IIUC it’s still valid to use an algorithm to recommend prices, but you’re not allowed to make an agreement with a competitor that you will both use the same alg? Or is this saying that any algorithm which takes competitor prices into account is out-of-bounds?
There were antitrust suits filed against RealPage after a ProPublica piece
> In one news release, Realpage offered its property management clients the ability to outsource daily rent-setting and revenue oversight. “We believe in overseeing properties as though we own them ourselves,” the company said in a presentation that plaintiffs’ lawyers referenced in the lawsuit.
> The lawsuit quoted one unnamed witness, a RealPage pricing advisor, saying that some pricing advisors told property management employees that they had to follow the software’s recommendations. A leasing manager at a RealPage client said, “I knew [RealPage’s prices] were way too high, but [RealPage] barely budged” when the manager asked to deviate from the suggested rent.
> An update to the software tracked not only clients’ acceptance rate, but also the identity of the landlords’ staff members who had requested a deviation from RealPage’s price, the lawsuit said. Compensation for some property management personnel was even tied to compliance with the company’s recommendations, it said.
So if this is true, this also means that managers are being compelled to adopt the recommendations more than as mere suggestions.
The law doesn't work on hard and fast rules like that. It's more like "If the effect is that you are working together to set prices, that's illegal", regardless of whether you use algorithm A or B, regardless of whether you share prices in advance or watch how other companies set prices, regardless of any details of the mechanism.
If you use the same algorithm it's not necessarily illegal, but it will be if it results in price fixing. If you take into account competitors prices its not necessarily illegal, but it will be if it results in price fixing.
We can start with what is definitely price fixing and work our way up to why algorithmic pricing is price fixing.
To keep things simple, let's say a city has two landlords, Alice and Bob, who each own around half of the residential rental properties in the city.
Textbook definition of price fixing is if Bob and Alice agree to never rent for less than $5 per square foot.
Next scenario: Instead of a minimum price, let's say that Bob and Alice agree a formula on how to price their properties based on vacancies. The formula can be as simple or as complicated as you like. But in this scenario, if the formula never gives them a result less than $5/square foot, it has the exact same outcome as the textbook scenario. And since there is direct coordination between Bob and Alice, this is definitely price fixing. In fact, it's even worse than the textbook scenario, because now they're coordinating on exact prices, and not just a minimum.
Forgetting formulas for a minute, let's say Charlie, who is unrelated to Alice and Bob, approached them separately and offered to sell them information on how to set their prices. In this case, there's no algorithm involved. They each pay Charlie a small fee per month, and he tells them not to rent for less than $5 per square foot. There's no direct communication between Bob and Alice, but because they both know that the other is acting on the same advice from Charlie, the result is the same as the textbook scenario. You could even argue that there is indirect communication between them, and that Charlie is running some kind of price laundering service.
Finally, you can combine the two. Bob and Alice both tell Charlie how many vacancies, delinquent payments, etc. they have. Charlie feeds all the data into his computer, which contains a really complicated formula, and that computer tells them how much to charge. And wouldn't you know it, that formula never produces a result less than $5/square foot. Again, because Bob and Alice know that the other is using this service, and because they have an exact price, rather than a minimum, they know they don't have to negotiate with potential customers. The other landlord won't give that customer a better deal.
Except no city has only two landlords, and most cities anyone who owns can be a landlord if they want - and will have plenty of incentive if either Alice or Bob goes much higher than fundamentals no?
The exact number of landlords doesn't quite matter here, as long as enough of them are using the algorithm.
One of the cases specifically being looked at in this investigation is Washington D.C. Google tells me that around 60% of rentals in D.C. are in large apartment buildings, but that's just a quick search so take that with a grain of salt. ProPublica says that 90% of these apartments are using the software. If we accept these numbers are close, and knowing that 90% of buildings doesn't necessarily mean 90% of all apartments, we can guess that means somewhere around 50% of all rental properties in D.C. are priced using this software. The number might be higher, since I don't know if any non-apartment buildings are using this software, or it might be lower if the data is inaccurate.
So yes, the remaining 50% of the market could undercut the 50% using the software. However, it's still possible for 50% to have an effect on the housing market. This is because the housing market is generally considered to be inelastic and because it is difficult to increase supply quickly.
Compare it to, for example, soda, which is an elastic market with a lot of production. If Coke and Pepsi lost their minds and started charging $100 for an 8 oz can, they're creating a lot of potential for other companies to undercut them at, say $2 a can. As long as $2/can is profitable, they can win Coke and Pepsi's market from them overnight.
