Federal Register Notice; Public Comment and Response on Proposed Final Judgment, 27847-27849 [E8-10417]
Download as PDF
<![CDATA[
Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Notices
(c) The Commission investigative
attorney, party to this investigation, is
Anne Goalwin, Esq., Office of Unfair
Import Investigations, U.S. International
Trade Commission, 500 E Street, SW.,
Room 401B, Washington, DC 20436; and
(4) For the investigation so instituted,
the Honorable Paul J. Luckern is
designated as the presiding
administrative law judge.
Responses to the complaint and the
notice of investigation must be
submitted by the named respondents in
accordance with section 210.13 of the
Commission’s Rules of Practice and
Procedure, 19 CFR 210.13. Pursuant to
19 CFR 201.16(d) and 210.13(a), such
responses will be considered by the
Commission if received not later than 20
days after the date of service by the
Commission of the complaint and the
notice of investigation. Extensions of
time for submitting responses to the
complaint and the notice of
investigation will not be granted unless
good cause therefor is shown.
Failure of the respondent to file a
timely response to each allegation in the
complaint and in this notice may be
deemed to constitute a waiver of the
right to appear and contest the
allegations of the complaint and this
notice, and to authorize the
administrative law judge and the
Commission, without further notice to
the respondent, to find the facts to be as
alleged in the complaint and this notice
and to enter an initial determination
and a final determination containing
such findings, and may result in the
issuance of an exclusion order or a cease
and desist order or both directed against
the respondent.
By order of the Commission.
Issued: May 8, 2008.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E8–10687 Filed 5–13–08; 8:45 am]
BILLING CODE 7020–02–P
INTERNATIONAL TRADE
COMMISSION
[Investigation No. 731–TA–745 (Second
Review)]
Steel Concrete Reinforcing Bar From
Turkey
United States International
Trade Commission.
ACTION: Notice of Commission
determination to conduct a full five-year
review concerning the antidumping
duty order on steel concrete reinforcing
bar from Turkey.
jlentini on PROD1PC65 with NOTICES
AGENCY:
SUMMARY: The Commission hereby gives
notice that it will proceed with a full
VerDate Aug<31>2005
16:39 May 13, 2008
Jkt 214001
review pursuant to section 751(c)(5) of
the Tariff Act of 1930 (19 U.S.C.
1675(c)(5)) to determine whether
revocation of the antidumping duty
order on steel concrete reinforcing bar
from Turkey would be likely to lead to
continuation or recurrence of material
injury within a reasonably foreseeable
time. A schedule for the review will be
established and announced at a later
date. For further information concerning
the conduct of this review and rules of
general application, consult the
Commission’s Rules of Practice and
Procedure, part 201, subparts A through
E (19 CFR part 201), and part 207,
subparts A, D, E, and F (19 CFR part
207).
EFFECTIVE DATE:
May 6, 2008.
FOR FURTHER INFORMATION CONTACT:
Mary Messer (202–205–3193), Office of
Investigations, U.S. International Trade
Commission, 500 E Street, SW.,
Washington, DC 20436. Hearingimpaired persons can obtain
information on this matter by contacting
the Commission’s TDD terminal on 202–
205–1810. Persons with mobility
impairments who will need special
assistance in gaining access to the
Commission should contact the Office
of the Secretary at 202–205–2000.
General information concerning the
Commission may also be obtained by
accessing its Internet server (https://
www.usitc.gov). The public record for
this review may be viewed on the
Commission’s electronic docket (EDIS)
at https://edis.usitc.gov.
On May 6,
2008, the Commission determined that
it should proceed to a full review in the
subject five-year review pursuant to
section 751(c)(5) of the Act. The
Commission found that both the
domestic and respondent interested
party group responses to its notice of
institution (73 FR 6206, February 1,
2008) were adequate. A record of the
Commissioners’ votes, the
Commission’s statement on adequacy,
and any individual Commissioner’s
statements will be available from the
Office of the Secretary and at the
Commission’s Web site.
SUPPLEMENTARY INFORMATION:
Authority: This review is being conducted
under authority of title VII of the Tariff Act
of 1930; this notice is published pursuant to
section 207.62 of the Commission’s rules.
