Chief Administrative Law Judge Stephen J. McGuire has dismissed the complaint brought by the Federal Trade Commission (FTC) against Realcomp, a corporation servicing more than 2,100 Michigan real estate brokerage offices. Realcomp, which is owned by a group of realtor boards and associations, operates the multiple listing service (MLS) for Southeastern Michigan. The FTC alleged that by restricting certain brokers’ access to the MLS and related public websites, Realcomp unreasonably restrained competition.
According to the FTC’s complaint, Realcomp restrained trade by blocking information about Exclusive Agency (EA) listings and listings by other nontraditional brokerage services and by preventing the dissemination of this information to public websites that are fed by the MLS. EA listings are produced by agreements whereby the broker receives a commission only if the broker locates the buyer; if the seller locates the buyer, the agent receives no commission. The complaint further alleged that brokers who adopted Realcomp’s MLS rules effectively agreed to restrict the manner in which they compete. Moreover, such brokers collectively withheld a valuable resource from their nontraditional broker competitors.
In dismissing the FTC’s complaint, Chief Judge McGuire ruled that the agency failed to establish an “anticompetitive effect or actionable consumer harm.” Specifically, McGuire found that the evidence presented failed to demonstrate that the Realcomp website Policy: “(1) has eliminated or limited consumer choice of a desired product; (2) has excluded discount EA listings from substantial exposure on the Realcomp MLS or other public websites; (3) has unreasonably impeded the ability to discount brokers to compete in Southeastern Michigan; or (4) has forced discount brokers to exit the market or deterred entry.” “Despite the website Policy,” McGuire held, “discount brokers offering EA listings have been able to market their products and compete successfully in the Realcomp Service Area, without having to labor under an unreasonable competitive disadvantage.”