Austin Board of Realtors; Analysis of Agreement Containing Consent Order To Aid Public Comment, 41023-41027 [E6-11389]
Download as PDF
Federal Register / Vol. 71, No. 138 / Wednesday, July 19, 2006 / Notices
Rulemaking proceeding listed in this
Public Notice and published pursuant to
47 CFR 1.429(e). The full text of these
documents is available for viewing and
copying in Room CY–B402, 445 12th
Street, SW., Washington, DC or may be
purchased from the Commission’s copy
contractor, Best Copy and Printing, Inc.
(BCPI) (1–800–378–3160). Oppositions
to these petitions must be filed by
August 3, 2006. See § 1.4(b)(1) of the
Commission’s rules (47 CFR 1.4(b)(1)).
Replies to an opposition must be filed
within 10 days after the time for filing
oppositions have expired.
Subject: In the Matter of Amendment
of Part 2 of the Commission’s Rules to
Allocate Spectrum below 3 GHz for
Mobile and Fixed Services to Support
the Introduction of New Advanced
Wireless Services, including Third
Generation Wireless Systems (ET Docket
No. 00–258).
Number of Petitions Filed: 2.
Marlene H. Dortch,
Secretary.
[FR Doc. E6–11049 Filed 7–18–06; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL MARITIME COMMISSION
Notice of Agreement Filed
sroberts on PROD1PC70 with NOTICES
The Commission hereby gives notice
of the filing of the following agreement
under the Shipping Act of 1984.
Interested parties may submit comments
on this agreement to the Secretary,
Federal Maritime Commission,
Washington, DC 20573, within ten days
of the date this notice appears in the
Federal Register. Copies of agreements
are available through the Commission’s
Office of Agreements (202–523–5793 or
tradeanalysis@fmc.gov).
Agreement No.: 011891–001.
Title: Hapag-Lloyd/NYK Space
Charter Agreement.
Parties: Hapag-Lloyd Container Linie
GmbH and Nippon Yusen Kaisha.
Filing Party: Wayne R. Rohde, Esq.;
Sher & Blackwell LLP; 1850 M Street,
NW.; Suite 900; Washington, DC 20036.
Synopsis: The amendment adds the
Dominican Republic to the scope of the
agreement.
By Order of the Federal Maritime
Commission.
Dated: July 14, 2006.
Bryant L. VanBrakle,
Secretary.
[FR Doc. E6–11434 Filed 7–18–06; 8:45 am]
BILLING CODE 6730–01–P
VerDate Aug<31>2005
18:28 Jul 18, 2006
Jkt 208001
FEDERAL RESERVE SYSTEM
Formations of, Acquisitions by, and
Mergers of Bank Holding Companies
The companies listed in this notice
have applied to the Board for approval,
pursuant to the Bank Holding Company
Act of 1956 (12 U.S.C. 1841 et seq.)
(BHC Act), Regulation Y (12 CFR Part
225), and all other applicable statutes
and regulations to become a bank
holding company and/or to acquire the
assets or the ownership of, control of, or
the power to vote shares of a bank or
bank holding company and all of the
banks and nonbanking companies
owned by the bank holding company,
including the companies listed below.
The applications listed below, as well
as other related filings required by the
Board, are available for immediate
inspection at the Federal Reserve Bank
indicated. The application also will be
available for inspection at the offices of
the Board of Governors. Interested
persons may express their views in
writing on the standards enumerated in
the BHC Act (12 U.S.C. 1842(c)). If the
proposal also involves the acquisition of
a nonbanking company, the review also
includes whether the acquisition of the
nonbanking company complies with the
standards in section 4 of the BHC Act
(12 U.S.C. 1843). Unless otherwise
noted, nonbanking activities will be
conducted throughout the United States.
Additional information on all bank
holding companies may be obtained
from the National Information Center
website at www.ffiec.gov/nic/.
Unless otherwise noted, comments
regarding each of these applications
must be received at the Reserve Bank
indicated or the offices of the Board of
Governors not later than August 14,
2006.
A. Federal Reserve Bank of Atlanta
(Andre Anderson, Vice President) 1000
Peachtree Street, N.E., Atlanta, Georgia
30309:
1. Community Bancshares of
Mississippi, Inc. Employee Stock
Ownership Plan, Brandon, Mississippi;
to acquire up to an additional 1 percent
of the voting shares of Community
Bancshares of Mississippi, Inc.,
Brandon, Mississippi, and thereby
indirectly acquire Community Bank,
Amory, Amory, Mississippi;
Community Bank of Mississippi, Forest,
Mississippi; Community Bank,
Meridian, Meridian, Mississippi;
Community Bank, N.A., Memphis,
Tennessee; Community Bank, Ellisville,
Ellisville, Mississippi; Community
Bank, Coast, Biloxi, Mississippi; First
Lucedale Bancorp, Inc., Lucedale,
PO 00000
Frm 00041
Fmt 4703
Sfmt 4703
41023
Mississippi; and Community Bank,
N.A., Lucedale, Mississippi.
B. Federal Reserve Bank of San
Francisco (Tracy Basinger, Director,
Regional and Community Bank Group)
101 Market Street, San Francisco,
California 94105-1579:
1. Western Alliance Bancorporation,
Las Vegas, Nevada; to acquire 100
percent of the voting shares of Alta
Alliance Bank, Oakland, California, in
organization.
Board of Governors of the Federal Reserve
System, July 14, 2006.
Robert deV. Frierson,
Deputy Secretary of the Board.
[FR Doc. E6–11439 Filed 7–18–06; 8:45 am]
BILLING CODE 6210–01–S
FEDERAL TRADE COMMISSION
[File No. 051 0219]
Austin Board of Realtors; Analysis of
Agreement Containing Consent Order
To Aid Public Comment
Federal Trade Commission.
Proposed Consent Agreement.
AGENCY:
ACTION:
SUMMARY: The consent agreement in this
matter settles alleged violations of
Federal law prohibiting unfair or
deceptive acts or practices or unfair
methods of competition. The attached
Analysis to Aid Public Comment
describes both the allegations in the
draft complaint and the terms of the
consent order—embodied in the consent
agreement—that would settle these
allegations.
Comments must be received on
or before August 11, 2006.
ADDRESSES: Interested parties are
invited to submit written comments.
Comments should refer to ‘‘Austin
Board of Realtors, File No. 051 0219,’’
to facilitate the organization of
comments. A comment filed in paper
form should include this reference both
in the text and on the envelope, and
should be mailed or delivered to the
following address: Federal Trade
Commission/Office of the Secretary,
Room 135–H, 600 Pennsylvania
Avenue, NW., Washington, DC 20580.
Comments containing confidential
material must be filed in paper form,
must be clearly labeled ‘‘Confidential,’’
and must comply with Commission
Rule 4.9(c). 16 CFR 4.9(c) (2005).1 The
DATES:
1 The comment must be accompanied by an
explicit request for confidential treatment,
including the factual and legal basis for the request,
and must identify the specific portions of the
comment to be withheld from the public record.
