Re: [gnso-frn-dt] Responses from staff

[Marika Konings <marika.konings@xxxxxxxxx>]

Hi Paul.

Regarding your first question, ICANN does not have anything in place that
prevents an existing accredited registrar (or its resellers) from sending
fake renewal notices. However, if these notices turn out to be unlawful
(RAA 3.7.2 - Registrar shall abide by applicable laws and governmental
regulations) or non-compliant with the RAA or ICANN policy, ICANN will
pursue the perpetrator registrar (or its reseller through the
ICANN-accredited registrar), as ICANN¹s contractual authority permits; or
refer the matter to law enforcement or consumer protection agency, if
appropriate.

Regarding your second point, ICANN Compliance will invoke RAA 2.1
(suspension of a registrar¹s ability to create new registered names or
initiate inbound transfers) if the totality of the circumstances warrants
such sanction (see 
http://www.icann.org/en/registrars/ra-agreement-21may09-en.htm: 2.1
"....ICANN may, following notice to Registrar, suspend Registrar's ability
to create new Registered Names or initiate inbound transfers of Registered
Names for one or more TLDs for up to a twelve (12) month period if (i)
ICANN has given notice to Registrar of a breach that is fundamental and
material to this Agreement pursuant to Subsection 5.3.4 and Registrar has
not cured the breach within the period for cure prescribed by Subsection
5.3.4, or (ii) Registrar shall have been repeatedly and willfully in
fundamental and material breach of its obligations at least three (3)
times within any twelve (12) month period").

With best regards,

Marika 

On 26/01/12 18:21, "Paul Diaz" <pdiaz@xxxxxxx> wrote:

>What does ICANN have in place to prevent an existing accredited registrar
>(or its resellers) from sending fake renewal notices?  The second answer
>seems to hint that ICANN Compliance would invoke RAA 2.1 to cure such
>inappropriate behavior.  Will ICANN state this explicitly/publicly?
>
>Clarity is important as there's really no precedent for such action -
>even though it's well-understood that a select few registrars have
>allowed/condoned resellers' fake renewal notices.  I'm aware of some
>nascent Compliance initiatives, and suggest that this is a good
>opportunity for ICANN to demonstrate organizational maturity through
>enforcement of its contracts as well as accountability to end users.
>
>Regards,
>
>Paul Diaz
>Public Interest Registry
>
>On Jan 26, 2012, at 11:10 AM, Marika Konings wrote:
>
>Dear All,
>
>Please find below the feedback from staff in relation to the questions
>posed by the drafting team. Let me know if you have any questions /
>comments, or we can discuss in further detail during our next meeting.
>
>With best regards,
>
>Marika
>
>============================
>
>Question: What measures, if any, are in place as part of the current
>registrar accreditation policy to prevent known offenders of sending fake
>renewal notices to become an ICANN accredited registrar?
>
>Response: ICANN has recently modified the accreditation application
>process to ask for and check into more information about the background
>of applicants. The application and supporting documents submitted by the
>applicant have to show that it is eligible for accreditation as per
>Section II.A of the Statement of Registrar Accreditation Policy
>(http://www.icann.org/en/registrars/policy_statement.html#IIA), which
>means that ICANN would reject an application if the applicant cannot
>prove that it is eligible or if ICANN has any evidence that it isn't
>eligible.
>
>Furthermore ICANN would also reject an application if the applicant
>and/or any of its officers, directors, manager or any person or entity
>owning (or beneficially owning) at least 5% percent of the applicant is
>concerned by any reason for ineligibility as per Section II.B of the
>Statement of Registrar Accreditation Policy. One of these reasons is:
>"within the past ten years, has been convicted of a felony or of a
>misdemeanor related to financial activities, or has been judged by a
>court to have committed fraud or breach of fiduciary duty, or has been
>the subject of a judicial determination that ICANN deemed as the
>substantive equivalent of any of these".
>
>Question: As at first sight the issue of fake renewal notices seems to be
>mainly linked to resellers, is there anything in the new RAA (2009 RAA)
>that would provide more or better protections to address theissue of fake
>renewal notices if these are sent by resellers?
>
>Response: the 2009 RAA modifications did not directly address fake
>renewal notices. Staff could check back to the 2009 suggested amendment
>topics to see if anyone even raised this issue back then. However,
>registrars are fully responsible for complying with every provision of
>the RAA, and the transfer policy, and applicable laws, for every
>registration / renewal / transfer that they make, whether they customer
>deals with the registrar directly or through an
>intermediary/agent/reseller.
>
>If any registration / renewal / transfer is processed in violation of the
>agreement / policy (or applicable laws), thenICANN should be able to hold
>the registrar fully accountable. That allegedly fake renewal notices are
>supposedly linked mainly to resellers does not provide any safe harbor
>for any registration / renewal / transfer processed by any registrar. It
>should be taken into account that a reseller cannot process
>aregistration, renewal or transfer except for through an accredited
>registrar.
>