Larson/Sobotka's VOW clearinghouse
Topical outline of NAR VOW policy after settlement of the DOJ/NAR lawsuit
This page provides a breakdown of VOW policy provisions on a topical basis. Provisions of the policy are grouped here according to the topics they address. Other outlines provide a breakdown of the policy based on provisions' order in the policy, which has more to do with who gets to make certain decisions, and based on a checklist of actions for MLSs, brokers, and broker technology/marketing partners to consider.
Clicking on the link relating to any policy provision will open a new browser window containing that provision and commentary on it.
Contents of this Topical Outline
- Overview
- Definitions
- Qualifying as a VOW
- Rights of brokers participating in MLSs
- Rights of salespeople affiliated with participating brokers
- Seller rights
- VOW/consumer relations
- VOWs displaying other broker's listings - requirements
- VOWs - other things they can and cannot do
- VOWs - technology requirements
- Enforcement/additional options for MLS
- Regulating affiliated VOW partners
- Fees/costs from MLS to brokers, salespeople, and AVPs
Overview
The policy provides that brokers participating in MLS and their affiliated salespeople can display nearly anything on qualifying web sites that a broker in a "traditional" relationship could disclose to a consumer via any other means, including orally. (Because the policy treats brokers and salespeople as having largely the same rights and responsibilities, and it refers to them as "Participants," this outline will use the term "Participant" to refer both to brokers and their salespeople, unless the context indicates otherwise. More discussion on this issue is available here.)
The listing broker cannot prevent display of its listings on Participants' VOWs, but sellers can opt to have their listings withheld from ALL Internet display, in which case they are not available for display via the VOW. Generally, an MLS cannot regulate display or prohibit display of the data of brokers on VOWs. There are two important exceptions: (1) MLS regulations that pertain to all uses of MLS data (whether traditional or web-based); and (2) certain limitations expressly identified in the policy that MLSs may impose on VOWs without regulating other data uses.
Any Participant claiming rights under the policy to operate a VOW must satisfy the definition of a VOW and meet numerous requirements regarding establishing a relationship with consumers visiting the site and displaying other broker's listings. (Salespeople can have VOWs if they have broker permission and supervision.) MLSs may impose further regulations that are expressly identified in the policy.
Participants are entitled to work with third parties called Affiliated VOW Partners (AVPs), who need not be MLS participants, to build and deliver their VOWs. A Participant is generally entitled to have an AVP do on its behalf anything the Participant could do for itself. MLSs have a limited ability to regulate AVPs.
Generally, MLSs can recover their costs for supporting VOWs, but there are limitations on fees MLS can charge to Participants and to AVPs.
Definitions
The Policy defines VOWs, and it defines "Affiliated VOW Partner" (or "AVP") which is a third party that provides technology, hosting, and possibly marketing services to the Participant operating a VOW. Note: Because the policy treats brokers and salespeople as having largely the same rights and responsibilities, and it refers to them as "Participants," this outline will use the term "Participant" to refer both to brokers and their salespeople, unless the context indicates otherwise.
Confidential data: "Confidential data includes only that which Participants are prohibited from providing to customers orally and by all other delivery mechanisms," including data described in Section IV(1). (Policy III.2.) Sold listing data are "confidential and withheld from a download only if the actual sales prices of completed transactions are not accessible from public records." (Policy III.2.) MLS can define certain statuses and fields as confidential, but only if it imposes the same limitations on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.; IV.1.a.)
Downloading: The policy defines "downloading" as "electronic transmission of data from MLS servers to a Participant's or AVP's server on a persistent basis." (Policy III.2.) The policy contrasts persistent and "transient" downloads. (Policy III.2.)
Deceptive or misleading: With regard to branding and co-branding, the policy does not define what is deceptive or misleading; nor does it define what is not deceptive or misleading. It describes a "safe harbor" -- characteristics of co-branding that is presumptively not deceptive or misleading: "the Participant's logo and contact information (or that of at least one Participant, in the case of a VOW established and operated by or for more than one Participant) is displayed in immediate conjunction with that of every other party, and the logo and contact information of all Participants displayed on the VOW is as large as the logo of the AVP and larger than that of any third party." (Policy III.7.)
