The MLS Is Not a Public Utility. That's the Problem.

The MLS doesn’t get to choose whether it serves the public — only whether it serves it well, or gets replaced. A rejoinder to Industry Relations — and the setup for a proposal.

What a week.

I’ve found myself saying that a lot lately.

A couple days ago, I was on Industry Relations with Rob Hahn and Greg Robertson. It was another one of those ‘pinch myself’ moments as I’ve been an avid listener to the show for years, but never dreamed they’d bring me in as a guest.

I came on armed simply with the thoughts I woke up with that morning. Having asked Rob and Greg for any topics or questions to prepare for, Rob jokingly replied about an hour before the show, “Prepare? What’s that?”

And, to be fair, that’s the attitude that engenders the most lively and raw discussions in the pursuit of truth — which is what I genuinely believe all three of us are aiming for.

It also leads to moments like what you heard in the cold open to the pod: your boy, Nick, apparently advocating for the MLS to be a public utility. The quote was something to the effect of, “The MLS, like it or not . . . operates as a public utility, a public good.”

As soon as I said it, I simultaneously saw Rob flash his signature ‘I’ve got you now grin’ and poor Greg — my ally on the show! — let out a sigh of defeat, and I knew I’d done messed up.

So, this piece picks up on a thread which we danced around, but I don’t feel like I ever cleanly landed my thoughts on. There’s no spirit of needing to ‘clear the record’ behind this post. Rather, it was my own lack of clarity on the podcast that informed me I needed to wrestle more earnestly with MLS as a public utility. And blank pages just so happen to be the mats upon which my ideas get pinned down.

What the Phrase Was Pointing At

Let’s start with what I actually meant, stated carefully.

The MLS functions like a public good. Not by charter or design. Perhaps not even by intention. But practically speaking, it’s hard to deny that the public today benefits greatly from the MLS system. And I think that’s something every MLS stakeholder feels a degree of pride in.

It is the single source of truth for what’s for sale in America. Obviously, it benefits agents and brokerages. But beyond that, appraisers depend on it — which means every bank underwriting a mortgage depends on it, which means every ordinary family’s ability to borrow against an accurately valued home depends on it. Assessors lean on it. Market analysts, economists, journalists, and policy-makers look to it as the authority on residential housing data. And through IDX and syndication, the public leans on it directly to know what’s for sale, how long it’s been sitting, what the price history looks like, what comparable homes sold for, and more.

Most of those modern dependencies weren’t part of the original plan. After all, the MLS was built as a broker-to-broker cooperative — a members-only tool for professionals to share inventory and cooperate on sales. But, even if that was the original intent, it’s not hard to see the inevitability of a data-set so comprehensive and valuable taking on more public facing roles.

As such, with the advent of the internet and subsequent changes in consumer behavior, the MLS bolted on a public facing layer by syndicating its data onto the internet. At the time, it was simply the easy thing to do, even if not a fully principled decision. Now, some twenty-five years later, the bolt-on is now fully fused into what the MLS is — as evidenced by the enormous amount of American economic life daily running through a database fundamentally built by brokers for brokers.

That was my essential claim, and I’ll defend it all day: the MLS functions like critical public infrastructure.

Here’s what I am not claiming, and where the podcast conversation got a little topsy-turvy: functioning like a public utility is not an argument for becoming one.

The first is an observation about how the world currently works. The second is a policy proposal — government-regulated monopoly, mandated access, rate-setting, and all the rest. To be certain: I am not advocating for the latter.

But the interesting question — the one we circled, but I never felt like we landed— is what follows if you grant the first claim (that the MLS functions like critical public infrastructure) but you don’t want the second claim (for the MLS to become a public utility).

That’s the tension I think a lot of us are feeling.

We’ve Been Here Before

We’re not the first ones to wrestle with this issue. The question of whether the MLS should be a public utility has been asked many times before — and in far more significant venues than lobby bars and podcast studios.

In 2006, the House held a hearing on competition in real estate brokerage. The Consumer Federation of America’s Stephen Brobeck (in)famously testified that the industry functioned as a “cartel” and that state regulators had been captured by the brokers they regulate. His position was that Congress should hand the DOJ and FTC stronger mandates to police the market, starting by taking a hard look at MLSs. At one point, the subcommittee chairman put the exact question to the federal witnesses: Do you consider the MLS a public utility?

The FTC’s answer: No — it’s “an association among private competitors.”

The DOJ agreed, calling it “a joint venture among competitors.”

So the official federal answer to the question I fumbled on the podcast has been on the books for twenty years: The MLS is not a public utility. It’s a private joint venture — which, notably, is why it’s subject to the antitrust laws rather than a utilities commission.

In the two decades since, very few have seriously tried to revive the utility proposal. In part because nobody has ever satisfyingly answered the execution questions — the same ones I raised in April. Who manages it? How is it funded? Who standardizes the data? What does enforcement look like? What about FSBO access?

