|(a) For purposes of this subchapter, the phrase "arranges
or offers to arrange a transaction," as used in Occupations Code, §2301.002,
includes the practice of arranging or offering to arrange a transaction
involving the sale of a new motor vehicle for a fee, commission, or
other valuable consideration. Advertising is not brokering, provided
the person's business primarily includes the business of broadcasting,
printing, publishing, or advertising for others in their own names.
(b) A buyer referral service, program, plan, club,
or any other entity that accepts a fee for arranging a transaction
involving the sale of a new motor vehicle is a broker. The payment
of a fee to such entity is aiding and abetting brokering. However,
a referral service, program, plan, club, or other entity that forwards
a referral to a dealership may lawfully operate in a manner that includes
all of the following conditions.
(1) There is no exclusive market area offered to a
dealer by the program. All dealers are allowed to participate in the
program on equal terms.
(2) Participation by a dealer in the program is not
restricted by conditions, such as limiting the number of line-makes
or discrimination by size of dealership or location. The total number
of participants in the program may be restricted if the program is
offered to all dealers at the same time, with no regard to the line-make.
(3) All participants pay the same fee for participation
in the program. The program fee shall be a weekly, monthly, or annual
fee, regardless of the size, location, or line-makes sold by the dealer.
(4) A person is not to be charged a fee on a per referral
fee basis or any other basis that could be considered a transaction-related
(5) The program does not set or suggest to the dealer
any price of a motor vehicle or a trade-in.
(6) The program does not advertise or promote its plan
in a manner that implies that the buyer, as a customer of that program,
receives a special discounted price that cannot be obtained unless
the customer is referred through that program.
(c) Subsections (a) and (b) of this section do not
apply to any person or entity exempt from the broker definition in
Occupations Code, §2301.002.
(d) All programs must comply with Subchapter H of this
chapter (relating to Advertising).