By order of the Commission.
Issued: May 9, 2008.
Marilyn R. Abbott,
Secretary to the Commission.
[FR Doc. E8–10765 Filed 5–13–08; 8:45 am]
BILLING CODE 7020–02–P
PO 00000
Frm 00054
Fmt 4703
Sfmt 4703
27847
DEPARTMENT OF JUSTICE
Antitrust Division
Federal Register Notice; Public
Comment and Response on Proposed
Final Judgment
Pursuant to the Antitrust Procedures
and Penalties Act, 15 U.S.C. 16(b)–(h),
the United States hereby publishes
below the comment received on the
proposed Final Judgment in United
States v. Multiple Listing Service of
Hilton Head Island, Inc., No. 9:07–CV–
0343 5–SB, which was filed in the
United States District Court for the
District of South Carolina on March 4,
2008, together with the response of the
United States to the comment.
Copies of the comments and the
response are available for inspection at
the Department of Justice, Antitrust
Division; 450 Fifth Street, NW.; Suite
1010; Washington, DC 20530 (telephone
(202) 514–2481); and at the Office of the
Clerk of the United States District Court
for the District of South Carolina,
Matthew J. Perry Jr. Courthouse, 901
Richland Street, Columbia, South
Carolina 29201 (telephone (803) 765–
5816). Copies of any of these materials
may be obtained upon request and
payment of a copying fee.
J. Robert Kramer II,
Director of Operations, Antitrust Division.
United States District Court for the
District of South Carolina, Beaufort
Division
United States of America, Plaintiff v.
Multiple Listing Service of Hilton Head
Island, Inc., Defendant
Civil Action No. 9:07–C V–3435–Sb
Response of the United States to Public
Comment on the Proposed Final
Judgment
Pursuant to the requirements of the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16(b)–(h) (‘‘APPA’’ or
‘‘Tunney Act’’), the United States
hereby responds to the one public
comment received during the public
comment period regarding the proposed
Final Judgment in this case. After
careful consideration of the comment,
the United States continues to believe
that the proposed Final Judgment will
provide an effective and appropriate
remedy for the antitrust violation
alleged in the Complaint. The United
States will move the Court for entry of
the proposed Final Judgment after the
public comment and this Response have
been published in the Federal Register,
pursuant to 15 U.S.C. 16(d).
E:\FR\FM\14MYN1.SGM
14MYN1
27848
Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Notices
I. Procedural History
On October 18, 2007, the United
States filed the Complaint in this matter
alleging that the defendant, the Multiple
Listing Service of Hilton Head, Inc.
(‘‘HHMLS’’), enforced certain rules that
restrained competition among real estate
brokers in Hilton Head, South Carolina.
The United States filed a proposed Final
Judgment and a Stipulation signed by
the United States and the defendant
consenting to the entry of the proposed
Final Judgement after compliance with
the requirements of the APPA. Pursuant
to those requirements, a Competitive
Impact Statement (‘‘CIS’’) was filed in
this Court on October 16, 2007; the
Proposed Final Judgment and CIS were
published in the Federal Register on
November 27, 2007; and a summary of
the terms of the proposed Final
Judgment and CIS, together with
directions for the submission of written
comments relating to the proposed Final
Judgment, were published for seven
days on November 28, 2007 through
December 4, 2007. HHMLS filed the
statement required by 15 U.S.C. 16(g) on
February 22, 2008.
One comment, described below, was
received during the 60-day period for
public comments, which ended on
February 2, 2008.
jlentini on PROD1PC65 with NOTICES
II. Summary of the Complaint’s
Allegations
HHMLS is a joint venture of over one
hundred competing licensed residential
real estate brokerages and other licensed
real estate professionals in the Hilton
Head, South Carolina area. HHMLS
provides a variety of services to its
members, including maintaining a
database of current and past listings of
properties for sale in the Hilton Head
area. Brokers who seek to provide
brokerage services in the Hilton Head
area regard membership in the MLS as
critical to their ability to compete.
