Congressmen urge government inquiry into real estate competition

House antitrust subcommittee leaders sent letter to DOJ and FTC requesting probe into listing data

Influential members of the U.S. Congress have taken a keen interest in real estate competition, especially in regard to listing data.

Two congressmen — Republican Tom Marino of Pennsylvania and Democrat David Cicilline of Rhode Island — sent a letter to the leadership of the Department of Justice and the Federal Trade Commission last month, urging the federal agencies to update a previous 2007 joint report on real estate competition. The congressmen are the top members of the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law.

“Among other issues, we think it especially important that an updated report review the availability and distribution of real estate listings data within the industry,” wrote Marino, the House subcommittee’s chair, and Cicilline, the subcommittee’s ranking member.

“The vital role of listings information in real estate competition was previously highlighted in the 2007 report, which found that ‘the marketplace is likely to function more efficiently — and provide greater benefits to consumers — when consumers have direct access to information about those listings.’”

In addition to reviewing the availability of listing data — especially among small brokers, limited service brokers and non-traditional brokers — an updated report should also examine the availability of listing information “directly to home buyers, sellers, and the general public via third-party internet platforms and other means,” the congressmen added.

“Consumers in today’s real estate market are empowered with more information than ever and new, innovative services and business models have emerged to better meet the needs of consumers,” they wrote.

“However, it is critical to ensure that the benefits gained by both consumers and emerging small businesses from the adoption of internet and technology-enabled services continue to flourish.”

The concerns noted by the congressmen are reminiscent of those included in a November report from the nonprofit, nonpartisan think tank Information Technology & Innovation Foundation (ITIF), that called for federal regulators to investigate MLSs restricting listing data from third-party websites for antitrust and urged state lawmakers to require brokers to provide open access to real estate listings.

The congressmen noted that the DOJ and FTC have carried out inquiries and enforcement actions against “alleged conduct to restrict the distribution of listings data by industry incumbents” in the past, most notably when the DOJ filed an antitrust lawsuit against the National Association of Realtors (NAR) in 2005 for instituting a rule that allowed brokers to limit the display of listing data on the websites of certain rival online brokerages.

That lawsuit resulted in a 2008 settlement agreement that expires in November. The expiration of that settlement agreement would make an updated report on real estate competition “especially timely now,” the congressmen wrote.

This letter surfaced just after the DOJ confirmed earlier this week that it will hold a workshop on real estate competition with the FTC in the spring.

The DOJ decided to hold the workshop after receiving a letter from the U.S. Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights on Sept. 21, 2017 regarding concerns about real estate competition, according to a DOJ official. The DOJ replied to that letter on Dec. 20, 2017 saying it would hold the workshop, the official said.

Asked today whether they planned to update their 2007 report as requested in the January letter, both the DOJ and the FTC declined to comment.

NAR general counsel Katie Johnson said in an emailed statement:

The National Association of REALTORS® is aware of plans for a workshop to be co-hosted by the Federal Trade Commission and the U.S. Department of Justice on the topic of competition in the real estate industry. NAR has contacted both agencies and looks forward to the opportunity to demonstrate the reality that the real estate market is vibrant, healthy, and vigorously competitive. REALTORS® serve the best interest of consumers and provide them with more real estate information today than has ever been available.

Article  by Andrea V. Brambila

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