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Re: [nc-deletes] FW: [council] Concerns Regarding Report of Deletes Task Force


I also recommend that we don't make any changes to the report.

Besides the fact that much of what Louis lays out is like a waitress
asking "Do you want a bun with that?" when you order a hamburger, I believe
it is the Implementation Committee who will need to take his comments into
consideration.

I will make one specific comment regarding his Concern C:
Mandatory "Payment" Policies Could Stifle Registrar Business Models.

I don't think our recommendation will be misconstrued that way, any more so
than this requirement from the current RAA:

"3.7.4 Registrar shall not activate any Registered Name unless and until it
is satisfied that it has received a reasonable assurance of payment of its
registration fee. For this purpose, a charge to a credit card, general
commercial terms extended to creditworthy customers, or other mechanism
providing a similar level of assurance of payment shall be sufficient,
provided that the obligation to pay becomes final and non-revocable by the
Registered Name Holder upon activation of the registration."

A number of registrars have given domain names away in various promotional
programs. I don't receall any of them having their hands slapped for it
based on the RAA section above.

Tim

 -------- Original Message --------
   Subject: Re: [nc-deletes] FW: [council] Concerns Regarding Report of
Deletes Task Force
   From: "Dr Eberhard W. Lisse" <el@ac.lisse.na>
   Date: Sun, April 13, 2003 1:50 am
   To: Bret Fausett <fausett@lextext.com>

   I have widened the Cc list, can someone post this to ga@centr.org and
   ga@dnso.org, if it is rejected by the mailing lists for non
   subscription?


   Personally I think Mr Trouton's input is not very helpful.

   45 days is 45 days. We can give 90 days, 180 days, 9750 days, someone
   will manage to meet the deadline. And his name will not necessarily be
   Murphy.

   Concern A:

   Now I am not a laywer, just a simple Obstetrician and Gynaecologist,
   but the hypotheticals don't make much sense to me.

   #1: As far as I read the ICANN Registrar Agreement this case can not
   occur, and if it does, it is the Registrar's responsibility to make it
   right.

   #2: As far as I understand the usual Registrant Registrar agreements
   this case can not occur. And, if Registrant's headquarters happens to
   be in Tikrit, or happens to become collateral damage, they don't need
   much DNS in the first place.

   #3: Now I don't much about courts (yet, even being an Obstetrician
   :-)-O), but as far as I understand court orders have precedence over
   any agreement getween two ligitating parties. Seems to me that in the
   US this is true too, they even decide who wins elections, never mind
   how the people voted.

   #4: Besides the fact that this is actually #3. one would think that
   court proceedings would be rendered moot on expiry of the domain.

   #5: Too bad. They should have paid in time. They better have
   insurance.  In any case Mr Trouton's colleagues will institute a class
   action suit and pocket 1/3 of the proceeds.

   #6: As far as I understand an agreement is an agreement, and a
   deadline is a deadline. The first thing that happened when the .COM
   bubble burst was that the leased company cars and the leased cell
   phones were returned. The second was that the telephone lines were cut
   when the invoices were not paid any more. Under this, they would have
   to remain with the client and increase the debt of the bancrupt
   Registrant.

   #7: "The check is in the mail" (straight out of the book "2002 ways of
   not paying your bills" :-)-O). Too bad.  As far as I understand even
   ICANN requires TIMELY submission of Proof of Payment for its own
   bills.

   #8: I can not find a clause in any ICANN policy MANDATING favouritism
   or even condoning it. As far as I understand RFC1592 (and ICP-1)
   actually say the opposite.

   Concern B:

   Each registrar must of course tell Registrants BEFORE they apply, what
   the conditions will be. I can not read anything here that forbids the
   Registrar to modify its procedures after registration. It is a matter
   for the agreements between Registrar and Registrant, and all the
   agreements that I have read have a clause that modifications are to be
   published on the web site and accpepted by clients if not objected to
   within a period of time. Even the ICANN Registrar Accreditation
   Agreement has such as provision

   The ICANN Registrar Agreement does indeed MANDATE a web site for
   whois, so they can post it there if they don't have any other
   one. However it is actually impractical to assume that in a high
   volume, low cost per item, IT industry that any business model would
   pass ICANN's Registrar accreditation muster i they didn't have a web
   site where to post this.

   Concern C:

   There *IS* a "consideration" for the service provided in some of other
   form. I can not read anything that prescribes or limit the amount
   here.

