In an initial decision filed on December 10, 2007 and announced today, Chief Administrative Law Judge (ALJ) Stephen J. McGuire dismissed a Federal Trade Commission complaint issued last year against a realtors’ group in southeast Michigan, ruling that “upon review of the totality of the evidence . . . it is determined that Complaint Counsel has not met its burden” of demonstrating that the policies of Realcomp II, Ltd. (Realcomp) have unreasonably restrained or substantially lessened competition in the relevant market. McGuire accordingly concluded that Complaint Counsel had not shown that the group’s policies resulted in “actionable consumer harm” in violation of Section 5 of the FTC Act.Here's a link to ALJ McGuire's initial decision (be patient, it's a 144 page, 11mb file).
I have looked over the decision, and note the following-
- While the “dual-listing” option noted in the Initial Decision may get an Exclusive Agency listing on Realtor.com, it will not get such a listing on MoveInMichigan.com or Realcomp’s IDX feed, both popular methods for Michigan consumers to view listings. And as for that Realtor.com listing, it will be inferior to the same listing that would show up on Realtor.com if it was submitted directly by Realcomp. This is because different MLSs use different data fields, and certain local data (i.e., the names of appropriate schools) will not appear on such dual-listings. Perhaps most importantly, the dual-listing option is dependent upon the “bypass” MLS maintaining its current Realtor.com upload policies. Such policies are likely to change should this Initial Decision stand.
- I have a hard time accepting the procompetitive justifications offered by Realcomp for its Website Policy, in light of the National Association of Realtors’ prior statement that Exclusive Agency listings on IDX feeds “would not detract from the purposes of the MLS.”
- To sum it up, this ruling essentially concludes that Realcomp’s Website Policy reasonably restrains the public exposure of non-Exclusive Right to Sell listings. I don’t think there is very much reasonable about it.