[Federal Register Volume 71, Number 201 (Wednesday, October 18, 2006)]
[Notices]
[Pages 61474-61478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17357]


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FEDERAL TRADE COMMISSION

[File Nos. 061 0087; 051 0065; 061 0268; 061 0267; 051 0217]


Information and Real Estate Services, LLC; Northern New England 
Real Estate Network, Inc.; Williamsburg Area Association of Realtors, 
Inc.; Realtors Association of Northeast Wisconsin, Inc.; Monmouth 
County Association of Realtors, Inc.; Analysis of Agreements Containing 
Consent Orders To Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed consent agreements.

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SUMMARY: The consent agreements in these matters settle alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaints and the terms of the consent orders--embodied in the consent 
agreements--that would settle these allegations.

DATES: Comments must be received on or before November 10, 2006.

ADDRESSES: Interested parties are invited to submit written comments. 
Comments should refer to ``Information and Real Estate Services, File 
No. 061 0087; or Northern New England Real Estate Network, File No. 051 
0065; or Williamsburg Area Association of Realtors, File No. 061 0268; 
or Realtors Association of Northeast Wisconsin, File No. 061 0267; or 
Monmouth County Association of Realtors, Inc., File No. 051 0217,'' to 
facilitate the organization of comments. A comment filed in paper form 
should include this reference both in the text and on the envelope, and 
should be mailed or delivered to the following address: Federal Trade 
Commission/Office of the Secretary, Room 135-H, 600 Pennsylvania 
Avenue, NW., Washington, DC 20580. Comments containing confidential 
material must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with Commission Rule 4.9(c). 16 CFR 
4.9(c) (2005).\1\ The FTC is requesting that any comment filed in paper 
form be sent by courier or overnight service, if possible, because U.S. 
postal mail in the Washington area and at the Commission is subject to

[[Page 61475]]

delay due to heightened security precautions. Comments that do not 
contain any nonpublic information may instead be filed in electronic 
form as part of or as an attachment to e-mail messages directed to the 
following e-mail box: [email protected].
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. All timely and responsive public comments, whether filed 
in paper or electronic form, will be considered by the Commission, and 
will be available to the public on the FTC Web site, to the extent 
practicable, at http://www.ftc.gov. As a matter of discretion, the FTC 
makes every effort to remove home contact information for individuals 
from the public comments it receives before placing those comments on 
the FTC Web site. More information, including routine uses permitted by 
the Privacy Act, may be found in the FTC's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.
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    \1\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See Commission Rule 4.9(c), 
16 CFR 4.9(c).

FOR FURTHER INFORMATION CONTACT: Patrick J. Roach, Bureau of 
Competition, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 
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326-2793.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec.  2.34 of 
the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given 
that the above-captioned consent agreements containing consent orders 
to cease and desist, having been filed with and accepted, subject to 
final approval, by the Commission, have been placed on the public 
record for a period of thirty (30) days. The following Analysis to Aid 
Public Comment describes the terms of the consent agreements, and the 
allegations in the complaints. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for October 12, 2006), on the World Wide Web, at http://www.ftc.gov/os/2006/10/index.htm. A paper copy can be obtained from the FTC Public 
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington, 
DC 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. All comments should be filed as 
prescribed in the ADDRESSES section above, and must be received on or 
before the date specified in the DATES section.

Analysis of Agreements Containing Consent Orders To Aid Public Comment

    The Federal Trade Commission has accepted for public comment a 
series of agreements containing consent orders with five respondent 
entities. Each of the proposed respondents operates a multiple listing 
service (``MLS'') that is designed to foster real estate brokerage 
services by sharing and publicizing information on properties for sale 
by customers of real estate brokers. The agreements settle charges that 
each respondent violated Section 5 of the Federal Trade Commission Act, 
15 U.S.C. 45, through particular acts and practices of the MLS. The 
proposed consent orders have been placed on the public record for 30 
days to receive comments from interested persons. Comments received 
during this period will become part of the public record. After 30 
days, the Commission will review the agreements and the comments 
received, and will decide whether it should withdraw from the agreement 
or make the proposed order final.
    The purpose of this analysis is to facilitate comment on the 
proposed consent orders. This analysis does not constitute an official 
interpretation of the agreements and proposed orders, and does not 
modify their terms in any way. Further, the proposed consent orders 
have been entered into for settlement purposes only, and do not 
constitute an admission by any proposed respondent that it violated the 
law or that the facts alleged in the respective complaint against each 
respondent (other than jurisdictional facts) are true.

