It's a fair bet that, to most people, the Department of Justice (DOJ) anti-trust suit against the National Association of Realtors (NAR) is a yawner of a topic, maybe on a par with a review of postal regulations. Perhaps, though, readers of this column will find the matter of more than passing interest. For those in the business, its outcome could have a significant impact on their livelihood.

Technically, the complaint filed by the DOJ is inaccurate and misdirected. Its major focus is on policies that NAR had already discarded prior to the filing. The DOJ knew this, but filed anyway. Hey, this is government work; and the filing is paid for by taxpayers anyway. Nonetheless, it is clear that the DOJ will amend its complaint and continue with the case. The assumptions and underpinnings of the misdirected complaint will continue to apply.

The DOJ opposes any policy, including the one most recently proposed by NAR, that allows member brokers to withhold permission for other brokers to display their listings on the other brokers' websites. In case that proposition seems a touch convoluted, consider the following example.

Suppose that a multiple listing system (MLS) consisted of four brokerages -- A, B, C, and D. As things now stand, each brokerage is allowed to display the listings of the others on its website, which is available to all consumers. Under the newly proposed policy, it is possible for any broker to withhold permission to do that. Broker A, for example, could say "I do not want B,C, and D (that is, all the other members) to display my listings on their websites." Broker A could not be selective about this, for example saying, "Only B and C do not have permission to display my listings." (The discarded policy would have allowed for this.) The withholding of permission must be all-inclusive. Moreover, if Broker A won't allow his listings to be displayed on the websites of others', he is not allowed to display their listings on his.

Does this sound like a bad thing? The DOJ thinks so. The policy is bad, in the eyes of the DOJ, because it "… restrains competition from brokers who use the Internet to more efficiently and cost effectively serve home sellers and buyers … ." NAR begs to differ. In order to frame the issue, we need to review some basics.

Listings have always been the life blood of the real estate business. The saw that "old Realtors never die, they just grow listless" points to this. Listings are important; and that is why brokers and agents expend considerable time, effort, and expense to obtain them.

Although it isn't common to think of things this way, a listing is a work product. As such, it belongs to the broker. The broker may license its use to other entities, such as the MLS, to display listing information and to make access to the listed property available to others; but he doesn't have to. To do so is a business decision for each broker to make.

Listings have value to the broker who owns them in at least two ways. The immediately obvious value is that the broker will receive a commission upon the sale of the property. Another value is that, through various forms of advertising (signs, display ads, internet postings, etc.), a listing may bring the broker additional business in the form of buyers who, though they may not buy the listed property, might purchase some other property. Indeed, it is not unheard of for a listing to generate more income through this kind of indirectly-related sale of other properties than from the sale of the listing itself.

Sometimes brokers and agents who do not have a listing will ask for permission to advertise some one else's listing. This, of course, is so that they may receive calls from potential buyers who they can then represent. And this is ok, as long as they have the permission of the listing broker. In many states it is against the law to advertise another's listing if one has not obtained permission from the listing broker.

So what does all this have to do with the DOJ and NAR's policy regarding brokerage internet display? Think about it in terms of advertising. The DOJ says no broker ought to be able to refuse permission for other brokers to display his or her listings on their websites. NAR thinks every broker ought to have the right to refuse such permission. We'll try to flesh out the argument a little more in the next column.