Federal Register Notice; Public Comment and Response on Proposed Final Judgment, 27847-27849 [E8-10417]

Download as PDF 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 (http:// www.usitc.gov). The public record for this review may be viewed on the Commission’s electronic docket (EDIS) at http://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, http://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]


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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