1. (a) Under Occupations Code, §§2301.002, 2301.006, 2301.251 and 2301.252, the definition of "arranges or offers to arrange a transaction" is construed as soliciting or referring buyers for new motor vehicles for a fee, commission, or other valuable consideration. Advertising would not be included in this definition as long as the person's business primarily includes the business of broadcasting, printing, publishing, or advertising for others in their own names.

2. (b) A buyer referral service, program, plan, club, or any other entity that accepts fees for arranging a transaction involving the sale of a new motor vehicle is a broker. The payment of a fee to such an entity is aiding and abetting brokering. However, any referral service, program, plan, club, or other entity that forwards referrals to dealerships may lawfully operate in a manner that includes all of the following conditions:

   1. (1) There are no exclusive market areas offered to dealers by the program. All dealers are allowed to participate on equal terms.
   2. (2) Participation by dealers in the program is not restricted by conditions such as limiting the number of franchise lines or discrimination by size of dealership or location. 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 franchise line.
   3. (3) All participants pay the same fee for participation in the program that shall be a weekly, monthly, or annual fee, regardless of the size, location, or line-make of the dealership.
   4. (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 fee.
   5. (5) The program does not set or suggest to the dealer any price of vehicles or trade-ins.
   6. (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.
3. (c) The provisions of subsections (a) and (b) of this section do not apply to any person or entity which is exempt from the broker definition in Occupations Code, §2301.002(3).
4. (d) All programs must comply with Subchapter H of this chapter (relating to Advertising).

Source Note:The provisions of this §215.84 adopted to be effective February 11, 2010, 35 TexReg 883.