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IBP-IDX Changes to the California Model MLS Rules

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C.A.R. MLS Policy Committee
IDX Changes to the Model MLS Rules

This Issues Briefing Paper is for Study only and has not been approved by the MLS Policy Committee, Executive Committee, or the Board of Directors.

INTRODUCTION: 

This issues briefing paper addresses IDX revisions to the C.A.R. Model MLS Rules.  The revisions which are proposed in this paper reflect mandated changes to IDX Policy that NAR adopted at its May, 2012 meeting.  The proposed draft includes all NAR mandated changes to both the required IDX provisions as well as the optional ones C.A.R. has already adopted. 

BACKGROUND: 

The subject of expanding IDX to apply to more current technology and norms has been working its way through NAR for the past several years.  IDX, or Internet Data Exchange is the MLS policy that allows all participants in an MLS the ability to display the listings of other participants, subject to IDX rules (including the non-withdrawal of consent of the other participants) on the Internet.  NAR has now officially expanded IDX policy to include listing display beyond just a participant’s website.  It now includes “electronic display” in a broader context. 

1. “Electronic display” includes:

  • Displays on participants public websites
  • Displays controlled by participants on other websites
  • Displays using applications for mobile devices

2. “Control” - For purposes of this policy “control” means participants must have the ability to add, delete, modify and update information as required by this policy.  All displays of IDX listings must also be under the actual and apparent control of the participant, and must be presented to the public as being the participant’s display. 

  • Actual control requires that the participant has developed the display, or caused the display to be developed for the participant pursuant to an agreement giving the participant authority to determine what listings will be displayed, and how those listings will be displayed. 
  • Apparent control requires that a reasonable consumer viewing the participant’s display will understand the display is the participant’s, and that the display is controlled by the participant.

3.  Social media - The expanded IDX policy was not intended to include “social media.”  For that use, NAR has developed a separate policy so that a participant’s IDX permission does not automatically extend to “social media” data displays.  This separate “Non IDX/VOW Electronic Display” policy, i.e. “Social Media” policy, would be optional for an MLS to adopt and, even if adopted, participation in it for MLS participants will be optional.  Should an MLS adopt one, it will have its own display rules outside of IDX and operate by separate consents from IDX. By analogy, it would likely operate similarly to listing syndication in that it will be up to brokers to opt in to a desired pipeline.  NAR has not generated a proposed rule set for this optional policy, thus if an MLS chooses to adopt one, it would be up to an individual MLS to develop it.  C.A.R. could draft a Model one at some future time if mass demand develops, but at this time, Staff advises a “wait and see” approach since initial feedback suggests that most MLSs (and brokers) are wary of entering into this morass and have legitimate enforcement concerns.

As stated above, while the expanded IDX policy was not intended to include “social media,” it is worth noting that the dividing line between what is allowed under the expanded IDX policy vs what constitutes “social media” is a blurry one.  By opening up IDX to allow displays controlled by participants beyond participant’s own website, it’s quite possible that some uses of data on “social media” sites can arguably meet the “control” test of IDX, regardless of whether a separate “Non IDX/VOW Electronic Display” (social media) policy is adopted.  For example, an MLS may deem an IDX widget (which updates IDX data directly from the MLS) on a participant’s facebook page to qualify under IDX.  There will undoubtedly be new and interesting ways the latest IDX standard and technology will unfold.

NAR MANDATED IDX CHANGES:

The proposed revised IDX provisions of the C.A.R. Model MLS Rules are set forth below.  As already stated, the below draft includes all NAR mandated changes to both the required IDX provisions as well as the optional ones C.A.R. has already adopted.  The changes (which have received a preliminary, informal NAR pre-approval) are shown in redline format as follows:

12.16  Use of Active Listing Information on Internet [Also known as Internet Data Exchange (“IDX”)].  “Internet Data Exchange” (“IDX”) is a means by which listing brokers permit limited electronic display of their listings, in accordance with the IDX rules set forth herein, by other participating Broker Participants and R.E. Subscribers on websites and using applications for mobile devices that said participating Broker Participants and R.E. Subscribers control . to display the listing brokers’ listings, in accordance with the IDX rules set forth herein, on said Broker Participants’ and R.E. Subscribers’ IDX websites.

(a) Authorization. Subject to paragraphs (b) through (q) (r) below, and notwithstanding anything in these rules and regulations to the contrary, Broker Participants and R.E. Subscribers may electronically display on their public websites aggregated MLS active listing information through either downloading and placing the data on the Broker Participant or R.E. Subscriber’s public access websites or by framing such information on the MLS or association public access website (if such a site is available).

