In Anaheim next week, NAR will likely pass the social media (and RSS etc.) policy proposed by its newest PAG on the topic. Elizabeth has summarized some of the tactical details on the social media side. I’m going to focus on the strategic implications and offer some thoughts to the key players.

The new proposal’s virtue is that it allows greater flexibility for brokers to display other brokers’ listings in social media (and on other types of sites—see E’s post for details). That’s also the proposal’s vice. The CMLS phone conference/Webex on this issue on October 31 raised and attempted to address many of the issues Elizabeth did in her post (the CMLS program spent more time on RSS than Elizabeth did, and that’s a valuable addition). I recommend watching it to pick up some other perspectives.

The long and short of it: The policy is greatly imperfect, but it’s less imperfect than the last iteration. Because I suspect NAR’s committee leadership is fatigued with this issue, I think it will pass, either as is or with modifications made in Anaheim. CMLS has written a letter to NAR’s multiple listing policy committee recommending changes. But, assuming the policy passes as proposed, what strategic actions should the industry’s key players be thinking about now?

Brokers

Assume that your listings are going to appear in a lot more places on the Internet. If you are distressed about that, you will have a choice: (a) exclude your listings from IDX (and give up your ability to display other brokers’ listings on your IDX site); or (b) deal with this new policy. I recommend the latter course of action for most brokers, though some may be able to walk away from IDX (in fact, some leading brokers in a couple smaller markets have never taken part in IDX).

As for HOW to deal with it, you can probably expect a lot more confusing calls from unhappy consumers who do not understand how their listings ended up in undesirable places. As few of your agents will understand it, either, the burden will fall on the broker to deal with it. You need a point person on your staff (you or someone else), to be the “go to” person on these issues and to be proactive about addressing concerns. The MLS may be able to help, but unless you “vet” your issues before calling the MLS, your problems may get lost in the shuffle. Get this person fully educated on IDX, VOW, and social media policies NOW. Make sure all your agents know who this person is.

This strategy will be a challenge. I’ve been going around the country in the last year giving presentations on ethical and legal concerns for brokers in social media and listing syndication. Most of you have no clue what you are facing, despite the risks of ethics complaints and license-law violations. You need to get educated.

MLS

The MLS’s duty is to educate brokers and monitor the data uses and policies. In this context, I suggest that you make an effort to educate brokers starting immediately after the convention (assuming the policy is passed), to explain the implications and risks of the new policy. (I’m happy to come and give that talk, but others can cover it well, too.)

When interpreting and enforcing the new policy, I recommend that MLSs interpret the policy as conservatively as possible: in other words, read it to allow displaying brokers as few options and MLS as much flexibility as possible. This is not because I want brokers’ ability to innovate to be limited. Rather, it recognizes that it’s easier to keep the cat in the bag than to get it back in there after it’s out.

Third, your MLS’s license agreement with brokers for IDX (some MLSs call it a RETS agreement, an IDX agreement, a participant data license agreement, or something else) needs to be reviewed to ensure it accounts for some of the trickier issues that might come up in these new contexts. Talk to local counsel, or call your friendly MLS lawyers here. Mike Wurzer over at FBS has argued that the license agreement is central to solving the problem of managing data use. We think it’s only the first step, but it is an essential one.

Finally, I suggest that MLSs monitor the rate of broker opt-out from IDX after implementation of this policy. If social media issues are scary enough to get brokers to drop out of IDX, then I think that NAR will be motivated to reconsider the policy.

NAR

As for NAR, I have a couple suggestions, which I expect will be ignored (but that’s never stopped me from making them before). First, NAR should adopt this policy with an effective date no earlier than July 1, 2012. MLSs need time to make the necessary adjustments, and the six weeks between Anaheim and when NAR releases next year’s Handbook on ML Policy is not enough.

Second, NAR should tell its staff not to interpret the new policy so as to contradict a local MLS’s interpretation of it. There are comical examples in the past of NAR staff interpreting a policy in a way that no MLS committee (on local or national level) would agree makes sense. (Remember when NAR staff said that MLSs could not require listing brokers to submit listing photos?) NAR should defer to the local MLS’s interpretation unless it is manifestly contrary to the language of the policy.

Finally, NAR should interpret the new policy so as to allow local MLSs to impose additional limitations consistent with the policy’s principles. NAR cannot think of everything, so it should let the MLSs deal with the problems that come up.

Concluding thoughts

Though it will be painful, it’s probably best that this policy change happen now so we can work through the problems. NAR cannot craft a perfect policy using a crystal ball; only painful experience will tell which provisions really need to be there and which ones do not. Get ready for that painful experience, everyone!

I should disclose, though, that our firm makes a decent amount of money every time NAR adopts a new ‘enlightened’ policy, so it’s perhaps a little self-serving of me to suggest that everyone just relax and enjoy the new rules 😉

(To the industry illuminati who read this, what other advice would you offer brokers, MLSs, and NAR?)

-Brian

Reader Interactions

Comments

  1. Brian, a lot of my viewpoint is based on trying to think ahead on the practical implications for my MLS clients, in terms of compliance and enforcement. As you have said, the license agreement is central to solving the problem but it's only the first step. As you and I have discussed, consideration of all the parts that follow, including the potential effort and cost of each, should be a part

  2. Matt: You are right. Unfortunately, NAR often fails to consider practical implications of its policy changes. (Though, in fairness, individual MLSs sometimes fail to consider them, too.) I don't know what to expect this week. I'm hoping cooler heads will prevail, but I anticipate trouble at Saturday's meetings getting it sorted out properly.

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