Qualifying as a VOW
To qualify as a VOW, a Participant's site probably must satisfy the VOW definition, and it must meet the requirements set out in Policy Section II.2. through II.6. MLSs may impose certain additional requirements (see topical outline below).
A brokerage office may display on its VOW only listings of MLSs in which the office participates. (Policy I.2.)
A site that provides other functions, like IDX, other types of data, and other services, can still function as a VOW. (Policy I.3.) In other words, the Participant can offer an IDX site and provide the additional VOW functionality as an incentive for the consumer to enter a brokerage relationship. MLSs cannot regulate other services offered on the VOW. (Policy III.8.)
Rights of brokers participating in MLSs
General Rights
Brokers are permitted to use VOWs, subject to the policy. (Policy II.1.; Policy III.1.) MLS may not adopt rules that conflict with the policy or that impose further restrictions on VOWs than are expressly permitted in the policy. (Policy I.5.) Participants may offer other services on the VOW, and MLSs may not restrict or regulate them. (Policy III.8.) Participants' rights to operate VOWs are subject to state law. (Policy III.1.)
Participants are entitled to obtain upon request a "basic" download from MLS of all non-confidential listing data. (Policy III.2.) MLS may exclude from the download the listings and listing addresses of sellers who have elected to withhold them from the Internet. (Policy III.4.)
A broker determines whether its salespeople are permitted to have VOWs. If the broker consents, salespeople are entitled to have VOWs (subject to broker supervision). (Policy I.1.b.) Each Participant is permitted to have multiple VOWs, whether the broker/salesperson operates the VOWs itself or with an AVP (see below). (Policy II.7.)
Working with affiliated VOW partners
Participants are permitted to use non-participants, called Affiliated VOW Partners, to deliver the brokers' VOWs; AVPs are subject to the broker's supervision and accountability. (Policy I.1.a.; Policy III.1.) “[S]everal Participants may designate an AVP to operate a single VOW for them collectively.” (Policy III.10.h.) MLSs may not “limit the number of entities that Participants may designate as AVPs for purposes of operating VOWs.” (Policy III.10.h.)
MLSs may not “prohibit Participants from designating particular entities as AVPs except that, if an AVP's access has been suspended or terminated by an MLS, that MLS may prevent an entity from being designated an AVP by another Participant during the period of the AVP's suspension or termination.” (Policy III.10.h)
“An MLS may require Participants and AVPs to execute license or similar agreements sufficient to ensure that Participants and AVPs understand and agree that data provided by the MLS may be used only to establish and operate a VOW on behalf of the Participant and not for any other purpose.” (Policy III.10.g.)
Limits on MLS power to regulate
"Except as provided in generally applicable rules or policies (such as the REALTOR® Code of Ethics), an MLS may not restrict the format of data display on a VOW or regulate the appearance of VOWs." (Policy III.9.)
"An MLS may not prohibit or regulate display of advertising or the identification of entities on VOWs ('branding' or 'co-branding'), except to prohibit deceptive or misleading advertising or co-branding." (Policy III.7.)
"An MLS may not prohibit, restrict, or impede a Participant from referring Registrants to any person or from obtaining a fee for such referral." (Policy III.11.)
Listing broker rights
Listing brokers do not need to consent to their listings appearing on other Participants' VOWs. (Policy I.4.) Sellers may have some say, however. (See below.)
Listing brokers and salespeople can demand that VOW-operating Participants correct errors appearing on the sites of VOW-operating Participants; the displaying Participant must provide a means to receive these comments. (Policy II.5.d.) The displaying Participant must make the correction provided the listing broker has explained the need for it, and provided the "error" does not merely reflect "good faith opinion, advice, or professional judgment." (Policy II.5.d.)
