Dolliver, J. —
On June 14, 1978, the Attorney General filed substantially identical antitrust actions against the Tri-City Board of Realtors, Inc., the Spokane Board of Realtors, the Tacoma-Pierce County Multiple Listing Service and the Tacoma-Pierce County Board of Realtors. The complaints alleged violations of the Consumer Protection Act (RCW 19.86), specifically RCW 19.86.020:
Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
and RCW 19.86.030:
Every contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is hereby declared unlawful.
The specific act alleged to violate the Consumer Protection Act was "to deny brokers who are not members of the Board of Realtors access to the MLS [Multiple Listing Service] services". The effects of the violations are claimed to be:
(a) To suppress and eliminate competition by persons who are not members of the Board of Realtors.
(b) To create artificial entry barriers into the trade and commerce described above.
(c) To deny consumers the benefits of free and open competition.
(d) To artificially increase the commissions paid by consumers.
No violations were alleged by the Attorney General of any part of RCW 18.85 concerning real estate brokers and salespersons.
[283]*283The Multiple Listing Service is described in the complaint as follows:
The MLS is an arrangement between brokers in the Pierce County [Spokane County and Benton County] area[s] in which any member broker is authorized to sell property exclusively listed with any other member broker. Member brokers obtain exclusive listings from home sellers and register such listings with the MLS. Such listings give all member brokers the right to sell the homes and permit the brokers obtaining the listings to prevent the sale of the homes through brokers who are not members of the MLS. The MLS compiles the listings, together with detailed information regarding the listed homes, and disseminates it in publications to all member brokers, who attempt to sell the listed homes. Most homes sold in the Pierce County [Spokane County and Benton County] area[s] are sold through listings with the MLS. Membership in the MLS is important to a broker's ability to engage in the trade and commerce described above because only MLS members have the right to sell homes listed with the MLS, and only MLS members have the right to list homes with the MLS and to have access to MLS listing information.
In the Tacoma-Pierce County and Tri-Cities cases, the court granted a motion to dismiss for failure to state a claim upon which relief can be granted (CR 12(b)(6)), while in the Spokane case the trial court granted defendant a summary judgment. The cases were consolidated for consideration by this court.
While the reasons given by each trial court for its actions varied, there were four bases for the actions taken which we will consider in the following order: (1) exhaustion of remedies; (2) multiple listing services are a regulated activity under RCW 19.86.170; (3) primary jurisdiction; and (4) standing.
I
The doctrine of the exhaustion of remedies was described in Wright v. Woodard, 83 Wn.2d 378, 381, 518 P.2d 718 (1974), where we held that "when an adequate administrative remedy is provided, it must be exhausted [284]*284before the courts will intervene." See also Sator v. Department of Revenue, 89 Wn.2d 338, 572 P.2d 1094 (1977). The test for the imposition of the doctrine was carefully spelled out in Retail Store Employees Local 1001 v. Washington Surveying & Rating Bureau, 87 Wn.2d 887, 558 P.2d 215 (1976). There we said administrative remedies must be exhausted before the courts will intervene: (1) "when a claim is cognizable in the first instance by an agency alone"; (2) when the agency's authority " 'establishes clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties"; and (3) when the "relief sought . . . can be obtained by resort to an exclusive or adequate administrative remedy”. Retail Store Employees, at 906, 907, 909.
Defendants assert the complaint falls under the doctrine of the exhaustion of remedies and that the Real Estate Commission and the Department of Licensing must first render an administrative decision before the matter can be considered by the courts. We disagree. This is an action under RCW 19.86 and involves violations of the Consumer Protection Act. There is no allegation of any violation of RCW 18.85. Violations of the Consumer Protection Act are not cognizable by either the Department of Licensing or the Real Estate Commission but rather by the courts. RCW 19.86.080; Lightfoot v. MacDonald, 86 Wn.2d 331, 337, 544 P.2d 88 (1976). There is no authority given to the Department of Licensing or the Real Estate Commission to regulate or enjoin multiple listing associations. No powers to assess penalties are given either generally or with reference to violations of the Consumer Protection Act. There is no remedy in either the Department of Licensing or the Real Estate Commission to be exhausted; the doctrine does not apply.