E:\FR\FM\19JYN1.SGM
Continued
19JYN1
sroberts on PROD1PC70 with NOTICES
41024
Federal Register / Vol. 71, No. 138 / Wednesday, July 19, 2006 / Notices
FTC is requesting that any comment
filed in paper form be sent by courier or
overnight service, if possible, because
U.S. postal mail in the Washington area
and at the Commission is subject to
delay due to heightened security
precautions. Comments that do not
contain any nonpublic information may
instead be filed in electronic form as
part of or as an attachment to e-mail
messages directed to the following email box: consentagreement@ftc.gov.
The FTC Act and other laws the
Commission administers permit the
collection of public comments to
consider and use in this proceeding as
appropriate. All timely and responsive
public comments, whether filed in
paper or electronic form, will be
considered by the Commission, and will
be available to the public on the FTC
Web site, to the extent practicable, at
https://www.ftc.gov. As a matter of
discretion, the FTC makes every effort to
remove home contact information for
individuals from the public comments it
receives before placing those comments
on the FTC Web site. More information,
including routine uses permitted by the
Privacy Act, may be found in the FTC’s
privacy policy, at https://www.ftc.gov/
ftc/privacy.htm.
FOR FURTHER INFORMATION CONTACT:
Patrick J. Roach, Bureau of Competition,
600 Pennsylvania Avenue, NW.,
Washington, DC 20580, (202) 326–2793.
SUPPLEMENTARY INFORMATION: Pursuant
to section 6(f) of the Federal Trade
Commission Act, 38 Stat. 721, 15 U.S.C.
46(f), and § 2.34 of the Commission
Rules of Practice, 16 CFR 2.34, notice is
hereby given that the above-captioned
consent agreement containing a consent
order to cease and desist, having been
filed with and accepted, subject to final
approval, by the Commission, has been
placed on the public record for a period
of thirty (30) days. The following
Analysis to Aid Public Comment
describes the terms of the consent
agreement, and the allegations in the
complaint. An electronic copy of the
full text of the consent agreement
package can be obtained from the FTC
Home Page (for July 13, 2006), on the
World Wide Web, at https://www.ftc.gov/
os/2006/07/index.htm. A paper copy
can be obtained from the FTC Public
Reference Room, Room 130–H, 600
Pennsylvania Avenue, NW.,
Washington, DC 20580, either in person
or by calling (202) 326–2222.
Public comments are invited, and may
be filed with the Commission in either
The request will be granted or denied by the
Commission’s General Counsel, consistent with
applicable law and the public interest. See
Commission Rule 4.9(c), 16 CFR 4.9(c).
VerDate Aug<31>2005
19:31 Jul 18, 2006
Jkt 208001
paper or electronic form. All comments
should be filed as prescribed in the
ADDRESSES section above, and must be
received on or before the date specified
in the DATES section.
Analysis of Agreement Containing
Consent Order To Aid Public Comment
The Federal Trade Commission has
accepted for public comment an
Agreement Containing Consent Order
with the Austin Board of Realtors
(‘‘ABOR’’ or ‘‘Respondent’’), an
association of real estate brokers in the
Austin, Texas, metropolitan area. The
Agreement settles charges that ABOR
violated section 5 of the Federal Trade
Commission Act, 15 U.S.C. 45, by
engaging in a concerted refusal to deal
except on specified terms with respect
to a key input for the provision of real
estate services. The proposed consent
order has been placed on the public
record for 30 days to receive comments
from interested persons. Comments
received during this period will become
part of the public record. After 30 days,
the Commission will review the
agreement and the comments received,
and will decide whether it should
withdraw from the agreement or make
the proposed order final.
The purpose of this analysis is to
facilitate comment on the proposed
order. The analysis does not constitute
an official interpretation of the
agreement and proposed order, and does
not modify their terms in any way.
Further, the proposed consent order has
been entered into for settlement
purposes only, and does not constitute
an admission by Respondent that it
violated the law or that the facts alleged
in the complaint (other than
jurisdictional facts) are true.
I. Industry Background
A Multiple Listing Service, or ‘‘MLS,’’
is a cooperative venture by which real
estate brokers serving a common local
market area submit their listings to a
central service, which in turn
distributes the information, for the
purpose of fostering cooperation among
brokers and agents in real estate
transactions. The MLS facilitates
transactions by putting together a home
seller, who contracts with a broker who
is a member of the MLS, with
prospective buyers, who may be
working with other brokers who are also
members of the MLS. Membership in
the MLS is limited to member brokers
who generally must possess a license to
engage in real estate brokerage services
and meet other criteria set by MLS rules.
Prior to the late 1990s, the listings on
an MLS were typically directly
accessible only to real estate brokers
PO 00000
Frm 00042
Fmt 4703
Sfmt 4703
who were members of a local MLS. The
MLS listings typically were made
available through books or dedicated
computer terminals, and generally could
only be accessed by the general public
by physically visiting a broker’s office or
by receiving a fax or hand delivery of
selected listings from a broker.
Information from an MLS is now
typically available to the general public
not only through the offices of brokers
who are MLS members, but also through
three principal categories of internet
Web sites. First, information concerning
many MLS listings is available through
Realtor.com, a national Web site run by
the National Association of Realtors
(‘‘NAR’’). Realtor.com contains listing
information from many local MLS
systems around the country and is the
largest and most-used internet real
estate Web site. Second, information
concerning MLS listings is often made
available through a local MLS-affiliated
web site, such as
Austinhomesearch.com. Third,
information concerning MLS listings is
often made available on the internet
sites of various real estate brokers, who
choose to provide these web sites as a
way of promoting their brokerage
services. Most of these various Web sites
receive information from an MLS
pursuant to a procedure known as
Internet Data Exchange (‘‘IDX’’), which
is typically governed by MLS policies.
The IDX policies allow operators of
approved Web sites to display MLS
active listing information to the public.
As a survey of home buyers and
sellers conducted by the National
Association of Realtors has shown,
home buyers are increasingly relying
upon the internet in their search for
homes, and web sites of the kind
affected by the Web Site Policy are the
most popular internet sites for home
buyers.2 According to the NAR survey,
74 percent of home buyers nationally
used the internet to assist in their home
search, with 53 percent reporting
frequent internet searches; 15 percent of
respondents first learned about the
home they selected from the internet; 69
percent of home buyers found the
internet to be a ‘‘very useful’’ source of
information, and a total of 96 percent
found the internet to be either ‘‘very
useful’’ or ‘‘somewhat useful.’’ 3
Moreover, the NAR Survey makes clear
2 Paul C. Bishop, Thomas Beers and Shonda D.
Hightower, the 2004 National Association of
Realtors Profile of Home Buyers and Sellers (‘‘NAR
Survey’’) at 3–3, 3–4, 3–5, 3–6, 3–18.
3 Id. See Home Buyer & Seller Survey Shows
Rising Use of Internet, Reliance on Agents (January
17, 2006), available at https://www.realtor.org/Public
AffairsWeb.nsf/Pages/HmBuyerSellerSurvey06
?OpenDocument.