The Complaint alleges that HHMLS,
through a variety of rules and practices:
(1) Denied membership to brokers who
would likely compete aggressively on
price or through innovative business
models; (2) stabilized prices and
restricted consumer choice by
prohibiting member brokers from
allowing their customers to choose
which brokerage services they wish to
purchase; and (3) authorized its Board
of Trustees to adopt rules that would
regulate commissions and impose
discriminatory requirements on
Internet-based brokers. By adopting and
enforcing these rules and practices, the
Complaint alleges that HHMLS
restrained competition, reduced
VerDate Aug<31>2005
16:39 May 13, 2008
Jkt 214001
consumer choice and stabilized prices
for real estate brokerage.
III. Summary of Relief To Be Obtained
Under the Proposed Final Judgment
The proposed Final Judgment is
designed to restore competition in the
Hilton Head real estate brokerage market
by eliminating rules that make it
difficult for new brokers to enter the
market and by eliminating rules that
restrict competition among incumbent
brokers. More specifically, the proposed
Final Judgment will prevent HHMLS
from adopting rules or engaging in
practices that: (1) Exclude active,
licensed real estate professionals from
participation in the MLS; (2) deprive
some members of services it furnishes to
other members; (3) discriminate against
members based on factors such as office
location or scope/method of service
(such as a fee-for service model or an
Internet-based brokerage model); (4)
require members to perform brokerage
services in excess of those required by
state law; (5) prescribe the terms of
agreements between members and their
customers or clients; (6) bar qualified
listings from the MLS; (7) set
compensation standards or guidelines;
(8) charge fees for member changes in
ownership; (9) require members to
maintain an office or reside in any
particular location; and (10) alter any of
its three membership classes without
prior approval of the United States.
IV. Standard of Review
Upon the publication of the public
comment and this Response, the United
States will have fully complied with the
Tunney Act and will move the Court for
entry of the proposed Final Judgment as
being ‘‘in the public interest.’’ 15 U.S.C.
16(e), as amended. In making the
‘‘public interest’’ determination, the
Court should apply a deferential
standard and should withhold its
approval only in very limited
conditions. See, e.g., Mass. Sch. of Law
at Andover, Inc. v. United States, 118
F.3d 776, 783 (D.C. Cir. 1997).
Specifically, the Court should review
the proposed Final Judgment in light of
the violations charged in the complaint.
Id. (quoting United States v. Microsoft
Corp., 56 F.3d 1448, 1462 (D.C. Cir.
1995)).
In making the public interest
determination, the Tunney act states
that the Court shall consider:
(A) The competitive impact of such
judgment, including termination of alleged
violations, provisions for enforcement and
modification, duration of relief sought,
anticipated effects of alternative remedies
actually considered, whether its terms are
ambiguous, and any other competitive
PO 00000
Frm 00055
Fmt 4703
Sfmt 4703
considerations bearing upon the adequacy of
such judgment that the court deems
necessary to a determination of whether the
consent judgment is in the public interest;
and
(B) The impact of entry of such judgment
upon competition in the relevant market or
markets, upon the public generally and
individuals alleging specific injury from the
violations set forth in the complaint
including consideration of the public benefit,
if any, to be derived from a determination of
the issues at trial.
15 U.S.C. 16(e).
The United States described the
court’s application of the Tunney Act’s
public interests standard in the
Competitive Impact statement filed with
the Court on October 16, 2007.
V. Summary of Public Comment and
the Response of the United States
During the sixty-day comment period,
the United States received one comment
from Richard B. Saunders. Mr. Saunders
is the broker/owner of RE/MAX Island
Realty of Hilton Head Island, South
Carolina and a member of HHMLS. His
comment is attached in the
accompanying Appendix. After
reviewing the comment, the United
States continues to believe that the
proposed Final Judgment is in the
public interest.
Mr. Saunders expresses support for
the intent of the proposed Final
Judgment, but he has a concern about an
HHMLS practice relating to the
electronic data feed of MLS listings that
HHMLS provides its members to enable
them to advertise listings on an Internet
Web site. Brokers use an electronic data
feed to provide information over the
Internet in two ways: (1) To advertise
listings on a publically accessible Web
site in order to attract prospective
clients and (2) to provide brokerage
services over the Internet to clients who
have already entered into a ‘‘consumerbroker’’ relationship. As an example of
the latter, a broker whose business
model includes an Internet brokerage
component may create a Web site, often
referred to as a Virtual Office Web site
or VOW, that is accessible only to
customers who have registered on the
Web site and agreed to terms of use.