If 50% of rental properties started renting for $1 million/week, obviously, very few people can afford that, and I doubt anyone would pay it. But what could the other 50% of the market do? They could keep their rates lower, but all the rentals will fill up. Again, numbers are hard to find, but vacancies in D.C. are probably around 6%, so prospective renters will play musical chairs for the 50% of rental properties that have more reasonable rents. There's a potential here for companies to build new properties and undercut the 50%, but building is lengthy, expensive, requires permitting, etc. The market can't respond very quickly, and because new construction tends to be expensive, rents from new buildings tend to be higher.
Very good points! And yes, I can see what you’re talking about rent movement wise.
The challenge though is that at least the Fed data doesn’t seem to support it across the industry, at least as far as I can tell. Rents seem to be moving in almost lockstep with inflation (and fed rates?), and have been since before COVID started. Which is odd in itself, actually, and I think might support the case of ‘have to raise rents or our financing will collapse and we’ll go insolvent’. I’m wondering if these large complex vacancies are inversely correlated? If so, seems like an opportunity to short something somewhere.
I’d argue there is a third market option here too. While someone can quit drinking soda, they can’t quit having a roof over their heads.
Well, technically they can and increasing homelessness is proof of that - but that is a very extreme option with incredibly high costs, so we’ll ignore that for now.
But if remote work is an option, or if the local salaries don’t support the higher rents, people can and will move, or double up, or sublet, etc. Or just go bankrupt, and be out of the ‘renter’ pool that way.
The inflexibility of real estate does mean it takes time for all this to play out, but in your $1 million/wk option, the inevitable outcomes here seem to be:
1) the apartments keep that crazy price, have zero (or near zero - until the few crazy renters went bankrupt) renters, and eventually go bankrupt themselves. Since even if they have a cash cushion, that cushion will run out eventually. High financing costs mean they’ll even be unable to get business loans to cover cashflow issues, which would typically give them more breathing room.
And since local renters don’t make enough to pay that rent anyway ($52/mil a year on rent is hard to pay), and even hotels or SFH rentals would be dramatically cheaper. Why would Jeff Bezos want to rent one of these, after all, and he’d be one of the few would could?
or
2) have legislation passed which outlaws what they are doing by setting rent caps or the like (and there would be plenty of support).
or
3) have their properties burned to the ground by pitchfork wielding mobs.
Possibly all 3 at the same time?
Alternatively, what I think they’re all hoping for, is that income inflation for renters means renters will be willing and able to pay these higher rates, and they’ll be saved by a post-COVID boom and everyone will actually be - at worst - moderately grumpy.
Agreed. That is indeed what may happen. I'm definitely happy for the federal government to investigate the impact of these algorithms in cities with the fastest range of rent growth, however. It makes sense to ban it federally even if it's only really stopping price fixing in one or two cities.
To be clear, the million dollar scenario was intended as one in which the landlords collectively lost their minds and plunged themselves into long-term economic doom. In a more realistic pricing scenario, they'd collude to determine the absolute maximum price they could charge and still get tenants.
And when you think about it, that's how markets are supposed to work. Landlords want to charge as much as the market can bear, no more, no less. Renters want to pay as little as possible, and in a perfect market, it would reach price equilibrium.
But from the federal government's point of view, it's not as simple. Housing must be profitable in order to encourage new investment in housing. We're currently playing musical chairs with too few residential units for too many residents because there hasn't been enough housing investment since the 2008 crash. At the same time, they want to keep rents low, since money spent on rent isn't going into productive areas of the economy. They also want to keep rents variable, because strictly stratifying locations based in income has bad effects in society. (E.g. police officers not being able to afford to live in the large cities they work in.) Retaining the ability for lower-income renters to negotiate rent is helpful in that regard, but obviously not a silver bullet.
One thing I would be careful of though, is comparing rental prices to inflation. Housing costs are the single largest factor in the CPI-U, so it's almost a tautology that rents rise at the same rate of inflation, because inflation is largely measuring the rate at which rents rise.
Comparing to fed rates is more interesting. If you're getting less of a return on your investment than the current fed rate, you'll make more money by divesting yourself of your properties and putting the money into bonds. (And I believe this is the biggest driver of recent mass layoffs.)
Its worth noting in US federal law, there isn't a distinct statutory prohibition or definition of price fixing. “Price fixing” is a description of one general pattern of violation of a very broad statutory language in the Sherman Act (15 USC § 1) prohibiting “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations”.
State competition laws may have separate rules for price fixing and other specific kinds of behavior or have similarly broad language to the Sherman Act.
