Geoff Lewis, senior vice president and chief legal officer of RE/MAX International, Inc. has been invited by the Department of Justice (DOJ) and the Federal Trade Commission (FTC) to speak at a public workshop panel on the topic of competition in the real estate industry.

The workshop is to be held on Tuesday, October 25, 2005, at the FTC's Satellite Building Conference Center at 601 New Jersey Avenue, NW. in Washington, D.C. and will cover topics such as multiple listing services ("MLSs"), online "virtual office websites" ("VOWs"), discount brokers and limited-service brokers, and minimum-service requirements.

In preparation, Lewis has written a white paper that opens with the perspective that the real estate industry doesn't need federal intervention.

Few companies are in a better position to discuss competition in the real estate industry. RE/MAX began 33 years ago with a revolutionary agent-centric rather than broker-centric business model that established "traditional" brokerage companies spent years trying to defeat.

Today, writes Lewis, RE/MAX is the most successful real estate brand in the world. How did the company do it?

"... we did it without the intervention of the Federal government," says Lewis. "We did it because we had a better business model, and we made it the old-fashioned way: hard work and customer service."

RE/MAX welcomes competition that can stand on its own merits and resources, he adds.

And that's the key to his argument.

Some of the complaints that have come to the DOJ have been by brokers and third-parties with business models that don't use the MLS to sell homes, but to engage in other practices such as referrals for which the use of MLS listings was not intended, according to the NAR. To build the case that exclusion from using the listings in a marketing advantage is unfair, the DOJ has stated in its complaint as well as informed the media that the MLS is being used to exclude some brokers from access to listings entirely.

LendingTree, for example, has reported to the DOJ that it has been barred from membership in certain MLSs because it does not list and sell homes in those markets but would like to use the listings of other brokers to advertise for clients online and then refer the clients back to the brokers for a fee. The listings could also be used to attract customer to the company's lending arm, neither of which activity is directly about selling the listing brokers' homes for sale.

"Despite misrepresentations to the contrary," corrects Lewis, "the ILD policy does not allow a broker to withhold his listings from the MLS. Every broker in the MLS has the right to receive the listings of all other brokers."

"Brokers and third-parties do not have an absolute right to display the listings of other brokers in order to advertise them in an effort to attract customers," says Lewis. "The provision restricting non-brokers from Internet display of listings is lawful and is consistent with State laws and with the purpose of the MLS and the permitted use of MLS content."

The complaint disagrees. In the DOJ's request for relief, the U.S. asks the defendant (NAR) "be restrained and enjoined from requiring or permitting its member boards or the MLSs with which they are affiliated to adopt rules implementing the anti-referral provision or an MLS membership restriction that denies MLS access to operators of Internet-based referral services" and "condition MLS access or MLS participation rights on - the method by which a broker interacts with his or her customers, competitor brokers, or other persons or entities."

Lewis counters by suggesting that if the DOJ or any private party feels that a broker with a dominant position in a particular market is acting illegally, they can pursue an action against that broker. "The DOJ is off-base in challenging the ILD policy," says Lewis. "The DOJ or potential private litigants should wait to see if any particular party acts unlawfully and then take action against that party."

As Realty Times predicted, the DOJ fight will boil down to a battle over whether the MLS listings can be used for a multitude of purposes besides their original intent -- to sell sellers' homes.

Comments are still being collected at RealEstateWorkshop@usdoj.gov.

All Realtors should weigh in with their opinions.