[arin-ppml] New Policy Proposal - Revisions to M&A Transfer Requirements under 8.2

[Owen DeLong]

Opposed as written.

Removal of the needs test from section 8.2 is contrary to the interests of the community.

I do like the provision offered in 8.2 subparagraph 3, but I see no reason to use LRSA there instead of RSA.

I do not like placing the dependency on the current text of 172 as that definition is fundamentally flawed and the tremendous opposition to that proposal expressed by the community to date leads me to believe that said definition is unlikely to become policy.

I would suggest, instead, that the proposal be modified as follows:

Unless a definition of legacy resource has already been added to section 2, the following shall be added to section 2:

[insert your chosen definition of legacy resource here]

As to the rationale...
Merely notifying ARIN does not put their ability to retain and use the resources at risk. Transferring them outside of ARIN policy places them at risk. Notifying ARIN merly calls ARIN's attention to the fact, which is, admittedly increasing the risk. However, I still do not buy the theory that just because people might rob banks, we should make bank robbery legal. Just because people might transfer outside of ARIN policy and fail to record those transfers with ARIN does not mean that we should modify our policy to permit such transfers.

Owen

On Jun 14, 2012, at 3:01 PM, Lindsey, Marc wrote:

> Policy Proposal Name – Revisions to M&A Transfer Requirements
> Proposal Originator – Marc Lindsey
> Proposal Version - 1
> Date – June 14, 2012
> Policy type – Modification to existing policy
> Policy term - Permanent
> Policy Statement
> Delete sections 8.1. and 8.2 in their entirety and replace them with the following:
> 
> 8.1 Principles
> 
> ARIN will not change its WHOIS database to record the transfer of number resources between organizations unless such transfer complies with this Section 8. ARIN is tasked with making prudent decisions when evaluating registration transfer requests.
> 
> 8.2. Mergers and Acquisitions
> 
> When the transfer of any number resource is requested by the current registrant or its successor or assign (the “new entity”), ARIN will transfer the registration of such number resources to the new entity upon receipt of evidence that the new entity has lawfully acquired the resources from the current registrant as the result of a merger, acquisition, reorganization or name change. ARIN will maintain an up-to-date list of acceptable types of documentation.  Transfers under this Section 8.2 shall not be contingent upon the new entity’s justification of need for the transferred numbers. 
> 
> If the transfer request pertains to non-legacy number resources, the new entity shall be required to execute, in its own name, an RSA covering the transferred numbers, and pay the applicable registration fees. 
> 
> If the transfer request pertains to legacy numbers, the transfer shall not be contingent upon the new entity entering into an RSA, LRSA or any of form of written agreement with ARIN.  For each transfer of legacy numbers under this Section 8.2, ARIN shall assess, and the new entity shall pay, a one-time “Legacy Record Change Fee” as set forth in the fee schedule unless the new entity elects, in its discretion, to enter into an LRSA covering the transferred legacy numbers and pays the applicable registration fees.
> 
> [Note: This proposal incorporates the definition of “legacy number” from proposal 172 as revised June 6, 2012.  The amount of the Legacy Record Change fee is TBD]
> 
> Rationale – The current version of 8.2 actually discourages legacy holders from (a) updating the WHOIS database, and (b) paying fees to assist with records management associated with the WHOIS database.  Some entities that currently control resources do not attempt to update the WHOIS records because the current transfer process puts at risk their ability to retain and use their numbers.  Under the current process, legacy holders or their lawful successors must first prove that they are the lawful successor (which is necessary and appropriate).  But they then must also justify their need to continue using numbers they obtained prior to ARIN’s existence.  Once they pass the needs hurdle, they must then execute an RSA (not even an LRSA) that alters their rights and subjects their numbers to audit and possible revocation under then-current policy. 
> For non-legacy registrants, the process should also be less burdensome and uncertain.  Ensuring the continuity of a company’s IP addressing scheme as part of an M&A transactions should be within the control of the entities directly involved.  ARIN’s discretionary approval of transfers in this context introduces an undesirable and unnecessary contingency.   Entities concerned about whether their M&A related update request will be approved by ARIN simply do not attempt to fully update the records.
> Minimizing the barriers for both legacy and non-legacy holders to update the WHOIS database when changes are required to accurately reflect normal corporate reorganization activities will help increase the accuracy of the WHOIS database, which benefits the community as a whole.  
> Timetable for implementation - Immediate
>  
> Marc Lindsey
> Levine, Blaszak, Block & Boothby, LLP
> 2001 L Street, NW Suite 900
> Washington, DC 20036
> Phone: (202) 857-2564
> Email: mlindsey at lb3law.com
> Website: www.lb3law.com
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