Accusing an organization of antitrust activity is a lot like crying rape. The allegation alone carries a significant stigma, but the way our legal system works, the burden of proof is on the accuser.

Unfortunately, after an antitrust issue is tried in the popular press, there's little hope that a courtroom could be any worse for the accused.

Consider the virtually identical perspectives written by writers for the USA Today and the Wall Street Journal on the NAR's virtual office Website (VOW) policy:

A USA Today editorial called "Realtors err in efforts to horde high commissions" sums its understanding of the VOW policy issue with this statement: "Starting Jan. 1, a new rule by the National Association of Realtors will allow agents at traditional firms to deny listings to an innovative breed of discount Internet brokers who are slashing the average 5 percent to 7 percent commissions Realtors have long charged."

In the article "Realtors' Limits on Web Listings Face A Federal Antitrust Inquiry," WSJ writers Patrick Barta and John R. Wilke report that the NAR is being investigated by the Justice Department over a "contentious new industry rule that will give brokers the option of restricting Internet-based competitors from posting certain listings online."

Wow. It's as if the writers read the same press release. Or talked to the same source.

Information presented as fact in both articles appears so biased that it's stunning. The NAR VOW policy wasn't intended to squash new members at all, according to NAR spokespersons, but to allow all brokers to operate VOWs. The idea was to make use of MLS listings in a regulated environment that is fair to all parties, including the listing brokers who supply the listings.

But fairness becomes a conspiracy when interpreted by the popular press.

For example, the USA Today editorial castigates Realtors with statements such as this: "...traditional realty agents are doing all they can to prevent the efficiencies of the Internet from benefiting home buyers and sellers or undercutting their lock on the real estate business." Or this: "Traditional brokers say ... the MLS lists are valuable private property that they have compiled to use as they see fit. But the value of the MLS lists stems from the fact that local realty firms band together to create a single database of properties in the area. Denying that list to upstart firms that pay appropriate dues and follow reasonable rules only hurts competition."

Both reporting organizations focused on the claims by the online brokers such as Russell Capper, CEO of eRealty, that the Internet firms were being targeted by traditional brokers because they offer lower commissions. The USA Today piece didn't bother to explain that one discount company mentioned by the editorial -- Home Quarters -- was "denied that list" because the MLS felt it was in violation of how the company displayed the listings -- not the fact that it was a discount company.

In other words, there are two sides to the dispute, but both sides are not being presented equally to the public.

Instead USA Today shook its finger at Realtors by concluding, "Regardless of whether the Realtors' effort to thwart online competitors survives a court challenge, traditional brokers have a tough fight justifying exorbitant charges in the Internet age. They would be well advised to take a cue from their rivals instead of pursuing an anti-consumer course."

So it is the "exorbitant charges" that is of interest to the media, not getting the facts.

Neither of these great news organizations bothered to ask the other side, the traditional brokers, if these allegations were true. They didn't quote a single traditional broker to get their point of view. Instead they relied on generalities supplied by whomever gave them the story, and fueled the story with their own prejudices about what the real estate industry charges in commissions.

Even in that they are uninformed. Commissions have been dropping precipitously long before eRealty got its first check from a venture capitalist. In fact, there are many companies advertising commission rates much lower than eRealty's, and many companies will put a seller's listing in the MLS for as little as a few hundred dollars.

If the reporters had bothered to do a little investigating, they would have learned that Realtors are already using the Internet and that discount brokers offer no more advantage in efficiencies than any other broker who can build a Website and use e-mail.

Richard A. Smith, Chairman and CEO, Cendant Real Estate Division, Cendant Corporation wrote the USA Today staff that the editorial was "substantially flawed in both its premise and its facts." Smith contends that the issue has little to do with high commissions and everything to do with "who should have access to one's work product."

"A residential real estate broker invests time, money and resources in an attempt to convince a homeowner to list his/her house with that broker," wrote Smith. "The listing itself is the product of that business which it then markets and attempts to sell on behalf of the homeowner. The broker determines how to market that listing ... The NAR rule permits the broker to decide who displays his/her work product."

Smith goes on to chide the editors, "If your premise is correct then the classified advertisements, the work product of the New York Times, should be made available free of charge to the New York Post. The Post then would enjoy the financial benefits of the free work product and the Times should be happy."

As for fees, Smith writes, "The marketplace is incredibly efficient, and has ... forced rates from the high 7% range to a current 5 to 6% range." The average brokerage exists, points out Smith, on about a 5% operating margin, with the deepest discounters coming from "the traditional real estate brokers, not the new entrants," as USA Today suggests.

While it is nice to hear from Smith, what do working brokers say? Neither magazine has found a single broker who has said that he or she would deny eRealty or any other company the right to advertise his or her listings, but the possibility that might happen is enough to fuel the media flame.

