FTC and DOJ Comment Before the Texas Real Estate Commission Concerning Proposed Amendments to 22 Tex. Admin Code § 535.2 to Impose Minimum Service Requirements on Real Estate Brokers

UNTED STATES OF AMERICA
FEDERAL TRADE COMMISSION
Washington, DC 20580
DEPARTMENT OF JUSTICE
Washington, DC 20530
April 20, 2005
Loretta R. DeHay
General Counsel
Texas Real Estate Commission
O. Box 12188
Austin, TX 78711-2188
Re: Proposed Amendments to 22 TEX. ADMIN. CODE 535.
Dear Ms. DeHay:
On Februar 22 , 2005 the Texas Real Estate Commission ("TREC") proposed a revision
to its current rules concernng a real estate broker s responsibilities. ' According to TREC , the
revisions are necessar to clarfy an ambiguity in the current rules governing real estate brokerage
that create some uncertainty for buyers' agents and home-sellers with respect to the role of
buyers' agents and limited-service brokers (" LSBs ) in real estate transactions involving limited-
service brokerage.
The Federal Trade Commission ("FTC" or "Commission ) and the United States
Deparment of Justice believe that by prohibiting core limited-service brokerage options and
therefore requiring some home-sellers to purchase services that they otherwise would choose to
perform themselves, TREe's proposed amendments to 22 TEX. ADMIN. CODE 535.2 are likely
to harm Texas consumers by reducing their choices and likely raising prices without providing
any countervailing benefits. Competition between full-service brokers ("FSBs ) and LSBs is
likely to provide benefits to Texas consumers and there is no evidence that LSBs have caused
any consumer harm. If TREC nevertheless is concerned about potential confusion with regard to
the services LSBs provide to their clients or LSBs imposing additional costs on buyers ' agents , it
should consider less restrictive alternatives to protect consumers than the curent proposal, which
would deprive Texas consumers of core limited-service brokerage options. Accordingly, we urge
TREC not to adopt the proposed amendments.
See Broker s Responsibility, 30 Tex. Reg. 1400 (proposed Mar. 11 2005).

Interest and Experience ofthe FTC and the Department of Justice
Congress has charged the FTC with enforcing laws prohibiting unfair methods of
competition and unfair or deceptive acts or practices in or affecting commerce. Pursuant to this
statutory mandate, the Commission encourages competition in the licensed professions, including
real estate brokerage, to the maximum extent compatible with state and federal goals. The FTC
has experience in analyzing aspects of the real estate transaction. For example, the FTC and the
Department of Justice have commented on numerous occasions in support of allowing non-
attorneys to compete with attorneys in the provision of certain real estate settlement tasks.
Further, in 2002 the Commission held a public workshop on barers to electronic commerce in
many industries, and gathered testimony on state restrictions that may impede competition from
online real estate service providers.
The Deparment of Justice is also entrsted with enforcing this nation s antitrst laws.
For more than 100 years, since the passage ofthe Sherman Antitrst Act, the Deparent of
Justice has worked to promote free and unfettered competition in all sectors of the American
economy through its civil and criminal enforcement programs. In paricular, the Justice
Deparent has a long history of enforcement efforts in the real estate area that includes several
cases involving restrictions on access to multiple listing services and other restraints limiting
competition among real estate brokers. Recently, for example, the Justice Deparent filed
civil antitrust lawsuit against the Kentucky Real Estate Commission.5 The suit alleges that the
Kentucky Real Estate Commission violated Section 1 of the Sherman Act by promulgating and
enforcing a regulation that prohibits Kentucky real estate brokers and sales associates from
offering rebates and other inducements to attact customers. The Deparent also recently sent a
Federal Trade Commssion Act, 15 U.S. C. 45.
Letter from FTC and the Justice Departent to Massachusett State Representative Paul Kujawski (Oct. 6
2004); letter from FTC and the Justice Departent to Standing Commttee on the Unlicensed Practice of Law, State
Bar of Georgia (Mar. 20 2003); letters from the FTC and the Justice Deparent to Speaker of the Rhode Island
House of Representatives and to the President of the Rhode Island Senate et al. (June 30, 2003 and Mar. 28, 2003);
letter from the FTC and the Justice Deparent to President of the Nort Carolina State Bar (July 11 , 2002); letter
from the FTC and the Justice Departent to Speaker of the Rhode Island House of Representatives et al. (Mar. 29
2002); letter from the FTC and the Justice Departent to the Ethcs Commttee of the Nort Carolin State Bar
(Dec. 14 2001); letter from the FTC and the Justice Departent to the Supreme Cour of Virgina (Jan. 3, 1997);
letter from the FTC and the Justice Depare;t to the Virgina State Bar (Sept. 20, 1996). These letters can be
found at htt://ww.ftc. govlbe/advofie.htm. See also Brief Amicus Curiae of the United States of America and the
Federal Trade Commssion in Lorre McMahon v. Advanced Title Services Company of West Virginia 607 S.E. 2d
519 (W. Va. 2004) (fied May 25 2004), at htt://ww.ftc. govlbeN0400I 7.pdf; Brief Amicus Curiae of the
Federal Trade Commssion and the United States of America in On Review ofULP Advisory Opinion 2003-2 (filed
July 28 2003), at http://www.ftc. goy/os/2003/07/georgiabrief.pdf.
4pTC Workshop, POSSIBLE ANTICOMPETITNE EFFORTS TO RESTRICT COMPETITON ON THE INTERNET (Oct.
2002), written statements and transcript available at
htt://www.ftc. gOy/opp/ecommerce/anticompetitive/agenda.htm
See Complaint United States v. Kentucky Real Estate Comm ' Civ. Act. No. 3:05CVI88-H (fied Mar.
, 2005), at htt://www.usdoi.goy/atr/cases/f208300/208393.htm