The principles may hold on paper. But paper cannot hold the weight of real-world implementation.

So, the serious proposals for the MLS to become a public utility have been dead and buried for a long time. I’m not really interested in being the guy to dig them up for reexamination.

But I do think it’s worth pointing out that on July 1, 2026, the Consumer Federation of America — joined by a coalition of housing, consumer, and civil rights organizations — urged the DOJ and FTC to investigate Compass’s agreements with MRED, Bright MLS, Realtracs, and The MLS/CLAW, arguing the deals are built to expand off-MLS private listing networks that reduce transparency and threaten fair housing.

It’s hardly coincidental the same organization that stood before Congress twenty years ago, called this industry a cartel, and demanded stronger federal enforcement — is engaging on this front, too.

At the very least, it’s a reminder that the true MLS-as-utility advocates never disappeared. And the industry’s current behavior is riling them up.

The Question Underneath the Question

Which brings me to the claim I couldn’t get out cleanly on the podcast. And this is the one that matters because everything else follows from it:

The MLS’s public-good function is not optional.

American consumers have decided — decisively and, dare I say, irreversibly — that they want broad, timely, reliable access to the core facts of the housing market. Again, we’re talking simple things: What’s for sale. How long it’s been available. What the pricing history looks like. But consumer demand for this data undeniably exists. It’s enormous. So big in fact, that this consumer demand will be served.

The real question is who will serve it.

There are three candidates.

The cooperative — the MLS itself, which serves the function today — even if only by accident — through IDX and syndication.

The government — the utility outcome, dormant for twenty years, now gaining some new attention.

And private platforms — portals, brokerages, and/or aggregators, ruled by customer demand and perfectly happy to build direct relationships with consumers if the MLS concedes the space.

Rob has mapped versions of these outcomes himself. In Not Broken, Just Bent, he laid out paths for where the MLS ends up. But, at least by my read, he treats the destination as a choice the industry gets to deliberate over. I don’t think that’s the case. Instead, I think the destination gets decided — mechanically, almost automatically — by the industry’s own behavior. For MLSs, every gated listing, every hidden field, and every retreat from their public-facing role is a vote for either government or private platform dominance.

In other words, the industry isn’t choosing its future as an agenda item during a strategy retreat. It’s being chosen for us, one withheld data point at a time.

Follow “MLS, Do Less” To the End of the Road

Now let me be blunt about where I think Rob’s prescription actually leads, because this is the heart of my disagreement with him — and I want to stress that I’m attempting to take his proposal at its strongest.

Rob’s position, compressed: the MLS should return to its B2B roots. Kill IDX. Get out of the marketing business entirely. Let brokers market their seller’s listings however the seller sees fit, and let the free market sort out what consumers see. The MLS needs to revert to doing the one thing it was built for — broker-to-broker cooperation on a shared database — and shed everything else.

I understand the appeal. It’s clean. It’s principled. And notice what it does to the war currently consuming this industry: every front of the private-listings fight — Clear Cooperation, the three-phase marketing plan, the Zillow bans, the MRED lawsuit — is, underneath, a fight over the MLS’s authority to dictate how listings get publicly displayed. Rob’s proposal ends the war by abolishing the thing being fought over. No mandatory syndication means Zillow has nothing to demand. No display requirements mean Compass has nothing to evade. The battlefield itself disappears.

But that’s not where the credits roll. You’ve got to play the tape further.

The MLS retreats to pure B2B. The consumer-facing data — the IDX feeds, the syndication, the public’s automatic window into the market — stops being automatic. What the public sees becomes a patchwork of per-listing, per-brokerage choices. And then what? Does consumer demand for market transparency politely evaporate?

No. And here the question stops being whether the demand gets served — it becomes who serves it. The market does exactly what Rob trusts it to do: it serves the demand. Portals build direct-feed relationships with brokerages. Aggregators stitch together coverage. Whatever the particulars of how it plays out, the end result is the same: whoever assembles the most complete consumer-facing picture of the market wins the consumer relationship.

We already know what it looks like when a portal owns the consumer relationship, because we’ve been living it for fifteen years. It looks like Premier Agent: a buyer taps “Contact Agent” on your listing, and the inquiry routes not to you but to whichever agent paid Zillow for that ZIP code. Your listing generates the demand; the portal sells it to your competitor; and if you want the leads your own inventory creates, you can pay too. That’s the toll demand-side power collects now — with the MLS still standing between the portals and the inventory, licensing access on behalf of every broker in the market at once.