   Concern D:

   Overlap with other task force is specifically not an issue for this
   Task Force. As it happens to concern deletion the recommendation of
   this Task Force should, of course, have precendence. However, I can
   not find any ICANN document stating that "First Come, First Serve" is
   the guiding principle of the policy process. I can also find nothing
   saying that any of this is easy.


   The Task Force had the brief of coming up with a policy and propose it
   to Council. The Task Force has come up with a policy (unanimously with
   one abstention) and proposes it to Council.

   Now, Council can vote on submission to the ICANN Board, as is, with
   amendments, or not at all.

   ICANN staff then can make unilateral decisions by violating all its
   own policies. As usual.


   I vote against any changes to the report.

   el
   --
   Dr. Eberhard W. Lisse  \   *    /        Managing Member, NA-NiC (cc)
    <el@lisse.NA> el108    /       | NA-NiC is the the .NA ccTLD Registry
   Private Bag X5501       \     /           NA-NiC, Not Just Like That!
   Oshakati, Namibia       ;____/     Telephone: +264 81 124 6733 (cell)
   Please send DNS/NA-NiC related e-mail to dns-admin@na-nic.com.na only



   In message <BABCAD2B.1E308%fausett@lextext.com>, Bret Fausett writes:
   > Thanks for this. Some of the points, especially with regard to the
   > ramifications of a uniform policy, were, I think, contemplated by
   > the task force. Other points reveal ambiguities in our drafting that
   > ought to be easily solved by a rewording. The whole report, however,
   > probably warrants a thorough review in light of the staff report.
   >
   > Procedurally, what can we do at this point? My sense is that it will
   > be easier for the task force to consider the staff report, having
   > been involved more deeply in these issues, than to ask the NC to
   > deal with it. Is there a mechanism that would allow us to reconcile
   > the task force report with the staff commentary?
   >
   >       Bret
   >
   >
   > Jordyn Buchanan wrote:
   > > -----Original Message-----
   > > From: Louis Touton [mailto:touton@icann.org]
   > > Sent: Friday, April 11, 2003 3:00 PM
   > > To: council@dnso.org
   > > Subject: [council] Concerns Regarding Report of Deletes Task Force
   > >
   > >
   > > To the GNSO Council:
   > >
   > > The agenda for the Council's next meeting (17 April 2003) includes
   > > the following item:
   > >
   > > "6. Vote to approve the Deletes Task Force recommendations and
   > > report for submission to the ICANN Board."
   > >
   > > Because the Deletes Task Force commenced work before the GNSO PDP
   > > came into effect on 15 December 2002, a Staff Manager has not been
   > > assigned and the T
   > ask
   > > Force has not otherwise had significant staff involvement/support
   > > to date.
   > As
   > > part of the overall process of transitioning to the PDP, Dan
   > > Halloran and I have just reviewed the Deletes Task Force's Final
   > > Report, as posted at
   > > <http://www.dnso.org/dnso/notes/20030323.DeletesTF-final-
report.html>.
   > >
   > > Based on that review, we have concerns regarding some aspects of
   > > the report
   > .
   > > The purpose of this message is to alert the GNSO Council to the
   > > staff's concerns with the recommendations as currently framed.
   > >
   > > Concern A: The Proposed Mandatory Deletion Policy Does Not Allow
   > > for Extenuating Circumstances
   > >
   > > In its current form, the report makes two recommendations that
   > > require registrars to delete domain-name registrations within 45
   > > days after they expire. These recommendations appear to apply
   > > absolutely, not allowing exceptions for various extenuating
   > > circumstances under which deleting registrations by that deadline
   > > could harm innocent registrants or result in loss of DNS
   > > nameservice for other domains.
   > >
   > > The recommendations are 3.1.1 and 3.1.2:
   > >
   > > "3.1.1 Domain names must be deleted if a paid renewal has not been
   > > received by the registrar from the registrant or someone acting on
   > > the registrant's behalf by the end of the Auto-renew Grace Period
   > > (generally forty-five days after the domain's initial expiration).
   > > As a mechanism for enforcing this requirement, registries may
   > > elect to delete names for which an explicit renew command has not
   > > been received prior to the expiration of the grace period."
   > >
   > > "3.1.2 Domain names must be deleted within 45 days of the
   > > expiration of the registration agreement between the registrar and
   > > registrant, unless the agreement is renewed."
   > >
   > > It appears that a registrar has no ability to delay deletions past
   > > 45 days
   > in
   > > extenuating circumstances. Here are a few hypothetical situations
   > > intended
   > to
   > > highlight the serious problems such an unqualified rule could
   > > cause:
   > >
   > > Hypothetical #1: Shortly before the 45-day deadline, the registrar
