf Of Larry Erlich
> Sent: Monday, September 24, 2001 11:32 AM
> To: Ross Wm Rader
> Cc: Registrars List
> Subject: Re: [registrars] Transfer Process Points
>
>
> Ross Wm. Rader wrote:
> >
> > Register.com has made several recommendations on how the
> existing proposal
> > can be improved. Tucows has a few informal comments on these
> > recommendations.
> >
> > 1. Definition of Apparent Authority. Apparent Authority is a legally
> defined
> > term already. Furthermore, requiring that the Gaining Registrar abide by
> the
> > Losing Registrar's definition of apparent authority will through the
> process
> > into a state of confusion. ie - Tucows says "Admin Contact",
> Register.com
> > says "Registrant" JoeX says "My Mother"...etc. It would be next to
> > impossible to build a system that would deal with differences from
> registrar
> > to registrar on any meaningful basis.
>
> Thanks for pointing that out (that apparent authority is defined legally).
>
> So, what this says to me is that we are dealing with
> what a "reasonable registrar" (as opposed to a
> reasonable person) would believe when
> interpreting the whois output. In other words, it is
> NOT reasonable to believe that Interland, a web hosting
> firm, has apparent authority over the domain GM.COM. It is
> reasonable for a registrar to believe that the billing
> contact, with an @GM.COM web address COULD,
> under certain circumstances, have apparent authority
> over the GM.COM domain. If the whois output (as I have
> previously suggested) was modified by the potential
> losing registrar, to have certain restrictions, then
> this might NOT be the case).
>
> What this all boils down to again is that it
> is up to the gaining registrar to take the necessary
> precautions prior to making a transfer request,
> and that you can't restrict this to a strict definition
> of who has the authority to agree to make these changes.
> ("Only Admin, "only Registrant" - it depends on the
> circumstances). The definition of "apparent authority"
> (below) seems to support this.
>
> This will probably not sit well with registrars
> that would like to have highly automated systems
> in order to facilitate transfers. I think in the end
> what we are going to see is that in order to maintain
> some protection, a human is going to have to
> get involved in the transfer process.
>
> This would also seem to support the conclusion
> that under certain circumstances an AUTO NACK
> might be appropriate (note that I didn't say
> ALL, I said CERTAIN).
>
>
>
> http://dictionary.law.com/definition2.asp?selected=2411&bold=%7C%7C%7C%7C
>
> apparent authority
> n. the appearance of being the agent of another (employer or principal)
> with the power to act for the principal. Since under the law of agency
> the employer (the principal) is liable for the acts of his employee
> (agent), if a person who is not an agent appears to an outsider (a
> customer) to have been given authority by the principal, then the
> principal is stuck for the acts of anyone he allows to appear to have
> authority. This "apparent authority" can be given by providing Joe
> Slobovia (who has no authority to contract) with materials, stationery,
> forms, a truck with a company logo, or letting him work out of the
> company office, so that a reasonable person would think Joe had
> authority to act for the company. Then the contract or the price quote
> given by Joe and accepted by a third party is binding on the company.
> Apparent authority may also arise when Joe works for the company, has no
> authority to contract, but appears to have been given that authority.
> Beware of the salesman who exceeds his authority or the
> hanger-on who claims to work for the boss.
>
>
>
> >
>
> --
> -----------------------------------------------------------------
> Larry Erlich - DomainRegistry.com, Inc.
> 215-244-6700 - FAX:215-244-6605 - Reply: erlich@DomainRegistry.com
> -----------------------------------------------------------------
>
>