Some MLSs are “strongly opposed” to requiring the display of listing agents in addition to listing brokerages.

Real estate giants Zillow and Realogy are asking the National Association of Realtors to require that listing agents, not just listing brokers, be prominently identified on website listing pages — a suggestion that is already prompting some dissent.

Realogy is also requesting that a policy that would entitle brokers to an MLS data feed that they, their agents and their designated vendors could use for internal purposes — known as a “brokerage back office feed” — be vetted further before approval.

The Realtors Conference & Expo, colloquially known as “NAR Annual,” takes place this week in San Diego and a slew of proposed MLS policies will be discussed at NAR’s MLS Executives Session and MLS Forum on Nov. 11 and at its Multiple Listing Issues and Policies Committee meeting on Nov. 13. Those approved by the MLS committee would go to the NAR board of directors on Nov. 15.

Ahead of the event, NAR’s MLS Technology and Emerging Issues Advisory Board, which is part of its Multiple Listing Issues and Policies Committee, considered a proposal from Realogy to require that the contact information for listing agents and brokers be displayed on website listing pages at least as prominently as that of any advertising agent on a site.

The proposal would change displays of listings that agents and brokers receive through both Internet Data Exchange (IDX) and Virtual Office Website (VOW) data feeds. Each provide a pooled set of listings from a particular multiple listing service.

Currently, NAR’s MLS policy requires that IDX and VOW displays identify the name of the listing firm in a “reasonably prominent location in a readily visible color” and in “typeface not smaller than the median used in the display of listing data.”

The advisory board approved Realogy’s proposal but with some modification. While Realogy asked that “listing firm” be replaced with “listing broker, primary listing agent, and contact information,” the advisory board declined to include the language regarding “listing broker” and “primary listing agent.”

Instead, IDX and VOW policies would be amended to add the following underlined language:

Internet Data Exchange (IDX) Policy, Policy Statement 7.58

Policies Applicable to Participants’ IDX Websites and Displays

12. An MLS Participant’s IDX display must identify the listing firm and contact information in a reasonably prominent location and in a readily visible color and typeface not smaller than the median used in the display of listing data. The contact information for the listing firm must be clearly identified and displayed at least as prominently as any other contact information or lead form on the site.

IV. Requirements that MLSs May Impose on the Operation of VOWs and Participants, Policy Statement 7.91.

d. Any listing displayed on a VOW shall identify the name of the listing firm and contact information in a readily visible color, and reasonably prominent location, and in typeface not smaller than the median typeface used in the display of listing data. The contact information for the listing firm must be clearly identified and displayed at least as prominently as any other contact information or lead form on the site.

‘Ambiguous’

In subsequent letters to the advisory board and committee, both Realogy and Zillow have suggested changes to the proposal to be considered by the MLS committee this week.

In Zillow’s letter, Errol Samuelson, Zillow’s chief industry development officer, told the board that the language in the current proposal was “ambiguous,” which would make it difficult for brokerages of any size to know whether they were in compliance. He suggested that the term “contact information” be replaced with “email or phone numbers” in order to facilitate a standardized display across markets.

Errol Samuelson | Photo credit: Zillow

He also noted that the current policy already requires prominent attribution and that the proposal would create conflicting standards.

“Attribution based on ‘any other contact information or lead form,’ as Realogy proposes, creates duplicate/conflicting standards, and is either problematic or impossible to comply with on many IDX sites,” he said. “If a brokerage has a prominent 800- number at the top of its site (e.g., https://www.weichert.com/NJ/Morris/Morris_Plains/) must listing agent/brokerage information ‘contact information’ (however that’s defined) also appear at the top of the site in a similar font size?”

‘Anti-consumer’

Moreover, Samuelson said the current proposal is “distinctly anti-consumer” because it steers buyers toward dual agency, where they would lose their own fiduciary representation.

“[T]he proposed language subtly steers buyers toward dual agency, suggesting that the listing agent is best suited to answer a buyer’s questions while at the same time, not requiring disclosure that the listing agent has a fiduciary responsibility to the seller,” Samuelson said.

“The IDX brokerage (when not the listing brokerage), can act as an advocate for the buyer and can easily access all necessary property information. This, in fact, is the philosophy behind MLS and IDX.

“The MLS listing should already be the source of truth for property information unless the listing agent is intentionally withholding material information from their listing or violating their fiduciary responsibility to their seller.”

Zillow’s proposal

Instead, Zillow is requesting that the policy be changed as follows:

Internet Data Exchange (IDX) Policy, Policy Statement 7.58

Policies Applicable to Participants’ IDX Websites and Displays

12. An MLS Participant’s IDX display must identify the listing agent and firm and email or phone numbers for each contact information in a reasonably prominent location and in a readily visible color and typeface not smaller than the median used in the display of listing data. The contact information for the listing firm must be clearly identified and displayed at least as prominently as any other contact information or lead form on the site.

