In at least one instance, the Federal Motor Carrier Safety Administration in 2023 explicitly told mega broker TQL to provide broker transparency documentation as required under the regulations. What's more, new documents show the agency suggested TQL's waiver clause in its carrier contract, forcing carriers to waive rights under 49 CFR 371.3, could be a violation of U.S. Code.
That's according to an email correspondence recently revealed via the Freedom of Information Act. The correspondence also raises the question of just what might happen to similar contract waiver language utilized by brokers should the FMCSA's transparency proposed rulemaking get across the finish line.
The entire saga kicked off in January of 2023 when Dakota Springfields, a reefer hauler and owner of Pink Cheetah Express, delivered a load of ice cream, and, she said, TQL was fighting her on detention pay. Springfields doubled down and invoked her right to review the brokers' transaction records, aka broker transparency, under 49 Code of Federal Regulations 371.3.
[Related: FMCSA investigates TQL as fight over broker transparency rages]
Though Springfields had signed TQL's carrier contract waiving her 371.3 rights, she took the case to the FMCSA via the National Consumer Complaint Database. By November that year, FMCSA appeared to have fully taken her side.
“Please ensure compliance with the federal motor carrier regulations,” wrote an FMCSA representative who then instructed TQL to remove the waiver from the Broker/Carrier Agreements.
The language FMCSA specifically objected to from TQL’s still-in-use carrier contract is as follows:
Broker is not required to disclose its charges to customers, commissions, or brokerage revenue and Carrier waives its right to receive, audit, and/or review information and documents to be kept as provided in 49 CFR 371.3.
That language, according to FMCSA at the time, “may be a violation” of 49 U.S. Code 14906 — Evasion of regulation of carriers and brokers. That part of the U.S. Code states that a "person, or an officer, employee, or agent of that person, that by any means tries to evade regulation provided under this part for carriers or brokers is liable to the United States for a civil penalty of at least $2,000 for the first violation and at least $5,000 for a subsequent violation, and may be subject to criminal penalties."
Next, the FMCSA rep told TQL to "ensure compliance" with 371.3 "and provide transaction records to any carrier when requested," including the text of 371.3 with the final clause bolded: "Each party to a brokered transaction has the right to review the record of the transaction required to be kept by these rules."
Since that email from FMCSA in November of 2023, TQL did indeed provide the documentation to Springfields, who said it revealed the broker kept a whopping 44% of the shipper's payment on the load. This kicked off a significant debate about broker margins and the trustworthiness of published rates indices based on averages that rely on broker- and carrier-submitted data.
Notably, the intervening period also saw FMCSA put out a notice of proposed rulemaking [NPRM] seeking to change 371.3, elevating broker transparency from a "right" of carriers to a "regulatory duty" for brokers to provide. That kicked off further debate over whether rates might improve with carriers' increased access to shipper cost data.
Brokers, individually and via their major trade group the Transportation Intermediaries Association, came out against transparency enforcement, firing back at owner-operators, 8 in every 10 of whom predicted positive rates outcomes if FMCSA's proposal was implemented. TIA, rather, said the transparency proposal wouldn't impact rates, or might even lower rates. It's a view shared by just 15% of of truckers in Overdrive's audience, who predicted either negative (13%) or neutral (2%) rates impacts.
On Tuesday, Feb. 18, FMCSA reopened the comment period on the proposed rulemaking.
[Related: FMCSA's broker transparency comment period reopened]
What will happen to brokers' transparency-waiver contract clauses if the rule goes into effect?
The Springfields/TQL transparency saga may have resulted in TQL handing over the transaction records for the load she hauled, yet it doesn't seem to have budged at all on the contract clause requiring carriers waive their rights to records under 371.3.
Overdrive reviewed a recent TQL Broker/Carrier Agreement, and it features the exact same clause, still in force. Overdrive contacted TQL and TIA for comment on this story, and did not hear back.
In FMCSA's transparency proposal, the agency said it didn't believe it had the authority to stop TQL or any broker from asking carriers to waive their rights in contract clauses, despite receiving two separate petitions to put an end to these waivers.
"Parties are permitted to waive any right unless Congress, by statute, specifically makes a right non-waivable," FMCSA wrote in the transparency NPRM. "The Agency has not identified any statutory provision in which Congress expressly barred waivers in this context, and therefore the Agency has not included the requested language in the revised regulation."
FMCSA appeared to side-step the ability of brokers to insert waivers in contracts by changing transparency from a "right" of carriers (and shippers, for that matter) to a "regulatory obligation" of brokers.
"The proposed amendments to 371.3(c) would clarify that brokers maintain a continuing duty to act fairly and honestly, and that visibility into the transaction records is the mechanism by which shippers and carriers can ensure that brokers are complying with this duty," FMCSA wrote in the NPRM. "The requirement to provide the records upon request would thus be made explicit as a regulatory obligation."
Why in 2023 did the agency attempt to do something in the TQL/Springfields case that in 2024 it said it didn't have the authority to do? Overdrive reached out to FMCSA to verify the authenticity of the correspondence between itself and TQL and also to ask about the discrepancy.
"The attached document shared as part of your inquiry was provided by FMCSA to Dakota Springfields of Pink Cheetah Express, LLC in response to a Freedom of Information Act (FOIA) request to the agency," an FMCSA spokesperson said.
Rather than offering an outright explanation, FMCSA simply pointed to the dates.
The email exchange displayed in the FOIA document highlights correspondence that occurred in November 2023. More recently, however, FMCSA issued proposed revisions to existing regulations related to broker transparency through a Notice of Proposed Rulemaking published in November 2024.
The dates might indeed explain the change in FMCSA's posture. Since November 2023, FMCSA has had three different political appointees serve as Chief Counsel, and each new lawyer brings their own interpretation. Now, the Trump administration has initiated a regulatory freeze and review, and newly appointed FMCSA Chief Counsel Jesse Elison will have to look at the transparency issue for himself.
Expect some indication of where the transparency fight is headed in the DOT's Spring agenda update.
[Related: Broker transparency: 8 in 10 owner-operators predict positive outcomes for rates]
