Summary of public comments on a draft GNSO Council resolution to curb domain tasting

[Liz Gasster <liz.gasster@xxxxxxxxx>]

Summary and analysis of public comments on a draft GNSO Council resolution to 
curb domain tasting


Comment period:  7 March 2008 - 28 March 2008

Summary published: 31 March 2008

Prepared by: Liz Gasster, Senior Policy Counselor, ICANN staff

Background:  In spring 2007, the At Large Advisory Committee (ALAC), asked the 
GNSO Council to review the subject of "domain tasting". The term domain tasting 
refers to a case when someone registers a domain name and then tests to see if 
the name has sufficient traffic to provide more income than the annual 
registration fee (usually through pay-per-click advertising). If the address is 
deemed profitable, it is kept. If not, the current "add grace period" - where 
domains can be returned within five days without cost - is used to return the 
domain at no net cost to the registrant. There has been a significant increase 
in the number of domains registered and returned and some are concerned that 
the add-grace period represents a loophole that facilitates this conduct.

In response to the ALAC's request, the GNSO Council requested that ICANN staff 
prepare an issues paper for review and discussion. The GNSO Council discussed 
the Issues 
Report<http://gnso.icann.org/issues/domain-tasting/gnso-domain-tasting-report-14jun07.pdf>
 at ICANN's San Juan meeting in June 2007, and created a working group to 
gather more information. The working group published an Outcomes 
Report<http://gnso.icann.org/drafts/gnso-domain-tasting-adhoc-outcomes-report-final.pdf>
  in October 2007 which suggested three terms of reference for next steps, as 
follows:

 1.  Review and assess all the effects of domain tasting activities that have 
been identified.
 2.  Judge whether the overall effects justify measures to be taken to impede 
domain tasting.
 3.  If the answer to 2 is affirmative, then consider the potential impacts of 
various measures on the Constituencies, and recommend measures designed to 
impede domain tasting.

As a result of both reports, the GNSO Council decided on 31 October 2007 to 
launch a formal policy development process (PDP) into domain tasting.  An 
Initial 
Report<http://gnso.icann.org/issues/domain-tasting/gnso-initial-report-domain-tasting-07jan08.pdf>
 was produced for public comment, outlining the policy development process, 
possible actions to be taken to curb domain tasting including changes to the 
add grace period, and the impact of potential measures on the GNSO 
constituencies. Public comments have been incorporated into a draft Final 
Report, 
http://www.gnso.icann.org/drafts/draft-final-report-domain-tasting-08feb08.pdf 
(posted 8 February), which has been supplied to the GNSO Council for its review 
and further action on the PDP.

Following the launch of the PDP, a small drafting group of the GNSO Council 
drafted a motion that would restrict the applicability of the AGP to a maximum 
of 50 deletes per registrar per month or 10% of that registrar's net new 
monthly domain name registrations, whichever is greater.  This proposal is the 
subject of this 21-day public comment period.  The specific language of the 
draft motion is set forth in Attachment I.

Also on 31 October, the GNSO voted to encourage ICANN staff to consider 
applying the annual fee to all registrations and staff is pursuing 
incorporating this change in the context of the upcoming budget proposal.  
Subsequently, on 29 January 2008, the ICANN Board recommended that ICANN charge 
the annual fee for all registrations. Though not specifically solicited at this 
time, many of the comments received also offered comments on this pending 
proposal.

General comments:

A total of 41 public comments were received during the public comment period.  
Of those, 15 were multiple postings by the same individuals reinforcing 
previous points (many of which were also email threads also posted to other 
lists).


22 of the 26 non-duplicative comments received agreed that steps should be 
taken to curb domain tasting.  Four comments do not object to domain tasting.  
JE, GC, FVS, KT.  One comment (KT) emphasized the importance of distinguishing 
between domain tasting and domain "kiting", referred to by that commenter as 
"the re-registration of a domain name by the same registrar when it is 
dropped..."