Each broker has the right to view the VOWs of other Participants for purposes of determining whether they comply with MLS rules; and VOW-operating Participants must make them available for this purpose. (Policy II.6.)
Multi-office firm issues
Brokerage firms with multiple offices may have to operate different VOWs for groups of offices depending on which MLS(s) the offices participate in; the right to display an MLS's listings on a VOW is limited to offices that have participatory rights. (Policy I.2.) The firm can offer a "drill down" or "master site" for the firm that drills down to offices displaying listings only from those MLSs in which they participate. (Policy I.2.)
Rights of Salespersons Affiliated with Brokers Participating in MLS
A broker determines whether its salespeople are permitted to have VOWs. But if the broker consents, salespeople are entitled to have VOWs (subject to broker supervision). (Policy I.1.b.) With the exception of being subject to their principal brokers' consent and supervision, salesperson VOWs are entirely equivalent under the policy with broker VOWs. (Policy I.1.c.)
Note: Because the policy treats brokers and salespeople as having largely the same rights and responsibilities, and it refers to them as "Participants," this outline uses the term "Participant" to refer both to brokers and their salespeople, unless the context indicates otherwise.
Rights of sellers
A seller may decline to have her listing appear on the Internet, or decline to have the address displayed on the Internet, via the MLS; if she does so, Participants may not display her listing on their VOWs. (Policy II.5.a.) If the seller makes an election to withhold her address or listing from the Internet, the listing broker must obtain a form executed by the seller indicating that and retain the form for at least one year after the date the form is signed. (Policy II.5.b.) The listing broker must inform the MLS if the seller has elected not to have her listing or its address displayed on the Internet. (Policy II.5.a.)
If the seller elects to withhold the address or listing from the Internet, a Participant operating a VOW may still disclose it to a visitor to the Participant's VOW via a means other than the VOW itself; available means include "email, fax, or otherwise." (Policy II.5.a.)
The seller may elect to prohibit automated valuations and consumer comments, or a hyperlink to such material, appearing immediately next to her listing; if she does so, the VOWs of Participants must honor her request. (Policy II.5.c.) If the seller makes one or both of these elections, the listing broker must communicate the elections to the MLS. (Policy II.5.c.) This does not prevent the Participant operating a VOW from communicating its own professional judgment concerning the listing of another broker; nor does it prevent the displaying Participant from saying that these features have been disabled "at the request of the seller." (Policy II.5.c.)
VOW/consumer relations
General
In order to show consumers listings on its VOW, a Participant must first establish a lawful broker/consumer relationship with the consumer, including meeting all requirements under state law for establishing such relationships. (Policy II.1.) These consumers are called "Registrants." (Policy II.1.) A Participant's VOW must obtain the identity of each Registrant and obtain each Registrant's agreement to the Terms of Use of the VOW. (Policy II.2.)
NOTE: State laws vary widely regarding what is required to establish a broker/consumer relationship and what the consequences of such a relationship are. For example, in one state, no particular agreement or documentation is required to form a broker/consumer relationship, and the relationship established is a non-agency relationship. In another, state law assumes that the broker is an agent (or "representative") of the consumer and that their relationship must be documented in a representation agreement. The registration process for VOWs in these two states could vary greatly.
A VOW must provide a means for a Registrant to communicate with the VOW-operating Participant about properties on the site; the Participant must be prepared to respond "knowledgeably... about properties within the market area served by" the Participant. (Policy II.3.) The policy is silent about how the "market area" of the displaying Participant should be defined.
Every VOW must display a privacy policy that informs Registrants of the ways in which information obtained from them will be used." (Policy II.5.g) MLS may not adopt rules that conflict with the policy or that impose further restrictions on VOWs than are expressly permitted in the policy. (Policy I.5.)
Registration requirement/forming a brokerage relationship
The Participant must obtain each Registrant's name and email address; and the Participant must confirm the address using a "closed-loop" registration. (Policy II.2.a.; As of Nov. 6, 2008, a decent article explaining closed-loop registration appears on Wikipedia. Such articles are subject to change; readers are advised not to rely on what they read on Wikipedia.)
