FAQ: Local Boards and the Publication of Homes Magazines
Editor’s Note: The proceeding FAQ is provided in response to the Board's/Association's request for information about the publication of a homes magazine. Before reading the FAQ, please note the following items:
- It would not be contrary to National Association policy for a Board of REALTORS® to provide a homes magazine as an advertising vehicle to better serve its membership.
- Brokers listing in a homes magazine would submit the listing to the MLS and inform the Board that information of interest to buyers and sellers is also to be included in the homes magazine.
- Homes magazines are not vehicles through which brokers traditionally offer cooperation and compensation. Rather, they are advertising mediums whose dissemination is envisioned in much broader terms than the limited dissemination and reproduction of MLS compilations of current listing information.
- Homes magazines are traditionally distributed to members of the public, often as supplements to local newspapers.
Frequently Asked Questions about Homes Magazines
Q: How best should a Board of REALTORS® establish ongoing governance of a Board owned homes magazine? Should the MLS Committee set the guidelines for member use and distribution since all members, even non-participants in the MLS, may advertise in the publication?
A: While this is a matter of Board option, such publications generally are not viewed as part of the MLS but rather as a Board activity and could appropriately be regulated by a Committee of the Board established for that purpose.
Q: Can the Board limit the right to advertise in the Board owned publication to real estate brokers who are members of the Board? Can the Board place limits on the type of advertising it will include in the publication, such as excluding employment solicitations?
A: As a general rule, Boards may produce homes magazines and limit the right to advertise in them to members of the Board. Boards may also exercise significant control over the type of advertising accepted for the publication. The antitrust risks associated with these kinds of practices are minimal because in most market places there are significant alternative vehicles available for real estate advertising. The most common of these is the local newspaper of general circulation. In addition, radio advertising, billboards and direct mail advertising is also available. Because of these numerous alternative sources of advertising, the Board owned and operated homes magazine is not ordinarily an advertising medium that is "competitively significant" or "essential" to the practice of real estate brokerage.
The same analysis would apply to Board limitations on the type of advertising it will accept for dissemination through a homes magazine. Because persons wishing to advertise in a manner that is not acceptable in the homes magazine have numerous alternatives available to them to communicate their message to consumers, the Board's limitation does not constitute an appreciable restraint of trade.
Of course, each Board should carefully consider these issues based upon local market conditions if they elect to create a homes magazine. There may be unique circumstances in their market area that would inflate the competitive significance of such a publication. In these circumstances, the Board should consult with the National Association or competent antitrust counsel before deciding to create such a publication.
Q: May the Board or MLS have a rule which connects the authority to publish listing information in a homes magazine with the inclusion of that listing in the MLS compilation of current listing information?
A: NAR legal staff has advised that such a practice may place the Board at risk with respect to compliance with anti-trust laws.
Q. May a Board develop rules which prohibit a member from affixing his business card to copies of the homes magazine produced by the Board and leaving them in public places within the Board's jurisdiction?
A: The response to this question depends on the rules and procedures established for governance of the particular homes magazine. For instance, if members simply pay a fee to include information regarding properties in the publication and do not purchase copies for their own distribution and use, then we believe that it would be appropriate to prohibit members from affixing their business cards. If, on the other hand, the Board sells or gives copies to members so that they can, in turn, distribute them where and when they choose, then we see no basis by which the Board could prohibit the members from affixing their business cards, stamping their firm's name on the cover, etc.
We can envision, of course, combinations of the above-referenced systems whereby the Board would be primarily responsible for distributing the bulk of such advertising publications with individual firms purchasing additional copies for their own use. In such a case, it would appear that those copies bought for individual firm use could be "personalized" with a business card.