Dear TPR WG members, Please find below the brief notes and action items from today’s meeting. The next meeting will be on Tuesday, 29 August at 1600 UTC. Best regards, Berry, Caitlin, and Julie ACTION ITEMS/HOMEWORK: 1. Re: Preliminary Agreement #1 – staff to provide additional example(s). 2. Staff to revise the preliminary agreements and concepts based on the discussion. 3. WG members to review Proposed Preliminary Agreements #1 and #4 (Change of Sponsorship) in preparation for the discussion at the meeting on 29 August. See slides #50 and #51. Transfer Policy Review - Meeting #101 Proposed Agenda 22 August 2023 1. Welcome and Chair updates * Thanks to those putting comments in the working document. * Updates: * Jothan Frakes, RrSG: On portfolio transfers – this is a heavy operation; typically requires some manual intervention/out-of-band processes. Have a more challenging scenario now that requires a lot of project management. Good support from ICANN and registries, but could see ICANN providing a project management roll so the experience is smooth from end-to-end. On the fee, maybe also could identify how the fee is applied. * Rick Wilhelm , RySG: When we get to it the key thing is the context of what situation for project management matters a lot. If BTAPPA that is something different. Hard to evaluate since it depends on different scenarios. Need to keep them separate. * Work Plan: Two more meetings on the topic of ICANN-approved transfers – includes full portfolio transfer and change of sponsorship. 2. Continue discussion of Preliminary Agreements [docs.google.com]<https://urldefense.com/v3/__https:/docs.google.com/document/d/1gX1N8d3qoktbniRmfGE4-8Un9dPavIKQ3IZYaoe9b0E/edit__;!!PtGJab4!6lqXMHrkgFDbZYoJluxIXU-iDUjzBh52NeSc42zf-Y58tHzAlG1DH7iMbNmd6i9MZCs4fSk58bGkpMfmDnd8aH3WTP0E2kLYEvKI$> from Charter Question i1 (Full Portfolio Transfers AKA Bulk Transfers) and Charter Question i2 (Change of Sponsorship AKA Partial Bulk Transfers) – See also attached slides, starting at #41. i1) In light of these challenges described in section 3.1.7.2 of the Final Issue Report [gnso.icann.org]<https://urldefense.com/v3/__https:/gnso.icann.org/sites/default/files/file/field-file-attach/final-issue-report-pdp-transfer-policy-review-12jan21-en.pdf__;!!PtGJab4!6lqXMHrkgFDbZYoJluxIXU-iDUjzBh52NeSc42zf-Y58tHzAlG1DH7iMbNmd6i9MZCs4fSk58bGkpMfmDnd8aH3WTP0E2v4caSRV$>, should the required fee in Section I.B.2 of the Transfer Policy<https://www.icann.org/resources/pages/transfer-policy-2016-06-01-en> be revisited or removed in certain circumstances? i2) Should the scope of voluntary bulk transfers, including partial bulk transfers, be expanded and/or made uniform across all registry operators? If so, what types of rules and considerations should govern voluntary bulk transfers and partial bulk transfers? Preliminary Agreement #1: The Working Group recommends that a Registry Operators MAY charge a fee to implement a full domain name portfolio transfer* from one ICANN-accredited registrar to another ICANN-accredited registrar. The Working Group recognizes that there may be instances where the Registry Operator MAY waive this fee.** * Note: this could include all of the domain names a registrar has within a gTLD or all of the gTLD domain names a registrar has under management. ** A non-exhaustive list of examples where a Registry Operator may choose to waive the mandatory fee include cases where a registrar is involuntarily terminated by ICANN org due to a breach, ICANN terminates a registrar due to unresponsive to renewal notices, etc. Discussion: * Add an example that’s not about ICANN terminating a registrar, such as “unresponsive to accreditation renewal notices” or for “national emergencies”. ACTION ITEM: Re: Preliminary Agreement #1 – staff to provide additional example(s). Preliminary Agreement #4 Due to the variable nature of the fee associated with full portfolio transfers, the Working Group recommends that Registry Operators MUST provide notice to registrars of any fees associated with full portfolio transfers upon request and prior to the initiation of the full portfolio transfer. How Registry Operators choose to provide notice of fees will be up to the Registry to decide, i.e., password protected portal, website, written notice, etc. Preliminary Agreement #3: The Working Group recognizes the fee associated with full portfolio transfers could be variable and recommends removing prescribed numbers from the policy language, i.e., removal of the reference in Section I.B to $50,000 [and removal of reference to 50,000 domain names]. Concept 1: The Working Group recognizes that a fee may be involved in a full portfolio transfer but believes flexibility is necessary, and the number should not be explicitly prescribed in the Transfer Policy. Concept 2: The Working Group also recognizes, however, that a price ceiling is helpful to include in the policy language to avoid abusive pricing. Concept 3: In light of Concept 2, the Working Group believes the fee for a full portfolio transfer must not exceed [$50,000 or $1.00 per domain name transferred]. Concept 4: If the full portfolio transfer involves multiple registries, the affected registries must ensure the collective fee does not exceed the recommended ceiling, and the fee should be apportioned based on number of domain names. By way of example, if a registrar has 60,000 domains under management under two TLDs, e.g., 40,000 names under .ABC, and 20,000 names under .DEF, the combined fee cannot exceed $50,000 USD (per concept 3). Since two thirds of the names under management are registered to .ABC, .ABC registry may bill the registrar for 66.66% of the fee, e.g., $33,333.33, and .DEF may bill the registrar for the remaining 33.33% of