II
In considering the question of primary jurisdiction, [285]*285it must again be remembered these are antitrust and restraint of trade cases brought under the Consumer Protection Act. They do not concern RCW 18.85, the real estate brokers' and salesmen's statutes. The legislature in RCW 19.86.080, .140 has directed that the Attorney General is the sole government official or agency to enforce the Consumer Protection Act. A full discussion of the applicability of the doctrine of primary jurisdiction relative to the Department of Licensing, the Real Estate Commission, and Consumer Protection Act actions is found in the companion case to this case. In re Real Estate Brokerage Antitrust Litigation,
Free access — add to your briefcase to read the full text and ask questions with AI
Dolliver, J. —
On June 14, 1978, the Attorney General filed substantially identical antitrust actions against the Tri-City Board of Realtors, Inc., the Spokane Board of Realtors, the Tacoma-Pierce County Multiple Listing Service and the Tacoma-Pierce County Board of Realtors. The complaints alleged violations of the Consumer Protection Act (RCW 19.86), specifically RCW 19.86.020:
Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
and RCW 19.86.030:
Every contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is hereby declared unlawful.
The specific act alleged to violate the Consumer Protection Act was "to deny brokers who are not members of the Board of Realtors access to the MLS [Multiple Listing Service] services". The effects of the violations are claimed to be:
(a) To suppress and eliminate competition by persons who are not members of the Board of Realtors.
(b) To create artificial entry barriers into the trade and commerce described above.
(c) To deny consumers the benefits of free and open competition.
(d) To artificially increase the commissions paid by consumers.
No violations were alleged by the Attorney General of any part of RCW 18.85 concerning real estate brokers and salespersons.
[283]*283The Multiple Listing Service is described in the complaint as follows:
The MLS is an arrangement between brokers in the Pierce County [Spokane County and Benton County] area[s] in which any member broker is authorized to sell property exclusively listed with any other member broker. Member brokers obtain exclusive listings from home sellers and register such listings with the MLS. Such listings give all member brokers the right to sell the homes and permit the brokers obtaining the listings to prevent the sale of the homes through brokers who are not members of the MLS. The MLS compiles the listings, together with detailed information regarding the listed homes, and disseminates it in publications to all member brokers, who attempt to sell the listed homes. Most homes sold in the Pierce County [Spokane County and Benton County] area[s] are sold through listings with the MLS. Membership in the MLS is important to a broker's ability to engage in the trade and commerce described above because only MLS members have the right to sell homes listed with the MLS, and only MLS members have the right to list homes with the MLS and to have access to MLS listing information.
In the Tacoma-Pierce County and Tri-Cities cases, the court granted a motion to dismiss for failure to state a claim upon which relief can be granted (CR 12(b)(6)), while in the Spokane case the trial court granted defendant a summary judgment. The cases were consolidated for consideration by this court.
While the reasons given by each trial court for its actions varied, there were four bases for the actions taken which we will consider in the following order: (1) exhaustion of remedies; (2) multiple listing services are a regulated activity under RCW 19.86.170; (3) primary jurisdiction; and (4) standing.
I
The doctrine of the exhaustion of remedies was described in Wright v. Woodard, 83 Wn.2d 378, 381, 518 P.2d 718 (1974), where we held that "when an adequate administrative remedy is provided, it must be exhausted [284]*284before the courts will intervene." See also Sator v. Department of Revenue, 89 Wn.2d 338, 572 P.2d 1094 (1977). The test for the imposition of the doctrine was carefully spelled out in Retail Store Employees Local 1001 v. Washington Surveying & Rating Bureau, 87 Wn.2d 887, 558 P.2d 215 (1976). There we said administrative remedies must be exhausted before the courts will intervene: (1) "when a claim is cognizable in the first instance by an agency alone"; (2) when the agency's authority " 'establishes clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties"; and (3) when the "relief sought . . . can be obtained by resort to an exclusive or adequate administrative remedy”. Retail Store Employees, at 906, 907, 909.
Defendants assert the complaint falls under the doctrine of the exhaustion of remedies and that the Real Estate Commission and the Department of Licensing must first render an administrative decision before the matter can be considered by the courts. We disagree. This is an action under RCW 19.86 and involves violations of the Consumer Protection Act. There is no allegation of any violation of RCW 18.85. Violations of the Consumer Protection Act are not cognizable by either the Department of Licensing or the Real Estate Commission but rather by the courts. RCW 19.86.080; Lightfoot v. MacDonald, 86 Wn.2d 331, 337, 544 P.2d 88 (1976). There is no authority given to the Department of Licensing or the Real Estate Commission to regulate or enjoin multiple listing associations. No powers to assess penalties are given either generally or with reference to violations of the Consumer Protection Act. There is no remedy in either the Department of Licensing or the Real Estate Commission to be exhausted; the doctrine does not apply.