"An agreement entered into at any time between the Participant and Registrant imposing a financial obligation on the Registrant or creating representation of the Registrant by the Participant must be established separately from the Terms of Use, must be prominently labeled as such, and may not be accepted solely by mouse click." (Policy II.2.d.) Note that whether such an agreement is required on the VOW depends on state law.
The Registrant must acknowledge in the terms of use that she has entered into a lawful consumer-broker relationship with the Participant. (Policy II.2.c.).
Terms of use
The Registrant must affirmatively agree to terms of use on the site. (Policy II.2.c.) The policy requires that the Registrant must actually view the terms of use, but may then accept them with a "mouse-click." (Policy II.2.c.) The terms of use "may not impose a financial obligation on the Registrant or create any representation agreement between the Registrant and the Participant." (Policy II.2.c.)
The terms of use must include at least the following covenants of the Registrant (Policy II.2.c.):
- The Registrant acknowledges entering into a lawful consumer-broker relationship with the Participant (if that relationship requires establishment of representation by the broker, it cannot be created by the terms of use itself).
- Data obtained from the VOW is "for the Registrant's personal, non-commercial use."
- "Registrant has a bona fide interest in the purchase, sale, or lease of real estate of the type being offered through the VOW."
- "Registrant will not copy, redistribute, or retransmit any of the data or information provided, except in connection with the Registrant’s consideration of the purchase or sale of an individual property."
- "Registrant acknowledges the MLS's ownership of, and the validity of the MLS's copyright in, the MLS database."
The MLS and other brokers and salespeople in MLS are entitled, under the terms of use, "to access the VOW for the purposes of verifying compliance with MLS rules and monitoring display of Participants' listings by the VOW. This constitutes an exception to the provision (noted above) that Registrant's access is for person, non-commercial use. (Policy II.2.c.; Policy II.6.)
Registrant passwords
Each Registrant must have a unique ID/password combination; we presume this really means a unique ID, as allowing multiple visitors to have the same ID could be technologically rather complicated. (Policy II.2.b.) A Registrant's email address can be associated with only one ID/password. (Policy II.2.b.) The VOW site may allow the Registrant to select her own ID/password, or the VOW may assign them. (Policy II.2.b.)
Passwords must expire by a "date certain," but they may be renewed. (Policy II.2.b.) By default, the policy does not specify how far into the future the password may expire. MLS may impose a maximum time before passwords expire and must be renewed, but it may not be less than 90 days. (Policy IV.2.b.) It is unspecified how renewal may be accomplished.
Record-keeping
"The Participant must at all times maintain a record of the name and email address supplied by the Registrant, and the username and current password of each Registrant. Such records must be kept for not less than 180 days after the expiration of the validity of the Registrant's password." (Policy II.2.b.)
The MLS may demand documentation about Registrants on a broker's VOW under certain circumstances, if the MLS has reason to believe that a Participant's VOW has caused or permitted a breach in the security of the data or a violation of MLS rules. (Policy II.2.b.)
Other services and functions
A site that provides other functions, like IDX, other types of data, and other services, can still function as a VOW. (Policy I.3.) In other words, the broker can offer an IDX site and provide the additional VOW functionality as an incentive for the consumer to enter a brokerage relationship. Brokers may offer other services on the VOW, and MLSs may not restrict or regulate them. (Policy III.8.)
MLSs may not prevent Participants from displaying listings from other sources (other MLSs, FSBOs, etc.) on their VOWs. (Policy IV.3.) The MLS may require that "Participants displaying other brokers' listings obtained from other sources, e.g., other MLSs, non-participating brokers, etc. ... display the source from which each such listing was obtained." (Policy IV.2.a.) MLS may require that if a Participant displays listings from sources other than the MLS on the Participant’s VOW, the VOW must provide for the listings from MLS to be searched separately from listings from other sources. (Policy IV.3.) If the MLS does not impose that limitation, it may still require that the sources of such other listings be identified. (Policy IV.3.)
