updated domain name tasting constituency statement

[Robin Gross]

Hi there,

Below is a draft constituency statement on domain name tasting.

We updated our statement of a few months ago in light of the pending  
motion to restrict the AGP:
  http://gnso.icann.org/issues/domain-tasting/dnt-motion-6mar08.shtml

Please send any comments on this draft as soon as possible.

Thank you,
Robin

-------------------

NCUC Statement on Domain Name Tasting
1 April 2008
The Non-Commercial Users Constituency (NCUC) supports the current  
motion to recommend restricting the Add Grace Period (AGP) in an  
effort to curb domain name tasting.[1]  The AGP has unintentionally  
opened the door to the practice of domain tasting, which  
substantially restricts consumer choice for available domain names.   
Although it is clear that ICANN should address the problem of  
tasting, some have concerns that a policy completely forbidding  
refunds would unduly hinder legitimate business practices, burden  
registries and registrars, and interfere with the business  
relationships between contacting parties.  NCUC believes the 6 March  
motion represents a fair compromise, and should eliminate the abuse  
of the AGP without placing undue restrictions on registries and  
registrars.


By placing a cap on the number of deletes for which a refund can be  
received, the proposal eliminates the benefit for domain tasting  
without unduly burdening others.  The best available information  
indicates that the proposed cap will be sufficient to shield  
registrars from unreasonable expense in most circumstances.   
Moreover, the number of undeserved refunds that could be obtained  
beneath this cap is small enough to provide little financial  
incentive for exploitation.  This, coupled with the proposal to make  
the $.20 ICANN fee nonrefundable, should curtail domain name tasting.

The “Extraordinary Circumstances” Exception

Some public comments expressed concern that allowing an  
“extraordinary circumstances” exception for refunds may amount to a  
loophole rendering the entire resolution unenforceable.  NCUC does  
not share this concern and believes that the proposal is narrowly  
tailored enough that it will be able to prevent the sort of abuse of  
the AGP that the pending proposal in intended to eliminate.

The exception for extraordinary circumstances is intended to give  
registries some discretion to permit a refund in excess of the new  
limit in situations where an unforeseen problem has arisen through no  
fault of the registrar and where the registry feels that it would be  
unfair to make the registrar pay for the unforeseen deletes.  This  
preserves a certain amount of the flexibility that would normally  
exist in the business relationship between the registry and the  
registrar.  Because it is intended to vest some discretion with the  
registry, the motion necessarily contains some degree of vague language.

This flexibility, however, does not create unfettered discretion in  
the registry.  It does make clear that this discretion is reserved  
for truly exception circumstances.  Moreover, it indicates that a  
pattern of request for an exception to this policy would be clear  
evidence that the circumstances would not be exceptional.  If  
registries were to abuse this discretion and make bad faith  
determinations that circumstances were exceptional, then they would  
be in violation of this policy.

Research has indicated that where a registrar has engaged in domain  
tasting, that practice has been readily apparent from statistics.   
The small costs involved in registration mean that this practice is  
only profitable when conducted on a very large scale.  Thus when a  
registrar engaged in tasting seeks an exemption, it will quickly  
become apparent to the registry that the registrar is engaged in the  
conduct specifically forbidden by this policy.  Because of this,  
there should be little difficulty in proving that the registry abused  
its discretion where it allowed unwarranted exemptions.
Timeline for Enactment

While it is reasonable to include a stipulation as to when the  
current proposal would go into effect, this process should not be  
bogged down by excessive debate over how long is necessary.  The  
calculation for the number of refunds allowed is simple, and should  
be easy to implement.  Since domain tasting is an ongoing problem,  
parties should strive to agree upon a quick but reasonable time frame  
for this policy to go into effect.

[1] 6 March 2008 Motion on Domain Name Tasting before GNSO Council is  
available at: http://gnso.icann.org/issues/domain-tasting/dnt- 
motion-6mar08.shtml


IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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