Such a broker uses the electronic data
feed to provide customers with the same
type and quality of listings information
that a traditional broker would provide
to a client in his office.
According to Mr. Saunders, HHMLS
provides its members with a lesser data
feed for advertising purposes than it
provides to non-member, non-brokers,
such as Realtor.com (an advertising Web
site sponsored by the National
Association of Realtors), or to itself for
E:\FR\FM\14MYN1.SGM
14MYN1
Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / Notices
jlentini on PROD1PC65 with NOTICES
populating its own Web site. In a
follow-up conversation with
Department of Justice staff, Mr.
Saunders explained that HHMLS has
excluded certain data fields—including
property address—from the electronic
feed it provides to members for
advertising. He claims this exclusion
reduces the functionality of HHMLS
members’ public advertising Web sites.
For example, without electronic access
to the address field, a member cannot
efficiently provide a mapping function
on its publicly-accessible marketing
Web site.
Under the Tunney Act, a Court’s
public interest determination is limited
to whether the government’s proposed
Final Judgment remedies the violations
alleged in its Complaint. The
Government alleged, among other
things, that HHMLS’s rules deterred the
emergence of Internet-based brokerage.
As a consequence, the Proposed Final
Judgment requires that HHMLS not
discriminate against brokers based on
the method by which they would
provide listings data to their customers.
Thus, HHMLS would have to provide to
a broker whose business model contains
an Internet brokerage component the
same electronic data feed it provides to
other brokers who service clients
through traditional means. Mr.
Saunders, however, is concerned about
the availability of listings data for use in
Internet advertising, not about
restrictions on data used to provide
brokerage services via a passwordprotected Internet site. Internet
advertising was not a subject of the
Government’s investigation leading to
the complaint in this matter and the
Complaint contains no allegation that
encompasses the practice about which
Mr. Saunders complains. Accordingly,
factoring Mr. Saunders’ concern into the
public interest assessment here would
inappropriately construct a
‘‘hypothetical case and then evaluate
the decree against that case,’’ something
the Tunney Act does not authorize.
United States v. Microsoft Corp., 56 F.3d
at I 459. In any event, the Proposed
Final Judgment does not insulate the
practice about which Mr. Saunders
complains from antitrust scrutiny. The
antitrust laws will continue to apply to
HHMLS and would proscribe conduct
by the Defendant that runs afoul of
applicable legal standards.
VI. Conclusion
After careful consideration of the
public comment, the United States
concludes that the entry of the proposed
Final Judgment will provide an effective
and appropriate remedy for the antitrust
violations alleged in the Complaint and
VerDate Aug<31>2005
16:39 May 13, 2008
Jkt 214001
is therefore in the public interest.
Accordingly, after publication in the
Federal Register pursuant to 15 U.S.C.
16(b) and (d), the United States will
move this Court to enter the Final
Judgment.
Respectfully Submitted,
KEVIN F. McDONALD,
Acting United States Attorney.
BY: /s/ Barbara M. Bowens.
Barbara M. Bowens (I.D. 4004),
Assistant United States Attorney, 1441
Main Street, Suite 500, Columbia,
South Carolina 29201, ( 803) 929–
3052.
Lisa Scanlon,
Attorney, Antitrust Division, 325 7th
St., NW., Suite 300, Washington, DC
20530, (202) 616–5054.
April 9, 2008.
Certificate of Service
I hereby certify that on April 9, 2008,
1 caused a copy of the foregoing
Response to Public Comments to be
served on counsel for Defendant via ECF
in this matter in the manner set forth
below:
By: /s/ Barbara M. Bowens,
BARBARA M. BOWENS.
Jane W. Trinkley,
McNair Law Firm, P.A., P.O. Box 11390,
Columbia, SC 29211, (via e-mail and
first-class mail from Owen Kendler,
Esq.).
