[Rt4-whois] Steps toward de-accreditation and sanctions

[Kathy Kleiman]

Hi All,
I had the assignment on our "to do" list to "Find text on 
accreditation." Based on my recollection, this means returning to the 
2009 Registrar Accreditation Agreement and finding any text on a more 
gradual path to de-accreditation for Registrars (not just an "off with 
your head" and termination of the contract).

Indeed, as James shared, there is a new section which we should look at. 
It's 2.1, under ICANN's obligations, and it allows ICANN to "suspend 
Registrar's ability to create new Registered Names or initiate inbound 
transfers of Registered Names for one or more TLDs for up to a twelve 
(12) month period if (i) ICANN has given notice to Registrar of a breach 
that is fundamental and material to this Agreement pursuant to 
Subsection 5.3.4 and Registrar has not cured the breach within the 
period for cure prescribed by Subsection 5.3.4, or (ii) Registrar shall 
have been repeatedly and willfully in fundamental and material breach of 
its obligations at least three (3) times within any twelve (12) month 
period."

That is a new and graduated sanction, so I appreciate James pointing it 
out.  Plus we have the de-accreditation paragraphs in Section 5 (under 
"termination of agreement by ICANN.") /*James, is there anything further 
we should be looking at?

*/Excerpts below and attached (for easier reading).
Best,
Kathy

/*------------------- 2009 RAA --------------------
*/

*Excerpts of 2009 RAA*

*"2. ICANN OBLIGATIONS.*

2.1 _Accreditation_. During the Term of this Agreement, Registrar is 
hereby accredited by ICANN to act as a registrar (including to insert 
and renew registration of Registered Names in the Registry Database) for 
the TLD(s) that are the subject of appendices to this Agreement 
according to Subsection 5.5. Notwithstanding the above and except in the 
case of a good faith disagreement concerning the interpretation of this 
Agreement, ICANN may, following notice to Registrar, suspend Registrar's 
ability to create new Registered Names or initiate inbound transfers of 
Registered Names for one or more TLDs for up to a twelve (12) month 
period if (i) ICANN has given notice to Registrar of a breach that is 
fundamental and material to this Agreement pursuant to Subsection 5.3.4 
and Registrar has not cured the breach within the period for cure 
prescribed by Subsection 5.3.4, or (ii) Registrar shall have been 
repeatedly and willfully in fundamental and material breach of its 
obligations at least three (3) times within any twelve (12) month period."

***
"5.3 _Termination of Agreement by ICANN_. This Agreement may be 
terminated before its expiration by ICANN in any of the following 
circumstances:

    5.3.1 There was a material misrepresentation, material inaccuracy,
    or materially misleading statement in Registrar's application for
    accreditation or any material accompanying the application.

    5.3.2 Registrar:

        5.3.2.1 is convicted by a court of competent jurisdiction of a
        felony or other serious offense related to financial activities,
        or is judged by a court of competent jurisdiction to have
        committed fraud or breach of fiduciary duty, or is the subject
        of a judicial determination that ICANN reasonably deems as the
        substantive equivalent of those offenses; or

        5.3.2.2 is disciplined by the government of its domicile for
        conduct involving dishonesty or misuse of funds of others.

    5.3.3 Any officer or director of Registrar is convicted of a felony
    or of a misdemeanor related to financial activities, or is judged by
    a court to have committed fraud or breach of fiduciary duty, or is
    the subject of a judicial determination that ICANN deems as the
    substantive equivalent of any of these; provided, such officer or
    director is not removed in such circumstances. Upon the execution of
    this agreement, Registrar shall provide ICANN with a list of the
    names of Registrar's directors and officers. Registrar also shall
    notify ICANN within thirty (30) days of any changes to its list of
    directors and officers.

    5.3.4 Registrar fails to cure any breach of this Agreement (other
    than a failure to comply with a policy adopted by ICANN during the
    term of this Agreement as to which Registrar is seeking, or still
    has time to seek, review under Subsection 4.3.2 of whether a
    consensus is present) within fifteen (15) working days after ICANN
    gives Registrar notice of the breach.

    5.3.5 Registrar fails to comply with a ruling granting specific
    performance under Subsections 5.1 and 5.6.

    5.3.6 Registrar continues acting in a manner that ICANN has
    reasonably determined endangers the stability or operational
    integrity of the Internet after receiving three (3) days notice of
    that determination.

    5.3.7 Registrar becomes bankrupt or insolvent.

This Agreement may be terminated in circumstances described in 
Subsections 5.3.1 - 5.3.6 above only upon fifteen (15) days written 
notice to Registrar (in the case of Subsection 5.3.4 occurring after 
Registrar's failure to cure), with Registrar being given an opportunity 
during that time to initiate arbitration under Subsection 5.6 to 
determine the appropriateness of termination under this Agreement. If 
Registrar acts in a manner that ICANN reasonably determines endangers 
the stability or operational integrity of the Internet and upon notice 
does not immediately cure, ICANN may suspend this Agreement for five (5) 
working days pending ICANN's application for more extended specific 
performance or injunctive relief under Subsection 5.6. This Agreement 
may be terminated immediately upon notice to Registrar in circumstance 
described in Subsection 5.3.7 above.


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