Is it collusion to go to a rental search site and survey the asking rents, then asking similar for your property, knowing that your competitors are (probably) doing the same?
Is it collusion when a gas station manager drives around the neighborhood, looks at the competitors posted price for gas, and sets his prices the same?
Neither of those examples are what I described and are perfectly fine.
You have to use a third party that is setting a price and stick to that, knowing others are doing the same. You're describing individuals determining their own price using their own judgement.
I think the argument in this case is the algorithm is effectively acting as a single agent that will always come to a fixed price and is actively recommending having vacancies to prevent competition.
Where as if individuals are assessing the prices they are in a sort of prisoners dilemma, if they leave a property vacant someone may lower the average price meaning they can't recoup the lost earnings when it is occupied. So their best bet is to keep a property occupied as much as possible.
Eh, I'm really not convinced they'd be effective. If they're trying, then sure whack them with price fixing charges.
I'm just not aware of any markets where these guys are dominant. You STILL have the prisoners dilemma issue, as there are tons of smaller landlords out there that definitely aren't playing in this game no matter what you're doing.
And I don't see how this is THAT much different from just doing a search for rental properties in your area on zillow and setting your rent prices accordingly. If THAT is price fixing, then how does anyone expect a market to work at all?
IANAL but it probably would it you did it whatever the circumstances.
If you were the cheapest gas station in the neighborhood with prices appropriate to your operation but one day decide to align your price to your competitors and keep adjusting your price to whatever they set while nothing changed for you, that feels like the very definition of price fixing.
Who isn't going to set their prices relative to their competitors in a market? And also try to have as low a cost as possible, so they have as good a profit margin as possible? It's basic business 101.
If THAT is price fixing, then literally every business ever in the history of business has done price fixing.
That also isn't colluding with anyone, near as I can tell. Maybe if you did a wink-wink-nod-nod to each other while driving by? Typically when I've heard of price fixing, there was some explicit cartel or industry assoc or meeting between folks or whatever where they could actually agree to something, punish 'non compliance', etc.
This feels like the Google Antitrust case, where no one can even seem to say what they would have reasonably expected Google to do instead that would make any sense, and the issue is more that there are as-yet-unresolved structural components that no one is able to articulate a rule that would prevent whatever problem everyone is getting worked up about.
> Who isn't going to set their prices relative to their competitors in a market? And also try to have as low a cost as possible, so they have as good a profit margin as possible? It's basic business 101.
The text book behavior would be to price yourself lower than the competitors and try to get market share from them.
In our current paradigm, if you have low costs while keeping your price as high as the incumbent, there should be other players entering the market and disrupting it by going for lower margins. That mechanism not happening even as there's a variety of actors in the market is where it's qualified as "price fixing" IMHO.
PS: about Google's antitrust case, are you refering to them stopping other stores from getting installed on android phones ?
Not really - in a rental market, you can't get 'more market share' due to pricing, once your units are rented out 100%. 'market share' in a highly inelastic market like housing is only achievable by long term capital intensive purchasing, building, or upgrading of units.
In this kind of business, in the short-medium term (aka when setting rents), they're usually looking to reduce vacancy rates (aka achieve the highest utilization of their assets), so they'd set their rents to be relative to the market (same, lower, higher) as necessary to achieve their target vacancy rate. Notably, the market itself usually has highly variable seasonal demand and relatively low volume, so it can take months to figure out if you're high/low/just right unless you're managing a LOT of units.
For landlords, vacancies can practically never be zero for very long without problems, for similar reasons why unemployment at zero for very long creates problems - there needs to be some downtime to do things like unit maintenance and upgrades, adjust timing to have availability during peak times for good tenants, etc.
Zero would be ideal from a ROI perspective though.
Attempting to corner the market - in all but the smallest markets - can be VERY expensive and high risk, due to high capital and cashflow costs for housing stock, high workforce
(and household) mobility in the US, and a very diverse set of competitors.
After all, anyone who actually owns housing in the area is a potential competitor if rents get too high, let alone all the small/medium landlords which don't have nearly enough cushion to attempt that kind of maneuver without going almost immediately bankrupt.
So even if all the big corp apartment complexes or whatever were in on it (and the big property management companies too), all the smaller/medium landlords would be unable to even attempt to participate and folks would end up moving to subletting SFH pretty quick.
"in any way" is doing a lot of work there though. The way they're using a 3rd party algorithm is effectively communication and the FTC isn't standing for it.
But yeah, your latter case sounds easy to fall into gray territory, since it seems illegal to agree on prices even if intermediary makes it unclear with whom exactly you're agreeing with
