RE: [gnso-pednr-dt] For your review - Updated recommendations

[Alan Greenberg <alan.greenberg@xxxxxxxxx>]

A few comments...

At 09/02/2011 04:55 PM, Diaz, Paul wrote:
> In the interest of keeping things interesting, I cannot support the 
> addition of "explicit" to Recommendation #4.  When did ICANN get 
> into the practice of (re)interpreting contract law?  I'm not even 
> sure if my company will support Recommendation #4 in general (I've 
> asked my counsel for input), but am completely against including 
> verbiage that tries to regulate what a registration agreement can or 
> cannot contract between two private parties.
I wasn't attempting to suggest that ICANN regulate what is in the 
registration agreement (any more than it already does in several 
cases). My reference was that a post expiration change to whois 
triggered solely by the registrant accepting the "assignment" clause 
in a registration should not alter their ability to renew as intended 
prior to the end of the 8-day period.
> I also oppose the addition of "Through either Policy or Compliance 
> Advisory" to Recommendation #5.  An Advisory does NOT carry the 
> weight of Consensus Policy.  In fact, ICANN has issued ill-conceived 
> advisories in the past, and has either had to back-pedal or simply 
> ignore their own advice.  ICANN is supposed to be a bottom-up 
> policymaking organization: I do not want to confer rulemaking 
> authority to the Staff.
Sorry, I was reacting to (I think James's) comment that this does not 
belong in the RAA coupled with the legal opinion that it was already 
an assumed fact.
> A nit: we need to be careful about typos, especially misuse of key 
> terms like "register," "registrar," and/or "registrant" (see Rec 5 below).
Indeed!  Hopefully between now and the final report, we will 
eliminate any of those.
Alan

> P
>
>
> ----------
> From: owner-gnso-pednr-dt@xxxxxxxxx 
> [mailto:owner-gnso-pednr-dt@xxxxxxxxx] On Behalf Of Alan Greenberg
> Sent: Wednesday, February 09, 2011 11:10 AM
> To: Marika Konings; PEDNR
> Subject: Re: [gnso-pednr-dt] For your review - Updated recommendations
>
> Marika, thanks for the quick work. This is good. See notes below.
>
> Alan
>
> At 09/02/2011 05:57 AM, Marika Konings wrote:
>
> Dear All,
>
> Please find attached an updated version of the recommendations 
> document in which I've attempted to capture yesterday's discussion 
> and suggestions. You are strongly encouraged to review this document 
> and provide your feedback on the mailing list as soon as possible. 
> As a reminder, these are the main action items:
>    * Recommendation #1: Michael to confirm whether language is 
> specific enough to ensure exception for sponsored gTLD registries. 
> (Michael Young)
> My recollection, and I am not sure if it was on a conference call or 
> a private discussion, that Michael had thought that with the 
> unsponsored exception, it was ok. I beleive that he had added the 
> second "unsponsored" to make the intent clear.
>    * Recommendation #2: Review proposed alternative wording: 
> 'Define Registered Name Holder at Expiration" (RNHaE) as the entity 
> or individual that is eligible to renew the domain name 
> registration immediately prior to expiration'. (All)
> I would say "... the entity that WAS eligible..." but otherwise I am 
> ok with this.
>    * Recommendation #3: Review proposed alternative wording:  'If a 
> registrar offers registrations in a gTLD that supports the RGP, the 
> Registrar must allow the Registered Name Holder at Expiration to 
> redeem the Registered Name after it has entered RGP'. (All)
> Much better than the previous wording.
>
>    * Recommendation #4: Review proposed alternative wording: 'The 
> Registered Name Holder at Expiration cannot be prevented from 
> renewing a domain name registration as a result of WHOIS changes 
> made by the registrar that where not at the Registered Name Holder 
> at Expiration's request'. (All)
> I suggest "The Registered Name Holder at Expiration cannot be 
> prevented from renewing a Registered Name after expiration as a 
> result of WHOIS changes made by the registrar that where not at the 
> Registered Name Holder at Expiration's explicit request."
> That fixes the "Registered Name" terminology, says we are only 
> talking about post-expiration renewal, and makes the request 
> "explicit" I do not suggest that we complicate the recommendation 
> itself, but suggest that it the comments we clearly say that an 
> agreement included in a registration agreement allowing the 
> registrar to reassign, sell or auction the RN post expiration does 
> not constitute an "explicit" request.
>    * Recommendation #5: Review proposed alternative wording: 'All 
> RAA provisions applicable to Registrars dealing with registrar- 
> registrant interactions must be carried out by a registrar. If a 
> registrar choses to use a reseller, the register nevertheless 
> remains responsible for its obligationsunder the RAA. (All)
> I am not sure that this wording addresses the concern that Jeff 
> raised about a some terms varying per reseller. In our discussions, 
> we said that in such cases, the reseller may be the one that 
> fulfills this requirement on behalf of the registrar. Will Legal 
> Counsel accept the we replace the end of the first sentence by "... 
> carried out by a registrar or reseller."? The next sentence then 
> makes more sense.
> Typos: chooses for choses and registrar for register.
>
> Also, I was thinking about this last night, and wondered what people 
> think about prefixing this recommendation with "Through either 
> Policy or Compliance Advisory, reiterate the ..."  That makes our 
> recommendation more flexible. Perhaps based on comments we can 
> refine this in the final report, but this lays out that we are 
> divided about whether this belongs in the RAA or not.
>    * Recommendation #6: James to circulate alternative language for 
> consideration. (James Bladel)
>    * Recommendation #7: Review proposed modification. (All)
>    * Recommendation #9: Review proposed modification. (All)
> I would remove the phrase "and supported by registrars and ALAC" in 
> middle of the paragraph. It no longer is needed with ICANN now being 
> responsible, and it removes the sole reference to ALAC as opposed to others.
> Recommendation 11. I would say "It is the intention to have an 
> exception policy allowing Registrar to substitute alternative 
> notification patterns, but this still needs to be defined."
> Rec. 12 should be deleted and the rest renumbered.
>
>    * Recommendation #15, 15a and 15b:  WG members are requested to 
> review these recommendations and provide feedback on whether the 
> integrated version is preferred (15) or two separate 
> recommendations (15 a & b). (All)
> I prefer two, as this one is simply to long and complex. I submitted 
> revised wording for the 2nd one last night limiting its 
> applicability to if the name is still renewable (no point in 
> taunting a registrant if it isn't).
>    * Recommendation #16: Berry/Mikey to provide alternative wording 
> for consideration. (Berry Cobb / Mike O'Connor)
> In the text, the deletion made by Michael should be reinstated.
>
>
>
> The objective is to finalize this language as soon as possible for 
> inclusion in the proposed Final Report. As discussed yesterday 
> during the call, we are trying to get the language as 'perfect' as 
> possible, but there will still be an opportunity to fine-tune 
> wording following the review of public comments and prior to 
> finalization of the report.
> With best regards,
>
> Marika