Counsel for Defendant.
United States District Court for the
District of South Carolina, Beaufort
Division
United States of America, Plaintiff v.
Multiple Listing Service of Hilton Head
Island, Inc., Defendant
Civil Action No. 9:07–C V–3435–SB
Appendix: Public Comment on the
Proposed Final Judgment
Comment Submitted by Richard B.
Saunders
December 31, 2007.
John Reed,
Litigation III Section, Antitrust Division,
US Department of Justice,
Washington, DC 20530.
Subject: United States Department of
Justice vs Hilton Head Island Multiple
Listing Service
Dear Mr. Reed, Assuming that
comments are stilt welcome by the
Department of Justice regarding the
Proposed Final Judgment with the
Multiple Listing Service of Hilton Head
Island, SC, it is apparent to me that the
intent of the document is an attempt to
treat all parties relative to our MLS in
an equal and unbiased manner, an effort
PO 00000
Frm 00056
Fmt 4703
Sfmt 4703
27849
we at RE/MAX Island Realty fully
support.
In our opinion what the document
does not address is that in our opinion
every MLS Member should be treated
equal regarding information on real
properties ultimately supplied to the
consumer regardless of whom is
supplying the information. Specifically,
we believe that our MLS should supply
the identical data feeds to all members
of the Hilton Head MLS as are currently
submitted to third party providers such
as realtor.com and even used by the
MLS itself on their own Web site that is
being marketed in and outside the state
of South Carolina. That is not the case
today and that glaring deficiency should
be addressed and corrected. Our
member firms are being discriminated
against by their own MLS! This
situation should be corrected for that
would benefit all members as well as
the ultimate consumer.
Should you have any questions or
comments, please do not hesitate to
contact me at your convenience. Thank
you very much.
Sincerely,
Richard B. Saunders, CRB, GRI, SRES
Broker/Owner, RE/MAX Island Realty.
Dick Saunders,
Broker/Owner, RE/MAX Island Realty,
99 Main Street, Hilton Head Island,
South Carolina 29926, Office (843)
785–5252 3044, Fax: (843) 785–7188,
Toll Free: (800) 343–6821 x3044,
richardbsaunders@earthlink.net,
https://www.remaxhiltonhead.com.
[FR Doc. E8–10417 Filed 5–13–08; 8:45 am]
BILLING CODE 4410–11–M
DEPARTMENT OF JUSTICE
National Institute of Corrections
Solicitation for a Cooperative
Agreement: Identifying Characteristics
of High Performing Correctional
Organizations
National Institute of
Corrections, Department of Justice.
ACTION: Solicitation for Cooperative
Agreement.
AGENCY:
SUMMARY: The National Institute of
Corrections (NIC) is soliciting proposals
from organizations, groups or
individuals to enter into a cooperative
agreement for a 12-month,
developmental phase of a new initiative,
‘‘Identifying the Characteristics of High
Performing Correctional Organizations.’’
This project will focus on developing a
methodology to allow organizations to
build from their strengths to identify
and bridge gaps between current
E:\FR\FM\14MYN1.SGM
14MYN1
]]>Agencies
[Federal Register Volume 73, Number 94 (Wednesday, May 14, 2008)]
[Notices]
[Pages 27847-27849]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10417]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
Antitrust Division
Federal Register Notice; Public Comment and Response on Proposed
Final Judgment
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C.
16(b)-(h), the United States hereby publishes below the comment
received on the proposed Final Judgment in United States v. Multiple
Listing Service of Hilton Head Island, Inc., No. 9:07-CV-0343 5-SB,
which was filed in the United States District Court for the District of
South Carolina on March 4, 2008, together with the response of the
United States to the comment.
Copies of the comments and the response are available for
inspection at the Department of Justice, Antitrust Division; 450 Fifth
Street, NW.; Suite 1010; Washington, DC 20530 (telephone (202) 514-
2481); and at the Office of the Clerk of the United States District
Court for the District of South Carolina, Matthew J. Perry Jr.