I. The Respondents

    The agreements are with the following organizations:

--Information and Real Estate Services, LLC (``IRES'') is a limited 
liability company based in Loveland, Colorado, that is owned by five 
boards and associations of realtors in Boulder, Fort Collins, Greeley, 
Longmont, and Loveland/Berthoud, Colorado. IRES operates a regional MLS 
for Northern Colorado that is used by more than 5,000 real estate 
professionals.
--Northern New England Real Estate Network, Inc. (``NNEREN'') is a 
corporation based in Concord, New Hampshire, that functions as an 
association of realtors. NNEREN operates an MLS for New Hampshire and 
some surrounding areas that is used by several thousand real estate 
professionals.
--Williamsburg Area Association of Realtors, Inc. (``WAAR''), is a 
corporation based in Williamsburg, Virginia, that functions as an 
association of realtors. WAAR operates an MLS for the Williamsburg, 
Virginia, metropolitan area and surrounding counties that is used by 
approximately 650 real estate professionals.
--Realtors Association of Northeast Wisconsin, Inc. (``RANW'') is a 
non-profit corporation based in Appleton, Wisconsin, that functions as 
an association of realtors. RANW operates an MLS for the Northeast 
Wisconsin Area, which includes the cities of Green Bay, Appleton, 
Oshkosh, and Fond du Lac, Wisconsin, and the surrounding counties, that 
is used by more than 1,500 real estate professionals.
--Monmouth County Association of Realtors, Inc. (``MCAR'') is a 
corporation based in Tinton Falls, New Jersey, that functions as an 
association of realtors. MCAR operates an MLS for Monmouth County, 
Ocean County and the surrounding areas of New Jersey that is used by 
several thousand real estate professionals.

II. Industry Background

    A Multiple Listing Service, or ``MLS,'' is a cooperative venture by 
which real estate brokers serving a common local market area submit 
their listings to a central service, which in turn distributes the 
information, for the purpose of fostering cooperation among brokers and 
agents in real estate transactions. The MLS facilitates transactions by 
putting together a home seller, who contracts with a broker who is a 
member of the MLS, with prospective buyers, who may be working with 
other brokers who are also members of the MLS. Membership in the MLS is 
largely limited to member brokers who generally must possess a license 
to engage in real estate brokerage services and meet other criteria set 
by MLS rules.
    Prior to the late 1990s, the listings on an MLS were typically 
directly accessible only to real estate brokers who were members of a 
local MLS. The MLS listings typically were made available through books 
or dedicated computer terminals, and generally could only be accessed 
by the general public by physically visiting a broker's office or by 
receiving a fax or hand delivery of selected listings from a broker.
    Information from an MLS is now typically available to the general 
public not only through the offices of real