(b) Consent. The listing brokers’ consent for such internet display is presumed, in satisfaction of Rule 12.8, unless a listing broker affirmatively notifies the MLS that the listing broker refuses to permit display on either on a blanket or on a listing-by listing basis.  Listing brokers that refuse to permit other Broker Participants or R.E. Subscribers to display their listing information on a blanket basis may not display MLS active listing information of other brokers’ listings.  Even where listing brokers have given blanket authority for other Broker Participants and R.E. Subscribers to partake in IDX display of their listings, such consent may be withdrawn on a listing-by-listing basis where the seller has prohibited all Internet display.

(c) Control. Broker Participants and R.E. Subscribers may only partake in IDX display on websites and applications for mobile devices which they control.  Under IDX policy, “control” means that Broker Participants and R.E. Subscribers must have the ability to add, delete, modify and update information as required by the IDX policy. All displays of IDX listings must also be under the actual and apparent control of the Broker Participant and/or R.E. Subscriber, and must be presented to the public as being that Broker Participant’s and/or R.E. Subscriber’s display. Actual control requires that Broker Participants and R.E. Subscribers have developed the display, or caused the display to be developed for themselves pursuant to an agreement giving the Broker Participant and/or R.E. Subscriber authority to determine what listings will be displayed, and how those listings will be displayed. Apparent control requires that a reasonable consumer viewing the Broker Participant’s and/or R.E. Subscriber’s display will understand the display is the Broker Participant’s and/or R.E. Subscriber’s, and that the display is controlled by the Broker Participant and/or R.E. Subscriber.

(c) (d) Display Content. Broker Participants and R.E. Subscribers shall not display confidential information fields, as determined by the MLS in the MLSs’ sole discretion, such as that information intended for cooperating brokers rather than consumers.

(d) (e) Listing Attribution.  All IDX listing displayslistings on a Broker Participant or R.E. Subscriber’s site displayed by framing or other electronic means, shall identify the name of the listing firm and the name of the listing agent in a manner designed to easily identify such listing firm or agent.  Such identification shall be in a reasonably prominent location and in a readily visible color and typeface not smaller than the median used in the display of listing data.  No listing broker and agent names will be required, however, for  a one-line or thumbnail search result display format as long as there is one or more additional display formats available for the listing and each subsequent display format identifies the listing broker and agent.  Displays of minimum information (e.g. a one-line or thumbnail search result, text messages, “tweets”, etc of two hundred (200) characters or less) are exempt from this requirement but only when linked directly to a display that includes all required disclosures.

(e) (f) Modifications. Broker Participants and R.E. Subscribers shall not modify the information displayed pursuant to these MLS rules.  (This is not a limitation on site design but refers to changes to actual listing data.) However, permissible MLS data may be augmented with additional data not otherwise prohibited from display, provided the source of any additional data is clearly identified.

(f) (g) Source and Update. Information displayed shall indicate the MLS as the source of the information being displayed and the most recent date updated.  Displays of minimum information (e.g. a one-line or thumbnail search result, text messages, “tweets”, etc of two hundred (200) characters or less) are exempt from this requirement but only when linked directly to a display that includes all required disclosures.  Broker Participants and R.E. Subscribers shall update all downloads and refresh all MLS downloads and IDX displays automatically fed by those downloadsdata at least once every three [3] days;

(g) (h) Usage and Distribution Limitations.Sharing of the MLS compilation with any third party not authorized by the MLS is prohibited (moved to (l).  Broker Participants and R.E. Subscribers shall indicate on their websites displays that the information being provided is for consumers’ personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing.  Displays of minimum information (e.g. a one-line or thumbnail search result, text messages, “tweets”, etc of two hundred (200) characters or less) are exempt from this requirement but only when linked directly to a display that includes all required disclosures.

(h) ( i)  Display Purpose. Broker Participants and R.E. Subscribers may not use IDX-provided listings for any purpose other than display as provided in these rules.on their websites. This does not require Broker Participants and R.E. Subscribers to prevent indexing of IDX listings by recognized search engines.

(i) (j)  Restricted Display. Listings, includingor property addresses , can be included in IDX display except whereof sellers who have directed their listing brokers to withhold their listings or their the listings’ property address from all display on the Internet (including, but not limited to, publicly–accessible websites or VOWs) shall not be accessible via IDX sites.

(j) (k) Selective Listing Display. Not all listings from the MLS must be displayed as long as any exclusions from display on Broker Participants' and R.E. Subscribers’ IDX sites are based on objective criteria, e.g. type of property, listed price or geographical location.  Selection of listings displayed on any IDX site must be independently made by each Participant.

(k) (l)  Restricted Access and Distribution.No portion of the MLS database shall be distributed, provided to or made accessible to any person except as provided for in these rules and/or in the National Association of REALTORS IDX policy. Sharing of the MLS compilation with any third party not authorized by the MLS is prohibited.  Except as provided in the IDX policy and these rules, an IDX site or a Participant or user operating an IDX site or displaying IDX information as otherwise permitted may not distribute, provide or make any portion of the MLS database available to any person or entity.

