Everyone seems to know that it's not OK to talk about commissions. Fellow real estate agents can't have a discussion about what they charge. You can advertise what you charge and other non-agents can discuss and compare commissions that are charged but competing members in the same business can't discuss prices with each other.
But how about discussing fee structures? How about discussing things like charging an upfront retainer or charging processing fees in addition to commissions? Is it just illegal to discuss specific prices or is it also illegal to discuss more general pricing policies and strategies?
I've seen several featured posts over the past months where these general pricing policies and strategies have created discussions amongst fellow real estate agents. I'm always uneasy about joining in the discussion. I'm not an anti-trust lawyer so maybe I don't understand the nuances of some of the guidelines that the FTC has on their website.
On the FTC page on Guide to Antitrust Laws it states that:
Price fixing relates not only to prices, but also to other terms that affect prices to consumers, such as shipping fees, warranties, discount programs, or financing rates. Antitrust scrutiny may occur when competitors discuss the following topics:
- Present or future prices
- Pricing policies
- Terms or conditions of sale, including credit terms
- Identity of customers
- Allocation of customers or sales areas
- Production quotas
- R&D plans
So, what do they mean by "pricing policies"? Is that something like the policy of charging retainer fees? Is it something like discussing the policy of charging some kind of administration or processing fees? "Policy" seems to mean that a specific number isn't the key factor. It sounds like just the general idea is enough to cause problems.
What do they mean about discussing "costs"? Is it like when someone discusses specific details about how much it costs them to stay in business? What their splits are and how little they are left with?
What do they mean by "discounts"? Is this like when someone discusses whether they give a customer a discount if they buy and also sell a house with them?
Is it a problem when there are discussions about wanting to raise the requirements, i.e. cost and education, in order to become a real estate agent? I've seen discussions about doing this so that we can then all be able to demand higher compensation or demand upfront retainer fees. That kind of discussion doesn't sound like it is for bringing lower prices to the consumer, does it?
I'm no expert but words are words. Am I reading too much into these FTC Guidelines?
What if there was a discussion on a blog post about the joys of charging an upfront retainer fee? Let's say that 186,000 members of ActiveRain all see other agents chiming in and saying that they all are going to start trying this pricing strategy. No one says how much they will charge, but now the consumer can't find any agents who don't charge an upfront retainer fee. Do you see that as a problem? Would that be something that could trigger an Antitrust lawsuit?