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estate brokers who are MLS members, but also through three principal 
categories of Internet Web sites. First, information concerning many 
MLS listings is available through Realtor.com, a national Web site run 
by the National Association of Realtors (``NAR''). Realtor.com contains 
listing information from many local MLS systems around the country and 
is the largest and most-used Internet real estate Web site. Second, 
information concerning MLS listings is often made available through a 
local MLS-affiliated Web site. Third, information concerning MLS 
listings is often made available on the Internet sites of various real 
estate brokers, who choose to provide these Web sites as a way of 
promoting their brokerage services. Most of these various Web sites 
receive information from an MLS pursuant to a procedure often known as 
Internet Data Exchange (``IDX''), which is typically governed by MLS 
policies. The IDX policies allow operators of approved Web sites to 
display MLS active listing information to the public.
    Today the Internet plays a crucial role in real estate sales. 
According to a 2005 survey by the National Association of Realtors 
(``NAR''), 77 percent of home buyers used the Internet to assist in 
their home search, with 57 percent reporting frequent Internet 
searches. Twenty-four percent of respondents first learned about the 
home they selected from the Internet, the second most common means 
behind learning about a home from a real estate agent (50 percent).\2\ 
In all, 69 percent of home buyers found the Internet to be a ``very 
useful'' source of information, and a total of 96 percent found the 
Internet to be either ``very useful'' or ``somewhat useful.'' \3\ 
Moreover, the NAR Survey makes clear that the overwhelming majority of 
Web sites used nationally in searching for homes contain listing 
information that is provided by local MLS systems.\4\
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    \2\ E.g., Paul C. Bishop, Thomas Beers and Shonda D. Hightower, 
The 2005 National Association of Realtors Profile of Home Buyers and 
Sellers (hereinafter, ``NAR Study'') at 3-3, 3-4.
    \3\ Id. See Home Buyer & Seller Survey Shows Rising Use of 
Internet, Reliance on Agents (Jan. 17, 2006), available at http://www.realtor.org/PublicAffairsWeb.nsf/Pages/HmBuyerSellerSurvey06?OpenDocument.
    \4\ NAR Study at 3-19.
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A. Types of Real Estate Brokerage Professionals

    A typical real estate transaction involves two real estate brokers. 
These are commonly known as a ``listing broker'' and a ``selling 
broker.'' The listing broker is hired by the seller of the property to 
locate an appropriate buyer. The seller and the listing broker agree 
upon compensation, which is determined by written agreement negotiated 
between the seller and the listing broker. In a common traditional 
listing agreement, the listing broker receives compensation in the form 
of a commission, which is typically a percentage of the sales price of 
the property, payable if and when the property is sold. In such a 
traditional listing agreement, the listing broker agrees to provide a 
package of real estate brokerage services, including promoting the 
listing through the MLS and on the Internet, providing advice to the 
seller regarding pricing and presentation, fielding all calls and 
requests to show the property, supplying a lock-box so that potential 
buyers can see the house with their agents, running open houses to show 
the house to potential buyers, negotiating with buyers or their agents 
on offers, assisting with home inspections and other arrangements once 
a contract for sale is executed, and attending the closing of the 
transaction.
    The other broker involved in a typical transaction is commonly 
known as the selling broker. In a typical transaction, a prospective 
buyer will seek out a selling broker to identify properties that may be 
available. This selling broker will discuss the properties that may be 
of interest to the buyer, accompany the buyer to see various 
properties, try to arrange a transaction between buyer and seller, 
assist the buyer in negotiating the contract, and help in further steps 
necessary to close the transaction. In a traditional transaction, the 
listing broker offers the selling broker a fixed commission, to be paid 
from the listing broker's commission when and if the property is sold. 
Real estate brokers typically do not specialize as only listing brokers 
or selling brokers, but often function in either role depending on the 
particular transaction.