VOWs displaying other broker's listings - requirements
General
MLS may not adopt rules that conflict with the policy or that impose further restrictions on VOWs than are expressly permitted in the policy. (Policy I.5.)
MLSs may not prevent Participants from displaying listings from other sources (other MLSs, FSBOs, etc.) on their VOWs. (Policy IV.3.) The MLS may require that "Participants displaying other brokers' listings obtained from other sources, e.g., other MLSs, non-participating brokers, etc. ... display the source from which each such listing was obtained." (Policy IV.2.a.) MLS may require that if a Participant displays listings from sources other than the MLS on the Participant’s VOW, the VOW must provide for the listings from MLS to be searched separately from listings from other sources. (Policy IV.3.) If the MLS does not impose that limitation, it may still require that the sources of such other listings be identified. (Policy IV.3.)
Limits on displaying other brokers' listings
The Participant must update "MLS data available on the VOW not less frequently than every 3 days." (Policy II.5.e.)
"A VOW may exclude listings from display based only on objective criteria, including, but not limited to, factors such as geography, list price, type of property, cooperative compensation offered by listing broker, or whether the listing broker is a REALTOR®." (Policy II.5.h.)
MLS can define certain statuses and fields as confidential, but only if it imposes the same limitations on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.; IV.1.a.)
MLS may impose a requirement that the VOW not modify data provided by other brokers, but only if it imposes the same limitations on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.; IV.1.b.)
MLS may impose a requirement that the VOW display a disclosure that disclaims any warranty of accuracy of the MLS data, but only if it imposes the same requirement on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.; IV.1.c.)
MLS may require that the listing broker (Policy IV.1.d.), or listing agent (Policy IV.1.f.), or both, be identified on displays of other brokers' listings, but only if it imposes the same requirement on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.)
MLS may limit the "number of current or ... sold listings that Registrants may view, retrieve, or download on or from a VOW in response to an inquiry ... to a reasonable number," provided (a) the maximum defined by the MLS may not be "fewer than 100 listings or 5% of the listings in the MLS, whichever is less;" and (b) MLS must impose the same requirement on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.e.)
A seller may decline to have her listing appear on the Internet, or decline to have the address displayed on the Internet, via the MLS; if she does so, Participants cannot display her listing on their VOWs. (Policy II.5.a.) If the seller elects to withhold the address or listing from the Internet, a Participant operating a VOW may distill disclose it to a visitor to the Participant's VOW via a means other than the VOW itself; available means include "email, fax, or otherwise." (Policy II.5.a.)
The seller may elect to prohibit automated valuations and consumer comments, or a hyperlink to such material, appearing immediately next to her listing; if she does so, the VOWs of Participants must honor her request. (Policy II.5.c.) If the seller makes one or both of these elections, the listing broker must communicate the elections to the MLS. (Policy II.5.c.) This does not prevent the Participant operating a VOW from communicating its own professional judgment concerning the listing of another broker; nor does it prevent the displaying Participant from saying that these features have been disabled "at the request of the seller." (Policy II.5.c.)
Listing Participants can demand that VOW-operating Participants correct errors appearing on the sites of VOW-operating Participants; the displaying Participant must provide a means to receive these comments. (Policy II.5.d.) The displaying Participant must make the correction provided the listing broker has explained the need for it, and provided the "error" does not merely reflect "good faith opinion, advice, or professional judgment." (Policy II.5.d.)
VOW-operating participant's activities
A VOW must provide a means for a Registrant to communicate with the VOW-operating Participant about properties on the site; the Participant must be prepared to respond "knowledgeably... about properties within the market area served by" the Participant. (Policy II.3.) The policy is silent about how the "market area" of the displaying Participant should be defined.
