Originally, I had intended this post to be about the DOJ's complaint against NAR and its impact on the future of the MLS. I'd seen plenty of commentary on the subject and thought it would be worth tackling. Then I read the complaint; to my mind, it's fairly narrow in focus and applies only to what seems like a remarkably short-sighted decision by NAR in regards to access to MLS data.

But that still leaves the wider topic of access to the MLS, the purpose of the MLS and my contention that the MLS creates, not stifles, a competitive environment. Brokers, no matter what the size of their company, are able to participate in the MLS by paying the membership dues. Companies with alternative business plans, including some sites that target unrepresented sellers, are able to participate simply by paying the dues.

Let's take one quick step back. At its heart, the Multiple Listing Service is an interbroker marketing tool that displays homes listed for sale by participating members. In some areas the brokers own the MLS but in most, including Phoenix, the MLS is owned by the local associations. The key to the entire system is the offer of cooperation, of compensation, between brokers. It is this offer of compensation which compels us as real estate professionals to participate.

And that is why an offer of compensation is compulsory, though not standardized - there have been $1 co-brokes offered in the Phoenix-area MLS in the past. These offers of compensation, just like commissions, are not regulated by anything more than market mechanics.

Some have pointed to the MLS as proof of real-estate companies' "monopoly" over listing data. It's nothing of the sort, no more than your local Checker Auto has a "monopoly" over spare automobile parts because they have access to a computer database listing parts available nationwide, no more than your local stock broker has a "monopoly" over bond rate data because they have an internal database tied into other bond houses.

It's only viewed as a "monopoly" by those who don't want to meet the requirements of participation - a real estate license and a willingness to pay the MLS membership fees. This crowd's argument is akin to someone selling their couch at a garage sale demanding their property be listed on the floor at the Roomstore.

If there were a dollar to be made in supporting such a position, I'm certain someone would do so. But there's not. But there is a dollar to be made in offering alternatives to the Multiple Listing Service ... and Dave Barry is reaching for it with both hands with his Open MLS initiative.

There are multiple sources for detailed information on the Open MLS so I won't repeat them all here (i will say Barry runs high and loose with his definition of "illegal" but rhetoric is rhetoric). But the basic premise is compelling sellers to list their homes on a nationwide listings database - a prettier craiglist, for the most part - which would be operated by a company receiving compensation for operating costs. (There is the dollar to be made.)

The ballot initiatives Barry has sponsored don't indicate the seller will be compelled to list their homes - the phrasing is that we evil real-estate agents can't hide these listings in MLSs with thousands and thousands of members, without mentioning the seller ultimately decides how and where a home is listed. But that wouldn't sell nearly as well. Neither would indicating the simpler solution, should he really believe requiring NAR membership is the issue - turn the MLS over to the brokers.

And what's glaring in its absence in the Open MLS is the offer of compensation between cooperating brokers.

Which isn't an issue, so long as the buyers are paying their buyers' agents out of pocket.

Which isn't an issue, so long as the buyers can afford to pay for said representation, no matter what the cost - flat fee, percentage of sales price, ArchCard dollars, whatever.

Of course, many buyers struggle to come up with the closing costs and down payment needed to purchase a home, much less pay for professional representation. So with an Open MLS, where the buyers are paying their agents directly, it won't be unusual to see buyers going without representation as they purchase a home.

And there's nothing wrong with thousands of unrepresented buyers running around, right? While marginally better than in the days pre-Ralph Nader, when buyers assumed they were represented only to learn they were not, we would in essence be dropping back to the pre-buyer agency, pre-Nader period again.

One step allegedly forward, three steps unquestionably back.

Looping back to DOJ v. NAR, there has been much hand-wringing about what would happen should the Justice Department step in a force NAR to relinquish control of the MLS. I don't believe the world would end - broker-owned MLSs seem to operate just fine in other areas.

For all the rhetoric about the public at large being harmed because of the exclusion of non-member listed homes not being included in the MLS, the MLS benefits the public at large.

The MLS provides smaller companies a platform through which to advertise their properties; without the MLS, without such a public stage, it's more than likely many of these properties being listed with smaller brokers will fall through the cracks.

The MLS provides buyers a fairly comprehensive list of homes available on the market. Not all homes will be included - some will be sold by unrepresented sellers, others will be listed as "exclusives," generally by sellers looking to save a few dollars on commission by not offering compensation to cooperating agents. And while the Open MLS proponents will point to these as examples where the system fails, they fail to recognize that is the sellers themselves deciding the fate of their property through the choices the make.

The MLS provides sellers an opportunity to market their homes in front of thousands of agents and thousands of buyers who receive automated listings and search Realtor.com and other listings portals, exposure you can't get with a newspaper ad and a yard sign.

These are the facts that are overlooked in the Open MLS debate. But there's no need to let the facts stand in the way when there's a dollar to be made in the supposed name of the public good.