The 22 remaining comments reflect a plurality of views on the best course of 
action that should be taken to reduce domain tasting.   Viewpoints coalesced 
around three of the options that have been most widely discussed, as follows:


 1.  Nine comments support the pending draft motion to prohibit gTLD operators 
from offering any refund to a registrar for any domain names deleted during the 
AGP that exceed (i) 10% of that registrar's net new registrations in that month 
(defined as total new registrations less domains deleted during AGP), or (ii) 
fifty (50) domain names, whichever is greater.  ED, Neustar, INTA, YAHOO, 
CADNA, HL, eBAY, PayPal, Dell.  Several of these comments emphasize important 
improvements that are needed, these are described further below.  Several of 
these comments suggest that they would prefer outright elimination of the add 
grace period (INTA, eBAY, perhaps others), but are supporting this option as an 
initial policy step to assess whether it would be effective in significantly 
curbing domain tasting, before pushing for tougher measures.
 2.  Seven comments support elimination of the add grace period entirely.  PS, 
AN, CM, DF, JW, TLDA, JT.  These comments have the view that other measures, 
such as the approach contained in the proposed motion, will not be effective in 
curbing domain tasting.  These comments also take the view that the primary 
reason that registrars want to preserve the AGP, such as to address 
typographical errors and other registration mistakes, can be better addressed 
by implementing a "double opt-in" purchase verification system.  These comments 
also cite the ability of registrars to employ other more effective means to 
substitute for reliance on the AGP, such as measures to detect fraud and other 
uses identified by registrars.  One comment supports reducing the AGP to 24 
hours.  IDOA.
 3.  Four comments support the proposed change to the ICANN budget that would 
charge the $.20 fee for all registrations.  PJ, JAW, ICA, USCIB.  Two of these 
three comments raise concerns with other options and view the budget option as 
an essential first step. USCIB leaves open the possibility of supporting other 
options that might also be effective in its view.  Two comments specifically 
object to the option of revising the budget.  Neustar, CM

In addition, two comments objected to the draft motion but did not voice 
support for any other options.  JA, JH

Additional analysis:

In addition to commenting on the threshold questions discussed above, several 
comments raised important details that are noted below:


 *   Comments on "extraordinary circumstances" provision of the pending draft 
motion.  Several comments voice concern that the language would provide a 
loophole and be unenforceable.  ED, INTA, HL, Dell.    INTA suggests adding an 
illustrative list of the types of circumstances that would be considered 
"extraordinary".
 *   Concerns about the need for stepped up enforcement.  DF, JW, CADNA
 *   There were specific recommendations to change certain provisions in the 
draft motion, as follows:
    *   In the clause that states:  "During any given month, an Applicable gTLD 
Operator may not offer any refund to a registrar for any domain names deleted 
during the AGP that exceed (i) 10% of that registrar's net new registrations in 
that month", change "may not" to "shall not".  INTA, HL, Dell
    *   Provide specific guidance as to the meaning of "regularly" in paragraph 
1.b of the motion, regarding the frequency of circumstance that would not be 
considered extraordinary.  INTA, Dell
    *   Require public disclosure of information that is required to be 
reported by applicable gTLD operators.  INTA
    *   Establish time frames for implementation.  INTA

Next Steps:  Staff will incorporate these comments, and any updated 
constituency statements received, into a final report by 4 April 2008.  The 
GNSO Council will then review and consider these comments and the final report. 
The Council is scheduled to consider the matter further, including motions that 
may be drafted or updated prior to its scheduled 17 April meeting.