E:\FR\FM\19JYN1.SGM
19JYN1
Federal Register / Vol. 71, No. 138 / Wednesday, July 19, 2006 / Notices
that the overwhelming majority of Web
sites used nationally in searching for
homes contain listing information that
is provided by local MLS systems.4
sroberts on PROD1PC70 with NOTICES
A. Types of Real Estate Brokerage
Professionals
A typical real estate transaction
involves two real estate brokers: these
are commonly known as a ‘‘Listing
Broker’’ and a ‘‘Selling Broker.’’ The
Listing Broker is hired by the seller of
the property to locate an appropriate
buyer. The seller and the Listing Broker
agree upon compensation, which is
determined by written agreement
negotiated between the seller and the
Listing Broker. In a common traditional
listing agreement, the Listing Broker
receives compensation in the form of a
commission, which is typically a
percentage of the sales price of the
property, payable if and when the
property is sold. In such a traditional
listing agreement, the Listing Broker
agrees to provide a package of real estate
brokerage services, including promoting
the listing through the MLS and on the
internet, providing advice to the seller
regarding pricing and presentation,
fielding all calls and requests to show
the property, supplying a lock-box so
that potential buyers can see the house
with their agents, running open houses
to show the house to potential buyers,
negotiating with buyers or their agents
on offers, assisting with home
inspections and other arrangements
once a contract for sale is executed, and
attending the closing of the transaction.
The other broker involved in a typical
transaction is commonly known as the
Selling Broker. In a typical transaction,
a prospective buyer will seek out a
Selling Broker to identify properties that
may be available. This Selling Broker
will discuss the properties that may be
of interest to the buyer, accompany the
buyer to see various properties, try to
arrange a transaction between buyer and
seller, assist the buyer in negotiating the
contract, and help in further steps
necessary to close the transaction. In a
traditional transaction, the Listing
Broker offers the Selling Broker a fixed
commission, to be paid from the Listing
Broker’s commission when and if the
property is sold. Real estate brokers
typically do not specialize as only
Listing Brokers or Selling Brokers, but
often function in either role depending
on the particular transaction.
B. Types of Real Estate Listings
The relationship between the Listing
Broker and the seller of the property is
established by agreement. The two most
4 NAR
Survey at 3–18.
VerDate Aug<31>2005
19:31 Jul 18, 2006
Jkt 208001
common types of agreements governing
listings are Exclusive Right to Sell
Listings and Exclusive Agency Listings.
An Exclusive Right to Sell Listing is the
traditional listing agreement, under
which the property owner appoints a
real estate broker as his or her exclusive
agent for a designated period of time, to
sell the property on the owner’s stated
terms, and agrees to pay the Listing
Broker a commission if and when the
property is sold, whether the buyer of
the property is secured by the Listing
Broker, the owner or another broker.
An Exclusive Agency Listing is a
listing agreement under which the
Listing Broker acts as an exclusive agent
of the property owner or principal in the
sale of a property, but under which the
property owner or principal reserves a
right to sell the property without
assistance of the Listing Broker, in
which case the Listing Broker is paid a
reduced or no commission when the
property is sold.
Some real estate brokers have
attempted to offer services to home
sellers on something other than the
traditional full-service basis. Many of
these brokers, often for a flat fee, will
offer sellers access to the MLS’s
information-sharing function, as well as
a promise that the listing will appear on
the most popular real estate Web sites.
Under such arrangements, the Listing
Broker does not offer additional real
estate brokerage services as part of the
flat fee package, but allows sellers to
purchase additional services if sellers so
desire. These non-traditional
arrangements often are structured using
Exclusive Agency Listing contracts.
There is a third type of real estate
listing that does not involve a real estate
broker, which is a ‘‘For Sale By Owner’’
or ‘‘FSBO’’ listing. With a FSBO listing,
a home owner will attempt to sell a
house without the involvement of any
real estate broker and without paying
any compensation to such a broker, by
advertising the availability of the home
through traditional advertising
mechanisms (such as a newspaper) or
FSBO-specific Web sites.
There are two critical distinctions
between an Exclusive Agency Listing
and a FSBO for the purpose of this
analysis. First, the Exclusive Agency
Listing employs a Listing Broker for
access to the MLS and Web sites open
to the public; a FSBO listing does not.
Second, an Exclusive Agency Listing
sets terms of compensation to be paid to
a Selling Broker, while a FSBO listing
often does not.
II. The Complaint
The Complaint alleges that ABOR, a
Texas not-for-profit corporation
PO 00000
Frm 00043
Fmt 4703
Sfmt 4703
41025
operating for the benefit of its members,
has violated section 5 of the FTC Act.
Specifically, the proposed Complaint
alleges that ABOR has unlawfully
restrained competition among real estate
brokers in central Texas by adopting a
policy that constitutes a concerted
refusal to deal except on specified
terms.
A. ABOR Has Market Power
ABOR has more than 5,000 real estate
professionals, and the large majority of
residential real estate brokerage
professionals in the Austin, Texas,
metropolitan area are members of
ABOR. These professionals compete
with one another to provide residential
real estate brokerage services to
consumers.
The ABOR MLS is organized through
the Austin/Central Texas Realty
Information Service (‘‘ACTRIS’’) and
ACTRIS is the only MLS that serves
metropolitan Austin, Texas.
Membership in ACTRIS is critical to a
broker providing residential real estate
brokerage services to sellers and buyers
of real property in the ACTRIS service
area. ABOR, through ACTRIS, controls
key inputs needed for a Listing Broker
to provide effective real estate brokerage
services, including: (1) A means to
publicize to all brokers the residential
real estate listings in central Texas; and
(2) a means to distribute listing
information to Web sites for the general
public. By virtue of industry-wide
participation and control over a key
input, ABOR and ACTRIS have market
power in the provision of residential
real estate brokerage services to sellers
and buyers of real property in the
Austin, Texas and/or the ACTRIS
Service Area.
B. ABOR Conduct
In February 2005, ABOR adopted a
rule that prevented information on
Exclusive Agency Listings provided to
ACTRIS from being transmitted to real
estate Web sites available to the general
public (the ‘‘Web Site Policy’’). The Web
Site Policy specifically prevents any
information on listings other than
traditional Exclusive Right to Sell
Listings from being included in the IDXformatted information that is available
from ACTRIS to be used and published
by publicly-accessible Web sites.5 The
effect of this rule is to prevent such
information from being available to be
displayed on a broad range of Web sites,
including the NAR-operated
5 The ABOR rule states: ‘‘Listing information
downloaded and/or otherwise displayed pursuant
to IDX shall be limited to properties listed on an
exclusive right to sell basis.’’ ACTRIS Rules and
Regulations at 18 (February 2006).
E:\FR\FM\19JYN1.SGM
19JYN1
41026
Federal Register / Vol. 71, No. 138 / Wednesday, July 19, 2006 / Notices
‘‘Realtor.com’’ Web site; the ABORowned ‘‘Austinhomesearch.com’’ Web
site; and ABOR member Web sites.