Rob’s proposal removes the thing standing between. Will the toll go up? Possibly. But that’s not really the point. The whole bargaining structure changes. In Rob’s world, every brokerage negotiates directly with the portals, and their power to dictate terms becomes a function of size. Compass is big enough to withhold a feed and make a portal feel it. The twelve-agent independent is not. That creates a ton of potential asymmetry for how listings get displayed. We’re already seeing this dynamic in the Compass + Redfin partnership where Compass listings get preferential treatment on the platform.

Now to be fair, portals likely bleed in Rob’s world too. Historically, portals live and die based upon completeness, and their completeness currently is piped in from the MLS. Break the feeds and the portal has to reassemble completeness broker by broker — paying the big brokerages whose inventory it can’t live without, while the small broker’s listings are individually negligible to the whole. So no, it’s not that the portals simply win bigger. It’s that everyone loses except whoever is big enough to matter in the reassembly. The costs of business stop being negotiated collectively — and they start landing hardest on those who have the least power in the market.

Data Accuracy v. Marketing Necessity

Even so, portals winning the display layer isn’t really the part that kills the MLS.

The part that kills the MLS is what happens inside the MLS once its public-facing function is gone. And this is the piece of Rob’s proposal I think is most under-scrutinized.

As a working agent myself, here’s a truth about agents that everyone in this business knows deep in their bones: data accuracy follows marketing necessity.

An agent will only keep current whatever system stands between their listing and the buying public — because that’s the update that sells the house. Today, that system is the MLS. Price drop? I change it in one place, and through IDX and syndication it flows everywhere buyers are looking. The MLS stays accurate not because agents love clean data, but because updating the MLS is updating the marketing. The shared database stays complete as a byproduct of every agent’s self-interest.

Now strip out the public-facing function, as Rob proposes. The update that sells the house no longer happens primarily in the MLS — it happens wherever buyers actually look: the portal feed, the brokerage site, and/or whatever direct channels emerge. Entering the listing into the MLS becomes a second, duplicative task with virtually no commercial payoff. In other words, it’s a compliance chore. And we all know what happens to compliance chores in a commission business. They get done late. They get done sloppily. Eventually, for some meaningful share of agents, they stop getting done at all.

Now, Rob might counter that agents would still enter the listing once in the MLS and syndicate from there through modern APIs — single entry point preserved, just with the agent controlling the valves. Maybe. But an optional pipe has to win the entry-point role on merit, and the biggest inventory holders have already told us their preference: Compass didn’t route its Redfin deal through anyone’s MLS. It built its own pipe.

This is the Amazon playbook. For years, Amazon shipped through UPS and the Postal Service like everybody else — right up until its volume justified building its own fleet. The point being if an entry point is optional, whoever can afford their own plumbing routes around it — and the MLS record becomes the lagging copy of exactly the listings its completeness needs most.

This point isn’t merely hypothetical. I watched it happen under oath. At the Zillow–MRED preliminary injunction hearing this month, Errol Samuelson’s testimony walked through a Compass listing out of Boca Raton that had been entered into MRED’s system: the agent was updating price and listing details in the local Florida MLS — where the listing’s actual marketing lived — while the MRED record sat stale. Same agent. Same property. Two databases. The one coupled to the marketing stayed current; the one that wasn’t, stagnated with bad data. Whatever you make of the larger case, that’s the mechanism that concerns me in miniature: an MLS decoupled from a listing’s marketing is an MLS its own contributors stop maintaining.

So what does the MLS do as its database goes stale? The only thing it can: warnings and fines.

And now the cooperative has completed its transformation in the mind of its average subscriber from the tool that markets my listing into the bureaucracy that penalizes me for not feeding it. Given how much agents already grumble about the MLS being archaic and overbearing, “MLS, Do Less” is not a proposal for a stable cooperative institution. It’s setting the stage for a mass-scale revolt by its agent members.

There’s No Going Back

Now, a fair rebuttal here is that the cooperative predates IDX by decades — that agents contributed listings for half a century on the B2B incentive alone, because reaching every buyer’s agent in the market was reason enough.

True.

But that incentive gets a listing entered. It’s far weaker on the drumbeat of maintenance — the price drop, the status change, the corrected lot lines or square footage — because those updates get made urgently wherever buyers are actually looking, and the MLS copy becomes the lagging duplicate.

Boca Raton again: the cooperation incentive was fully intact, and the listing went stale anyway. And unlike 1985, when the MLS stayed complete partly because there was simply nowhere else for the current data to live, we have quite the opposite problem in 2026. There are near infinite places for data to live, and agents will keep their data current wherever it’s going to have the greatest marketing impact. If the MLS abandons marketing, they will become the secondary data record. And because somewhere else a fresher record exists, everyone who needs the truth — buyer’s agents included — will start going there instead.

This would also mean Compass’s stated commitment — the MLS as “a B2B engine for professional cooperation”, every listing gladly submitted — erodes even if every word of their statement is sincere. Submission isn’t the hard part. Maintenance is. And an MLS decoupled from a listing’s marketing gives its contributors less and less reason to do the maintaining.

