Modern digital electronic equipment often has technology, such as microprocessors, that has become harder for consumers to fix and maintain because of specialized tools, difficult-to-obtain parts, and access to proprietary diagnostic software. Manufacturers generally have control over repairs by restricting access to information, components, and tools necessary to diagnose, service, and repair their products, such as with application of patent rights, enforcement of trademarks, software locks, firmware updates, and end user license agreements. Consumers can attempt to repair their own digital electronic products, or use the services of an authorized repair provider or independent repair provider. Authorized repair providers are merchants that have an arrangement with a manufacturer to service their products. Independent repair providers provide similar services, but are not affiliated with a manufacturer.
The Magnuson-Moss Warranty Act (Act) is enforced by the Federal Trade Commission (Commission) and was passed in 1975 to clarify how written warranties may be used when marketing products to consumers. The Act has an anti-tying provision which prohibits manufacturers from using access to warranty coverage as a way of obstructing consumers' ability to have their products maintained or repaired using third-party replacement parts and independent repair shops. Manufacturers may seek a waiver from the Commission from the prohibition if: (1) the warrantor satisfies with the Commission that the manufacturer's parts or services are necessary for the product to function; and (2) the waiver is in the public interest.
Fair Repair Act.
Definitions.
"Digital electronic equipment" includes desktop computers, laptop computers, tablet computers, cell phones, or smart phones containing a microprocessor and originally manufactured for distribution and sale in the United States for general consumer purchase.
"Original Manufacturer" (manufacturer) means an individual or business that, in the normal course of business, is engaged in the business of selling or leasing digital electronic equipment manufactured by or on behalf of itself.
"Authorized Repair Provider" (ARP) is an individual or business that:
"Independent Repair Provider" (IRP) means an individual or business that obtains and maintains a repair certification and engages in the services of diagnosis, maintenance, or repair of digital electronic equipment in Washington without an arrangement with the manufacturer or an affiliation with an ARP. An IRP also means a manufacturer or the manufacturer's ARP that obtains and maintains a repair certification and engages in the services of diagnosis, maintenance, or repair of digital electronic equipment that is not manufactured by or on behalf of, sold by, or supplied by such manufacturer.
"Fair and reasonable terms" means making parts, tools, and documentation used in effecting the services of diagnosis, maintenance, or repair of digital electronic equipment as follows:
The following terms are also defined: diagnosis, documentation, maintenance, modifications, owner, part, repair, repair certification, tool, and trade secret.
Requirements.
Beginning January 1, 2024, a manufacturer of digital electronic equipment and parts that are manufactured for the first time and first sold or leased in Washington on or after July 1, 2023, must make available to IRPs, on fair and reasonable terms, any parts, tools, and documentation required for the diagnosis, maintenance, or repair of such equipment and its parts. The parts, tools, and documentation may be made available either directly from the manufacturer, an ARP, or an authorized third-party provider. The manufacturer may offer parts, such as integrated batteries, to IRPs preassembled with other parts rather than as individual components, provided that the preassembled parts are functionally equivalent to corresponding parts provided to ARPs.
Security-Related Functions.
For equipment with a security lock or security-related function, the manufacturer must make available any special parts, tools, and documentation needed to access and reset the lock or function when disabled during diagnosis, maintenance, or repair. Manufacturer equipment or parts sold or used for the purpose of providing security-related functions may not exclude diagnostic, maintenance, and repair information necessary to reset a security-related electronic function from the information that is provided to IRPs. If excluded from this requirement, the information necessary to reset an immobilizer system or security-related electronic module may be obtained by IRPs through the appropriate secure data release systems.
Standardized and Proprietary Formats.
When a manufacturer sells any parts, tools, or documentation to any IRP in a standardized format and on more favorable terms than which the ARP obtained the same diagnostic, maintenance, or repair documentation, the manufacturer is prohibited from requiring ARPs to continue purchasing documentation in a proprietary format, unless the proprietary format includes documentation or functionality that is not available in a standardized format.
Not Liable for Repairs or Functionality.
Manufacturers and ARPs are not liable for services performed by IRPs, and manufacturers do not warrant services provided by IRPs. In addition, while manufacturers must offer tools upon fair and reasonable terms, the manufacturer is not responsible for the content and functionality of such tools.
Enforcement.
Violations of the Fair Repair Act are deemed to affect public interest and constitute an unfair or deceptive act in trade or commerce for purposes of the Consumer Protection Act. Violations are only enforceable by the Attorney General.
Fair Repair Act Exceptions.