Exclusive Agency Listings are often
used by members of ABOR acting as
Listing Brokers to offer lower-cost real
estate services to consumers. ABOR’s
Web Site Policy is joint action by a
group of competitors to withhold
distribution of listing information to
publicly accessible Web sites from
competitors who do not contract with
their brokerage service customers in a
way that the group wishes. This conduct
represents a new variation of a type of
conduct that the Commission
condemned 20 years ago. In the 1980s
and 1990s, several local MLS boards
banned Exclusive Agency Listings from
the MLS entirely. The Commission
investigated and issued complaints
against these exclusionary practices,
obtaining several consent orders.6
sroberts on PROD1PC70 with NOTICES
C. Competitive Effects of the Web Site
Policy
The Web Site Policy has the effect of
discouraging members of ABOR and
participants in ACTRIS from accepting
Exclusive Agency Listings. Thus, the
Web Site Policy strongly impedes one
way of providing unbundled brokerage
services, and may make it more difficult
for home sellers to market their homes.
The Web Site Policy has caused some
home sellers to switch away from
Exclusive Agency Listings to other
forms of listing agreements. According
to ACTRIS records, prior to the
initiation of the Web Site Policy, about
1,500 of 8,500, or 18 percent, of the
listings on ACTRIS were Exclusive
Agency Listings. After the Web Site
Policy was implemented, the number of
Exclusive Agency Listings as shown on
ACTRIS records dropped to about 250
out of 10,000, or 2.5 percent.
When home sellers switch to full
service listing agreements from
Exclusive Agency Listings that often
offer lower-cost real estate services to
consumers, the sellers may purchase
services that they would not otherwise
buy. This, in turn, may increase the
commission costs to consumers of real
estate brokerage services. By preventing
6 In the Matter of United Real Estate Brokers of
Rockland, Ltd., Docket No. C–3461, 116 F.T.C. 972
(1993); In the Matter of American Industrial Real
Estate Association, Docket No. C–3449, 116 F.T.C.
704 (1993); In the Matter of Puget Sound Multiple
Listing Association, Docket No. C–3300 (F.T.C.,
August 2, 1990); In the Matter of BellinghamWhatcom County Multiple Listing Bureau, Docket
No. C–3299 (F.T.C., August 2, 1990); In the Matter
of Metro MLS, Inc., Docket No. C–3286, 115 F.T.C.
305 (1990); In the Matter of Multiple Listing Service
of the Greater Michigan City Area, Inc., Docket No.
C–3163, 106 F.T.C. 95 (1985); In the Matter of
Orange County Board of Realtors, Inc., Docket No.
C–3162, 106 F.T.C. 88 (1985).
VerDate Aug<31>2005
18:28 Jul 18, 2006
Jkt 208001
Exclusive Agency Listings from being
transmitted by ACTRIS to public-access
real estate Web sites, the Web Site
Policy has adverse effects on home
sellers and home buyers. In particular,
the Web Site Policy denies home sellers
choices for marketing their homes and
denies home buyers the chance to use
the internet to easily see all of the
houses listed by real estate brokers in
the area, making their search less
efficient.
D. There Is No Competitive Efficiency
Associated With the Web Site Policy
There are no cognizable and plausible
efficiency justifications for the Web Site
Policy. An MLS in some circumstances
might be concerned with the possibility
that buyers and sellers of properties
under an Exclusive Agency Listing
could ‘‘free-ride’’ on the legitimate and
valuable cooperative efforts that the
MLS is intended to foster, by using the
services of the MLS to carry out real
estate transactions but bypassing the
brokerage services that were one of the
principal reasons why the MLS was
created. However, this concern does not
provide justification for the Web Site
Policy as implemented by ABOR and
ACTRIS. Exclusive Agency Listings are
not a credible means for home buyers or
sellers to bypass the use of the brokerage
services that ACTRIS was created to
promote, because a Listing Broker is
always involved in an Exclusive Agency
Listing, and the ABOR rules already
include protections against such misuse.
The ABOR Web Site Policy does not
involve situations where brokerage
services are bypassed entirely. The
policy only operates where home sellers
purchase services from a Listing Broker
using an Exclusive Agency contract, not
when home sellers are pursuing a FSBO
sale and purchase no brokerage services
at all. It is possible, of course, that a
buyer of an Exclusive Agency Listing
may make the purchase without using a
Selling Broker, but this is true for
traditional Exclusive Right to Sell
Listings as well. Under existing ACTRIS
rules that apply to any form of the
listing agreement, the Listing Broker
must ensure that the home seller pays
compensation to the cooperating Selling
Broker (if there is one), and the Listing
Broker may be liable himself for a lost
commission if the home seller fails to
pay a Selling Broker who was the
procuring cause of a completed property
sale. The possibility of sellers or buyers
using the MLS but bypassing brokerage
services is already addressed effectively
by ABOR’s existing rules that do not
distinguish between forms of listing
contracts, and does not justify the Web
Site Policy.
PO 00000
Frm 00044
Fmt 4703
Sfmt 4703
III. The Proposed Consent Order
The proposed order is tailored to
ensure that the MLS does not misuse its
market power, but also takes care to
ensure that the procompetitive
incentives of joint ventures such as
ABOR and ACTRIS remain intact. The
proposed order enjoins ABOR from
treating Exclusive Agency Listings, or
any other lawful listing agreements with
sellers of property, in a less
advantageous manner than Exclusive
Right to Sell Listings.
More specifically, ABOR is enjoined
from adopting or enforcing any policy to
deny, restrict, or interfere with the
ability of ABOR members or ACTRIS
participants to enter into Exclusive
Agency Listings or other lawful listing
agreements with the sellers of
properties. The proposed consent order
prohibits ABOR from preventing its
members or ACTRIS participants from:
offering or accepting Exclusive Agency
Listings or other lawful listing
agreements; cooperating with Listing
Brokers or agents that offer or accept
Exclusive Agency Listings or other
lawful listing agreements; or publishing
Exclusive Agency Listings or other
lawful listing agreements on web sites
otherwise approved to use ACTRIS
information. The proposed order also
prohibits ABOR from denying or
restricting the Services of the MLS 7 to
Exclusive Agency Listings or other
lawful listings in any way that such
Services of the MLS are not denied or
restricted to Exclusive Right to Sell
Listings; or treating Exclusive Agency
Listings, or any other lawful listings, in
a less advantageous manner than
Exclusive Right to Sell Listings,
including but not limited to, any policy,
rule or practice pertaining to the
transmission, downloading, or
displaying of information pertaining to
such listings.
The proposed order contains a general
proviso that preserves to ABOR the
ability to adopt or enforce any policy,
rule, practice or agreement that it can
show is reasonably ancillary to the
legitimate and beneficial objectives of
the MLS. This includes reasonable rules
regarding membership requirements,
7 ‘‘Services of the MLS’’ means the benefits and
services provided by the MLS to assist ABOR
members or ACTRIS Participants in selling, leasing
and valuing property and/or brokering real estate
transactions, including but not limited to: (1)
Having the property included among the listings in
the MLS in a manner so that information
concerning the listing is easily accessible by
cooperating brokers; and (2) having the property
publicized through means available to the MLS,
including, but not limited to, information
concerning the listing being made available on
Austinhomesearch.com, Realtor.com and IDX Web
Sites.
E:\FR\FM\19JYN1.SGM
19JYN1
Federal Register / Vol. 71, No. 138 / Wednesday, July 19, 2006 / Notices
payment of dues, administrative
matters, or other policies. The proviso is
intended to preserve existing or future
rules or regulations of ACTRIS that
ABOR can demonstrate are reasonably
related to the legitimate and procompetitive purposes of the MLS.