The USA Today article does include information from eRealty and Capper, who is also featured in the WSJ article.

In fact, when the popular press wants to discuss the VOW issue, Capper appears to be the go-to guy. He's been both vocal and visible, and some believe that it was he who contacted the DOJ about investigating the NAR. When asked, Capper denied such a role to Realty Times, but he did admit testifying to the Federal Trade Commission last year when the NAR was considering implementation of a VOW policy with an opt-out provision. He also said he spoke to the VOW Workgroup when it was considering the terms of the VOW policy. (Capper says he was invited by the FTC to speak. See a complete interview with Capper in tomorrow's edition of Agent News.)

Capper also hired antitrust attorney Robert Butters, former counsel to the NAR. It was Butters, say sources, who leaked the story to an online news service that the NAR was under investigation by the DOJ. In the story he declined to name his clients. But sources suggest the story was leaked to provide an offensive advantage to his clients. The leak put the NAR on the defensive, and the organization had to issue a press release disclosing the DOJ inquiry.

According to sources who have been asked to provide information to the Justice Department, Butters could not have known of the inquiry in time to inform news sources unless it was one of his clients who brought the complaint. Capper admitted in another news article that eRealty has already met with DOJ officials, giving rise to suspicions by others participating in the investigation that it was he who contacted the DOJ. They maintain that they have only been asked to supply documents but have yet to be given the opportunity to meet with DOJ investigators. Only the complainant, they suggest, would have already met with the DOJ. So far, only eRealty has admitted in print to meeting with the DOJ.

Even if eRealty/Capper wasn't the one who put the DOJ on the NAR's tail, it was only a matter of time before the issue of using MLS data in advertising mediums blew up with Capper at the front of the fray. As Capper told another news medium, "We found it hard to believe that anyone that really understands VOWs was not expecting this," referring to the DOJ investigation of the NAR.

It's too bad that there doesn't appear to be a go-to traditional broker as articulate as Capper who is invited to offer an opposing view.

Instead the media goes to the NAR, which they paint as defending the traditional broker. Unfortunately, this puts a taint on any of the organization's comments, and makes it appear as if the NAR is for the traditional broker and against its new members.

NAR is an organization that is simply in the thankless position of having to serve its members, many of whom don't agree about anything, including the VOW policy. In the case of establishing a VOW policy, the majority ruled. What the newspapers never report is that the vote to adopt the NAR's VOW policy in May was unanimous, and was met by audience cheers. If there were jeers, they were drowned out by the majority.

To its credit, the USA Today offers a counterpoint written by NAR president Walt McDonald who explains that the MLS has created market efficiencies, that listings are submitted by real estate professionals, and that the virtual office Website policy is "to make available on those Web sites not only their own property listings but also the listings of other brokers included in the MLS."

Explains McDonald, "The new rules will make it possible for consumers who register with the brokers of their choice to search and review online most of the same information that is available to real estate professionals. NAR's policy incorporates the common-sense principle that the broker who worked hard to obtain listings ought to have, and does retain, the right to control on what other Web sites those listings will appear. This provision allows the broker to protect a seller's privacy. It also preserves the broker's right to market listings as he or she sees fit, so that, for example, those listings do not appear on Web sites the broker determines are inappropriate. In light of listing brokers' fiduciary responsibilities to their customers, it's likely this provision will be rarely exercised, if at all."

Mr. McDonald's reply reads more like an informational report than a defense. One wonders if he knew he were responding to specific and rather scathing accusations in an editorial. The link to his "oppose" view follows this summary:

For more than a century, America's real estate agents have pooled the homes for sale in a specific area into a Multiple Listing Service (MLS). But now these same brokers have concluded that cooperation has its limits. Starting Jan. 1, a new rule by the National Association of Realtors will allow agents at traditional firms to deny listings to an innovative breed of discount Internet brokers who are slashing the average 5% to 7% commissions Realtors long have charged. We feel that as the Web changes the marketplace, buyers deserve to see benefits. The opposition feels real estate agents have the right to control who has access to listings.

Now after reading that, wouldn't any reasonable person assume that an opposing view is wrong? This is sandbagging at its most contemptible.

If the reporters and editors would think the issue through, ask a few traditional brokers about their business models, or visit a few Web sites with listings, they would see that most traditional brokers operate Websites, offer discounts, and put their listings online (what do they think Realtor.com is, anyway?). These brokers have collectively voted to implement the VOW policy so that they can operate VOWs as well as the pure Internet-based companies.

In other words, the traditional broker is no different than the online broker. They are the same.

But this whole thing isn't about being fair. It's about raising an issue that will sell more copies, and it is a lot more profitable to stir up readers' emotions than to say, "you know, there really isn't much of a story here."