CMLS Reviews New IDX Policy: Thoughts and Takeaways

I just got finished with the webex presentation put together by CMLS (Council of MLS), an altogether wonderful organization for those people who care about these arcane issues. I’m sure the recording and/or the transcript would be posted by CMLS soon enough. This is just a couple of first impression questions/thoughts.

There are three main takeaways for me from the call:

• The new IDX Policy represents the announcement of a new doctrine for treating listing data.
• The key need is to separate “transport” issues from “display” issues, and to restrict IDX Policy to the latter.
• The whole thing turns on the definition of “control”.

Based on what I’m hearing, I believe this policy will be one of the most important changes in quite some time. But I’m left rather dissatisfied because the central concept — “control” — is taken for granted by a lot of people. Leaving it undefined will result in having to revisit this issue time and again by each MLS over the next couple of years.

I also believe that vast numbers of NAR Directors who vote on the IDX Policy will likely be in breach of their fiduciary duty of care and subject to personal liability if a member should decide to sue. It points to a real weakness in the whole governance model at NAR, one that NAR should act to address quickly.

New Doctrine

The most important takeaway is that the new IDX Policy (read the text here) articulates a doctrinal shift by NAR. Bob Bemis, the CEO of ARMLS and a member of the Presidential Advisory Group (PAG) charged with dealing with the IDX issues, clearly stated that the PAG was attempting to address the overall issue of electronic data display, rather than create one-off rules for dealing with one issue after another.

Basically, the goal of the new IDX Policy is to govern the display of listings that you do not own, period. Everywhere, at all times, using whatever methodology or technology (see below for more on this). So instead of evolving from “IDX website” into something unwieldy like, “IDX website, native mobile app, Facebook Business Page, LinkedIn App”, the PAG’s recommendation is to simply govern all display of all “IDX listings” (i.e., listings that are not yours) everywhere.

So, the first paragraph reads as follows:

Associations of REALTORS® and their multiple listing services must enable MLS participants to display on participants’ public websites aggregated MLS listing information subject to the requirements of state law, regulation, and applicable MLS rules by electronic means. Electronic display subject to this policy includes display on participants’ public websites, display on social media sites used by participants, RSS subscription, and applications for mobile devices. All electronic display of IDX information conducted pursuant to this policy must comply with state law and regulations, and MLS rules.

The underlined parts are new additions.

By striking out the explicit reference to “public websites” and moving towards “electronic means”, the new IDX policy broadens both the jurisdiction of the policy as well as allowed uses. A broker wouldn’t have to go ask the MLS whether his new iPhone app is or is not subject to the IDX rules and regulations. If Google comes out with some direct-to-brain interface, a broker wouldn’t have to get a new policy enacted. If it’s electronic, it’s covered under the IDX Policy.

And the doctrine, basically, boils down to these points (as per Bob Bemis’s presentation):

• If you control it, you can post listings you don’t own to it.
• If you don’t control it, you can’t.
• If you can’t, then use syndication.

So a broker’s own public site is clearly something he controls, whereas Overstock.com is not. A broker can post listings he doesn’t own to his public site, but not to Overstock.com. He can post his own listings to Overstock.com via syndication.

There are lots of details, and lots of unresolved issues, but generally, this is a far-reaching statement of principles. It also neatly solves the Franchisor IDX problem as well as the “social media” IDX problem. (I put that in quotes, because social media is undefined and perhaps undefinable.)

Separating Transport and Display

Quite a few times during the call — and I admit I was one of the participants — there were conversations going on via Twitter that made it clear that most of the CMLS people support separating “transport” issues from “display” issues. A great example is the consideration of RSS (Really Simple Syndication) technology for IDX.

Matt Cohen of Clareity Consulting, Jim Harrison of MLSListings, and Greg Manship of Intermountain MLS more or less put the nail in the RSS coffin, since the nature of RSS is loss of control. But that led to a technical debate about RSS vs. email vs. HTML vs. whatever else. The whole notion, however, of the new IDX Policy is to announce the rules as they pertain to display of IDX listing data (remember, IDX listing = listing that isn’t yours). The upshot is that numerous people — including people like Ira Luntz of LPS Real Estate Group — believe that IDX Policy should divorce itself from anything to do with data transport.

In brief, “transport” means the technique or technology for getting data from one place to another. Burning a DVD full of listings and mailing it to Zillow would be “transport”. RETS can be transport. RSS can be transport. So is HTML, TCP/IP, RSS, or any technological method for getting data from one place to another. In contrast, “display” concerns itself entirely and exclusively to how data is shown to the world.