"An MLS may not prohibit or regulate display of advertising or the identification of entities on VOWs ('branding' or 'co-branding'), except to prohibit deceptive or misleading advertising or co-branding." (Policy III.7.)
Operational issues
A Participant must notify MLS of its "intention to establish a VOW"; there is no indication of exactly when this notification must occur. (Policy II.6.)
A Participant operating a VOW must make it available to MLS and to other Participants to permit them to verify that the VOW complies with MLS rules. (Policy II.6.)
VOWs - other things they can and cannot do
Use of MLS data
No one may distribute any portion of the MLS database or provide or make it accessible to any person or entity, except as permitted in the policy. (Policy II.5.f.)
"A VOW may exclude listings from display based only on objective criteria, including, but not limited to, factors such as geography, list price, type of property, cooperative compensation offered by listing broker, or whether the listing broker is a REALTOR®." (Policy II.5.h.)
MLS may impose a requirement that the VOW not modify data provided by other brokers, but only if it imposes the same limitations on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.; IV.1.b.)
VOW functions
A site that provides other functions, like IDX, other types of data, and other services, can still function as a VOW. (Policy I.3.) In other words, the Participant can offer an IDX site and provide the additional VOW functionality as an incentive for the consumer to enter a brokerage relationship. Participants may offer other services on the VOW, and MLSs may not restrict or regulate them. (Policy III.8.)
MLSs may not prevent Participants from displaying listings from other sources (other MLSs, FSBOs, etc.) on their VOWs. (Policy IV.3.) The MLS may require that "Participants displaying other brokers' listings obtained from other sources, e.g., other MLSs, non-participating brokers, etc. ... display the source from which each such listing was obtained." (Policy IV.2.a.) MLS may require that if a Participant displays listings from sources other than the MLS on the Participant’s VOW, the VOW must provide for the listings from MLS to be searched separately from listings from other sources. (Policy IV.3.) If the MLS does not impose that limitation, it may still require that the sources of such other listings be identified. (Policy IV.3.)
Limits on MLS regulation
"An MLS may not prohibit, restrict, or impede a Participant from referring Registrants to any person or from obtaining a fee for such referral." (Policy III.11.)
MLS may not adopt rules that conflict with the policy or that impose further restrictions on VOWs than are expressly permitted in the policy. (Policy I.5.) "Except as provided in generally applicable rules or policies (such as the REALTOR® Code of Ethics), an MLS may not restrict the format of data display on a VOW or regulate the appearance of VOWs." (Policy III.9.)
VOWs - technology requirements
"A Participant's VOW must protect the MLS data from misappropriation by employing reasonable efforts to monitor for and prevent 'scraping' or other unauthorized accessing, reproduction, or use of the MLS database." (Policy II.4.)
The Participant must update "MLS data available on the VOW not less frequently than every 3 days." (Policy II.5.e.)
No one may distribute any portion of the MLS database or provide or make it accessible to any person or entity, except as permitted in the policy. (Policy II.5.f.)
A Participant must notify MLS of its "intention to establish a VOW"; there is no indication of exactly when this notification must occur. (Policy II.6.)
A Participant operating a VOW must make it available to MLS and to other Participants to permit them to verify that the VOW complies with MLS rules. (Policy II.6.)
Enforcement/additional options for MLS
Enforcement provisions
A Participant must notify MLS of its "intention to establish a VOW"; there is no indication of exactly when this notification must occur. (Policy II.6.)
A Participant operating a VOW must make it available to MLS and to other Participants to permit them to verify that the VOW complies with MLS rules. (Policy II.6.)
“An MLS may require Participants and AVPs to execute license or similar agreements sufficient to ensure that Participants and AVPs understand and agree that data provided by the MLS may be used only to establish and operate a VOW on behalf of the Participant and not for any other purpose.” (Policy III.10.g.)
The MLS may demand documentation about Registrants on a Participant's VOW under certain circumstances, if the MLS has reason to believe that a Participant's VOW has caused or permitted a breach in the security of the data or a violation of MLS rules. (Policy II.2.b.)