B. Types of Real Estate Listings

    The relationship between the listing broker and the seller of the 
property is established by agreement. The two most common types of 
agreements governing listings are Exclusive Right to Sell Listings and 
Exclusive Agency Listings. An Exclusive Right to Sell Listing is the 
traditional listing agreement, under which the property owner appoints 
a real estate broker as his or her exclusive agent for a designated 
period of time, to sell the property on the owner's stated terms, and 
agrees to pay the listing broker a commission if and when the property 
is sold, whether the buyer of the property is secured by the listing 
broker, the owner or another broker.
    An Exclusive Agency Listing is a listing agreement under which the 
listing broker acts as an exclusive agent of the property owner or 
principal in the sale of a property, but under which the property owner 
or principal reserves a right to sell the property without assistance 
of the listing broker, in which case the listing broker is paid a 
reduced or no commission when the property is sold.
    Some real estate brokers have attempted to offer services to home 
sellers on something other than the traditional full-service basis. 
Many of these brokers, often for a flat fee, will offer sellers access 
to the MLS's information-sharing function, as well as a promise that 
the listing will appear on the most popular real estate Web sites. 
Under such arrangements, the listing broker does not offer additional 
real estate brokerage services as part of the flat fee package, but 
allows sellers to purchase additional services if sellers so desire. 
These non-traditional arrangements often are structured using Exclusive 
Agency Listing contracts.
    There is a third type of real estate listing that does not involve 
a real estate broker, which is a ``For Sale By Owner'' or ``FSBO'' 
listing. With a FSBO listing, a home owner will attempt to sell a house 
without the involvement of any real estate broker and without paying 
any compensation to such a broker, by advertising the availability of 
the home through traditional advertising mechanisms (such as a 
newspaper) or FSBO-specific Web sites.
    There are two critical distinctions between an Exclusive Agency 
Listing and a FSBO for the purpose of this analysis. First, the 
Exclusive Agency Listing employs a listing broker for access to the MLS 
and Web sites open to the public; a FSBO listing does not. Second, an 
Exclusive Agency Listing sets terms of compensation to be paid to a 
selling broker, while a FSBO listing often does not.

III. The Conduct Addressed by the Proposed Consent Orders

    Each of the proposed consent orders is accompanied by a complaint 
setting forth the conduct by the respondent that is the reason for the 
proposed consent order. In general, the conduct at issue in these 
matters is largely the same as the conduct addressed by the Commission 
in its recent consent order involving the Austin Board of Realtors 
(``ABOR'').\5\
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    \5\ In the Matter of Austin Bd. of Realtors, Docket No. C-4167 
(Final Approval, Aug. 29, 2006). The ABOR consent order was 
published with an accompanying Analysis To Aid Public Comment at 71 
FR 41023 (July 19, 2006).

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[[Page 61477]]

    The complaints accompanying the proposed consent orders allege that 
respondents have violated Section 5 of the FTC Act by adopting rules or 
policies that limit the publication and marketing on the Internet of 
certain sellers' properties, but not others, based solely on the terms 
of their respective listing contracts. The rules or policies challenged 
in the complaints state that information about properties will not be 
made available on popular real estate Web sites unless the listing 
contracts are Exclusive Right to Sell Listings. When implemented, these 
``Web Site Policies'' prevented properties with non-traditional listing 
contracts from being displayed on a broad range of public Web sites.
    The respondents adopted the challenged rules or policies at various 
times between 2001 and 2005. Each respondent, prior to the Commission's 
acceptance of the consent orders and proposed complaints for public 
comment, rescinded or modified its rules to discontinue the challenged 
practices. The members of each respective MLS affected by these rules 
have been notified of the recent changes.
    The complaints allege that the respondents violated Section 5 of 
the FTC Act by unlawfully restraining competition among real estate 
brokers in their respective service areas by adopting the Web Site 
Policies.

A. The Respondents Have Market Power

    Each of the respondents serves the great majority of the 
residential real estate brokers in its respective service area. These 
professionals compete with one another to provide residential real 
estate brokerage services to consumers.
    Each of the respondents also is the sole or dominant MLS serving 
its respective service area. Membership in each of the respondents' MLS 
systems is necessary for a broker to provide effective residential real 
estate brokerage services to sellers and buyers of real property in the 
respective service area.\6\ Each respondent, through the MLS that it 
operates, controls key inputs needed for a listing broker to provide 
effective real estate brokerage services, including: (1) A means to 
publicize to all brokers the residential real estate listings in the 
service area; and (2) a means to distribute listing information to Web 
sites for the general public. By virtue of industry-wide participation 
and control over a key input, each of the respondents has market power 
in the provision of residential real estate brokerage services to 
sellers and buyers of real property in its respective service area.
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    \6\ As noted, the MLS provides valuable services for a broker 
assisting a seller as a listing broker, by offering a means of 
publicizing the property to other brokers and the public. For a 
broker assisting a buyer, it also offers unique and valuable 
services, including detailed information that is not shown on public 
Web sites, which can help with house showings and otherwise 
facilitate home selections.
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B. Respondents' Conduct

