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140. See infra Chapter III.C. 141. Although this area reports a variety of statistics that purport to measure "market share," this Report makes no attempt to specify a pertinent antitrust market for this, or any other, analysis. 142. See, e. g., STEVE SAWYER, LOCAL PROPERTY MARKET COMPETITION: PROOFS AND INSIGHT FROM AN ANALYSIS OF 12 RESIDENT MARKETS 3 (2005 ), offered at http://www.

nsf/Pages/Sawyer05? OpenDocument (noting existence of "micro- markets" within urban locations. ihg timeshare For instance, within the Washington, DC urbane area, there is little or no competitors amongst purchasers, sellers, and realty representatives across the micro-markets of Montgomery County, MD, Fairfax County, VA, and southwest Washington, DC). 143. Yun, Tr. at 220. 144.

145. Lawrence Yun, Ph. D., Senior Financial Expert, National Association of Realtors, Discussion at the Federal Trade Commission & Department of Justice Public Workshop: Competitors Policy and the Property Industry, Real Estate Brokerage Market: Structure-Conduct-Performance, at 9 (Oct. 25, 2005) [hereinafter Yun Discussion], offered at http://www. ftc.gov/ opp/workshops/comprealestate/ yun. pdf. 146. Id.

Id. 148. NAR, Public Remark 208, at 7 (remark). 149. Id. 150. REALOGY, REALOGY ORGANIZATION INTRODUCTION 4 (Dec - how to become a real estate appraiser. 2006), available at http://library. corporate- ir. net/library/19/ 198/198414/items/ 223251/RealogyDecember06% 20Final. what percentage do real estate agents get. pdf. 151. NAR, Public Comment 208, at 6 (" In a few markets, some companies might have a bigger than normal market share, but market shares are known to change measurably from one year to the next.").

Re/Max Int' l, Inc. v. Realty One, Inc., 173 F. 3d 995, 1003 (sixth Cir. 1999). 153. Mid-America Realty Co. v. Iowa Realty Co., No. 4:04- CV-10175, 2004 WL 1280895, at * 8- * 9 & n. 5 (S.D. Iowa 2004), rev 'd on other premises, 406 F. 3d 969 (8th Cir. 2005). 154. Shiawee X. Yang & Abdullah Yavas, Larger is Not Better: Brokerage and Time on the Market, 10 J.

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23, 27-28 (1995 ). The authors utilized a sample of 388 house sales in fiscal year 1991 from the numerous listing service. Id. at 27. 155. James E. Larson & Won J. Park, Non-Uniform Portion Brokerage Commissions and Property Market Performance," 17 JOURNAL OF THE AMERICAN REAL ESTATE AND URBAN ECONOMICS ASSOCIATION 422, 428-29 (1989 ).

See id. at 427-28. 156. 1983 FTC PERSONNEL REPORT, supra note 9, at 102. As explained infra, nevertheless, this is not necessarily the case with regard to the entry of new company designs in the realty brokerage industry. See infra Chapter IV. 157. Perriello, Tr. at 146. See likewise Lewis, Tr.

"); Hsieh, Tr. at 235 (" there's relatively totally free entry into the profession and into the property brokerage business."). The ability of novice entrants to draw in clients relative to more experienced representatives was not gone over at the Workshop and, likewise, is not attended to in this Report. 158. Yun, Tr.

159. Yun Presentation, supra note 145, at 5, 7. 160. Daniels, Public Remark 92, at 1. 161. NAR, Public Remark 208, at 5 (" An agent can obtain a broker's license, normally after having actually stayed in business for numerous years, and passing a broker's license examination. The specific requirements vary by state.").

One author has described the service that brokers offer as not merely a finished match of purchaser and seller, however rather "a completed transaction at some level of service provided to the parties involved." Geoffrey K. Turnbull, Property Brokers, Nonprice Competition and the Housing Market, 24 REALTY ECONOMICS 293, 295 (1996 ).

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Id. The degree to which brokers supply these services "provides the margin for nonprice competition amongst brokers." Id. 164. As gone over in Chapter I of this Report, rebates are a meaningful part of cost competitors between brokers in states that do not restrict rebates. Anti-rebate laws are discussed in more detail in Chapter IV of this Report.

1983 FTC STAFF REPORT, supra note 9, at 64. See likewise id. at 55 (" [W] e found regional markets to regularly have commission modes at either six or seven percent. These are the 'typical' modes for practically all markets, no matter how they might differ from one another, and nationwide a really high portion of real estate brokerage transactions occurred at a commission rate of one or the other.

The degree of rate harmony we discovered clearly is inconsistent with a market characterized by the particular kind of energetic competitors typical in lots of other markets."). 166. See, e. g., Hsieh, Tr. at 261 (" [I] f you go back to the FTC report from more than twenty years back, things really have actually not altered that much."); Bourgoin, Public Remark 30 at 1 (" [T] he FTC did a research study which was finished and published in 1983.

PROPERTY RES. 187, 187 (2001) (" A variety of research studies have actually argued that the harmony of the commission rate throughout different properties and regions is an indicator of collusive behavior."); Richard J. Buttimer, Jr., A Contingent Claims Analysis of Real Estate Listing Agreements, 16 J. REAL ESTATE FIN. & ECON.

some collusion between brokers through Home page the [MLS] The primary evidence presented is the near-uniformity of commission rates in a given market. A typical argument is that the effort needed to sell a home is not a direct function of the prices which if there is not collusion among brokers, there ought to be, at the minimum, variation in commission rates throughout home price varieties within a given market.").

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See, e. g., American Bankers Association, Public Remark 10, at 1 (cover letter) (" [b] y any requirement, the property brokerage market is considerably less competitive than it should be and commissions are synthetically high."); White, supra note 47, at 2 (" [A] more competitive result would undoubtedly indicate that typical fees would be lower than they are today and that 'the 6% (or spg timeshare 7%) commission' would be unlikely to stay as the modal fee."); John C.

8, 2005) (noting "a fairly extensive view that brokerage is not a competitive industry" based a number of perceptions, including: (1) excessive commission rates that are "sticky down" even as innovation decreases brokers' expenses; (2) commission rates are higher in the United States than in many other industrialized nations; (3) lobbying efforts by NAR and state Realtor associations in favor of state laws limiting competitors; (4) NAR's successful lobbying of Congress to restrict banks from entering the realty brokerage organization; and (5) NAR-imposed constraints on discount and Web brokers' access to the MLS).

See, e. g., GAO REPORT, GAO-03-749, Airline Ticketing: Impact of Modifications in the Airline Ticket Circulation Industry (July 2003) (going over how Internet distribution lowered deal costs in the sale of airline company tickets), readily available at http://www. gao.gov/ brand-new - how to buy real estate with no money. items/d03749. pdf; GAO REPORT, GAO/GGD -00- 43, Online Trading: Better Financier Security Info Needed on Broker's Website (May 2000) (going over how Web brokerages charge far less commission per trade on securities), offered at http://www.

items/gg00043. pdf. 169. See Hahn, Tr. at 89; American Bankers Association, Public Comment 10, at 3. 170. American Bankers Association, Public Comment 10, at 3 (comment). 171. Id. at 1. 172. Id. at 4. A 2002 study analyzing commission rates in the United States and numerous other nations concluded that U.S.