Optional rules MLS may implement
MLS can define certain statuses and fields as confidential, but only if it imposes the same limitations on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.; IV.1.a.)
MLS may impose a requirement that the VOW not modify data provided by other brokers, but only if it imposes the same limitations on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.; IV.1.b.)
MLS may impose a requirement that the VOW display a disclosure that disclaims any warranty of accuracy of the MLS data, but only if it imposes the same requirement on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.; IV.1.c.)
MLS may require that the listing broker (Policy IV.1.d.), or listing agent (Policy IV.1.f.), or both, be identified on displays of other brokers' listings, but only if it imposes the same requirement on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.)
MLS may limit the "number of current or ... sold listings that Registrants may view, retrieve, or download on or from a VOW in response to an inquiry ... to a reasonable number," provided (a) the maximum defined by the MLS may not b "fewer than 100 listings or 5% of the listings in the MLS, whichever is less;" and (b) MLS must impose the same requirement on Participants' use of MLS listing data in providing brokerage services via all other delivery mechanisms. (Policy IV.1.e.)
MLSs may not prevent Participants from displaying listings from other sources (other MLSs, FSBOs, etc.) on their VOWs. (Policy IV.3.) The MLS may require that "Participants displaying other brokers' listings obtained from other sources, e.g., other MLSs, non-participating brokers, etc. ... display the source from which each such listing was obtained." (Policy IV.2.a.) MLS may require that if a Participant displays listings from sources other than the MLS on the Participant’s VOW, the VOW must provide for the listings from MLS to be searched separately from listings from other sources. (Policy IV.3.) If the MLS does not impose that limitation, it may still require that the sources of such other listings be identified. (Policy IV.3.)
Data management matters
No one may distribute any portion of the MLS database or provide or make it accessible to any person or entity, except as permitted in the policy. (Policy II.5.f.)
Participants are entitled to obtain upon request a "basic" (persistent) download from MLS of all non-confidential listing data. (Policy III.2.) MLS may offer a "transient" download, in addition to the required persistent download. (Policy III.2.) MLS may exclude from VOW downloads the listings and listing addresses of sellers who have elected to withhold them from the Internet. (Policy III.4.)
An MLS may pass on to those Participants who will download listing information the reasonably estimated costs incurred by the MLS in adding or enhancing its "downloading" capacity to enable such Participants to operate VOWs. (Policy III.5.)
MLS may require Participants to "utilize appropriate security protection, such as firewalls, as long as such requirement does not impose security obligations greater than those employed concurrently by the MLS." (Policy III.6.)
MLS may require Participants to "maintain an audit trail of Registrants' activity on the VOW and make that information available to the MLS if the MLS has reason to believe that any VOW has caused or permitted a breach in the security of the data or a violation of applicable MLS rules." (Policy III.6.)
Other issues
MLS may not adopt rules that conflict with the policy or that impose further restrictions on VOWs than are expressly permitted in the policy. (Policy I.5.) "Except as provided in generally applicable rules or policies (such as the REALTOR® Code of Ethics), an MLS may not restrict the format of data display on a VOW or regulate the appearance of VOWs." (Policy III.9.)
The policy does not require MLSs to host their own consumer-facing web sites. (Policy III.3.)
Affiliated VOW Partners or AVPs (broker technology/ marketing partners)
General right to use AVPs
Participants are permitted to use non-participants, called Affiliated VOW Partners, to deliver the Participants' VOWs; AVPs are subject to the broker's supervision and accountability. (Policy I.1.a.) VOWs operated by AVPs are entirely equivalent under the policy to VOWs operated directly by brokers or agents. (Policy I.1.c.) Participants identify their AVPs in writing to the MLS. (Policy III.10.a.) AVPs’ rights to access listing data are founded on the Participants for whom they work; they may use the listing data only to operate VOWs on behalf of Participants. AVPs do not have participatory rights in MLS by virtue of being AVPs. (Policy III.10.)
