Continued discussion of the NAR's proposed virtual office Website (VOW) policy has already culminated in changes and a shelving of the agenda to enable members more time to familiarize themselves with the issues. Since the NAR's revised proposed VOW policy was released a couple of weeks ago, some attorneys feel additional debate is warranted before the NAR board votes on the proposed policy in May.

Before the proposed policy was released to NAR membership, it was passed to NAR leadership for review. With many brokers, franchisors, MLS and Realtor associations interested in the proposed policy, it wasn't long before copies of the proposal made the rounds and some attorneys were making calls to discuss their clients' viewpoints and legal issues associated with distributing listings on competitors' VOWs.

In response, the NAR has scheduled two meetings - one for some attorneys whose clients favor the inclusion of a broker opt-in/out provision, and another meeting for those who don't.

The meetings, says Laurene Janik, general counsel to the NAR, are "an attempt to listen carefully to vocal or affected constituencies on the topic of whether the policy should include a listing broker "opt out" provision and to discuss any legal issues that are raised by that decision."

The purpose of the meetings, says Janik, is to "help NAR develop the best policy governing the display of MLS content on virtual office websites (VOWs)."

One meeting has already taken place. On March 15th with NAR legal counsel and outside anti-trust counsel met with attorneys for RE/MAX International, Cendant, GMAC, Realty Alliance and Vision Group (alliances of large independent brokers,) the California Association of REALTORS, and a large MLS. Participating by phone and in person, the attorneys discussed including a broker opt-in/opt-out provision in the policy and what the legal ramifications might be.

Janik explains, "The constituencies represented at the meeting have advocated the inclusion of a listing broker "opt out" in the VOW policy. As you know, the proposed policy does not include such a provision.  We wanted to listen to their views."

Under discussion are two types of opt-out: selective and blanket.

"A blanket opt-out means none of the other MLS participants may display that broker's listings on their VOWs," explains Janik. "A selective opt-out means a participant can pick and choose which VOWs may display her listings."

At the heart of the VOW issue are two opposing viewpoints: one constituency feels that some provisions in a final NAR policy may be interpreted as anti-competitive. Others view certain uses of VOWs as threats and would like to see them heavily regulated.

"If you look back at the May proposal," says Brian Larson, an MLS consultant, "eRealty published a lengthy critique of that proposal which read like a summons and complaint of a Sherman anti-trust claim. It outlined elements of an anti-trust claim - if you attack our method of delivering brokerage services, you are violating the law. It was certainly implied by the approach the letter took. eRealty took the Austin board to court and others might approach the same thing. zipRealty has already pooh-poohed the current proposal."

RE/MAX CEO Daryl Jesperson has stated publicly that he feels a selective opt-out provision is "defensible" because the broker owns the listing and it is up to the broker how to distribute it.

"Who says a listing has to be spread all over the place?" Jesperson told Realty Times. Jesperson advocates instead that the broker be able to select the advertising mediums he or she deems most appropriate for the listing.

Cendant sent a white paper to the NAR outlining its argument for an opt-in/out provision, but did not make a case for either selective or blanket opt-in/out. The white paper arrived after the NAR policy had already been written and sent to leadership for review.

GMAC declined to comment.

Although an opt-out provision is not in the current proposed policy, the NAR is giving equal time to opponents to hear their views. A meeting for attorneys of opponents of an opt-out provision such as eRealty and zipRealty, has already been scheduled, says Janik.

Kudos to the NAR for giving all sides a chance to voice continuing concerns over what is clearly the most divisive, explosive and exhausting real estate issue of the times.

Published: March 24, 2003

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Blanche Evans is the award-winning senior editor of Realty Times, the Internet's leading independent real estate news service. She is featured daily on the Realty Times Video Network in the "Realty Viewpoint" segment. Blanche has been named one of the "25 Most Influential People In Real Estate" by REALTOR Magazine, and has been twice recognized as a "notable." In 2005, she was named "Top Reporter Covering the NAR" by Delahaye-Bacon's. Blanche is a renowned author of five real estate books. Her newest, Bubbles, Booms and Busts: Make Money In Any Real Estate Market, McGraw-Hill, was rave-reviewed by The New York Times. She was also selected from hundreds of real estate experts to contribute to Donald Trump's book, Trump: The Best Real Estate Advice I Ever Received: 100 Top Experts Share Their Strategies, Rutledge Hill Press, and is featured on page 68. Order Now Review - Honors In 2006, Blanche was selected among scores of candidates to author two consumer real estate guidebooks for the National Association of Realtors: The NAR Guide to Home Buying, and The NAR Guide to Home Selling, Wiley & Sons. She is currently planning two new books for the NAR and its members.       Known for her keen insight into real estate industry issues and for her ability to make complex subjects easy to understand, Blanche is a sought-after keynote and continuing education speaker. Real estate organizations from MLSs, to brokerages, to franchisors, to associations hire her to provide up-to-the-minute analysis of real estate industry news and advice on how to improve revenues. Her passionate delivery, peppered with stinging wit, is a huge hit with audiences and fans. Don Klein, CEO Greater Nashville Association of Realtors, Blanche Evans, Richard Courtney, president 2007, GRAR "The GNAR membership meeting last week featured Blanche Evans as the keynote speaker. Her comments and insights resonated extremely well with those in attendance and we have had many requests for copies of her PowerPoint Presentation. She was a terrific part of the membership meeting and convention program!" - Don Klein, CEO Greater Nashville Association of Realtors Coverage from WSMV, Nashville - 8-14-2007 That Interview Guy - Get Inside The Head Of Today's Generation 2007 AE Institute Session - To purchase 2006 AE Institute Session - Parts 1 2 3 4 5 6 7 8 9 HouseValues Mastermind call - Parts 1 2 Blanche's fireside chat with Jeremy Conaway, HAR - Click here. To contact Blanche, email her at . For more articles by Blanche, click here.