I think folks are still missing the advertising issue. Who says putting listings on a web site is not advertising? Who says that if you make a member of the public give you an e-mail address, any e-mail address, that you can give them access to the MLS information and that doing this on a web site marketing your services is then not advertising? Who says the "client copy" given out in an office and distributing information from a web site are the same thing, therefore not advertising? And who says the client copy itself is not advertising? Just because it has been done for years doesn't mean it is legal...has your (the collective your) licensing regulatory agency looked at this (these) issue(s)?

I will admit that I don't know the answer to the above...do you? If you are making decisions for an organization and are a director with a fiduciary duty to the organization and its members, don't you think you should be sure? This reminds me of something I haven't thought of for a long time, but I believe it is appropriate to discuss. I hope I don't offend anyone with the "salty" language.

In the summer of 1968 as a Fourth Class Midshipman (plebe) at the United States Naval Academy at Annapolis, one of the important lessons we were taught was to never guess (more like NEVER GUESS!!!). It was impressed upon us that as leaders in the future, people's lives could depend upon information provided by us.

"Are they shooting live ammo?"
"Does the aircraft have enough fuel to fly the mission?"

As plebes we were only allowed four "basic responses" when asked a question by an upper classman. They were:

Yes sir
No sir
Aye Aye sir (I understand and will obey)
I'll find out sir.

If you were not 100% sure, then you were guessing and "I think" was not an allowed response...it was a guess. Guessing was absolutely forbidden.

"I believe" was another improper response (as in "I believe the correct answer is...") and beginning the answer to a question with the words "I believe" would result in your standing on your chair in the mess hall in front of 4000 young men singing the song "I Believe."

I believe for every drop of rain that falls

A flower grows.

I believe that somewhere in the darkest night

A candle glows.
I believe for everyone who goes astray

Someone will come to show the way.
I believe,
Oh, I believe)

...yes, I had to sing it a few times before it sunk it. I think we were told that we believed in our country, in the navy, in ourselves and if we chose, in our god. To make sure we were inculcated with this "value"  and to make it a habit never to guess, on many  occasions, after a question was asked and responded to, the upper classman asking the question might ask the following follow up question:

"bet your ass?"

If you weren't willing to "bet your ass," then obviously you weren't sure and if you were not sure and answered anyway, you were guessing. If you didn't know something, the proper response was "I'll find out sir." Whenever an upper classman asked you if you were willing to "bet your ass," it made you think about your response...if you were sure, you would reply affirmatively, "yes sir," If not it was simple, "I'll find out sir." OK...I know you are wondering, what happened if you "bet your ass" and lost?  Simple...You bent over, grabbed your ankles and waited for the upper classman to take the biggest book he could find (usually your book of Navy Fight Songs)...and with a running start down the corridor, swat you smack dab in the fleshy area. It didn't take many times witnessing (or experiencing) this to understand the importance of being sure and the significance of "betting your ass."

What does this have to do with real estate and VOWs you ask?

Is a VOW advertising (which would require permission of the listing broker), or is it the dissemination of information (which is one of the purposes of an MLS)?Here is how the California Department of Real Estate defines advertising:

>>
"Advertising"--Any written or printed communication, or oral communication made in accordance with a text or outline that has been reduced to written form, which is published for the purpose of inducing persons to purchase or use a product or service. <<

ARELLO (Association of Real Estate License Law Officials) defines advertising as:

>>
"Advertising" means all forms of representation, promotion and solicitation disseminated in any manner and by any means of communication to consumers for any purpose related to licensed real estate activity... Licensed entities should not advertise other licensed entities' listings without written permission, and if given, should not alter the online display or any informational part of the listing without written permission of the listing owner.
<<

So if you think the public exposure of data via a VOW is not advertising but merely dissemination of  information to clients or customers and thus allowed, my question is simple... "bet your ass?"