Courthouse, 901 Richland Street, Columbia, South Carolina 29201
(telephone (803) 765-5816). Copies of any of these materials may be
obtained upon request and payment of a copying fee.
J. Robert Kramer II,
Director of Operations, Antitrust Division.
United States District Court for the District of South Carolina,
Beaufort Division
United States of America, Plaintiff v. Multiple Listing Service of
Hilton Head Island, Inc., Defendant
Civil Action No. 9:07-C V-3435-Sb
Response of the United States to Public Comment on the Proposed Final
Judgment
Pursuant to the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h) (``APPA'' or ``Tunney Act''), the
United States hereby responds to the one public comment received during
the public comment period regarding the proposed Final Judgment in this
case. After careful consideration of the comment, the United States
continues to believe that the proposed Final Judgment will provide an
effective and appropriate remedy for the antitrust violation alleged in
the Complaint. The United States will move the Court for entry of the
proposed Final Judgment after the public comment and this Response have
been published in the Federal Register, pursuant to 15 U.S.C. 16(d).
[[Page 27848]]
I. Procedural History
On October 18, 2007, the United States filed the Complaint in this
matter alleging that the defendant, the Multiple Listing Service of
Hilton Head, Inc. (``HHMLS''), enforced certain rules that restrained
competition among real estate brokers in Hilton Head, South Carolina.
The United States filed a proposed Final Judgment and a Stipulation
signed by the United States and the defendant consenting to the entry
of the proposed Final Judgement after compliance with the requirements
of the APPA. Pursuant to those requirements, a Competitive Impact
Statement (``CIS'') was filed in this Court on October 16, 2007; the
Proposed Final Judgment and CIS were published in the Federal Register
on November 27, 2007; and a summary of the terms of the proposed Final
Judgment and CIS, together with directions for the submission of
written comments relating to the proposed Final Judgment, were
published for seven days on November 28, 2007 through December 4, 2007.
HHMLS filed the statement required by 15 U.S.C. 16(g) on February 22,
2008.
One comment, described below, was received during the 60-day period
for public comments, which ended on February 2, 2008.
II. Summary of the Complaint's Allegations
HHMLS is a joint venture of over one hundred competing licensed
residential real estate brokerages and other licensed real estate
professionals in the Hilton Head, South Carolina area. HHMLS provides a
variety of services to its members, including maintaining a database of
current and past listings of properties for sale in the Hilton Head
area. Brokers who seek to provide brokerage services in the Hilton Head
area regard membership in the MLS as critical to their ability to
compete.
The Complaint alleges that HHMLS, through a variety of rules and
practices: (1) Denied membership to brokers who would likely compete
aggressively on price or through innovative business models; (2)
stabilized prices and restricted consumer choice by prohibiting member
brokers from allowing their customers to choose which brokerage
services they wish to purchase; and (3) authorized its Board of
Trustees to adopt rules that would regulate commissions and impose
discriminatory requirements on Internet-based brokers. By adopting and
enforcing these rules and practices, the Complaint alleges that HHMLS
restrained competition, reduced consumer choice and stabilized prices
for real estate brokerage.
III. Summary of Relief To Be Obtained Under the Proposed Final Judgment
The proposed Final Judgment is designed to restore competition in
the Hilton Head real estate brokerage market by eliminating rules that
make it difficult for new brokers to enter the market and by
eliminating rules that restrict competition among incumbent brokers.
More specifically, the proposed Final Judgment will prevent HHMLS from
adopting rules or engaging in practices that: (1) Exclude active,
licensed real estate professionals from participation in the MLS; (2)
deprive some members of services it furnishes to other members; (3)
discriminate against members based on factors such as office location
or scope/method of service (such as a fee-for service model or an
Internet-based brokerage model); (4) require members to perform
brokerage services in excess of those required by state law; (5)
prescribe the terms of agreements between members and their customers
or clients; (6) bar qualified listings from the MLS; (7) set
compensation standards or guidelines; (8) charge fees for member
changes in ownership; (9) require members to maintain an office or
reside in any particular location; and (10) alter any of its three
membership classes without prior approval of the United States.
