Reconsideration Request 02-2
Recommendation of the Committee
Date: 17 June 2002

Recommendation

Background

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:

First, Mr. Smith complains that ICANN's Chief Registrar Liaison, Dan Halloran, has failed, despite numerous complaints by Mr. Smith, to enforce the registrar transfer procedures described in a 27 August 2001 letter from Louis Touton to Christine Russo of VGRS. Mr. Smith's requests asserts that VeriSign Registrar has violated these agreements inasmuch as it "denies all transfers if they, as the losing registrar, claim they did not receive a properly processed authorization request."

Second, the request seeks revision of statements by ICANN, including on the registrar problem report page ICANN maintains at <http://www.internic.net/cgi/registrars/problem-report.cgi>, that consumer complaints regarding registrars should be addressed to private-sector agencies involved in addressing customer complaints or governmental consumer-protection agencies and that "ICANN does not resolve individual customer complaints."

Analysis of Request for Reconsideration

A. Inaction Concerning Complaints on Transfer Requests

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:

The specific actions I request in the first part are to instruct Dan Halloran, or the person in his position, to ensure the registrar requirements are followed for registrar transfers. Also, I request the board to ensure Mr. Halloran, or the person in his position, take the enforcement steps outlined in the contracts with VeriSign and the other registrars.

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.

On occasion, VGRS has consulted with ICANN regarding the proper interpretation of the registrar transfer procedures. Indeed, the ICANN General Counsel's 27 August 2001 letter to Christine Russo was in response to a VGRS request for such guidance, arising in the context of a complaint that VGRS had received concerning an unaffiliated registrar. In that letter, the General Counsel stated two relevant principles under the current transfer procedures:

• The losing registrar may not deny a transfer request that the gaining registrar has verified merely because the losing registrar has not also verified it.
• The losing registrar may, however, deny the transfer request where it has an adequate reason for believing that the Registered Name Holder has not authorized the transfer. In some instances, the failure of the Registered Name Holder to respond to a notification may form one element of the reason. . . . Additional elements of an adequate reason may include information relating to the Registered Name Holder (such as prior communications) or the authorization practices followed by the gaining registrar.

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.

B. Policy Stated on the InterNIC Web Site

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:

If you cannot resolve your complaint with the registrar, you should address it to private-sector agencies involved in addressing customer complaints or governmental consumer-protection agencies. (The appropriate agency will vary depending on the jurisdiction of the registrar and the customer.) . . . . ICANN does not resolve individual customer complaints. ICANN is a technical-coordination body. Its primary objective is to coordinate the Internet's system of assigned names and numbers to promote stable operation.

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:

[a] ICANN set up system to review individual registrant complaints, [b] determine if they involve issues involving the ICANN requirements and agreements, and [c] take the enforcement actions outlined in the contracts with VeriSign and the other registrars.

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.

Conclusion

For these reasons, the reconsideration committee recommends that the Board take no action on reconsideration request 02-2.