Doesn't it make sense to make sure before you spend your hard earned money on a web solution by  having the blessing of your governing regulatory authority? If you are a broker, probably. If you are an association, absolutely. While it may be OK for individual brokers to play in "gray areas," I think it is important for associations representing members and associations who members look to for guidance, play on the side of certainty and at least warn of "gray areas" when promulgating "guidelines."

I know there are issues of data security, data currency, copyright and more...but I really am stuck on the issue of advertising another broker's listing without the listing broker's permission and believe that if this is to be allowed, the "display" of that data should have some guidelines.

Should broker's be allowed to promote their services on the same "web page" as the listing data? If they do, is it advertising?

When making decisions upon which the entire membership will rely, it is not a bad idea to know what the regulators might have in mind should an issue be brought to them.

Proponents of VOWs indicate that a VOW is an "alter ego" of a bricks and mortar office.  Consider the following:

One of your competitors sets up a physical office and prints flyers of all your listings (and all  the other listings in the MLS).

The flyers are in color with pictures and all the property data, framed with a border that promotes the services of this broker (your competitor). Reference to you may or may not be included on the flyer but your phone number and e-mail address are excluded. The flyer is a promotional piece for this broker and the property data is included with the promotional material.

He then advertises in all the major newspapers in your city that all the listings in the MLS can be viewed in his office and prospects may take home all property data acquired in his office. Prospects enter his building, sign a guest register (with no verification of identity, just a sign in) and then gather flyers on all the properties they are interested in and leave (some prospects take a flyer of every listing).

Would this be proper use of MLS data in a bricks and mortar environment or would it be a violation of CA DRE or ARELLO definitions of advertising as stated above? "Bet your ass?"

Some final comments on the advertising/information issue:

1. When one examines "client copies" around the country, they are usually just the listing  information and not the marketing and advertising of other services surrounding the listing information.  I am not a regulator, but to market other real estate services around the listing information of another broker's listing(s) makes a web site look too much like advertising imho.
2. Possible consequences of a no "opt out" provision for a VOW could be brokers in some markets opting out of IDX and then displaying all the information via a VOW, creating a disadvantage for brokers who cannot afford a VOW application.
3. The "success" of IDX is somewhat disguised as many brokers are still not familiar with it even though it may be available through their MLS. When I hear comments about the "success" of IDX, it is always in those markets and at those MLSs that chose the "Opt Out" method (your listings are "in" unless you specifically tell us you want out) as opposed to the "Opt In" method (your listings will not be "in" unless you tell the MLS you want them to be in). In the former, the MLS begins with 100% of the listings and "Opt Outs" reduce the participation from there (a small number Opt Out or are even aware of IDX at this point, which indicates "success" in the Opt Out markets). In the latter, the MLS begins with 0% of the inventory and builds from there (these markets are not experiencing the same "success" as the Opt Out MLSs).
4. Listings have "marketing value" and the web is still primarily a marketing vehicle. How many brokers invite their competitors to erect "For Sale" signs on their listings. If I take a listing, I am the one who receives the benefit from the marketing or promotional value of that listing, and rightly so...as part of the reward for the money and effort it takes to get that listing. Allowing competitors to enjoy the marketing benefits of the listing may not sit right with brokers when they finally realize what is happening. This could have many "unforeseen consequences." Would it be proper for me to take a one page ad in a newspaper...put my competitor's listings in the center of that one page ad, and surround those listings (your listings) with information about the real estate services I offer, without permission of my competitor who took the listing and who believes the listing is their property? Would it be proper for me to advertise for prospects to come down to my office to receive all the listings bound in a book with my services advertised all around the listings...all they need to do is sign in, giving me any name they want, and no verification of their identity on my part?

Saul

Saul Klein e-PRO/GRI/CFP
Saul is a California Real Estate Broker of 26 years and the 1993 President of the San Diego Association of REALTORS and the 1999 Designated REALTOR of the Year. He is president of InternetCrusade, an NAR partner in the creation and delivery of NAR's e-PRO Technology Certification Program. To enroll in e-PRO and earn the only technology Certification of NAR go to http://eProNAR.com