IV. Standard of Review
Upon the publication of the public comment and this Response, the
United States will have fully complied with the Tunney Act and will
move the Court for entry of the proposed Final Judgment as being ``in
the public interest.'' 15 U.S.C. 16(e), as amended. In making the
``public interest'' determination, the Court should apply a deferential
standard and should withhold its approval only in very limited
conditions. See, e.g., Mass. Sch. of Law at Andover, Inc. v. United
States, 118 F.3d 776, 783 (D.C. Cir. 1997). Specifically, the Court
should review the proposed Final Judgment in light of the violations
charged in the complaint. Id. (quoting United States v. Microsoft
Corp., 56 F.3d 1448, 1462 (D.C. Cir. 1995)).
In making the public interest determination, the Tunney act states
that the Court shall consider:
(A) The competitive impact of such judgment, including
termination of alleged violations, provisions for enforcement and
modification, duration of relief sought, anticipated effects of
alternative remedies actually considered, whether its terms are
ambiguous, and any other competitive considerations bearing upon the
adequacy of such judgment that the court deems necessary to a
determination of whether the consent judgment is in the public
interest; and
(B) The impact of entry of such judgment upon competition in the
relevant market or markets, upon the public generally and
individuals alleging specific injury from the violations set forth
in the complaint including consideration of the public benefit, if
any, to be derived from a determination of the issues at trial.
15 U.S.C. 16(e).
The United States described the court's application of the Tunney
Act's public interests standard in the Competitive Impact statement
filed with the Court on October 16, 2007.
V. Summary of Public Comment and the Response of the United States
During the sixty-day comment period, the United States received one
comment from Richard B. Saunders. Mr. Saunders is the broker/owner of
RE/MAX Island Realty of Hilton Head Island, South Carolina and a member
of HHMLS. His comment is attached in the accompanying Appendix. After
reviewing the comment, the United States continues to believe that the
proposed Final Judgment is in the public interest.
Mr. Saunders expresses support for the intent of the proposed Final
Judgment, but he has a concern about an HHMLS practice relating to the
electronic data feed of MLS listings that HHMLS provides its members to
enable them to advertise listings on an Internet Web site. Brokers use
an electronic data feed to provide information over the Internet in two
ways: (1) To advertise listings on a publically accessible Web site in
order to attract prospective clients and (2) to provide brokerage
services over the Internet to clients who have already entered into a
``consumer-broker'' relationship. As an example of the latter, a broker
whose business model includes an Internet brokerage component may
create a Web site, often referred to as a Virtual Office Web site or
VOW, that is accessible only to customers who have registered on the
Web site and agreed to terms of use. Such a broker uses the electronic
data feed to provide customers with the same type and quality of
listings information that a traditional broker would provide to a
client in his office.
According to Mr. Saunders, HHMLS provides its members with a lesser
data feed for advertising purposes than it provides to non-member, non-
brokers, such as Realtor.com (an advertising Web site sponsored by the
National Association of Realtors), or to itself for
[[Page 27849]]
populating its own Web site. In a follow-up conversation with
Department of Justice staff, Mr. Saunders explained that HHMLS has
excluded certain data fields--including property address--from the
electronic feed it provides to members for advertising. He claims this
exclusion reduces the functionality of HHMLS members' public
advertising Web sites. For example, without electronic access to the
address field, a member cannot efficiently provide a mapping function
on its publicly-accessible marketing Web site.
Under the Tunney Act, a Court's public interest determination is
limited to whether the government's proposed Final Judgment remedies
the violations alleged in its Complaint. The Government alleged, among
other things, that HHMLS's rules deterred the emergence of Internet-
based brokerage. As a consequence, the Proposed Final Judgment requires
that HHMLS not discriminate against brokers based on the method by
which they would provide listings data to their customers. Thus, HHMLS
would have to provide to a broker whose business model contains an
Internet brokerage component the same electronic data feed it provides
to other brokers who service clients through traditional means. Mr.
Saunders, however, is concerned about the availability of listings data
for use in Internet advertising, not about restrictions on data used to
provide brokerage services via a password-protected Internet site.
Internet advertising was not a subject of the Government's
investigation leading to the complaint in this matter and the Complaint
contains no allegation that encompasses the practice about which Mr.
