Re: [atlarge-discuss] Community & Registrar Input on Transfers

[DannyYounger@cs.com]

Jeff,

In my view, your polemical argument that members of the At-Large are not 
considered to be "among Internet stakeholders represented in the ICANN 
process" is without merit.  The ICANN Board will receive and appreciate 
substantive commentary from any individual or group that has made a concerted 
effort to solve a vexing problem.   Currently, members of the At-Large are 
represented vis-a-vis their At-Large directors, and in the immediate future 
they will be represented by way of the ALAC membership.

To remind you of recent events, please note that SnapNames recently managed 
to successfully influence the ICANN Board with respect to their Wait Listing 
Service proposal.  SnapNames is neither a registrar, nor a registry -- they 
are not a member of the Business Constituency, the ISPs, the IPC, or the 
NCDNHC -- yet they prevailed nonetheless even while not having a status that 
you would recognize as commensurate with other "stakeholders" in the ICANN 
process.  They succeeded in part because they took the time to outline their 
proposal, pros and cons, in a series of documents (more than 150 pages) that 
were presented directly to the ICANN Board members for consideration.  

You have also asked whether there are ways to address the problem other than 
by recourse to the consensus-policy provisions in the ICANN contracts.  There 
are other viable options:  

1.  registrars can be influenced to ratify and adopt a voluntary code of 
conduct --  

3.7 Business Dealings, Including with Registered Name Holders.
3.7.1 In the event ICANN adopts a specification or policy, supported by a 
consensus of ICANN-Accredited registrars, establishing or approving a Code of 
Conduct for ICANN-Accredited registrars, Registrar shall abide by that Code.
http://www.icann.org/registrars/ra-agreement-17may01.htm

A Code of Conduct is binding, and representations made within that Code of 
Conduct are actionable under law.  Such a Code may be excuted without the 
contractual ramifications otherwise associated with the other consensus 
policy provisions now present in the RAA.  

2.  registries may be influenced to unilaterally modify their 
registry-registrar agreements within which the language governing transfers 
is housed.  This action may be accomplished without the contractual need for 
consensus to be documented either in the registrar constituency or in the 
DNSO proper (and requires only ICANN approval).

3.  the GAC may be influenced to submit an Advisory to the ICANN Board -- the 
GAC is chartered to operate "as a forum for the discussion of government and 
other public policy interests and concerns", including providing advice to 
ICANN on:
 
a).  "effective competition at all appropriate levels of activity and 
conditions for fair competition, which will bring benefits to all categories 
of users including, greater choice, lower prices, and better services;" 
b).  "fair information practices, including respect for personal privacy and 
issues of consumer concern;"

In view of previous ICANN action that overturned the DNSO recommendations on 
geopolitical and geographic identifiers in favor of action requested by the 
GAC, this approach equally has merit.

4.  Possible recourse to the Sanctions Program established in Appendix Y of 
the .com registry agreement for failure to observe the neutrality guidelines 
stipulated in Appendix I (Registry Code of Conduct) which requires that:  
"VGRS will not show any preference or provide any special consideration to 
any ICANN-accredited registrar with regard to Registry Services provided for 
the .com TLD."  The VGRS failure to enforce the relevant provisions of 
Exhibit B might well constitute grounds for such a neutrality violation as 
such action clearly favors the VGRS subsidiary.

5.  Undeniably, pursuing the enactment of consensus policy provisions is the 
preferred approach, and such may yet be accomplished.  The current ICANN 
Bylaws state:  

"With respect to any policies that are being considered by the Board for 
adoption that substantially affect the operation of the Internet or third 
parties, including the imposition of any fees or charges, the Board will:

(i) provide public notice on the Web Site explaining what policies are being 
considered for adoption and why;

(ii) provide a reasonable opportunity for parties to comment on the adoption 
of the proposed policies, to see the comments of others, and to reply to 
those comments; and

(iii) hold a public forum at which the proposed policy would be discussed."

In view of this language, we still have the opportunity as "parties" to 
comment on the adoption of a proposed policy on transfers -- such "comment" 
may reasonably include a counter-proposal that reflects the user interest.  





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