The suggestion is to eliminate all wrangling over how data gets from one place to another in the IDX Policy, and have it be concerned only with how data might be shown on the web, on mobile devices, on blogs, on social networks, or on any future technology. As long as the display complies with the IDX Policy, NAR/MLS wouldn’t care how that data got to there from here.

This seems like an obvious and overdue move for NAR. As a policy matter, NAR shouldn’t care whether data is sent back and forth via XML, RSS, FTP, Morse Code or smoke signals.  It should care only in that the rules on display — e.g., co-branding, advertising restrictions, third party comments, etc. — are followed.

But how do you ensure that those rules are followed?

That Control Thing…

I already wrote an overlong post [Ed: Is there another kind that you write?] on the control provision in the new IDX Policy. I was hoping to get a more grounded discussion of what “control” might mean, at least to MLS executives and data practitioners on today’s webex. We touched on it, but didn’t really get to delve into details about it.

I’ll take the luxury of quoting myself:

Is there any sort of a timing consideration? Broker requests that the IDX information be refreshed, and the “other website” takes six months to refresh it. In theory, the participant has “control” since he can direct the other website to do XYZ or stop doing XYZ… but in reality, the six month gap between making the request and having it realized is problematic. So assuming that there has to be some sort of a reasonable relationship between the request being made and the request being fulfilled… what is that relationship? Within the month? Within the week? Within the day?

Is it control if the participant has to make the request to changes in the IDX display via notarized letter in triplicate? Or does “control” mean that the participant has to have some sort of an administrative panel within the application/website?

Is it control if the participant simply delegates all of his oversight responsibility to a third party, since the participant could withdraw that grant of authority at any time?

None of those questions were answered, or even discussed. But this concept of “control” is absolutely critical for the new doctrine of governing display, by whatever means, is to be implemented.

It would be far too easy for a push-the-envelope kind of a broker or developer to claim that the broker has control because he can submit changes to IDX displays by showing up in person to the company HQ in Tibet, filling out a form in triplicate, and then waiting six months for the changes to take place. No reasonable interpretation of “control” would consider such a mechanism to be control by the participant.

Far more likely is the last scenario: wholesale outsourcing. A broker can grant some Third Party Aggregator (let’s say, for the sake of discussion, a national franchise) total power of attorney as far as IDX listing marketing and display are concerned, but claim to have control since that power of attorney could be withdrawn at any time. It isn’t clear to me whether that sort of passive “control” is enough to meet the concept being used by the PAG in proposing the new principles.

Any reasonable definition of control must include the following:

• The ability to cancel the arrangement at will
• The ability to have changes implemented in a timely fashion (no more than a couple of days from start to finish)
• The ability to direct that the user interface of whatever-it-is be changed to comply with local MLS rules
• The requirement of active management (however this is defined) by the broker participant
• The ability to have the system/vendor/third party purge IDX data from its servers/storage/whatever

I’m probably leaving a few things out too. But this is a key discussion that needs to be had, and soon, before or during the NAR Convention. And any approval of the IDX Policy as it is written today has to be conditioned upon further work being done to define “control” to the satisfaction of the majority of NAR Directors.

Speaking of NAR Directors…

In my earlier post, I wondered aloud what percentage of NAR Directors have studied up on this issue. After sitting through that webex, I think I can say with reasonable confidence that huge numbers of NAR Directors will be in breach of their fiduciary duty of care no matter how they vote. Because many of them won’t even have read the actual policy recommendations and thought about what the changes mean for NAR and its members. The issues are complex, can be highly technical, and can be tied up with legal issues for the MLS, for NAR, and for the participant brokers of the MLS.

It might be a good idea governance-wise to allow these technical policies to be set by a smaller group approved by the NAR Directors, whose members would have the requisite knowledge and expertise, and not require a full Board vote. With nonprofit membership organizations, oftentimes, the member has standing to sue. With a million members, I rather think it unwise for NAR to have its Directors vote on things they haven’t even read, much less truly debated.

If you are a NAR Director, I urge you to go read the report of the PAG as well as the new IDX Policy language. Think about what those things mean for NAR, before you cast a vote Yea or Nay.

See You Next Week

With such unresolved questions, NAR Anaheim promises to be interesting. I’ll see many of you there. But feel free to leave comments or questions on any of the above, but especially on what your idea of “control” is. I’d love to hear your thoughts on that key issue.