Contributors, in order of first appearance (with abbreviation) and number of 
postings if more than one:

Paul Scheufler (PS)
Eduardo Diaz (ED)
John Erickson (JE)
Pamela Jones (PJ)
Jeff Neuman for Neustar (Neustar)
Jack Avilar (JA) - 2 submissions
Anon "domain tasting" (AN)
James Walker (JAW)
Chris McElroy (CM) - 4 submissions
Gilbert Cheung (GC)
Dominik Filipp (DF) - 6 submissions
Jeff Williams (JW) - 5 submissions
Claudio DiGangi for the International Trademark Association (INTA)
Karl Peters for TLDA (TLDA) - 2 submissions
Freddy VanSant (FVS)
J. Scott Evans for Yahoo (Yahoo)
Karen Thompson (KT)
Phil Corwin for the Internet Commerce Association (ICA)
Jacob Hearst (JH)
Joop Teernstra (JT)
Philip Lodico for the Coalition Against Domain Name Abuse (CADNA)
Cameron Smith for Herbalife (HL)
Matt Hooker for the Internet Domain Owners Association (IDOA)
Susan Kawaguchi for PayPal (PayPal)
Susan Kawaguchi for eBay (eBay)
Christopher Martin for USCIB (USCIB) - [sent to ICANN staff, should be posted]


Attachment I - Resolution on domain tasting approved 6 March  2008


Whereas, the GNSO Council has discussed the Issues Report on Domain Tasting and 
the Final Outcomes Report of the ad hoc group on Domain Tasting;

Whereas, the GNSO Council resolved on 31 October 2007 to launch a PDP on Domain 
Tasting;

Whereas, the GNSO Council authorized on 17 January 2008 the formation of a 
small design team to develop a plan for the deliberations on the Domain Tasting 
PDP (the "Design Team"), the principal volunteers to which had been members of 
the Ad Hoc Group on Domain Tasting and were well-informed of both the Final 
Outcomes Report of the Ad Hoc Group on Domain Tasting and the GNSO Initial 
Report on Domain Tasting
(collectively with the Issues Report, the "Reports on Domain Tasting");

Whereas, the GNSO Council has received the Draft Final Report on Domain Tasting;

Whereas, PIR, the .org registry operator, has amended its Registry Agreement to 
charge an Excess Deletion Fee; and both NeuStar, the .biz registry operator, 
and Afilias, the .info registry operator, are seeking amendments to their 
respective Registry Agreements to modify the existing AGP;

The GNSO Council recommends to the ICANN Board of Directors that:

1. The applicability of the Add Grace Period shall be restricted for any gTLD 
which has implemented an AGP ("Applicable gTLD Operator"). Specifically, for 
each Applicable gTLD Operator:

a. During any given month, an Applicable gTLD Operator may not offer any refund 
to a registrar for any domain names deleted during the AGP that exceed (i) 10% 
of that registrar's net new registrations in that month
(defined as total new registrations less domains deleted during AGP), or (ii) 
fifty (50) domain names, whichever is greater.

b. A Registrar may seek an exemption from the application of such restriction 
in a specific month, upon the documented showing of extraordinary 
circumstances. For any Registrar requesting such an exemption, the Registrar 
must confirm in writing to the Registry Operator how, at the time the names 
were deleted, these extraordinary circumstances were not known, reasonably 
could not have been known, and were outside of the Registrar's control. 
Acceptance of any exemption will be at the sole reasonable discretion of the 
Registry Operator, however "extraordinary circumstances" which reoccur 
regularly will not be deemed extraordinary.

c. In addition to all other reporting requirements to ICANN, each Applicable 
gTLD Operator shall identify each Registrar that has sought an exemption, along 
with a brief descriptive identification of the type of extraordinary 
circumstance and the action (if any) that was taken by the Applicable gTLD 
Operator.

2. Implementation and execution of these recommendations shall be monitored by 
the GNSO. Specifically;

a. ICANN Staff shall analyze and report to the GNSO at six month intervals for 
two years after implementation, until such time as the GNSO resolves otherwise, 
with the goal of determining;

i. How effectively and to what extent the policies have been implemented and 
followed by Registries and Registrars, and

ii. Whether or not modifications to these policies should be considered by the 
GNSO as a result of the experiences gained during the implementation and 
monitoring stages,

b. The purpose of these monitoring and reporting requirements are to allow the 
GNSO to determine when, if ever, these recommendations and any ensuing policy 
require additional clarification or attention based on the results of the 
reports prepared by ICANN Staff.