    At various times between 2001 and 2005, each of the respondents 
adopted a rule that prevented information on listings other than 
traditional Exclusive Right to Sell Listings from being included in the 
information available from its respective MLS to be used and published 
by publicly-accessible Web sites.\7\ The effect of these rules, when 
implemented, was to prevent such information from being available to be 
displayed on a broad range of Web sites, including the NAR-operated 
``Realtor.com'' Web site; the Web sites operated by several of the 
respondents; and member Web sites.
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    \7\ For example, MCAR's rule stated: ``Listing information 
downloaded and/or otherwise displayed pursuant to IDX shall be 
limited to properties listed on an exclusive right to sell basis. 
(Office exclusive and exclusive agency listings will not be 
forwarded to IDX sites.).'' (MCAR Rules and Regulations (2004)). The 
NNEREN rule used somewhat different wording: ``Exclusive Agency 
listings will not be included in NNEREN datafeeds to any Web site 
accessed by the general public such as nneren.com, REALTOR.com, 
third party feeds, IDX, etc. `` (NNEREN Rules and Regulations (Feb. 
2005)).
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    Non-traditional forms of listing contracts, including Exclusive 
Agency Listings, are often used by listing brokers to offer lower-cost 
real estate services to consumers. The Web Site Policies of each of the 
respondents were joint action by a group of competitors to withhold 
distribution of listing information to publicly accessible Web sites 
from competitors who did not contract with their brokerage service 
customers in a way that the group wished. This conduct was a new 
variation of a type of conduct that the Commission condemned 20 years 
ago. In the 1980s and 1990s, several local MLS boards banned Exclusive 
Agency Listings from the MLS entirely. The Commission investigated and 
issued complaints against these exclusionary practices, obtaining 
several consent orders.\8\
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    \8\ See, e.g., In the Matter of Port Washington Real Estate Bd., 
Inc., 120 F.T.C. 882 (1995); In the Matter of United Real Estate 
Brokers of Rockland, Ltd., 116 F.T.C. 972 (1993); In the Matter of 
Am. Indus. Real Estate Assoc., 116 F.T.C. 704 (1993); In the Matter 
of Puget Sound Multiple Listing Assoc., 113 F.T.C. 733 (1990); In 
the Matter of Bellingham-Whatcom County Multiple Listing Bureau, 113 
F.T.C. 724 (1990); In the Matter of Metro MLS, Inc., 113 F.T.C. 305 
(1990); In the Matter of Multiple Listing Serv. of the Greater 
Michigan City Area, Inc., 106 F.T.C. 95 (1985); In the Matter of 
Orange County Bd. of Realtors, Inc., 106 F.T.C. 88 (1985).
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C. Competitive Effects of the Web Site Policies

    The Web Site Policies have the effect of discouraging members of 
the respective respondents' MLS systems from offering or accepting 
Exclusive Agency Listings. Thus, the Web Site Policies substantially 
impede the provision of unbundled brokerage services, and make it more 
difficult for home sellers to market their homes. The Web Site Policies 
have caused some home sellers to switch away from Exclusive Agency 
Listings to other forms of listing agreements.\9\
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    \9\ WAAR does not appear to have implemented the Web Site 
Policies, as Exclusive Agency Listings have been included in IDX 
feeds before, during and after its policy was in effect. However, 
its adoption and publication of the policy alone has inhibited the 
use of such listings in the Williamsburg area by at least one local 
real estate broker, who chose not to use Exclusive Agency Listings 
because he did not wish to violate the local rule.
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    When home sellers switch to full service listing agreements from 
Exclusive Agency Listings that often offer lower-cost real estate 
services to consumers, the sellers may purchase services that they 
would not otherwise buy. This, in turn, may increase the commission 
costs to consumers of real estate brokerage services. By preventing 
Exclusive Agency Listings from being transmitted to public-access real 
estate Web sites, the Web Site Policies have adverse effects on home 
sellers and home buyers. In particular, the Web Site Policies deny home 
sellers choices for marketing their homes and deny home buyers the 
chance to use the Internet to easily see all of the houses listed by 
real estate brokers in the area, making their search less efficient.