In addition, the proposed order
requires ABOR, within thirty days after
the Order becomes final, to conform its
rules to the substantive provisions of the
Order. ABOR is also required to notify
ABOR members and participants in
ACTRIS of the Order through e-mail
communications and its Web site. The
proposed order requires notification of
changes in the structure of ABOR, and
requires ABOR to file regular written
reports of ABOR’s compliance with the
terms of the Order.
The proposed Order applies to ABOR
and entities that it owns or controls,
including ACTRIS and
Austinhomesearch.com. The Order by
its terms does not prohibit ABOR
members, or other persons or entities
independent of ABOR that receive
listing information from ABOR for use
on their Web sites, from making
independent decisions concerning their
use or display of ACTRIS listing
information that are consistent with
their contractual obligations to ACTRIS.
The proposed order will expire in 10
years.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E6–11389 Filed 7–18–06; 8:45 am]
BILLING CODE 6750–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Office of the National Coordinator;
American Health Information
Community Biosurveillance Data
Steering Group Meeting
ACTION:
Announcement of meeting.
SUMMARY: This notice announces the
second meeting of the American Health
Information Community Biosurveillance
Data Steering Group in accordance with
the Federal Advisory Committee Act
(Pub. L. 92–463, 5 U.S.C., App.).
DATES: July 26, 2006 from 4 p.m to 6
p.m.
Mary C. Switzer Building
(330 C Street, SW., Washington, DC
20201), Conference Room 4090 (a photo
ID is needed for access to a Federal
building).
sroberts on PROD1PC70 with NOTICES
ADDRESSES:
The
meeting will be available via internet
access. Go to https://www.hhs.gov/
healthit/ahic.html for additional
information on the meeting.
SUPPLEMENTARY INFORMATION:
Dated: July 12, 2006.
Judith Sparrow,
Director, American Health Information
Community, Office of Programs and
Coordination, Office of the National
Coordinator.
[FR Doc. 06–6342 Filed 7–18–06; 8:45 am]
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Committee on Vital and Health
Statistics: Meeting
Pursuant to the Federal Advisory
Committee Act, the Department of
Health and Human Services (HHS)
announces the following advisory
committee meeting.
Name: National Committee on Vital and
Health Statistics (NCVHS), Subcommittee on
Standards and Security (SSS).
Time and Date: July 28, 2006, 9 a.m.–12:30
p.m.
Place: Crown Plaza Hotel, 1001 14th Street,
NW., Washington, DC 20005.
Status: Open.
Purpose: The purpose of this meeting is to
discuss issues and concerns relative to
implementation of the National Provider
Identifier (NDI), and to discuss preliminary
recommendations of the Consolidated Health
Informatics Initiative (CHI) Allergy
Workgroup.
For Further Information Contact:
Substantive program information as well as
summaries of meetings and a roster of
Committee members may be obtained from
Denise Buenning, Senior Adviser, Office of EHealth Standards and Services, Centers for
Medicare and Medicaid Services, MS: C5–
24–04, 7500 Security Boulevard, Baltimore,
MD 21244–1850, telephone: 410–786–6333
or Marjorie S. Greenberg, Executive
Secretary, NCVHS, National Center for
Health Statistics, Centers for Disease Control
and Prevention, Room 1100, Presidential
Building, 3311 Toledo Road, Hyattsville,
Maryland 20782, telephone: (301) 458–4245.
Information also is available on the NCVHS
home page of the HHS Web site: https://
www.ncvhs.hhs.gov/ where an agenda for the
meeting will be posted when available.
Should you require reasonable
accommodation, please contact the CDC
Office of Equal Employment Opportunity on
(301) 458–4EEO (4336) as soon as possible.
FOR FURTHER INFORMATION CONTACT:
Dated: July 10, 2006.
James Scanlon,
Deputy Assistant Secretary for Science and
Data Policy, Office of the Assistant Secretary
for Planning and Evaluation.
[FR Doc. 06–6341 Filed 7–18–06; 8:45 am]
https://www.hhs.gov/healthit/ahic.html.
BILLING CODE 4151–05–M
VerDate Aug<31>2005
18:28 Jul 18, 2006
Jkt 208001
PO 00000
Frm 00045
Fmt 4703
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
Joint Meeting of the Endocrinologic
and Metabolic Drugs Advisory
Committee and the Advisory
Committee for Pharmaceutical
Science; Notice of Meeting
AGENCY:
Sfmt 4703
Food and Drug Administration,
HHS.
ACTION:
BILLING CODE 4150–24–M
41027
Notice.
This notice announces a forthcoming
meeting of a public advisory committee
of the Food and Drug Administration
(FDA). The meeting will be open to the
public.
Name of Committees: Endocrinologic
and Metabolic Drugs Advisory
Committee and the Advisory Committee
for Pharmaceutical Science.
General Function of the Committees:
To provide advice and
recommendations to the agency on
FDA’s regulatory issues.
Date and Time: The meeting will be
held on October 4, 2006, from 8 a.m. to
5 p.m.
Location: Hilton, The Ballrooms, 620
Perry Pkwy, Gaithersburg, MD. The
hotel phone number is 301–977–8900.
Contact Person: Victoria FerrettiAceto, Center for Drug Evaluation and
Research (HFD–21), Food and Drug
Administration, 5600 Fishers Lane (for
express delivery, 5630 Fishers Lane, rm.
1076), Rockville, MD 20857, 301–827–
7001, e-mail:
Victoria.FerrettiAceto@fda.hhs.gov, or
FDA Advisory Committee Information
Line, 1–800–741–8138 (301–443–0572
in the Washington, DC area), codes
3014512536 or 3014512539. Please call
the Information Line for up-to-date
information on this meeting. When
available, background materials for this
meeting will be posted one business day
prior to the meeting on the FDA Web
site at https://www.fda.gov/ohrms/
dockets/ac/acmenu.htm. (Click on the
year 2006 and scroll down to
Endocrinologic and Metabolic Drugs
Advisory Committee or the Advisory
Committee for Pharmaceutical Science.)
Agenda: The joint committee will
discuss FDA’s efforts to assess the
product quality of currently marketed
levothyroxine sodium drug products.
Earlier this year, FDA requested that
manufacturers of currently marketed
levothyroxine sodium products provide
to it certain product release and stability
information. The joint committee will
consider FDA’s analyses and any
clinical significance.
Procedure: Interested persons may
present data, information, or views,
E:\FR\FM\19JYN1.SGM
19JYN1
Agencies
[Federal Register Volume 71, Number 138 (Wednesday, July 19, 2006)]
[Notices]
[Pages 41023-41027]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-11389]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
[File No. 051 0219]
Austin Board of Realtors; Analysis of Agreement Containing
Consent Order To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
-----------------------------------------------------------------------
SUMMARY: The consent agreement in this matter settles alleged
violations of Federal law prohibiting unfair or deceptive acts or
practices or unfair methods of competition. The attached Analysis to
Aid Public Comment describes both the allegations in the draft
complaint and the terms of the consent order--embodied in the consent
agreement--that would settle these allegations.
