Also posted as a comment to https://community.icann.org/x/J4Q3Ag. As you know the Post Expiration Domain Name Recovery (PEDNR) PDP was approved by the Board last year and the resultant Policy (now called the Expired Registration Recovery Policy - ERRP) was posted for comment. The PDP recommended that registrars who operate web site for registration must post their renewal fees and state what method they will use to contact registrants. The recommendation was silent regarding resellers because it was the belief that registrars, in honoring all of the terms of their contract, would require resellers to post this information as well. Although it was not clear why at the time, ICANN staff working on the resultant changes to the RAA added very welcome wording explicitly requiring that registrars require resellers to post this information as well. The proposed policy can be found at <http://www.icann.org/en/resources/registrars/consensus-policies/errp/draft-policy-11oct12-en.pdf>http://www.icann.org/en/resources/registrars/consensus-policies/errp/draft-policy-11oct12-en.pdf and the sections in question are paragraphs 4.1.2 and 4.2.3. There were no negative comments about this in the public comments which were due to close on Nov. 11th. Staff extended the comment period for one more week, and had explicitly called attention to the changes on the Implementation Review Group mailing list and explicitly asking for comments to be posted on this. Michele Neylon, the registrar who was on the Implementation Review Group submitted a statement to the ERRP Comment saying that the proposed language about resellers was debated at length by the PDP WG and the final decision was to not include such language in the recommendation. That is factually correct and indeed the report made reference to the fact that there was an explicit decision to not include it. His statement can be found at <http://forum.icann.org/lists/draft-errp-policy/msg00001.html>http://forum.icann.org/lists/draft-errp-policy/msg00001.html. The ICANN Registrar Relations staff person who I had been working with was unavailable, so I asked compliance whether that was how they saw this as well. The reply was direct and clear that this was not how they interpreted the RAA terms and that the web posting provisions would not apply to resellers unless the explicit. The exchange is appending to this message. I propose the following: 1. Under my own name but as former Chair of the PEDNR WG and a member of the Implementation Review Team, I will post the statement from Compliance that without the explicit reseller language, that the new Policy will not benefit all Registrants, but only those who deal directly with Registrars, and based on my understanding, that was not the intent of the WG. 2. ALAC should post a statement supporting the need to keep the explicit reseller language. This statement may need to be altered if registrars in the interim post a message agreeing to keep the language. Draft Statement The PEDNR PDP recommended that information about renewal fees and how a registrar will contact a registrant should be readily made available on the registrar web site (Rec. 5 & 6). It was the clear intent of the recommendations that this apply to ALL registrants. Paragraphs 4.1 and 4.2 of the ERRP (http://www.icann.org/en/resources/registrars/consensus-policies/errp/draft-p...) require, among other things, that if a registrar operates a web site, certain information must be clearly displayed there. Paragraphs 4.1.2 and 4.2.3 require that a reseller, if one is used, must similarly display this information. It is the understanding of the ALAC that the belief within the PEDNR WG was that all provisions of the RAA that applied to registrars must be enforced by registrars on resellers (for those who use them). Since that has now proven to be false (reference to Greenberg post) it is imperative that sections 4.1.2 and 4.2.3 of the proposed ERRP not be omitted. Without these two paragraphs, there is no obligation for a registrar to ensure that a reseller displays this information and a significant percentage of registrants, those who deal with resellers, may be deprived of this information. The access to this information that the PDP was attempting to ensure is no longer guaranteed, and the registrar, by subcontracting services to a reseller, has effectively been relieved from fulfilling these RAA obligations. This calls into question the value of the immense time and energy that the community puts into developing PDP Consensus Policy Recommendations and indeed the effectiveness of the entire RAA. =========== Dialogue with Contractual Compliance Alan Greenberg:
A comment has now been made (http://forum.icann.org/lists/draft-errp-policy/msg00001.html) speaking against the language in the draft ERRP Policy paragraphs 4.1.2 and 4.2.3 (http://www.icann.org/en/resources/registrars/consensus-policies/errp/draft-p...).
As a result, the ALAC now needs to decide whether to reply to this, and if so, what we need to say.
In order to understand the issue, I would like to know whether ICANN Contractual Compliance believes that the inclusion of these sections alters their ability to enforce the intent of the ERRP.
Specifically, it has been stated repeatedly that all obligations of a Registrar are unchanged if they decide to sub-contract marketing to a reseller. In this case, I take this to mean that the obligation to have certain information on the Registrar's web site also includes the reseller's website if that is the Registrant point-of-contact.
That would imply that what is explicit in 4.1.2 and 4.2.3 is applicable whether these statement are there or not, and their presence simply serves to remind Registrars of their obligations.
Can you please confirm if that is a correct interpretation, or if not, how you view it.
ICANN Contractual Compliance:
ICANN does not have the same interpretation.
The reseller obligations as stated in section 3.12.2 of the 2009 RAA focus on the registration agreement where, if a registrar has an agreement with its resellers, the agreement must require the reseller to include all registration agreement provisions and notices required by the ICANN Registrar Accreditation Agreement and any ICANN Consensus Policies (such as the information identified in 4.1.1 and 4.2.2 of the proposed ERRP). The reseller obligations within the 2009 RAA do not include obligations on registrars to require the posting of information such as that within the proposed ERRP Sections 4.1.2 and 4.2.3 on reseller websites.
Under the contracts we have in place today, the reseller website posting obligations in the proposed ERRP section 4.1.2 and 4.2.3 would only be enforced if the language is included within the ERRP.