11.5 Antitrust Compliance, Do-Not-Call Rules & Digital Marketing Supervision

Antitrust Law in Brokerage: Four Per Se Violations

The Sherman Antitrust Act of 1890 (15 U.S.C. §§ 1–7) prohibits contracts, combinations, and conspiracies in restraint of trade. Four brokerage-specific violations are treated as per se illegal — meaning the plaintiff need not prove market harm and the defendant may not argue that the arrangement was reasonable or beneficial.

Penalties are severe. A corporate defendant faces fines up to $100 million, an individual up to $1 million and 10 years' imprisonment, and private plaintiffs recover treble damages plus attorney's fees. New Jersey's Antitrust Act, N.J.S.A. 56:9-1 et seq., adds parallel state exposure, and an antitrust conviction is independently sanctionable by the Commission as conduct demonstrating unworthiness under N.J.S.A. 45:15-17(e).

New Jersey Goes Further Than Federal Law

Federal antitrust law requires an agreement. N.J.A.C. 11:5-7.5 reaches mere suggestion. No licensee may "combine, conspire, suggest, or recommend to, or with any other licensee(s) that any rate, commission or fee to be charged by them, or any division of such commission by them be fixed, established, maintained, suggested or stabilized." Subsection (b) extends the ban to suggesting that another licensee adhere to any schedule or to any "methodology or approach by which a commission, rate or fee is arrived at."

Two carve-outs matter:

• Intra-office communications are expressly permitted. A broker of record may set and discuss the firm's own commission policy with the firm's own licensees. Antitrust liability attaches to agreements between competitors, not to a single firm setting its own price.
• Bona fide education is permitted. Information imparted solely for instruction at a legitimate trade association seminar or course, and not to recommend guidelines or a preferred pricing method, is excepted.

Two companion rules complete the framework:

• N.J.A.C. 11:5-7.6 bars punitive or retaliatory action and discriminatory commission splits aimed at a broker who refused to adopt a commission level. A listing broker who varies its split with a particular cooperating broker must keep a written file explaining the variation, who decided it, and why.
• N.J.A.C. 11:5-7.7 prohibits agreeing or conspiring to boycott a newspaper, portal, or other advertising medium because that medium accepted discount or price-based advertising from a competitor.

Layered on top, N.J.A.C. 11:5-6.2(b) and (c) forbid any listing agreement or sales contract from containing a prescribed or predetermined commission rate, and require one-to-four-family listing agreements to carry, in larger-than-predominant type, the statement that the seller has the right to individually negotiate any fee and that no fee has been fixed by any governmental authority, trade association, or multiple listing service.

Broker Supervision: Safe and Unsafe Language

Train every licensee on the difference.

At a board or MLS meeting, the moment a competitor raises commission levels the correct response is to object, leave, and have your departure noted in the minutes. Silent presence is evidence of agreement.

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Telemarketing and the Do Not Call Rules

Prospecting by phone is where brokerages most often stumble into strict-liability exposure.

• Real estate licensees are not exempt. New Jersey's Do Not Call law, N.J.S.A. 56:8-119 et seq., and the federal Telemarketing Sales Rule and TCPA together bar calls to numbers on the National Do Not Call Registry. FCC rules supersede state-law exemptions, so a licensee may not call a registered number in New Jersey or any other state absent an exception.
• Scrub the registry. A caller must have accessed the registry for the relevant area code no more than 31 days before the call and must keep records proving it.
• Established business relationship (EBR). Calls are permitted for 18 months after a purchase, sale, lease, or other transaction with the consumer, and for 3 months after the consumer's own inquiry or application. Prior express written consent also permits a call.
• Company-specific list. Every brokerage must maintain its own internal do-not-call list, honor a request within a reasonable period, and retain the request for five years. An internal request overrides an EBR.
• Calling hours. 8:00 a.m. to 9:00 p.m. in the called party's time zone.
• FSBO and expired listings. A call to a for-sale-by-owner or an expired listing to solicit the listing is a telemarketing call. If the number is on the registry and no EBR or written consent exists, the call is unlawful. The narrow federal exception for calling a number the consumer has published for the purpose of selling that specific property does not extend to soliciting a listing.
• Texts and prerecorded messages. The TCPA treats an SMS as a call. Autodialed or prerecorded marketing messages require prior express written consent, and statutory damages run $500 per violation, trebled to $1,500 for willful violations, on a per-message basis. A single enthusiastic mass text can generate six-figure exposure.

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Supervising Digital and Social Media Marketing

N.J.A.C. 11:5-6.1(a) applies the advertising rules to "all advertising media including E-mail and the Internet, business stationery, business cards, business and legal forms and documents, and signs and billboards." A licensee's Instagram profile, TikTok video, and text signature are advertising.

The broker of record must therefore:

1. Require the regular business name in every advertisement, displayed at least as prominently as any individual licensee or team name, with the brokerage's office telephone number on any team or individual webpage not electronically linked to the broker's site.
2. Vet team names so they do not imply an independent brokerage.
3. Police third-party syndication. Stale or inaccurate listing data pushed by a portal is still the firm's advertising.
4. Preserve the record. Social posts, texts, and emails that constitute advertising or transaction records fall within the six-year retention duty of N.J.A.C. 11:5-5.4, which expressly reaches items "generated through e-mail or any other means which does not require the creation of a paper document."
5. Extend fair housing training to captions and imagery. Discriminatory advertising liability does not distinguish between a newspaper column and a hashtag.