   > > discover
   > s
   > > that its contact data for the registrant has been altered due to
   > > hacking or some other incident in the registrar's systems. The
   > > registrar concludes tha
   > t,
   > > as a result of the alteration, a renewal notice was never sent to
   > > the prope
   > r
   > > address for the registrant, so that the registrant has never paid
   > > a renewal fee and has never entered into a renewed registration
   > > agreement. Nonetheles
   > s,
   > > the registrar is required by 3.1.1 and 3.1.2 to delete the
   > > registration, resulting in DNS service to the registrant being
   > > shut off. The service can only be restored, after some delay,
   > > through restoration under the redemptio
   > n
   > > grace period.
   > >
   > > Hypothetical #2: The registrant's main office is located in a
   > > building that has suffered a disaster due to
   > > flood/fire/earthquake/war/terrorism/etc. The renewal notice was
   > > sent to that address, but it appears doubtful that the registrant
   > > would have been able to complete the renewal process by the
   > > deadline. Nonetheless, the registrar is required by 3.1.1 and
   > > 3.1.2 to dele
   > te
   > > the registration, resulting in DNS service being shut off.
   > >
   > > Hypothetical #3: A registration is the subject of court
   > > proceedings over wh
   > o
   > > is the proper domain-name holder. The court issues an order
   > > requiring that
   > the
   > > registrar "freeze" the domain registration, to prevent any
   > > changes. The registrant does not pay the renewal fee, putting the
   > > registrar in the posit
   > ion
   > > of either violating the court order or breaching 3.1.1 and 3.1.2
   > > (and therefore its accreditation agreement with ICANN).
   > >
   > > Hypothetical #4: A registrar has submitted a "registrar
   > > certificate" to a court concerning a domain name that is currently
   > > involved in court proceedings. In the registrar certificate, the
   > > registrar has submitted the registration to the court's
   > > jurisdiction and has promised not to modify, transfer, or delete
   > > the registration during the court proceedings. No renew
   > al
   > > takes place within 45 days after expiration, so that 3.1.1 and
   > > 3.1.2 requir
   > e
   > > the registrar to act contrary to the registrar certificate.
   > >
   > > Hypothetical #5: A domain name registered through a registrar is
   > > used to support the host names of nameservers that provide
   > > secondary nameservice fo
   > r
   > > 20,000 domains held by other customers, which are registered
   > > through many different registrars. The registration is not
   > > renewed. As a result, nameservice for the 20,000 other domains
   > > must be migrated to other hosts. T
   > his
   > > is not accomplished in 45 days, and as a result 20,000 domains
   > > disappear fr
   > om
   > > the Internet.
   > >
   > > Hypothetical #6: Shortly after the expiration date of a
   > > registration, the registrar is informed that the registrant has
   > > filed for bankruptcy. The registrar's legal advisors have
   > > cautioned the registrar to refrain from terminating services to
   > > the bankrupt registrant without court permission. Recommendations
   > > 3.1.1 and 3.1.2, however, require the registrar to delete t
   > he
   > > registration.
   > >
   > > Hypothetical #7: During the 45-day period after expiration, the
   > > registrant asserts that it has made a renewal payment to the
   > > registrar, but the regist
   > rar
   > > has been unable to complete its investigation into the payment
   > > dispute befo
   > re
   > > the 45-day deadline. The registrar is uncertain whether it must
   > > delete the registration in order to comply with 3.1.1 and 3.1.2.
   > >
   > > Hypothetical #8: The registrar has a long-standing relationship
   > > with a registrant; the registrar knows that one of the
   > > registrant's domain registrations that has expired is for an
   > > important and heavily used name, a
   > nd
   > > suspects that the registrants' failure to renew was caused by an
   > > oversight. The registrar is unable to resolve the issue with the
   > > registrant within the 45-day period. As a result, recommendations
   > > 3.1.1 and 3.1.2 require the registrar to delete the registration,
   > > shutting off nameservice for the doma
   > in.
   > >
   > > Based on a plain reading of the recommendations of 3.1.1 and
   > > 3.1.2, in many
   >  if
   > > not all of these hypothetical cases the registrar would apparently
   > > be requi
   > red
   > > to delete names, even though contrary to technical prudence or
   > > even other legal requirements. While it may make sense to
   > > prescribe a uniform time fra
   > me
   > > for registrar deletion of expired names, the hypothetical
   > > situations descri
   > bed
   > > above point to the difficulty of making hard and fast rules
   > > without allowin
   > g
   > > for exceptions in extenuating circumstances.
   > >
