Today the Federal Trade Commission declared that a popular Texas real estate website was de facto public property. The FTC prosecuted the Austin Board of Realtors (ABOR) because the association restricted publication of listings on its Austinhomesearch.com website. ABOR passed a rule limiting the site to “exclusive right to sell” listings. The FTC said the site should also include “exclusive agency” listings.
What’s the difference? “Right to sell” gives the realtor an exclusive right to sell the property (and earn a commission) within an agreed-upon time period. An “exclusive agency” gives a realtor the right to sell a property, but it also allows the owner to sell without the realtor’s assistance (and consequently pay the realtor a lesser or no commission.)
The FTC feels “exclusive agency” listings are better for consumers, and ABOR’s refusal to include such listings in its multiple-listings website constitutes an illegal restraint of trade. The FTC’s complaint said that “There is no cognizable and plausible efficiency justification for the Web Site Policy. The Web Site Policy is not reasonably ancillary to the legitimate and beneficial objectives of the [multiple-listing service].” In other words, the rights to free speech and assembly are protected only to the extent they aer deemed “pro-consumer” by a group of unelected antitrust lawyers.
Under the proposed order announced today, ABOR would no longer have the right to decide the content of its own website. For at least the next 10 years, the FTC will make those decisions. The FTC maintains that “important public Web sites” must be under the government’s control. This effectively means that any web site’s editorial content is subject to FTC control under the agency’s mandate to identify and punish “unfair competition”.