DATES: Comments must be received on or before August 11, 2006.
ADDRESSES: Interested parties are invited to submit written comments.
Comments should refer to ``Austin Board of Realtors, File No. 051
0219,'' to facilitate the organization of comments. A comment filed in
paper form should include this reference both in the text and on the
envelope, and should be mailed or delivered to the following address:
Federal Trade Commission/Office of the Secretary, Room 135-H, 600
Pennsylvania Avenue, NW., Washington, DC 20580. Comments containing
confidential material must be filed in paper form, must be clearly
labeled ``Confidential,'' and must comply with Commission Rule 4.9(c).
16 CFR 4.9(c) (2005).\1\ The
[[Page 41024]]
FTC is requesting that any comment filed in paper form be sent by
courier or overnight service, if possible, because U.S. postal mail in
the Washington area and at the Commission is subject to delay due to
heightened security precautions. Comments that do not contain any
nonpublic information may instead be filed in electronic form as part
of or as an attachment to e-mail messages directed to the following e-
mail box: consentagreement@ftc.gov.
---------------------------------------------------------------------------
\1\ The comment must be accompanied by an explicit request for
confidential treatment, including the factual and legal basis for
the request, and must identify the specific portions of the comment
to be withheld from the public record. The request will be granted
or denied by the Commission's General Counsel, consistent with
applicable law and the public interest. See Commission Rule 4.9(c),
16 CFR 4.9(c).
---------------------------------------------------------------------------
The FTC Act and other laws the Commission administers permit the
collection of public comments to consider and use in this proceeding as
appropriate. All timely and responsive public comments, whether filed
in paper or electronic form, will be considered by the Commission, and
will be available to the public on the FTC Web site, to the extent
practicable, at https://www.ftc.gov. As a matter of discretion, the FTC
makes every effort to remove home contact information for individuals
from the public comments it receives before placing those comments on
the FTC Web site. More information, including routine uses permitted by
the Privacy Act, may be found in the FTC's privacy policy, at https://
www.ftc.gov/ftc/privacy.htm.
FOR FURTHER INFORMATION CONTACT: Patrick J. Roach, Bureau of
Competition, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202)
326-2793.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec. 2.34 of
the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given
that the above-captioned consent agreement containing a consent order
to cease and desist, having been filed with and accepted, subject to
final approval, by the Commission, has been placed on the public record
for a period of thirty (30) days. The following Analysis to Aid Public
Comment describes the terms of the consent agreement, and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC Home Page
(for July 13, 2006), on the World Wide Web, at https://www.ftc.gov/os/
2006/07/index.htm. A paper copy can be obtained from the FTC Public
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington,
DC 20580, either in person or by calling (202) 326-2222.
Public comments are invited, and may be filed with the Commission
in either paper or electronic form. All comments should be filed as
prescribed in the ADDRESSES section above, and must be received on or
before the date specified in the DATES section.
Analysis of Agreement Containing Consent Order To Aid Public Comment
The Federal Trade Commission has accepted for public comment an
Agreement Containing Consent Order with the Austin Board of Realtors
(``ABOR'' or ``Respondent''), an association of real estate brokers in
the Austin, Texas, metropolitan area. The Agreement settles charges
that ABOR violated section 5 of the Federal Trade Commission Act, 15
U.S.C. 45, by engaging in a concerted refusal to deal except on
specified terms with respect to a key input for the provision of real
estate services. The proposed consent order has been placed on the
public record for 30 days to receive comments from interested persons.
Comments received during this period will become part of the public
record. After 30 days, the Commission will review the agreement and the
comments received, and will decide whether it should withdraw from the
agreement or make the proposed order final.
The purpose of this analysis is to facilitate comment on the
proposed order. The analysis does not constitute an official
interpretation of the agreement and proposed order, and does not modify
their terms in any way. Further, the proposed consent order has been
entered into for settlement purposes only, and does not constitute an
admission by Respondent that it violated the law or that the facts
alleged in the complaint (other than jurisdictional facts) are true.
I. Industry Background
A Multiple Listing Service, or ``MLS,'' is a cooperative venture by
which real estate brokers serving a common local market area submit
their listings to a central service, which in turn distributes the
information, for the purpose of fostering cooperation among brokers and
agents in real estate transactions. The MLS facilitates transactions by
putting together a home seller, who contracts with a broker who is a
member of the MLS, with prospective buyers, who may be working with
other brokers who are also members of the MLS. Membership in the MLS is
limited to member brokers who generally must possess a license to
engage in real estate brokerage services and meet other criteria set by
MLS rules.
Prior to the late 1990s, the listings on an MLS were typically
directly accessible only to real estate brokers who were members of a
local MLS. The MLS listings typically were made available through books
or dedicated computer terminals, and generally could only be accessed
by the general public by physically visiting a broker's office or by
receiving a fax or hand delivery of selected listings from a broker.
Information from an MLS is now typically available to the general
public not only through the offices of brokers who are MLS members, but
also through three principal categories of internet Web sites. First,
information concerning many MLS listings is available through
Realtor.com, a national Web site run by the National Association of
Realtors (``NAR''). Realtor.com contains listing information from many
local MLS systems around the country and is the largest and most-used
internet real estate Web site. Second, information concerning MLS
listings is often made available through a local MLS-affiliated web
site, such as Austinhomesearch.com. Third, information concerning MLS
listings is often made available on the internet sites of various real
estate brokers, who choose to provide these web sites as a way of
promoting their brokerage services. Most of these various Web sites
receive information from an MLS pursuant to a procedure known as
Internet Data Exchange (``IDX''), which is typically governed by MLS
policies. The IDX policies allow operators of approved Web sites to
display MLS active listing information to the public.
As a survey of home buyers and sellers conducted by the National
Association of Realtors has shown, home buyers are increasingly relying
upon the internet in their search for homes, and web sites of the kind
affected by the Web Site Policy are the most popular internet sites for
home buyers.\2\ According to the NAR survey, 74 percent of home buyers
nationally used the internet to assist in their home search, with 53
percent reporting frequent internet searches; 15 percent of respondents
first learned about the home they selected from the internet; 69
percent of home buyers found the internet to be a ``very useful''
source of information, and a total of 96 percent found the internet to
be either ``very useful'' or ``somewhat useful.'' \3\ Moreover, the NAR
Survey makes clear
[[Page 41025]]
that the overwhelming majority of Web sites used nationally in
searching for homes contain listing information that is provided by
local MLS systems.\4\
---------------------------------------------------------------------------
\2\ Paul C. Bishop, Thomas Beers and Shonda D. Hightower, the
2004 National Association of Realtors Profile of Home Buyers and
Sellers (``NAR Survey'') at 3-3, 3-4, 3-5, 3-6, 3-18.
\3\ Id. See Home Buyer & Seller Survey Shows Rising Use of
Internet, Reliance on Agents (January 17, 2006), available at http:/
/www.realtor.org/ Public Affairs Web.nsf/ Pages/HmBuyer
SellerSurvey06 ?OpenDocument.
\4\ NAR Survey at 3-18.