MLS must make data available to a Participant’s AVP on the same terms it makes data available to Participants. (Policy III.10.) “An MLS may not place data security requirements or restrictions on use of MLS listing data by an AVP that are not also imposed on Participants.” (Policy III.10.c.) “An MLS must permit an AVP to download listing information in the same manner (e.g., via a RETS feed or via an FTP download), at the same times and with the same frequency that the MLS permits Participants to download listing information.” (Policy III.10.d.) “An MLS may not charge an AVP, or a Participant on whose behalf an AVP operates a VOW, more than a Participant that chooses to operate a VOW itself... except to the extent that the MLS incurs greater costs in providing listing data to the AVP than the MLS incurs in providing listing data to a Participant.” (Policy III.10.b.)
“An MLS may not refuse to deal directly with an AVP in order to resolve technical problems with the data feed;” though MLS may require the Participant to be involved directly under certain circumstances. (Policy III.10.e.)
“An MLS may not condition an AVP's access to a data feed on the financial terms on which the AVP provides the site for the Participant.” (Policy III.10.f.)
“An MLS may require Participants and AVPs to execute license or similar agreements sufficient to ensure that Participants and AVPs understand and agree that data provided by the MLS may be used only to establish and operate a VOW on behalf of the Participant and not for any other purpose.” (Policy III.10.g.)
"An MLS may not prohibit or regulate display of advertising or the identification of [AVPs] on VOWs ('branding' or 'co-branding'), except to prohibit deceptive or misleading advertising or co-branding." (Policy III.7.)
Number of VOWs/AVPs that brokers may have
Any AVP may operate VOWs on behalf of more than one Participant. (Policy III.10.h.) MLSs may not “limit the number of entities that Participants may designate as AVPs for purposes of operating VOWs.” (Policy III.10.h.) “[S]several Participants may designate an AVP to operate a single VOW for them collectively.” (Policy III.10.h.)
Each Participant is permitted to have multiple VOWs, whether the Participant operates the VOWs itself or with an AVP. (Policy II.7.)
Denying and terminating AVP access to MLS data
MLSs may not “prohibit Participants from designating particular entities as AVPs except that, if an AVP's access has been suspended or terminated by an MLS, that MLS may prevent an entity from being designated an AVP by another Participant during the period of the AVP's suspension or termination.” (Policy III.10.h)
MLSs may terminate AVP access immediately in rare circumstances: “(a) if the AVP is no longer designated to provide VOW services to any Participant, (b) if the Participant for whom the AVP operates a VOW ceases to maintain its status with the MLS, (c) if the AVP has downloaded data in a manner not authorized for Participants and that hinders the ability of Participants to download data, or (d) if the associated Participant or AVP has failed to make required payments to the MLS in accordance with the MLS's generally applicable payment policies and practices.” (Policy III.10.i)
Except for the immediate termination circumstances in the previous paragraph, “an MLS may not suspend or terminate an AVP's access to data (a) for reasons other than those that would allow an MLS to suspend or terminate a Participant's access to data, or (b) without giving the AVP and the associated Participant(s) prior notice and the process set forth in the applicable provisions of the MLS rules for suspension or termination of a Participant's access.” (Policy III.10.i)
Fees/costs from MLS to brokers, salespeople, and AVPs
Participants are entitled to obtain upon request a "basic" download from MLS of all non-confidential listing data, but MLS may "impose on users of such download the approximate additional costs incurred" by the MLS for providing the download. (Policy III.2.)
An MLS may pass on to those Participants who will download listing information the reasonably estimated costs incurred by the MLS in adding or enhancing its "downloading" capacity to enable such Participants to operate VOWs. (Policy III.5.)
“An MLS may not charge an AVP, or a Participant on whose behalf an AVP operates a VOW, more than a Participant that chooses to operate a VOW itself... except to the extent that the MLS incurs greater costs in providing listing data to the AVP than the MLS incurs in providing listing data to a Participant.” (Policy III.10.b.)
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