While regulation of property brokers has been statutorily prescribed since 1935, for just as long, various logistics service providers have arranged, negotiated and provided brokered motor carrier transportation, either unknowingly or for lack of enforcement, without regard to such regulations. Many who by statutory definition have been providing broker services, assumed for a variety of reasons they were not regulated. Reasons have included the notion that new industry vernacular such as, “third party logistics provider”, “3PL”, “4PL”, “transportation management”, or “consulting” could somehow cause them to avoid the clear statutory definition of a broker of motor carrier transportation.
49 U.S.C 13102 (2) leaves little doubt that such activities are within the definition of a broker:
2) Broker.— The term “broker” means a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or arranging for, transportation by motor carrier for compensation.
When Sec 13102 is then read in conjunction with,
“49 U.S.C. §14916, UNLAWFUL BROKERAGE ACTIVITIES, (a) Prohibited Activities.— A person may provide interstate brokerage services as a broker only if that person— (1) is registered under, and in compliance with, section 13904; and (2) has satisfied the financial security requirements under section 13906.
(c) Civil Penalties and Private Cause of Action.— Any person who knowingly authorizes, consents to, or permits, directly or indirectly, either alone or in conjunction with any other person, a violation of subsection (a) is liable— (1) to the United States Government for a civil penalty in an amount not to exceed $10,000 for each violation; and (2) to the injured party for all valid claims incurred without regard to amount,
…it is apparent that one of the purposes of MAP-21 is to penalize not only those who continue to perform brokerage without a license, but also those who are properly licensed and participate with the unlicensed.
Congressional history, intent and resulting language of §14916, read in conjunction with 49 U.S.C. 13102, leaves no doubt about the intended affect. Those participating in offering for sale, negotiating, or even holding themselves out by advertisement, marketing material or websites, as selling, providing or arranging for transportation by motor carrier for compensation, are clearly subject to this regulation and penalties for violation. There are no vague, or marketing descriptions, such as 3PL, 4PL or consultant, that will avoid the purpose and intent of §14916.