RE: [registrars] FYI re: Transfers

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

 Here is the text of the proposed advisory for those interested:

PROPOSED Advisory

Registrar Advisory Concerning the Inter-Registrar Transfer Policy 

The purpose of this advisory is to assist ICANN-accredited registrars in
understanding that under the Inter-Registrar Transfer Policy: 

	1. Registrars are prohibited from denying a domain name transfer
request based on non-payment of fees for pending or future registration
periods during the Auto-Renew Grace Period; and

	2. A registrant change to Whois information is not a valid basis
for denying a transfer request. 

The Inter-Registrar Transfer Policy ("Transfer Policy") was adopted by
ICANN as a consensus policy in 2004 in order to assist domain name
holders in transferring their domain names from one ICANN-accredited
registrar to another upon request. The Transfer Policy is available at
http://www.icann.org/transfers/policy-12jul04.htm. 

	1. Pursuant to the Transfer Policy, registrars are prohibited
from denying domain name transfer requests based on non-payment of fees
for pending or future registration periods during the Auto-Renew Grace
Period.

This section of the advisory considers the scenario when a registrar
denies a transfer request made by the registrant during the registration
period after expiration, if the registrant has not paid for renewal. 

Pursuant to Section A.3 of the Transfer Policy, registrars are permitted
to deny outgoing transfers of gTLD domain names only in the limited
circumstances specifically enumerated by the Transfer Policy. One of
these circumstances is: 

	5. No payment for previous registration period (including credit
card charge-backs) if the domain name is past its expiration date or for
previous or current registration periods if the domain name has not yet
expired. In all such cases, however, the domain name must be put into
"Registrar Hold" status by the Registrar of Record prior to the denial
of transfer. 

The Transfer Policy further states that, "Instances when the requested
change in Registrar may not be denied include, but are not limited to:
Nonpayment for a pending or future registration period..." 

In those cases where a registrant has paid all past registration fees,
but has not paid for renewal, and the domain name is in the registration
period after expiration, registrars are prohibited from denying a
transfer request, as the registration period after expiration is either
a "pending or future" registration, during which time the Transfer
Policy prohibits denial of transfers on the basis of non-payment. 

While issues related to domain name transfers initiated during the Auto
Renew Grace period are under consideration by the GNSO's Transfers
Working Group, ICANN's intention with this advisory is to provide
clarification of existing policy. 

Registrars are advised that under the Transfer Policy they may not deny
a transfer request on the basis of non-payment of fees for the
registration period after the expiration date, unless the denial is
based on non-payment for a past registration period. Registrars that
impose policies or procedures on their registrants that are contrary to
this determination are in violation of the Transfer Policy. 

	2. A registrant change to Whois information is not a valid
reason to deny a transfer request. 

	A registrant's objection to transfer is not valid unless it is
obtained voluntarily. 

This section of the advisory considers the scenario when a registrar
requires a registrant to provide consent to deny transfer requests for a
certain period of time (usually 60 days) in order for the registrant to
update its Whois data. 

Section A.3 of the Transfer Policy enumerates nine independent bases
that a registrar may rely on to deny a domain name transfer request.
Registrant updates to Whois contact details is not enumerated as a valid
basis to deny a transfer request in the Transfer Policy. In addition,
ordinary changes to Whois data fields are not evidence of fraud and
therefore not a basis to deny a domain name transfer request. 

Pursuant to Section A.3 of the Transfer Policy, registrars are permitted
to deny transfer requests if they have obtained, "6. Express written
objection to the transfer from the Transfer contact. (e.g. - email, fax,
paper document or other processes by which the Transfer Contact has
expressly and voluntarily objected through opt-in means)". While the
language in parenthesis is provided as an example in paragraph
enumerated 6 of Section A.3 of the Transfer Policy, this language is
instructive regarding what types of express written objections were
envisioned as acceptable as a basis to deny a transfer request - only
those objections that are provided expressly and voluntarily. 

Subsection 3.7.7.1 of the Registrar Accreditation Agreement ("RAA")
requires registrars to include language in their registration agreements
that obligates registrants to maintain "accurate and reliable contact
details and promptly correct and update them during the term of
the...registration." By agreeing to such language, registrants are under
a strict requirement to update their Whois contact details when they
change. Subsection 3.7.7.2 of the RAA requires registrars to include
language in their registration agreements that authorizes them to cancel
domain name registrations for any willful breach of these obligations.
Accordingly, failure by a registrant to timely update Whois contact
details may result in the cancellation of a domain name. 

Registrars that have implemented processes that require registrants to
consent to deny transfer requests in order to update Whois contact
information are not obtaining voluntary express objections and therefore
such objections cannot be used as a basis for denying a transfer
pursuant to Section A.3 of the Transfer Policy. 

 Registrars are advised that any express written objections to transfer
obtained by registrars through compulsory means, including express
written objections obtained before allowing registrants to make required
Whois data changes, are involuntary and therefore not a valid basis to
deny transfer requests. 

Conclusion 

 To ensure compliance with Registrar Accreditation Agreement
requirements, all ICANN-accredited registrars are encouraged to review
their domain name registration transfer processes and relevant domain
name registration documents to make certain they comply with the
Inter-Registrar Transfer Policy. Specifically, registrars' processes and
documents should be consistent with the interpretations set forth in
this advisory regarding Section A.3 of the Transfer Policy pertaining to
the Auto-Renew Grace Period and the type of consent required to deny
transfers.