IV. Requirements that MLSs May Impose on the Operation of VOWs and Participants, Policy Statement 7.91.

d. Any listing displayed on a VOW shall identify the name of the listing agent and firm and email or phone number for each contact information in a readily visible color, and reasonably prominent location, and in typeface not smaller than the median typeface used in the display of listing data. The contact information for the listing firm must be clearly identified and displayed at least as prominently as any other contact information or lead form on the site.

Realogy’s proposal

Realogy’s letter did not include text for an alternate proposal to the MLS committee, but instead asked to amend the policy language to also require display of listing agent in attribution.

Cailtin McCrory

“The goal of the policy is to clearly identify for a consumer the listing agent vs. who is the advertising agent,” Caitlin McCrory, Realogy’s head of industry relations, said in a letter to the committee.

“Consumers favor a one-click world where they can confidently and seamlessly be connected to a person who can best assist them, especially when it comes to one of the biggest purchases of their life.”

McCrory also said Realogy was not advocating for national MLS policy “to dictate how a brokerage site intakes property inquiries or utilizes lead forms” and said “paid agent placements should be advertised as such, and not masquerade as the listing agent.”

Realogy believes in “facilitating a fairer playing field” that doesn’t force consumers to go to a new webpage to find the listing agent of a property for which they seek information, McCrory added. “The information is not confidential and there is no basis to withhold it,” she said.

‘Strongly opposed’

Markt, a joint venture of Arizona Regional MLS, Metro MLS and realMLS, has come out against requiring listing agent attribution and contact information on the basis that it would “expand the privileges granted to MLS participants to their affiliated subscribers,” stifle competition and not improve the consumer experience.

“While advancements in technology and consumer choice must continue, erasing the competitive opportunity of broker firms by national mandate does not move our industry forward nor improve consumer experience,” Markt said in a press release.

“After many have invested significant time and expense in their IDX technology as a lead generation and firm differentiator, requiring agent contact information to be listed stifles competition and innovation in broker sites,” the company added.

Providing listing agent contact information doesn’t provide further transparency to the consumer because the listing agent is not the owner of the listing, according to Markt.

“The requirements of each state and their license laws regarding advertising vary but recognize that advertising and promotion of listings is a function of the listing firm,” the company said.

“Consumer transparency is best served by directing consumers to the owner of the listing, the brokerage, to manage inquiries as they see fit within the bounds of their existing legal and ethical duties.”

Moreover, Markt highlighted that mandating display and contact information of agent subscribers “would interfere with the independent business decisions of the [broker] participant in the management of their intellectual property.”

The company recommended that the proposals to add agent attribution not move forward “without further research and understanding to identify what this policy recommendation is trying to accomplish in order to understand the best approach.

“We are strongly opposed to any modifications to IDX policy that include agent attribution and contact.”

Brokerage back office feed ‘needs further vetting’

Realogy’s McCrory also urged the MLS committee to “not act in haste” to approve the proposed brokerage back office feed policy without further vetting.

“Once the data is out there, it’s essentially impossible to take back,” she said. “Even policies with the best of intentions and which are conceptually sound can suffer from unintended ambiguities.

“Let’s take a beat, solicit feedback, and do the work to create a thoughtful policy that properly balances the varying concerns, not just efficiency and ease of use.”

She laid out several questions she said remain unanswered in the policy as currently proposed:

  • Is there a standard set of fields that are mandatory to be included in the back office feed?
  • Does this policy preclude the ability to create derivative works, or any subset of derivative works?
  • Will MLSs with an existing back office feed need to modify their policies in order to comply, and what is the timeframe and ability for each to do so?
  • Does this mandate interfere with Policy 7.57 which categorizes providing additional information “as optional and available to participants and subscribers at their discretion”?
  • Have we vetted how this policy interfaces with consumer privacy laws?
  • Will sold photos be included and has this policy been vetted against applicable copyright laws?
  • Does the term “designee” pose potential security and fraud risks?
  • If a Participant is also a vendor, does that pose a conflict of interest for a Participant with dual/multiple roles to receive a back-office feed?

Keeping the brokerage back office data internal

The Council of MLSs (CMLS) has suggested revisions to the brokerage back office feed policy to clarify that the data licensed under the policy must stay internal to the brokerage and the brokerage’s agents with the exception of the brokerage’s “bona fide clients as part of broker-client relationship management and transaction management systems” and in statistical analyses and reports.

“Our concern with the use of the BBO Data within ‘customer relationship management’ tools is that it leaves open the door for public display of the BBO Data,” the trade group said in a letter to the MLS advisory board.

“There are already existing policies that govern public display of listing data. Those policies set clear parameters about how it may be displayed and consider attribution for the listing broker, transparency for consumers, and set expectations for listing brokers for how other brokers might use their listings.”

CMLS also suggested updating the policy to clarify that a designee of broker or agent, such as a tech vendor, may only use the brokerage back office data to facilitate the broker or agent’s use under the policy.

“The current draft of [the policy] reads as though the designee may make the uses of the data in the same way that a participant or subscriber may,” the trade group said. “We do not believe this is the intent of the MLS TEIAB and suggest that the policy be revised to clarify this point.”

Editor’s note: This story has been updated with details about CMLS’s suggested revisions to the BBO policy proposal.

Email Andrea V. Brambila.

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