---------------------------------------------------------------------------
A. Types of Real Estate Brokerage Professionals
A typical real estate transaction involves two real estate brokers:
these are commonly known as a ``Listing Broker'' and a ``Selling
Broker.'' The Listing Broker is hired by the seller of the property to
locate an appropriate buyer. The seller and the Listing Broker agree
upon compensation, which is determined by written agreement negotiated
between the seller and the Listing Broker. In a common traditional
listing agreement, the Listing Broker receives compensation in the form
of a commission, which is typically a percentage of the sales price of
the property, payable if and when the property is sold. In such a
traditional listing agreement, the Listing Broker agrees to provide a
package of real estate brokerage services, including promoting the
listing through the MLS and on the internet, providing advice to the
seller regarding pricing and presentation, fielding all calls and
requests to show the property, supplying a lock-box so that potential
buyers can see the house with their agents, running open houses to show
the house to potential buyers, negotiating with buyers or their agents
on offers, assisting with home inspections and other arrangements once
a contract for sale is executed, and attending the closing of the
transaction.
The other broker involved in a typical transaction is commonly
known as the Selling Broker. In a typical transaction, a prospective
buyer will seek out a Selling Broker to identify properties that may be
available. This Selling Broker will discuss the properties that may be
of interest to the buyer, accompany the buyer to see various
properties, try to arrange a transaction between buyer and seller,
assist the buyer in negotiating the contract, and help in further steps
necessary to close the transaction. In a traditional transaction, the
Listing Broker offers the Selling Broker a fixed commission, to be paid
from the Listing Broker's commission when and if the property is sold.
Real estate brokers typically do not specialize as only Listing Brokers
or Selling Brokers, but often function in either role depending on the
particular transaction.
B. Types of Real Estate Listings
The relationship between the Listing Broker and the seller of the
property is established by agreement. The two most common types of
agreements governing listings are Exclusive Right to Sell Listings and
Exclusive Agency Listings. An Exclusive Right to Sell Listing is the
traditional listing agreement, under which the property owner appoints
a real estate broker as his or her exclusive agent for a designated
period of time, to sell the property on the owner's stated terms, and
agrees to pay the Listing Broker a commission if and when the property
is sold, whether the buyer of the property is secured by the Listing
Broker, the owner or another broker.
An Exclusive Agency Listing is a listing agreement under which the
Listing Broker acts as an exclusive agent of the property owner or
principal in the sale of a property, but under which the property owner
or principal reserves a right to sell the property without assistance
of the Listing Broker, in which case the Listing Broker is paid a
reduced or no commission when the property is sold.
Some real estate brokers have attempted to offer services to home
sellers on something other than the traditional full-service basis.
Many of these brokers, often for a flat fee, will offer sellers access
to the MLS's information-sharing function, as well as a promise that
the listing will appear on the most popular real estate Web sites.
Under such arrangements, the Listing Broker does not offer additional
real estate brokerage services as part of the flat fee package, but
allows sellers to purchase additional services if sellers so desire.
These non-traditional arrangements often are structured using Exclusive
Agency Listing contracts.
There is a third type of real estate listing that does not involve
a real estate broker, which is a ``For Sale By Owner'' or ``FSBO''
listing. With a FSBO listing, a home owner will attempt to sell a house
without the involvement of any real estate broker and without paying
any compensation to such a broker, by advertising the availability of
the home through traditional advertising mechanisms (such as a
newspaper) or FSBO-specific Web sites.
There are two critical distinctions between an Exclusive Agency
Listing and a FSBO for the purpose of this analysis. First, the
Exclusive Agency Listing employs a Listing Broker for access to the MLS
and Web sites open to the public; a FSBO listing does not. Second, an
Exclusive Agency Listing sets terms of compensation to be paid to a
Selling Broker, while a FSBO listing often does not.
II. The Complaint
The Complaint alleges that ABOR, a Texas not-for-profit corporation
operating for the benefit of its members, has violated section 5 of the
FTC Act. Specifically, the proposed Complaint alleges that ABOR has
unlawfully restrained competition among real estate brokers in central
Texas by adopting a policy that constitutes a concerted refusal to deal
except on specified terms.
A. ABOR Has Market Power
ABOR has more than 5,000 real estate professionals, and the large
majority of residential real estate brokerage professionals in the
Austin, Texas, metropolitan area are members of ABOR. These
professionals compete with one another to provide residential real
estate brokerage services to consumers.
The ABOR MLS is organized through the Austin/Central Texas Realty
Information Service (``ACTRIS'') and ACTRIS is the only MLS that serves
metropolitan Austin, Texas. Membership in ACTRIS is critical to a
broker providing residential real estate brokerage services to sellers
and buyers of real property in the ACTRIS service area. ABOR, through
ACTRIS, controls key inputs needed for a Listing Broker to provide
effective real estate brokerage services, including: (1) A means to
publicize to all brokers the residential real estate listings in
central Texas; and (2) a means to distribute listing information to Web
sites for the general public. By virtue of industry-wide participation
and control over a key input, ABOR and ACTRIS have market power in the
provision of residential real estate brokerage services to sellers and
buyers of real property in the Austin, Texas and/or the ACTRIS Service
Area.
B. ABOR Conduct
In February 2005, ABOR adopted a rule that prevented information on
Exclusive Agency Listings provided to ACTRIS from being transmitted to
real estate Web sites available to the general public (the ``Web Site
Policy''). The Web Site Policy specifically prevents any information on
listings other than traditional Exclusive Right to Sell Listings from
being included in the IDX-formatted information that is available from
ACTRIS to be used and published by publicly-accessible Web sites.\5\
The effect of this rule is to prevent such information from being
available to be displayed on a broad range of Web sites, including the
NAR-operated
[[Page 41026]]
``Realtor.com'' Web site; the ABOR-owned ``Austinhomesearch.com'' Web
site; and ABOR member Web sites.
---------------------------------------------------------------------------
\5\ The ABOR rule states: ``Listing information downloaded and/
or otherwise displayed pursuant to IDX shall be limited to
properties listed on an exclusive right to sell basis.'' ACTRIS
Rules and Regulations at 18 (February 2006).
---------------------------------------------------------------------------
Exclusive Agency Listings are often used by members of ABOR acting
as Listing Brokers to offer lower-cost real estate services to
consumers. ABOR's Web Site Policy is joint action by a group of
competitors to withhold distribution of listing information to publicly
accessible Web sites from competitors who do not contract with their
brokerage service customers in a way that the group wishes. This
conduct represents a new variation of a type of conduct that the
Commission condemned 20 years ago. In the 1980s and 1990s, several
local MLS boards banned Exclusive Agency Listings from the MLS
entirely. The Commission investigated and issued complaints against
these exclusionary practices, obtaining several consent orders.\6\
---------------------------------------------------------------------------
\6\ In the Matter of United Real Estate Brokers of Rockland,
Ltd., Docket No. C-3461, 116 F.T.C. 972 (1993); In the Matter of
American Industrial Real Estate Association, Docket No. C-3449, 116
F.T.C. 704 (1993); In the Matter of Puget Sound Multiple Listing
Association, Docket No. C-3300 (F.T.C., August 2, 1990); In the
Matter of Bellingham-Whatcom County Multiple Listing Bureau, Docket
No. C-3299 (F.T.C., August 2, 1990); In the Matter of Metro MLS,
Inc., Docket No. C-3286, 115 F.T.C. 305 (1990); In the Matter of
Multiple Listing Service of the Greater Michigan City Area, Inc.,
Docket No. C-3163, 106 F.T.C. 95 (1985); In the Matter of Orange
County Board of Realtors, Inc., Docket No. C-3162, 106 F.T.C. 88
(1985).
