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

["James M. Bladel" <jbladel@xxxxxxxxxxx>]

Alan & Team:


Reviewing my notes on Rec #5, many of the registrars on this group
(Jeff, Michele and myself) expressed that it was not appropriate for a
PDP to issue (what amounts to) an opinion about the RAA, and that it was
redundant/unnecessary.  

Here's my (ever colorful) take at the time:

James Bladel: Okay. Well I'm going to go ahead and vote with Jeff on
this one that I think that, you know, if a reseller, you know, sneezes
and doesn't blow his nose that we're responsible for that. I mean,
that's just understood in this business that we're responsible for what
our resellers do. So I don't think calling that out in specific
policies... 

So I am opposed to Rec #5 in any form, current or proposed.

Thanks--

J.



-------- Original Message --------
Subject: RE: [gnso-pednr-dt] For your review - Updated recommendations
From: Alan Greenberg <alan.greenberg@xxxxxxxxx>
Date: Wed, February 09, 2011 4:20 pm
To: "Diaz, Paul" <pdiaz@xxxxxxxxxxxxxxxxxxxx>, PEDNR
<gnso-pednr-dt@xxxxxxxxx>
Cc: Marika Konings <marika.konings@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