 (l) (m)  Brokerage Identification. When displaying listing content, a Broker Participant’s or R.E.  Subscriber’s website  Any IDX display controlled by a Broker Participant or R.E. Subscriber must clearly identify the name of the brokerage firm under which they operate in a readily visible color and typeface.

(m) (n) Co-Mingling. A Broker Participant or R.E. Subscriber may co-mingle the listings of other Participants through IDX from this MLS with listings from other MLS sources on its IDX displaywebsite, provided all such displays are consistent with these rules. Co-mingling is (a) the ability for a visitor to the website to execute a single search that searches any portion of the IDX database at the same time it searches listing data from any other source(s); or (b) the display on a single web page of any portion of the IDX database and listing data from any other source.  Listings obtained from other MLSs must display the source from which each such listing was obtained. Displays of minimum information (e.g. a one-line or thumbnail search result, text messages, “tweets”, etc of two hundred (200) characters or less) are exempt from this requirement but only when linked directly to a display that includes all required disclosures.

(n) (o) Third Party Comments and Automated Value Estimates.  Any IDX site display controlled by a Broker Participant or R.E. Subscriber that (a) allows third-parties to write comments or reviews about particular listings or displays a hyperlink to such comments or reviews in immediate conjunction with particular listings, or (b) displays an automated estimate of the market value of the listing (or hyperlink to such estimate) in immediate conjunction with the listing, shall disable or discontinue either or both of those features as to the seller’s listing at the request of the seller.  The listing broker or agent shall communicate to the MLS that the seller has elected to have one or both of these features disabled or discontinued on all displays controlled by Broker Participants’ and R.E. Subscribers’ websites.  Except for the foregoing and subject to section (o) below, a Broker Participant’s or R.E. Subscriber’s IDX site display may communicate the Broker Participant’s or R.E. Subscriber’s professional judgment concerning any listing.  Nothing shall prevent an IDX site display from notifying its viewers that a particular feature has been disabled at the request of the seller.

(o) (p) Making Corrections. Broker Participants and R.E. Subscribers shall maintain a means (e.g., e-mail address, telephone number) to receive comments about the accuracy of any data or information that is added by or on behalf of Broker Participants and R.E. Subscribers beyond that supplied by the MLS and that relates to a specific property displayed on the IDX site.  Broker Participants and R.E. Subscribers shall correct or remove any false data or information relating to a specific property upon receipt of a communication from the listing broker or listing agent for that property explaining why the data or information is false.  However, the Broker Participants and R.E. Subscribers shall not be obligated to remove or correct any data or information that simply reflects good faith opinion, advice, or professional judgment.

(p) (q) Search Result Limitation. Broker Participants and R.E. Subscribers shall limit the number of listings that a viewer may view, retrieve, or download to not more than 500 in response to any inquiry.

(q) (r) Advertising. Deceptive or misleading advertising (including co-branding) on pages displaying IDX-provided listings is prohibited. For purposes of these rules, co-branding will be presumed not to be deceptive or misleading if the Broker Participant’s and/or R.E. Subscriber’s logo and contact information is larger than that of any third party.

12.16.1  Notification by Authorized Participants and Subscribers.  Broker Participants and R.E. Subscribers partaking in the display of MLS active listing IDX information of other brokers’ listings pursuant to Section 12.16 must notify the MLS before displaying said MLS active listing IDX information and must give the MLS direct access as well as allow access for other MLS Participantsmake their website directly accessible to the MLS and other MLS Participants for purposes of monitoring/ensuring compliance with applicable rules and policies.

12.16.2   Right to Charge for Download.  The MLS has the right to charge the costs of adding or enhancing its downloading capacity to Broker Participants and R.E. Subscribers who request downloading of listing information pursuant to Section 12.16.

12.16.3  Listing Broker’s Right to Opt Out of Internet Advertising of MLS Information.  If the A.O.R. advertises MLS information on the Internet or licenses MLS information for advertising on the Internet, the listing broker shall have the right to opt out of such advertising in accordance with the MLS’s procedures for opting out. The listing broker also shall have the right to refuse to have listings displayed on a blanket basis or on a listing by listing basis in accordance with Section 12.16 by affirmatively notifying the MLS in accordance with the MLS procedures for opting out.  Notwithstanding anything in these rules and regulations to the contrary, the A.O.R. reserves the right to determine whether to provide Internet advertising services and whether such services are to be made available to non-A.O.R. members.


PROPOSED MOTION:

That, upon final approval by NAR, the C.A.R. Model MLS Rules be revised to reflect the NAR mandated changes to IDX policy as set forth above.

 

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