---------------------------------------------------------------------------
C. Competitive Effects of the Web Site Policy
The Web Site Policy has the effect of discouraging members of ABOR
and participants in ACTRIS from accepting Exclusive Agency Listings.
Thus, the Web Site Policy strongly impedes one way of providing
unbundled brokerage services, and may make it more difficult for home
sellers to market their homes. The Web Site Policy has caused some home
sellers to switch away from Exclusive Agency Listings to other forms of
listing agreements. According to ACTRIS records, prior to the
initiation of the Web Site Policy, about 1,500 of 8,500, or 18 percent,
of the listings on ACTRIS were Exclusive Agency Listings. After the Web
Site Policy was implemented, the number of Exclusive Agency Listings as
shown on ACTRIS records dropped to about 250 out of 10,000, or 2.5
percent.
When home sellers switch to full service listing agreements from
Exclusive Agency Listings that often offer lower-cost real estate
services to consumers, the sellers may purchase services that they
would not otherwise buy. This, in turn, may increase the commission
costs to consumers of real estate brokerage services. By preventing
Exclusive Agency Listings from being transmitted by ACTRIS to public-
access real estate Web sites, the Web Site Policy has adverse effects
on home sellers and home buyers. In particular, the Web Site Policy
denies home sellers choices for marketing their homes and denies home
buyers the chance to use the internet to easily see all of the houses
listed by real estate brokers in the area, making their search less
efficient.
D. There Is No Competitive Efficiency Associated With the Web Site
Policy
There are no cognizable and plausible efficiency justifications for
the Web Site Policy. An MLS in some circumstances might be concerned
with the possibility that buyers and sellers of properties under an
Exclusive Agency Listing could ``free-ride'' on the legitimate and
valuable cooperative efforts that the MLS is intended to foster, by
using the services of the MLS to carry out real estate transactions but
bypassing the brokerage services that were one of the principal reasons
why the MLS was created. However, this concern does not provide
justification for the Web Site Policy as implemented by ABOR and
ACTRIS. Exclusive Agency Listings are not a credible means for home
buyers or sellers to bypass the use of the brokerage services that
ACTRIS was created to promote, because a Listing Broker is always
involved in an Exclusive Agency Listing, and the ABOR rules already
include protections against such misuse.
The ABOR Web Site Policy does not involve situations where
brokerage services are bypassed entirely. The policy only operates
where home sellers purchase services from a Listing Broker using an
Exclusive Agency contract, not when home sellers are pursuing a FSBO
sale and purchase no brokerage services at all. It is possible, of
course, that a buyer of an Exclusive Agency Listing may make the
purchase without using a Selling Broker, but this is true for
traditional Exclusive Right to Sell Listings as well. Under existing
ACTRIS rules that apply to any form of the listing agreement, the
Listing Broker must ensure that the home seller pays compensation to
the cooperating Selling Broker (if there is one), and the Listing
Broker may be liable himself for a lost commission if the home seller
fails to pay a Selling Broker who was the procuring cause of a
completed property sale. The possibility of sellers or buyers using the
MLS but bypassing brokerage services is already addressed effectively
by ABOR's existing rules that do not distinguish between forms of
listing contracts, and does not justify the Web Site Policy.
III. The Proposed Consent Order
The proposed order is tailored to ensure that the MLS does not
misuse its market power, but also takes care to ensure that the
procompetitive incentives of joint ventures such as ABOR and ACTRIS
remain intact. The proposed order enjoins ABOR from treating Exclusive
Agency Listings, or any other lawful listing agreements with sellers of
property, in a less advantageous manner than Exclusive Right to Sell
Listings.
More specifically, ABOR is enjoined from adopting or enforcing any
policy to deny, restrict, or interfere with the ability of ABOR members
or ACTRIS participants to enter into Exclusive Agency Listings or other
lawful listing agreements with the sellers of properties. The proposed
consent order prohibits ABOR from preventing its members or ACTRIS
participants from: offering or accepting Exclusive Agency Listings or
other lawful listing agreements; cooperating with Listing Brokers or
agents that offer or accept Exclusive Agency Listings or other lawful
listing agreements; or publishing Exclusive Agency Listings or other
lawful listing agreements on web sites otherwise approved to use ACTRIS
information. The proposed order also prohibits ABOR from denying or
restricting the Services of the MLS \7\ to Exclusive Agency Listings or
other lawful listings in any way that such Services of the MLS are not
denied or restricted to Exclusive Right to Sell Listings; or treating
Exclusive Agency Listings, or any other lawful listings, in a less
advantageous manner than Exclusive Right to Sell Listings, including
but not limited to, any policy, rule or practice pertaining to the
transmission, downloading, or displaying of information pertaining to
such listings.
---------------------------------------------------------------------------
\7\ ``Services of the MLS'' means the benefits and services
provided by the MLS to assist ABOR members or ACTRIS Participants in
selling, leasing and valuing property and/or brokering real estate
transactions, including but not limited to: (1) Having the property
included among the listings in the MLS in a manner so that
information concerning the listing is easily accessible by
cooperating brokers; and (2) having the property publicized through
means available to the MLS, including, but not limited to,
information concerning the listing being made available on
Austinhomesearch.com, Realtor.com and IDX Web Sites.
---------------------------------------------------------------------------
The proposed order contains a general proviso that preserves to
ABOR the ability to adopt or enforce any policy, rule, practice or
agreement that it can show is reasonably ancillary to the legitimate
and beneficial objectives of the MLS. This includes reasonable rules
regarding membership requirements,
[[Page 41027]]
payment of dues, administrative matters, or other policies. The proviso
is intended to preserve existing or future rules or regulations of
ACTRIS that ABOR can demonstrate are reasonably related to the
legitimate and pro-competitive purposes of the MLS.
In addition, the proposed order requires ABOR, within thirty days
after the Order becomes final, to conform its rules to the substantive
provisions of the Order. ABOR is also required to notify ABOR members
and participants in ACTRIS of the Order through e-mail communications
and its Web site. The proposed order requires notification of changes
in the structure of ABOR, and requires ABOR to file regular written
reports of ABOR's compliance with the terms of the Order.
The proposed Order applies to ABOR and entities that it owns or
controls, including ACTRIS and Austinhomesearch.com. The Order by its
terms does not prohibit ABOR members, or other persons or entities
independent of ABOR that receive listing information from ABOR for use
on their Web sites, from making independent decisions concerning their
use or display of ACTRIS listing information that are consistent with
their contractual obligations to ACTRIS.
The proposed order will expire in 10 years.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E6-11389 Filed 7-18-06; 8:45 am]
BILLING CODE 6750-01-P