NAR’s new IDX policy revision proposals

Back in November, I posted proposing that we have an open discussion about social media in IDX. I began the discussion with a long post on December 9, trying to decide what counts as a social media platform. Then I completely dropped the ball. I’m happy to say it’s because our firm has been crazy busy on projects that matter a lot to us (and I hope, to the industry); but I still feel as if I’ve been a bit of a slacker. Now that NAR’s work group has proposed a new set of rule revisions, I thought I’d weigh in.

NAR’s Social Media (or whatever it’s called now) work group met last month to discuss policies to resolve the long-standing debate, and they developed a proposed policy. Matt Cohen has posted a thoughtful review of the new revision recommendations, as well as the text of the proposed revisions themselves. I commend both to you, if you have the time; I’ll try to be thorough here, in case you do not.

Basic overview

The proposed changes basically do the following:

1. They expand the coverage of the existing IDX policy from participants’ “websites” to their “electronic displays.” (See Section 18 and elsewhere.)
2. They roughly define the notion of participant “control” necessary to make the previous revision fly. Control “means the ability to add, delete, modify, and update information as required by the IDX policy and MLS rules.” (Section 18.2.7)
3. They exempt some minimal displays of IDX data from some of the disclosure and display requirements. (Sections 18.3.3, 18.3.7, 18.3.8, and 18.3.11)
4. They introduce the possibility of a participant displaying other brokers’ listings on “other websites,” without really explaining what that means. (Sections 18.3.14, 18.3.15)
5. They introduce a set of rules for an optional social media IDX (SM/IDX) program, which each MLS may choose to adopt or not. (Section 18.5)

I’ll talk about each of these, except that I’ll make only very brief comments about the last.

IDX and “electronic displays”

This is what brokers want. They want to be able to deploy their own tablet and mobile apps, displaying IDX data from other brokers according to the IDX rules. They are generally ok with other brokers doing that using their listings. I think this works!

Displaying participant “control”

Here is the only significant problem. The proposed policy says control “means the ability to add, delete, modify, and update information as required by the IDX policy and MLS rules.” (Section 18.2.7) This definition is defective on two grounds: First, as Matt Cohen pointed out, it’s not strict enough on the side of actual control. Second, it fails to address apparent control at all. On the question of active control, if Zillow.com (just as an example) provides a ‘dashboard’ on its site at www.Zillow.com that allows the broker the minimal control defined in these terms, then Zillow would count as a site controlled by the participant. (In fact, it would satisfy the definition of “control” for every MLS participant that uses it.) The result, presumably: Broker A could display Broker B’s listings on Zillow as part of IDX. We think that actual control should be more strictly defined. As for apparent control, this is essential if we are to call the display mechanism, whether website or mobile app, a display by one participant of other participants’ listings: a reasonable consumer visiting the app or site should conclude that it belongs to the participant who is displaying the listings pursuant to IDX. In other words, the app or site should be under the apparent control of the displaying broker. This means that a broker does not join the MLS as “ABC Realty” but provide the MLS listings at a site apparently belonging to “AmericasSuperListings.com”, even if America’s Super Listings is the wholly-owned subsidiary of ABC Realty and under its full control. Even under the existing IDX policy, we have found it helpful to clarify what the IDX policy means when it says listing brokers authorize “display of their listings on other participants’ Internet websites.” The following language, which NAR has approved for our clients, has proven manageable and enforceable (key terms emphasized):

Any Website that displays any portion of the IDX Database must be under the actual and apparent control of a single IDX Participant and must be advertised as that IDX Participant’s Website. Actual control means that the IDX Participant has either built the Website for its own use with internal resources or obtained technology for the Website under an agreement with a third party that provides the IDX Participant final control over the operations of the Website. Apparent control means that a reasonable consumer viewing the Website would conclude that it is under the control of the IDX Participant. The following are currently deemed to be evidence of apparent control: that the IDX Participant’s branding is more prominent than that of any other entity and that the domain name and branding on the Website distinguish the IDX Participant from non-participating firms, e.g., from the participant’s franchise and from other franchisees of the same franchise, if applicable.

This prevents both the Zillow and ABC Realty examples I gave above. I admit this is not an ideal definition of control, but unlike much of the proposed revision, it has been tested by years of use among our clients. It works well enough. What this does mean, though, is that a broker buying a mobile app from a third-party provider must be able to shut down the app (at least with regard to the broker’s use of it) and must have the broker’s branding on it, so the consumer sees it as the broker’s app (perhaps ‘powered by’ the third party). NAR should adopt language something like what we’ve proposed, or at least confirm that it will allow MLSs to adopt it (though with references changed from “Website” changed (edit 5/1/2012) to “IDX Display” or the like).

Exemption of some displays from display rules

Clearly, if brokers are going to make good use of mobile apps, there will be instances where minimal information about a listing needs to be displayed as a ‘teaser’ to get the consumer to select the listing for further review. The changes proposed in Sections 18.3.3, 18.3.7, 18.3.8, and 18.3.11 allow those minimal displays to stop short of complying with all IDX display requirements, provided one can get from the minimal display to a fully-compliant display. I don’t see any problems with that.

Displays on “other websites”

Sections 18.3.14 and 18.3.15 address requirements for security protection and firewalls. Section 18.3.14 reads: “Participants are required to employ appropriate security protection such as firewalls on their websites and displays, and on displays controlled by participants on others’ websites.” Matt expressed concern about this, and I echo it. No agent or broker under this policy should ever display IDX data on “others’ websites.” See my discussion of control above. I suggest that “and on displays by participants on others’ websites” be deleted.

Optional rules for SM/IDX

I can see a number of potential problems with Section 18.5, which gives MLSs the option of permitting one broker to display another broker’s listings on a site not controlled by the displaying broker. I’d like to discuss those issues further, but that can wait for another day. For now, I urge every MLS not to adopt the provisions of Section 18.5 until you’ve discussed the ramifications very carefully.

Overall, I’m very pleased by this version of what NAR has proposed. I hope it gets adopted with the changes I’ve suggested. I recommend that MLSs wait on the social media option in 18.5, though, until its implications can be better understood. I would really love to hear from MLSs and the industry’s luminaries how they feel about these proposals. Please comment freely.

-Brian