   > > Concern B: The Recommendations Concerning Mandatory Disclosures
   > > Inappropriately Restrict Certain Registrar Business Models
   > >
   > > Recommendations 3.1.4 and 3.1.6 seem to prevent registrars from
   > > adapting an
   > d
   > > evolving their service offerings over time since they mandate that
   > > policies and prices be provided "at the time of registration",
   > > even though the polic
   > ies
   > > and prices may not come into effect until after the registration
   > > expires (a
   > nd
   > > after the registrant has the opportunity to transfer to another
   > > registrar). These provisions state:
   > >
   > > "3.1.4 Registrars must provide a summary of their deletion policy,
   > > as well as an indication of any auto-renewal policy that they may
   > > have, at the time of registration. This policy should include the
   > > expected time at which a non-renewed domain name would be deleted
   > > relative to the domain's expiration date, or a date range not to
   > > exceed ten days in length."
   > >
   > > "3.1.6 Registrars should provide, both at the time of registration
   > > and in a conspicuous place on their website, the fee charged for
   > > the recovery of a domain name during the Redemption Grace Period."
   > >
   > > It is not clear whether registrars would be able to modify their
   > > procedures
   >  or
   > > prices at any time after initial registration of a domain name.
   > >
   > > Also, recommendations 3.1.5 and 3.1.6 seem to obligate all
   > > registrars to operate websites. In some business models currently
   > > available to registrars
   > ,
   > > including reseller models and models used in some regions of the
   > > world, registrars do not operate principally through websites, but
   > > use other means
   >  to
   > > communicate with prospective and actual customers. There is no
   > > current requirement that registrars operate websites, other than
   > > for a web-based Wh
   > ois
   > > service. These recommendations appear unnecessarily to restrict
   > > these alternative registrar business models.
   > >
   > > Concern C: Mandatory "Payment" Policies Could Stifle Registrar
   > > Business Mod
   > els
   > >
   > > Recommendation 3.1.1 (and possibly recommendation 3.1.6) appears
   > > to require that registrars charge all customers for registration
   > > and RGP services. Som
   > e
   > > registrars operate business models under which some or all
   > > registrants are
   > not
   > > charged specifically for registration services. In accord with
   > > ICANN's mission, Registrar Accreditation Agreement 3.7.10
   > > specifically precludes an
   > y
   > > policy that regulates registrar
   > > prices: "Nothing in this Agreement prescribes or limits the amount
   > > Registra
   > r
   > > may charge Registered Name Holders for registration of Registered
   > > Names." B
   > y
   > > requiring that renewals be paid, recommendation 3.1.1 contradicts
   > > this principle. Implementation of a requirement that a fee be
   > > charged for renewa
   > ls
   > > would also raise serious concerns under relevant antitrust and
   > > competition laws.
   > >
   > > Concern D: Overlap with Whois Recommendations
   > >
   > > On 27 March 2003, the ICANN Board adopted four consensus-policy
   > > recommendations relating to Whois accuracy and bulk access. One of
   > > those recommendations states:
   > >
   > > "B. When registrations are deleted on the basis of submission of
   > > false contact data or non-response to registrar inquiries, the
   > > redemption grace period -- once implemented -- should be applied.
   > > However, the redeemed domain name should be placed in registrar
   > > hold status until the registrant has provided updated WHOIS
   > > information to the registrar-of-record."
   > >
   > > This recommendation is currently early in the implementation
   > > process.
   > >
   > > The Final Report of the Deletes Task Force contains this
   > > recommendation on
   > the
   > > same topic, but proposing a somewhat different policy:
   > >
   > > "3.3.1 The Redemption Grace Period will apply to names deleted due
   > > to a complaint on WHOIS accuracy. However, prior to allowing the
   > > redemption in such a case, the registrar must update the
   > > registration with verified WHOIS data and provide a statement
   > > indicating that the data has been verified in conjunction with the
   > > request for the name's redemption. The same rules that apply to
   > > verification of WHOIS data for regular domain names following a
   > > complaint will apply to deleted names."
   > >
   > > By proposing overlapping policies so soon after one another, the
   > > GNSO would significantly complicate the task of implementing the
   > > policies.
   > >
   > > Thank you for your attention. Please feel free to contact me if
   > > you have an
   > y
   > > questions.
   > >
   > > Best regards,
   > >
   > > Louis Touton
   > > General Counsel
   > >
   > >
   > >
   >





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