[arin-ppml] ARIN-prop-172 Additional definition for NRPMSection2 - Legacy Resources

[Owen DeLong]

> 
> What you seem to be asserting is that Legacy status is transferred with resources and the other assets of the company, as part of an M&A transfer such as envisioned in 8.2.  While I'm not completely convinced of that, there may be a reasonable argument for that.
> 
> However, it doesn't follow that Legacy status is also transferred with the resources independent of any other assets of the company, when a transfer occurs as part of 8.3.
> 
> The difference is, the purpose of the first type of transfer is to record the change of ownership and/or name of the company, or the ownership of the assets that use the resources, but not the use of the resources per se.  Where as the purpose of the second is to change the use of resources, independent of and explicitly not involving any change to the ownership of the company or any other assets.
> 
> Nortel acquiring Bay, is an instance of the first type of transfer, Microsoft acquiring the resources from Nortel through the bankruptcy proceeding is an transfer of the second type.
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> I'm sure even a judge would see the distinction in these two situations.
> 
> So it might be worth discussing if an 8.2 transfer removes the Legacy status from resources or not, but it seems clear to me that 8.3 transfers do.
> 
> Finally, the transfer of resources from Bay to Nortel seems completely consistent with 8.2 and probably would have happened if requested long before the bankruptcy.  And, if a judge orders you to do something you would probably do anyway; you don't argue with him about it, you just do it.  But you say but Nortel didn't request it.  That's not true, I believe the action of bankruptcy trustee approved by a judge is legally the same thing as a company taking the action.

Before the meaning of 8.3 was emasculated by creative interpretation and subsequently taken out of the AC's hands by fiat of the board determining that this was an operational and not a policy question, it was the very clear intent of the community and the AC that an LRSA was not an acceptable alternative to meet the RSA requirements of 8.3 and that only a standard RSA would be permitted.

I understand the reasons that this interpretation was made and believe that it was necessary, so I am not actually seeking to criticize ARIN staff or the board for doing so. However, it is certainly the intent of the policy that legacy status not be transferrable under 8.3 to whatever extent policy can specify that as that was certainly the clear intent of the community during the development of said policy. As such, I believe that ARIN should, as an operational matter, seek to carry that intent out to the greatest extent possible and reasonably believe that they have done so to this point.

Owen