Follow it to the end, then. The MLS’s authority was never its technology. Clearly. Most MLS systems still feel like they’re operating on Windows 98. But their undisputed authority has always been completeness — the one place where everything lives, kept current by the self-interest of everyone contributing.

Rob’s proposal severs the MLS’s completeness from the agent’s self-interest.

In April I argued that dismantling IDX before building a replacement was a Faustian bargain, because the distribution infrastructure would atrophy and the political will to rebuild it wouldn’t be waiting for us. I want to sharpen that now, because I no longer think atrophy is the real risk.

Replacement is the destination — and not because the portals outcompete the MLS. Because the MLS’s own members, behaving perfectly rationally under the new incentives, hollow it out from the inside. The portals never have to beat the cooperative. They just wait for it to become a shell — and step into the role it leaves vacant.

“Do Less” is not a plan for the MLS to get healthy. It is a plan for the MLS to stop being the lead actor in its own story. And, tragically, the last discovery comes too late: the public function it shed as a burden was the very thing keeping it alive.

Sure, the free market will figure it out, exactly as Rob promises. What the free market figures out is a housing marketplace that no longer needs the MLS in it — after several chaotic, fragmented, consumer-harming years of transition to get there.

And here’s what keeps me up at night and why I keep writing on these issues: the replacements will be worse for consumers than the accidental incumbent.

A broker cooperative, whatever its sins, has no external shareholder demanding that the data be gated and monetized. A private platform does. We would be trading an institution that serves the public by accident for institutions that would gate the public by design.

What Changed For Me

I owe you a note on my own evolution.

In April I wrote that I wasn’t defending the MLS as an institution — that what I was defending was a principle, consumer access to the core facts of the market, and that “the institution that produces the outcome is negotiable.”

I still believe every word of the principle. But since then, I’ve now spent months following each candidate provider of that principle to its logical endpoint — the cooperative, the government, and the platforms — and I keep concluding the one that serves consumers best is a broker cooperative that decides to take its public role seriously.

That’s not me becoming an MLS evangelist. The MLS hasn’t yet earned my loyalty, especially considering it stumbled into its public role and is now considering how seriously it needs to try to stumble back out of it. My evolution then is me concluding that the accidental incumbent is the least-bad custodian of something too important to leave to the alternatives — if, and only if, it stops treating its public function as an accident.

Planting My Flag

So here is where I land, and where the next piece begins.

The MLS’s public role may never have been chosen. IDX was the easy thing, not the principled decision. But I’d hate to see public serving functions acquired by accident get shed thoughtlessly — and that’s exactly what I fear is happening right now, listing by gated listing, field by hidden field.

Step back and look at the war through this lens. Zillow is suing to keep the feeds alive. Compass is assembling a private version of the inventory. The CFA is petitioning federal regulators. Every combatant in this conflict is fighting over the same asset: the completeness the cooperative created. The MLS is the only party in the entire war treating that completeness as an accident rather than as the crown jewel everyone else is trying to control.

The answer isn’t to finish the shedding, as Rob proposes. And it isn’t to wait for the government to force the function back on, as the CFA has historically proposed.

The answer is for the MLS to do the one thing it has never done in its entire history: choose the role it already plays. Embrace the public function deliberately. Encode it — in governance, in policy, in identity — so that it no longer depends on accident, inertia, or the threat of federal enforcement.

Rob says: MLS, Do Less.

I’m going to make the opposite case. I’m calling it MLS Maximus — and before anyone reaches for the Gladiator jokes (looking at you, Greg), let me define it quickly, because the name implies maximal public duty. Not maximal institutional power. Not a bigger, richer, or a more imperial MLS. But an MLS that finally admits what it is — load-bearing public infrastructure — and governs itself accordingly.

What that actually requires, what it asks of MLS leadership and members, and why the members’ own self-interest points the same direction — that’s the next piece.

Be sure to subscribe.

Until then,

– Nick

---

---

Wanna connect further?
Connect with me on socials (I’m most active on LinkedIn) @NickAufenkamp
Tiered & Flat Fee Real Estate Services in SW Washington: The Tartan Team
DIY Homebuyer Resources & Advocacy: DIY Homebuyer Academy

Advisory & Consulting
I advise a select number of proptech founders, MLS leaders, and real estate organizations navigating industry change. My work focuses on stress-testing assumptions, identifying second-order effects, and helping teams think more clearly about strategy, policy, and implementation. Start the conversation by sending me an email.

Support the Writing
To maximize the distribution of my ideas, I want to keep this publication free. But, if you’re a regular reader and value my voice, please become a paid subscriber. I spend at least 8-10 hours on every post — usually writing in the middle of the night. And my wife says the coffee bill is getting out of hand.