D. There Is No Competitive Efficiency Associated With the Web Site 
Policies

    The respondents' rules at issue here advance no legitimate 
procompetitive purpose. If, as a theoretical matter, buyers and sellers 
could avail themselves of an MLS system and carry out real estate 
transactions without compensating any of its broker members, an MLS 
might be concerned that those buyers and sellers were free-riding on 
the investment that brokers have made in the MLS and adopt rules to 
address that free-riding. But this theoretical concern does not justify 
the rules or policies adopted by the various respondents here. 
Exclusive Agency Listings do not enable home buyers or sellers to 
bypass the use of the brokerage services that the MLS was created to 
promote, because a listing broker is always involved in an Exclusive 
Agency

[[Page 61478]]

Listing, and the MLS rules of each of the respondents already provide 
protections to ensure that a selling broker--a broker who finds a buyer 
for the property--is compensated for the brokerage service he or she 
provides.
    It is possible, of course, that a buyer of an Exclusive Agency 
Listing may make the purchase without using a selling broker, but this 
is true for traditional Exclusive Right to Sell Listings as well. Under 
the existing MLS rules of each of the respondents that apply to any 
form of the listing agreement, the listing broker must ensure that the 
home seller pays compensation to the cooperating selling broker (if 
there is one), and the listing broker may be liable himself for a lost 
commission if the home seller fails to pay a selling broker who was the 
procuring cause of a completed property sale. The possibility of 
sellers or buyers using the MLS but bypassing brokerage services is 
already addressed effectively by the respondents' existing rules that 
do not distinguish between forms of listing contracts, and does not 
justify the Web Site Policies.

IV. The Proposed Consent Orders

    Despite the recent cessation by each of the respondents of the 
challenged practices, it is appropriate for the Commission to require 
the prospective relief in the proposed consent orders. Such relief 
ensures that the respondents cannot revert to the old rules or 
policies, or engage in future variations of the challenged conduct. The 
conduct at issue in the current cases is itself a variation of 
practices that have been the subject of past Commission orders; as 
noted above, in the 1980s and 1990s, the Commission condemned the 
practices of several local MLS boards that had banned Exclusive Agency 
Listings entirely, and several consent orders were imposed.
    The proposed orders are designed to ensure that each MLS does not 
misuse its market power, while preserving the procompetitive incentives 
of members to contribute to the MLS systems operated by the 
respondents. The proposed orders prohibit respondents from adopting or 
enforcing any rules or policies that deny or limit the ability of their 
respective MLS participants to enter into Exclusive Agency Listings, or 
any other lawful listing agreements, with sellers of properties. The 
proposed orders include examples of such practices, but the conduct 
they enjoin is not limited to those five enumerated examples. In 
addition, the proposed orders state that, within thirty days after each 
order becomes final, each respondent shall have conformed its rules to 
the substantive provisions of the order. Each respondent is further 
required to notify its participants of the applicable order through its 
usual business communications and its Web site. The proposed orders 
require notification to the Commission of changes in the respondent 
entities' structures, and periodic filings of written reports 
concerning compliance with the terms of the orders.
    The proposed orders apply to each of the named respondents and 
entities it owns or controls, including its respective MLS and any 
affiliated Web site it operates. The orders do not prohibit 
participants in the respondents' MLS systems, or other independent 
persons or entities that receive listing information from a respondent, 
from making independent decisions concerning the use or display of such 
listing information on participant or third-party Web sites, consistent 
with any contractual obligations to respondent(s).
    The proposed orders will expire in 10 years.

    By direction of the Commission.

Donald S. Clark,
Secretary.
 [FR Doc. E6-17357 Filed 10-17-06; 8:45 am]
BILLING CODE 6750-01-P