Reconsideration Request 02-2
On 1 February 2002, Russell Smith submitted reconsideration request 02-2. Mr. Smith's request complains of ICANN's inaction in responding to complaints regarding the actions of VeriSign Global Registry Services (VGRS) concerning requests for transfer of sponsorship of domain names between registrars. Mr. Smith is not an accredited registrar, but is engaged in reselling domain-name registrations.
On 2 February 2002, ICANN's General Counsel wrote to Mr. Smith asking for specifics regarding his request. The reconsideration committee notes that it is important that those requesting reconsideration include all of the specifics set forth in the reconsideration policy.
In a reply message, Mr. Smith provided additional specifics on the requested items. We proceed based on the original request augmented by this reply.
The request raises two issues:
The procedures for transfers of sponsorship of registrations between registrars in the .com, .net, and .org top-level domains are described in Exhibit B to the "Registry-Registrar Agreement" that VeriSign as registry operator enters with each registrar. Accordingly, Mr. Smith's complaints regarding registrar failures to abide by those procedures assert possible breaches of agreements between VGRS and each registrar. ICANN, however, is not a party to those agreements and is not entitled to enforce them. See Section 6.2 of the VeriSign Registry-Registrar Agreements.
In his supplemental submission, Mr. Smith requested that the reconsideration committee take the following actions on this part of his request:
Because the "registrar requirements" regarding transfers are not included in any contract enforceable by ICANN, it is not appropriate that ICANN attempt to enforce them.
VGRS has entered registry agreements with ICANN under which it is obligated
to accord fair treatment to accredited registrars, including equivalent
access to the .com, .net, and .org registries. See subsection
23 of the .com Registry Agreement and subsections
3.5 of the .net and .org
Registry Agreements. If VGRS were to enforce in its Registry-Registrar
Agreements in a manner that did not treat all accredited registrars in
a fair and equal manner, that would raise very serious concerns. ICANN
carefully scrutinizes allegations of unequal treatment by registry operators
of registrars and will enforce its agreements to address violations of
the fair-treatment requirements by any registry with an affiliated registrar.
Mr. Smith's request for reconsideration does not, however, raise such
an allegation; indeed it is not clear the extent to which Mr. Smith has
even presented his complaints to VGRS.
The reconsideration committee sees no basis in the reconsideration request for concluding that VGRS has refused to enforce the above principles. Because the reconsideration request makes no showing that VGRS has refused to enforce the above principles against its affiliated registrars, there is no basis for ICANN enforcement of its agreements with VeriSign.
The Committee notes that the registrar transfer procedures involve complex questions that are currently under study by the Transfers Task Force of the Domain Name Supporting Organization. That task force is evaluating whether to recommend a change in policies concerning registrar transfers, which may (or may not) envision a greater enforcement role for ICANN. Until adoption of such a policy, however, there is no basis for ICANN to enforce any agreement in the manner requested by the present reconsideration request.
The second part of the reconsideration request objects to the following statements on the registrar problem report form maintained by ICANN on the InterNIC web site:
The reconsideration committee believes that the statements on the InterNIC web site appropriately summarize ICANN's limited mission regarding customer complaints against registrars. ICANN's role is not to act as a consumer complaint bureau or otherwise to adjust customer complaints; there are many other entitles within governments and the private sector that do include that role within their missions. The InterNIC statements appropriately direct consumers to those entitles.
Regarding this aspect of his reconsideration request, Mr. Smith requests that:
ICANN in fact performs steps [a] and [b] in those cases where violation of an agreement enforceable by ICANN is asserted. As noted above, however, Mr. Smith's complaints regarding registrar transfer procedures do not involve violations of any agreements enforceable by ICANN.
In cases (unlike Mr. Smith's) where a violation of an agreement enforceable by ICANN is found, decisions regarding whether to take various enforcement actions are, in the first instance, within the staff's delegated responsibility to implement the agreements. Those decisions necessarily involve the sound exercise of discretion after considering all the circumstances. (In the case of registrar infractions raised by customer complaints, these circumstances may include, for example, whether the infraction is an isolated occurrence with which the registrar is dealing appropriately and whether there are other more appropriate mechanisms that the customer should invoke to address the problem.) Because the request for reconsideration does not demonstrate any basis for enforcement by ICANN in any event, there is no occasion in this case to evaluate whether sound discretion has been exercised in any particular enforcement decisions.
For these reasons, the reconsideration committee recommends that the Board take no action on reconsideration request 02-2.
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