The substitute bill made a number of changes, including specifying that only digital electronic equipment and parts that are manufactured for the first time and first sold or leased on or after July 1, 2023, must be made available to IRPs. Changes were made to the definitions of "authorized repair provider," "documentation," and "fair and reasonable terms." Parts, tools, and documentation may all be made available by an authorized third-party provider, in addition to the manufacturer or ARP. The substitute bill added that manufacturers are not required to license any intellectual property to an IRP. In addition, manufacturers are permitted to offer parts, such as integrated batteries, to IRPs preassembled with other parts rather than as individual components, provided that the preassembled parts are functionally equivalent to corresponding parts provided to ARPs. The substitute bill specifically excluded manufacturers and distributors of medical devices, or digital electronic products or embedded software manufactured for use in a medical setting from the Fair Repair Act regulations. Lastly, a couple of provisions were struck from the bill. The requirement that manufacturers make available for purchase all parts, tools, and documentation made available to ARPs and the requirement that a manufacturer offer tools for sale to independent repair providers upon fair and reasonable terms were removed.
(In support) This is a well negotiated proposal that has been taken very seriously and reviewed by multiple stakeholders over multiple years. Competition and choice are important for the consumer, and the state needs to preserve competition. The current landscape has monopolistic practices. Many repairs require special tools or diagnostic equipment, and this is happening with all sorts of items, including vehicles, tractors, smart phones, computers, and dishwashers. In small rural communities, there may be limited repair options in town. This proposal allows small electronic repair businesses to operate fairly by giving them access, at fair market rates, to the tools, parts, and instructions needed. These IRPs are capable and well regarded. A training certification from Apple can cost $5,000, and an individual needs this to repair a shattered screen or bent port.
There is a massive waste problem, and the majority of this waste comes from small devices, like cell phones. Society used to fix everything, and it has only been in the last decade or so that the most profitable companies have taken this away. Now Americans have a throw away culture. Rather than buying something new, people could repair or refurbish devices. Refurbished devices could be donated to help others rather than being thrown away. The global e-waste calculator estimates 50 million metric tons of electronic waste globally. Society is on an upward trend of using more and more digital devices, so consumers need more options to help limit waste. The Washington E-Cycle program only covers certain devices, and cell phones are not included. This proposal ensures consumers can extend the life of their electronics and keep them in circulation longer.
It is easy to use jargon to confuse and exhaust people to get them to give in. The lack of parts, the design, and the use of glue can all inhibit repair. It is technologically trivial to lock up a device so only the manufacturer can repair it. Intellectual property is one of the tools that manufacturers leverage when they want to restrict repair. This is a weak argument and usually based on misrepresentations of the law. It is invoked to persuade lawmakers that the right to repair will run into an intellectual property roadblock. All forms of intellectual property are subject to exhaustion. Owning a patented device carries with it the right to use it as the owner sees fit. This goes for copyright law as well. When consumers go to repair shops to have their devices fixed, they are in crisis mode. These individuals cannot wait for days or weeks to mail their device in to the manufacturer to have it fixed. They need IRPs who can fix it in a couple of hours. If a consumer does not have the right to repair their device, they should be told that when they buy it. Adding a computer to a consumer device does not make it magical. It is just a machine.
A woman might be more harassed at a mechanic, but that does not mean she should lose her right to use a mechanic to repair a device. Privacy concerns do not exist solely with IRPs. Apple settled a lawsuit when one of their ARPs leaked photos of a female consumer. With the proper documentation and parts, people who have privacy concerns can do the repairs themselves. This legislation creates a level playing field for all, and there is consumer support for it. A survey conducted found only 18 percent of people were opposed to this type of legislation.
Access to digital electronic products is increasingly necessary to succeed. The ability to complete school is dependent on having access to a computer or phone as all work is done online, especially since the pandemic. Student budgets rarely have space to repair or replace a device. The right to repair can help close the technology gap.
(Opposition) There are safety and privacy risks associated with repairing some of these devices. Manufacturers have relationships with ARPs, which have the appropriate training, to ensure that repairs are done properly and safely. There are walk-in options, mail-in options, and insurance options. Consumers can use IRPs today; however, the manufacturer cannot guarantee the work. There is sensitive data on a computer or phone. There are privacy and cybersecurity concerns when seeking repairs, especially for women. Personal data can be accessed, copied, and put on the personal devices of the technicians. In addition, some types of repairs are dangerous, like when replacing high energy lithium ion batteries. Consumers need reasonable assurance about the people who are repairing their devices.
This proposal would sever the accountability link by requiring manufacturers to provide information to IRPs. The market for IRPs is expanding without legislation, so this is not necessary. The market is taking care of itself. This proposal should be done by a national memorandum of understanding so there are not laws on a state-by-state basis. New York state adopted legislation, and Washington should use something that is more like New York. The substitute bill was only negotiated with one company.
E-waste in Washington is already recycled through the program adopted a decade ago that resulted in 25 million pounds in reduction. The national e-waste data does not apply to Washington.
(Other) There are concerns regarding the definition of digital electronic equipment. A clarifying amendment to exclude digital electronic equipment in vehicle charging stations would be appreciated. New York's right to repair law had similar language.