[council] Effects of expiry date, auto-renew, cancel and the delete policy on the transfer of names between registrants

["Bruce Tonkin" <Bruce.Tonkin@xxxxxxxxxxxxxxxxxx>]

Hello All,

Further to my previous email, there is an area in the registration
agreement lifecycle where status of agreements and hence the processes
for transfer between registrants is less clear.

A registrant has a registration agreement with the registrar, which
gives the registrant a right to use the domain name for a period from
the creation date through to the expiry date.

The registrar registers this agreement with the registry, and the
registry provides a DNS service associated with the domain name for the
period of the agreement.

A registrar may explicitly renew a domain name agreement prior to expiry
by adding 1 or more years to the agreement term on behalf of the
registrant.

Most of the gtld registries employ an "auto-renew" process, on the
expiry date.  This has the benefit of ensuring that a domain name
continues to receive DNS services (good for stability), until a
registrar explicitly "cancels" the domain name.   Some registries
immediately charge a registrar for an additional year of registration at
the time of this auto-renew process, but provide a refund for this fee,
if the registrar cancels the name prior to the end of an "auto-renew"
grace period (typically 45 days).  Other registries only charge the
registrar at the end of the grace period.

The deletes policy 
(http://www.icann.org/registrars/eddp.htm )
specifies that:
"At the conclusion of the registration period, failure by or on behalf
of the Registered Name Holder to consent that the registration be
renewed within the time specified in a second notice or reminder shall,
in the absence of extenuating circumstances, result in cancellation of
the registration by the end of the auto-renew grace period (although
Registrar may choose to cancel the name earlier)."

Thus if the registrant doesn't eventually consent to the renewal, then
the name should be cancelled.   Some registrars and resellers do have a
standing consent via an auto-renew in their agreements (ie the registrar
or reseller will typically hold a credit card, and charge against this
card at the time of renewal).

During the auto-renew grace period, it is not clear what rights the
original registrant has in the name.   There is a large range of
different business processes used by registrars in this period
(including removing the name from the gtld zonefile by putting the name
on registrar hold, re-directing the traffic from the name, and putting
up a parked webpage).   A registrant would need to carefully read their
registration agreement with their registrar to determine their rights.

Recently some registrars have begun to facilitate a transfer of the
domain name between registrants during the auto-renew grace period, if
they have not received an explicit renewal from the original registrant.
Presumably in this scenario, they transfer the licence between
registrants, and then renew the name (effectively this means that they
do not cancel the renewal at the registry, and they establish a new
registration agreement with the new registrant).   The consent for this
process seems to be handled via terms in the original registration
agreement (which can often be changed at any time, by posting on a
website).

ICANN issued an advisory around this process on 21 September 2004:
http://www.icann.org/announcements/announcement-21sep04-1.htm

While there has been some concern from members in the industry about
this new practice, there does not seem to be any negative consumer
reaction, and the legal structures for the processes are mainly handled
via terms in the agreement between the registrar and registrants.   

I have not yet heard any security and stability issues, which would be
the responsibility of ICANN, raised by the various business practices
described above.   

There are issues of consumer education, and ensuring that registrants
fully understand what agreements they enter into, and ensuring that they
make informed decisions when selecting a registrar.  It seems more the
role of consumer protection organisations to assist in educating the
registrant community.   Perhaps ICANN and the GNSO can assist with
providing authoritative information on the policies and processes of
domain name registration to these organisations.

Regards,
Bruce Tonkin