II
In considering the question of primary jurisdiction, [285]*285it must again be remembered these are antitrust and restraint of trade cases brought under the Consumer Protection Act. They do not concern RCW 18.85, the real estate brokers' and salesmen's statutes. The legislature in RCW 19.86.080, .140 has directed that the Attorney General is the sole government official or agency to enforce the Consumer Protection Act. A full discussion of the applicability of the doctrine of primary jurisdiction relative to the Department of Licensing, the Real Estate Commission, and Consumer Protection Act actions is found in the companion case to this case. In re Real Estate Brokerage Antitrust Litigation, 95 Wn.2d 297, 622 P.2d 1185 (1980). There, at pages 302-03, we stated a threefold test for the application of primary jurisdiction:
1. The administrative agency has the authority to resolve the issues that would be referred to it by the court. In the case of antitrust actions, the statutory authority of the agency in some way must limit the applicability of the antitrust laws;
2. The agency must have special competence over all or some part of the controversy which renders the agency better able than the court to resolve the issues; and
3. The claim before the court must involve issues that fall within the scope of a pervasive regulatory scheme so that a danger exists that judicial action would conflict with the regulatory scheme.
(Citation omitted.)
The defendants meet none of these tests. Nothing in the statutes indicates the courts should defer to the administrative body for its view. The only statutory reference to multiple listing associations is RCW 18.85.010(8), which defines multiple listing associations, and RCW 18.85.400 which sets forth entrance requirements. RCW 18.85 does not give the Department of Licensing or the Real Estate Commission any regulatory power over antitrust violations by a multiple listing service. While a person licensed under RCW 18.85 may, for the commission of certain acts, have a [286]*286license suspended, revoked or denied (RCW 18.85.230), this does not apply to a multiple listing association but only to individual license holders. There is no "special competence" given to the agencies to determine violations of the Consumer Protection Act by a multiple listing association. The statutory authority of the agency does not in any way limit the applicability of the antitrust laws; in fact, as is made apparent by the statute, it is quite the opposite:
In no event shall the real estate commission . . .
(5) Require the applicant to follow any other rules of the association which apply to all the members of such association: Provided, That such other rules do not violate federal or state law: Provided, That nothing in this 1969 amendatory act shall be construed to limit the authority of any real estate multiple listing association to engage in any activities which are not otherwise prohibited by law.
(Italics ours.) RCW 18.85.400(5). Under these circumstances, we hold it is an abuse of discretion to apply the doctrine of primary jurisdiction.
Ill
The permitted actions or transactions exception, RCW 19.86.170, provides:
Nothing in this chapter shall apply to . . . [1] actions or transactions permitted by any other regulatory body or officer acting under statutory authority of this state or the United States . . . [and 2] Provided, further, That actions or. transactions specifically permitted within the statutory authority granted to any regulatory board or commission established within Title 18 RCW shall not be construed to be a violation of chapter 19.86 RCW. . .
(Italics ours.)
We held in In re Real Estate Brokerage Antitrust Litigation, supra, that the correct determination of legislative intent is that only clause [2] applies to RCW Title 18 agencies. While both [1] and [2] require that the regulatory agency act under statutory authority, for RCW Title 18 [287]*287agencies the questioned actions or transactions must have been specifically permitted, i.e., the regulatory agency must have taken some overt affirmative action indicating approval. See Comment, The Scope of the Regulated Industries Exemption Under the Washington Consumer Protection Act, 10 Gonz. L. Rev. 415, 427 (1975). Here there was no affirmative action taken by either the Department of Licensing or the Real Estate Commission to approve the action. There was no specific permission granted.
Furthermore, the multiple listing section of the real estate brokers' and salesmen's statute (RCW 18.85.400) states that "In no event shall the real estate commission approve any entrance requirements which shall be more restrictive on the person applying to join a real estate multiple listing association than [the requirements listed in the statutes]". There is nothing in RCW 18.85 which confers on the Department of Licensing or the Real Estate Commission the authority to approve the restrictions for membership in a multiple listing service which were allegedly required by defendants. RCW 19.86.170 does not provide an exemption for defendants.
IV
Finally, it is claimed that, since RCW 18.85.350 allows only the Director of the Department of Licensing and the appropriate county prosecuting attorney to enforce RCW 18.85, the Attorney General has no standing. While true, this is beside the point. As stated before, this is not an action under RCW 18.85. The action is under RCW 19.86, and the Attorney General is specifically authorized to bring these actions in superior court. RCW 19.86.080.
Reversed.
Utter, C.J., Rosellini and Williams, JJ., and Forrest and Hamilton, JJ. Pro Tern., concur.