RE: [registrars] OUTCOMES REPORT OF THE GNSO AD HOC GROUP ON DOMAIN NAME TASTING

["John Berryhill" <john@xxxxxxxxxxxxxxxxx>]

>The second a registration gets transmitted to and accepted 
>by the registry as a valid transaction, a fee is payable to the 
>registrar. The clause in question clearly states that the registrar 
>must be satisfied that the RNH will pay for the registration and that 
>such payment is final and non-revocable. In other words, a registrar is
> not permitted to issue a refund to a registrant for cancellations made
>during the AGP according to the terms of this contract.

Again, this is the hazard of "other words" rather than the words written in
the clause in black and white.

3.7.4 Registrar shall not activate any Registered Name unless and until it
is satisfied that it has received a reasonable assurance of payment of its
registration fee. For this purpose, a charge to a credit card, general
commercial terms extended to creditworthy customers, or other mechanism
providing a similar level of assurance of payment shall be sufficient,
provided that the obligation to pay becomes final and non-revocable by the
Registered Name Holder upon activation of the registration.

First, "Registrar shall not activate any Registered Name unless and until it
is satisfied that it has received a reasonable assurance of payment of its
registration fee."  What this states, in the negative, is that the Registrar
is to have a reasonable assurance of payment, defined as "general commercial
terms extended to a creditworthy customer", before activating a name.

Second, the obligation to pay becomes "non-revocable by the Registered Name
Holder" upon activation.  You are reading the words "by the Registered Name
Holder" out of the clause, and replacing it with "non-revocable by either
the Registered Name Holder or the Registrar."

Third, and backing up, it's not clear how you are reading "its registration
fee".  The word "it" appears three times in that sentence, and each time
"it" refers to the Registrar:

"Registrar shall not activate any Registered Name unless and until it is
satisfied that it has received a reasonable assurance of payment of its
registration fee."

You are reading the first two "it"s as "the Registrar", and then switching
the last "it" to "the domain name".  You implicitly assume "it" means one
thing the first two times, and then a different thing the third time.  Why?
(and "because I want it to mean what I want, is not a sufficient reason for
changing the meaning of a pronoun in mid-sentence).

It raises the question of "what is the Registrar's fee" for the domain name
in question, but it certainly doesn't refer to the Registry fee, or any
other defined fee than what the Registrar is charging.

There are Registrars who provide free domain names as an incident to the
purchase of other services entirely.  I believe there are at least two
incorporation services that provide them incident to incorporation services,
and it is common to provide them incident to hosting services.

So, Ross, if I am running a "buy two get one free" domain registration
promotion, and if the customer has paid for two, then under your reading of
the RAA, have I received reasonable assurance of payment for the third
domain name, or not?  No, I haven't received one red cent for that third
domain name.  The point is that I have received assurance of payment of MY
fee for that third domain name - which was conditioned on payment for the
first two.

BulkRegister used to have a scaled price structure under which you paid (a)
a fixed membership fee, and then (b) a variable fee dependent on how many
names you registered.  The point of the clause is that - whatever terms the
Registrar is offering - the Registrar must be satisfied that the Registered
Name Holder is and will be bound by those terms on a basis that is not
revocable by the Registered Name Holder at the time the domain name is
activated.  Further, that satisfaction may arise from the creditworthiness
of the Registrant as determined by the Registrar.

I'm not trying to be difficult here, but someone was paid an awful lot of
money for doing a bad job of choosing pronouns if that sentence really means
what you think it means.  This is not the worst-drafted section of the RAA.
If my workload lets up, I could write a dissertation on the positive
impenetrability of other sections of the RAA.

>Whatever. Verisign can and should implement the restocking fee, 

The silence from Verisign on this issue is fairly loud.

The registry is the single control point for
limiting/stopping/controlling/banning domain tasting.

>From the "bucket of bad analogies"... there is a reason why, for example,
birth control methods have historically been oriented more toward one gender
than the other, and it is a simple question of numbers.  Controlling what
happens to one cell is a numerically more efficient strategy than trying to
control millions of others.

There are a number of registrars who all may read the RAA in various
legitimate ways.  There is, for each TLD, a single registry.  Piling more
potentially ambiguous language into the RAA with yet-undiscovered unintended
consequences simply seems less efficient than restricting registry operation
in this context.