No wonder the popular press is in an uproar. The NAR and its traditional members are obviously trying to break antitrust laws, aren't they? They are encouraging members to withhold listings, aren't they? They are preventing consumers from seeing the listings in the most places possible, aren't they?

Light the torches! Let's go after the monster NAR!

The problem is that all of these statements are so blatantly untrue -- particularly the San Jose Mercury News' definition of the VOW policy -- that the writers are lucky they haven't heard from NAR's attorneys. (The NAR never states that a VOW is a brokerage. In fact it meticulously explains that a VOW is operated by a brokerage, a distinct difference that will become important later.)

In every one of these articles, Capper is the "star" source. It's in his interest to inflame the journalists with selected tidbits of truth, making the VOW controversy the kind of issue that no matter how the NAR or Cendant, which is also frequently mentioned as an opponent to Capper, respond to questions, they appear defensive and guilty. Capper makes certain that the journalists understand that eRealty is the innovative good guy because the firm's intention is to cut costs for consumers. That means that anyone who isn't helping him is anti-consumer, as one editorial bluntly put it.

No one asks if it isn't simply Capper's intention to make money, and in that is he so very different from any other broker? Isn't he looking for an edge?

Journalists know a hero-in-the-making story when they see one. By association, the journalists believe that they, too, appear heroic in helping to defend an "innovative" underdog. It's better than finding agreement with a consortium of independents that has somehow managed to stabilize and raise the operating standards of the uniquely problematic homeselling industry for over a century. If they do that, there's no story.

So journalists will continue in this NAR, have-you-stopped-beating-your-wife vein unless they are willing to consider other information.

Here are a few facts that Capper and other complainants might wish journalists never get wind of:

Capper claims that eRealty wants MLS listings to serve existing clients, but it is also true that they want the MLS listings to get new clients.

When Capper created a metro-exclusive advertising arrangement with Yahoo!, he proved his intent to use the MLS listings to get customers. Most brokers didn't know arrangements like this existed -- hence their outrage when they found out. As Cendant real estate division president Richard Smith put it, that's not the intent of the MLS - to give any single broker a marketing advantage over others.

So the NAR policy was designed to set right what many NAR members considered the purloining of other people's listings. In other words, Capper did things with other people's listings before they knew what was happening because they weren't as Internet-savvy as he was. But that doesn't mean what he did with the listings was right.

Here's why. Without eRealty, Yahoo! would have to pay MLSs for their listings to attract consumers, but eRealty gives Yahoo! the MLS listings free of charge, which does the MLS and its brokers out of potential fees and revenue-sharing. In return for this very generous favor, Yahoo! makes eRealty the exclusive gateway to the listings, for which it exacts a toll in the form of an advertising or referral fee.

Here's how it works. Yahoo!'s customers come to its real estate portal to look at listings. Yahoo! doesn't have any because it doesn't want to pay for listings, so it sends them to eRealty, which demands that the consumer agree to a user notice before allowing them to click through. The user notice captures the consumer's contact information, which eRealty agents can use to follow-up, and Yahoo! can use to see if a sale has closed to collect its referral fee.

Now we get to the real heart of the issue.

It is terribly important for Capper to get the public, popular press journalists, the Department of Justice, ARELLO, and anyone else who will listen to agree to his definitions of what is a brokerage and what is advertising, which is what the VOW controversy is really all about.

If eRealty's website is defined as a brokerage by NAR, the DOJ, ARELLO and others, rather than an advertising and communication medium, then eRealty can circumvent state law and take other brokers listings and give them to whomever Capper wishes.

On the other hand, if what eRealty is doing with Yahoo! is seen as advertising, then brokers have every right to withhold their listings for publication on eRealty's site. Why? Because they have already been given the right to control where their listings are advertised by statute.

For the sake of argument, let's say that bricks and mortar brokers operate a certain way and never use the Internet. They put their listings into an MLS book because they don't have to worry that a single broker is going to take the book, give it to the local newspaper, and then set itself up as the admissions booth to consumers. It never happened in real life. Sure, some lucky consumers got to take the MLS book home, but other brokers' listings were never in any danger of benefiting third-party advertising mediums at listing brokers' expense.

So why should it be different online than in the real world? Capper wants other brokers to roll over and play dead when eRealty takes their listings, gives them to a third-party advertiser, and then sets itself up as the exclusive gateway to consumers.

In other words, the VOW controversy isn't that an Internet broker might be punished by traditional brokers for offering discounts. The real issue is who should have the right to advertise the repository of brokers' listings, and what guidelines should be implemented to protect the listing brokers who supply the listings.

That puts the whole issue in a little different context, doesn't it?

This point is important enough to repeat. Brokers already have the right by statute to determine where their listings are published, advertised, viewed, or whatever you want to call it. That's right - statute. The statutes say that no broker may advertise another's listings without permission. That means that if a broker sees his/her listing used in an advertising context of which he/she does not approve, he/she has the right to withhold the listing.

As it stands, that includes other members who use their Websites as advertisements or in an advertising context to get customers. In other words, listing brokers don't want their listings used to give any single member a marketing advantage.

Have any of the reporters realized how potentially devastating that could be for eRealty? eRealty has them chasing the complaint that other brokers will withhold their listings, when there is a lot more for eRealty to be afraid of than that.

If all brokers have virtual office Websites, then eRealty loses the competitive advantage it currently has. It's no longer different or unique. In fact, it can't offer as many services as its brick and mortar competitors because they have actual office space which can include loan services, closing services, and other amenities that can help the consumer save time and money.

That's why it is in Capper's interest to stall the NAR adoption as long as it can because as long as the VOW policy isn't in effect, eRealty can continue its current operating model as well as its relationship with Yahoo!.

When the NAR rules go into effect, eRealty won't be able to give listings to third-party advertising companies any longer, which will remove its most potent competitive advantage - exclusivity. If the VOW policy is adopted with the third-party rule, then eRealty could face being outbid for the Yahoo! spots by better financed or larger competitors, or paying much more money for its exclusive rights to metros. Either way the policy shakes out, eRealty has lost its competitive advantage.

In short, eRealty will have exactly the same advantages and opportunities as any other MLS member broker.

Maybe that's what Capper is really upset about.