Saunders complains. Accordingly, factoring Mr. Saunders' concern into
the public interest assessment here would inappropriately construct a
``hypothetical case and then evaluate the decree against that case,''
something the Tunney Act does not authorize. United States v. Microsoft
Corp., 56 F.3d at I 459. In any event, the Proposed Final Judgment does
not insulate the practice about which Mr. Saunders complains from
antitrust scrutiny. The antitrust laws will continue to apply to HHMLS
and would proscribe conduct by the Defendant that runs afoul of
applicable legal standards.
VI. Conclusion
After careful consideration of the public comment, the United
States concludes that the entry of the proposed Final Judgment will
provide an effective and appropriate remedy for the antitrust
violations alleged in the Complaint and is therefore in the public
interest. Accordingly, after publication in the Federal Register
pursuant to 15 U.S.C. 16(b) and (d), the United States will move this
Court to enter the Final Judgment.
Respectfully Submitted,
KEVIN F. McDONALD,
Acting United States Attorney.
BY: /s/ Barbara M. Bowens.
Barbara M. Bowens (I.D. 4004),
Assistant United States Attorney, 1441 Main Street, Suite 500,
Columbia, South Carolina 29201, ( 803) 929-3052.
Lisa Scanlon,
Attorney, Antitrust Division, 325 7th St., NW., Suite 300, Washington,
DC 20530, (202) 616-5054.
April 9, 2008.
Certificate of Service
I hereby certify that on April 9, 2008, 1 caused a copy of the
foregoing Response to Public Comments to be served on counsel for
Defendant via ECF in this matter in the manner set forth below:
By: /s/ Barbara M. Bowens,
BARBARA M. BOWENS.
Jane W. Trinkley,
McNair Law Firm, P.A., P.O. Box 11390, Columbia, SC 29211, (via e-mail
and first-class mail from Owen Kendler, Esq.).
Counsel for Defendant.
United States District Court for the District of South Carolina,
Beaufort Division
United States of America, Plaintiff v. Multiple Listing Service of
Hilton Head Island, Inc., Defendant
Civil Action No. 9:07-C V-3435-SB
Appendix: Public Comment on the Proposed Final Judgment
Comment Submitted by Richard B. Saunders
December 31, 2007.
John Reed,
Litigation III Section, Antitrust Division, US Department of Justice,
Washington, DC 20530.
Subject: United States Department of Justice vs Hilton Head Island
Multiple Listing Service
Dear Mr. Reed, Assuming that comments are stilt welcome by the
Department of Justice regarding the Proposed Final Judgment with the
Multiple Listing Service of Hilton Head Island, SC, it is apparent to
me that the intent of the document is an attempt to treat all parties
relative to our MLS in an equal and unbiased manner, an effort we at
RE/MAX Island Realty fully support.
In our opinion what the document does not address is that in our
opinion every MLS Member should be treated equal regarding information
on real properties ultimately supplied to the consumer regardless of
whom is supplying the information. Specifically, we believe that our
MLS should supply the identical data feeds to all members of the Hilton
Head MLS as are currently submitted to third party providers such as
realtor.com and even used by the MLS itself on their own Web site that
is being marketed in and outside the state of South Carolina. That is
not the case today and that glaring deficiency should be addressed and
corrected. Our member firms are being discriminated against by their
own MLS! This situation should be corrected for that would benefit all
members as well as the ultimate consumer.
Should you have any questions or comments, please do not hesitate
to contact me at your convenience. Thank you very much.
Sincerely,
Richard B. Saunders, CRB, GRI, SRES
Broker/Owner, RE/MAX Island Realty.
Dick Saunders,
Broker/Owner, RE/MAX Island Realty, 99 Main Street, Hilton Head Island,
South Carolina 29926, Office (843) 785-5252 3044, Fax: (843) 785-7188,
Toll Free: (800) 343-6821 x3044, richardbsaunders@earthlink.net, http:/
/www.remaxhiltonhead.com.
[FR Doc. E8-10417 Filed 5-13-08; 8:45 am]
BILLING CODE 4410-11-M