letter to the Oklahoma State Legislature opposing pending legislation in Oklahoma that is similar
to the proposed amendment at issue here.
II. Background
Broadly, the tasks involved with selling a house include marketing it and negotiating with
buyers. Traditional FSBs bundle these tasks together; for a fixed commission - typically split
with the buyer s agent - an FSB will list a house in the local MLS, place advertisements for it in
the local paper and on the Internet, conduct open houses, and coordinate other showings.
Additionally, an FSB provides advice on pricing and assists the seller in negotiating and closing
the transaction.
Some consumers may want to sell their house without the assistance of a broker but
desire the additional exposure oflisting their home in the local MLS. Such consumers, however
canot list their house in the MLS on their own; only a licensed real estate agent who is a
member ofthe local MLS can list a house in the local MLS. LSBs serve these consumers by
unbundling MLS listing from the menu of tasks an FSB typically performs, thus providing their
clients with fewer services at lower prices. A seller contracting with an LSB tyically pays a flat
fee in exchange for the LSB listing the house in the local MLS and providing additional selling
aids, such as yard signs, online advertisements, and a lock-box to allow buyers ' agents to show
the home when the seller is not present. Limited-service brokerage contracts also tyically
require the seller to agree to pay a commission to a buyer s broker who supplies the ultimate
buyer of the home.8 A seller who finds a buyer without the help of a buyer s broker does not
incur this fee. Importantly, a seller might elect not to use an LSB in marketing the house or in
See Letter from R. Hewitt Pate, Assistant Att' y Gen. to Oklahoma State Representative Todd Heitt (Apr. 8
2005), at htt://ww.usdoi. gov/atr/public/pressreleases/2005/208486.htmletter
See, e. , Rules and Regulations of North Texas Real Estate Information Systems, Inc. ~~ 5.01- 02 (Feb.
2004) ("NTREIS" at htt://ww.ntreis.net/ormAndDocs/ruesregs.htm
See, e. American Home Market.com (3 percent commssion for a broker that fmds a buyer),
htt://ww.mlslistingnetwork.comI av .aspxIage=htt:/ IMLSListingN etwork.comlageManager/Default.aspx?Page
ID=241757; ForSaleByOwner.com (allowig consumers to offer buyers ' agents any commssion rate, but notig that
owners should consider that offerig less than the traditional 3% could affect these Buyers Agent Realtors (sic)
degree' of interest in showig your propert to their customers
htt://Vvww.forsalebvo\vIler.com/perl-bin/showPage.cgi?szNextPage=placead.htm&szAction=1\TEW &szURL=MLS
FSBOAdvertsingService.com ( 2-3 percent commssion for broker that fmds a buyer),
htt://ww.fsboadvertsingservice.com/flat-fee-mls-MLSTX3.asp;ifoundahome.net (allowing home-sellers to offer
a 3% commssion or more" to buyers ' brokers), at htt://\\'\\lw.ifoundahome. netiListingwork/SBasicListing.htm
Texas Discount Realty (3 percent commssion for a broker that fmds a buyer),
htt://www.texasdiscountrealtv.com/flatfee.htm See also Roy T. Black & Hugh O. Nourse The Effect of Diferent
Brokerage Modes on Closing Costs and Housing Prices 10 J. REs. REL ESTATE 87 91 (1995) (reportg that for a
sample of real estate transactions in Atlanta, when the transaction involved only a buyer s broker, the buyer s broker
received between 3 - 3. 5 percent commssion).