the fee, e.g., $16,666.67. Concept 4(a): [Following the completion of the transfer, the Registry Operator(s) MUST provide notice to ICANN that the transfer is complete, and the notice to ICANN MUST include the number of domain names transferred. Following receipt of notices from all involved registries, ICANN will send a notice to affected Registry Operators with the reported numbers and corresponding percentages of domain names involved in the bulk transfer, e.g., 26% of names for .ABC and 74% of names for .DEF. The Registry Operators MAY then charge the registrar a fee according to their schedule.] Concept 5: The Working Group notes the Registry Operator should have flexibility to establish and waive fees associated with full portfolio transfers and accordingly, does not recommend a required price floor. So long as the Registry Operator’s fee is below the maximum ceiling, the Registry Operator may establish its price schedule as it chooses, provided the price schedule is communicated transparently to the requesting registrar [(see Rec. x, currently Proposed Preliminary Agreement #4)]. Discussion: * Suggest /avoid abusive pricing/ensure predictable and consistent pricing/ so as to not 'throw shade' at Registries /old/new/ above, in concept 2. * Important that it says the total fee in concept 3. * Don't see it covered in the concept around registry families within an affiliated, controlled unit. * Not specifically stated in here, but I the idea is embedded in Concept 4 where those dollars are split amongst all TLDs involved. So if a registry operator has 4 of them involved they're going to get a cut of those dollars for each one of those 4 and not be able to charge the total amount for them. So not explicitly stated about families. * Concept 4 looks okay if every registry charges the same price level, but they don’t. * Good point as we think this through, also for concept 3. Or maybe there’s a concept 6 that talks about differences in pricing. * Concept 4 seems to assume that there’s a standard rate card. * First impression is to keep the business at lowest possible cost, but it is a business decision that should not be regulated. * We are talking about full portfolio transfers, or getting out of a set of TLDs – wouldn’t say that these are ICANN issues. * Job is to keep the ecosystem running. Don’t understand any regulation for any other business. * The tough part is the registrant impact. Still have to take in account for doing this process. * Missing point about how to account for the flexible pricing that registries have. Seems that we are saying a ceiling is important. * Good to point out where vertical integration may impact. Might be covered under concept 2. * Maybe registry agreements cover vertical issues. * Even if you treat them as separate there is a real cost. * Question: Can ICANN-approved transfers cost different amounts for different registrars? Answer: They could and that is the point of Concept 5. Actually, no, don’t see it there. * We are talking about predictability of pricing – does it make sense to set a minimum price. * From the policy concept the floor is zero. * Would be wary of saying that there had to be a minimum price – could be legal issues. * Registry discretion to waive brings it back to zero. * Few things we want to clean up and how to deal with variable fees by registries in concept 4. * If we make the assumption that every domain name has the same per-unit price we should identify that. * The actual transfer of sponsorship but the process up front will take a while. That cost can be different because of different issues. * The operational aspects managing domains fall outside of policy. * On each side of this, Ry and Rr, there are operational, engineering, system, planning, etc. costs to consider, so having all of this predictable helps to make business determinations. * If there are 5 TLDs involved each one of them would provide a fee – issue is when 5 fees add up to $100K, what do you do? * Concept 4 sets a ceiling on each of those. * That’s what Concept 3 is trying to control. * At some point maybe we should consider tiered pricing; right now there is no competition. Proposed Preliminary Agreement #2: The Working Group recommends that the entity voluntarily requesting a full portfolio transfer (typically, the Losing Registrar) MUST be responsible for paying the relevant Registry’s fee (if any). Rationale: The Working Group recognizes that a voluntary request to transition a domain name portfolio to another registrar will require internal coordination and work from the relevant Registry Operator, and accordingly, the Registry Operator may charge a fee for this process. Due to the voluntary nature of the portfolio transfer request, the requesting entity (typically, the Losing Registrar) should be responsible for paying this fee to the Registry Operator. Discussion: * Think this is backwards from prior process; hard to collect from the losing entity. * Issue is who is the entity to pay – original was the requestor or sponsor. * This has been working and now we’re flipping it even though it’s not broken. Registries are opposed to this. These transfers won’t go through until payment received and it will be hard to get payment. * If the losing registrar part of this is removed is there an objection to the rest of it? * If you flip this you have incentive for the registry to waive the fee (say to the gaining registrar). Should restore this to the status quo. ACTION ITEM: Staff to revise the preliminary agreements and concepts based on the discussion. ACTION ITEM: WG members to review Proposed Preliminary Agreements #1 and #4 (Change of Sponsorship) in preparation for the discussion at the meeting on 29 August. See slides #50 and #51.