Fair Repair Act

I 117TH CONGRESS 1ST SESSION H. R. 4006 To require original equipment manufacturers of digital electronic equipment to make available certain documentation, diagnostic, and repair informa- tion to independent repair providers, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JUNE 17, 2021 Mr. MORELLE introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To require original equipment manufacturers of digital elec- tronic equipment to make available certain documenta- tion, diagnostic, and repair information to independent repair providers, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fair Repair Act’’. 4 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 4006 IH SEC. 2. REQUIREMENT TO MAKE DIAGNOSTIC, MAINTE- 1 NANCE, AND REPAIR EQUIPMENT AVAILABLE 2 TO INDEPENDENT REPAIR PROVIDERS. 3 (a) GENERAL REQUIREMENT.—For digital electronic 4 equipment sold or used in the United States, an original 5 equipment manufacturer shall make available, for the pur- 6 poses of diagnosis, maintenance, or repair of such equip- 7 ment, to independent repair providers or owners of such 8 digital electronic equipment manufactured by or on behalf 9 of, or sold or otherwise supplied by the original equipment 10 manufacturer, in a timely manner and on fair and reason- 11 able terms, documentation, parts, and tools, inclusive of 12 any updates to information or embedded software. 13 (b) ADDITIONAL REQUIREMENTS RELATED TO AN 14 EXPRESS WARRANTY.—When the OEM has made an ex- 15 press warranty with respect to digital electronic equipment 16 and the wholesale price of the equipment is $100 or more, 17 the manufacturer shall provide such parts, tools, and doc- 18 umentation as to enable the repair of the equipment dur- 19 ing the warranty period, at an equitable price and conven- 20 ience of delivery and of enabling functionality, in light 21 of— 22 (1) the actual cost to the OEM to prepare and 23 distribute the part, tool, or documentation, exclusive 24 of any research and development costs incurred; 25 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 4006 IH (2) the ability of owners and independent repair 1 providers to afford the part, tool, or documentation; 2 and 3 (3) the means by which the part, tool, or docu- 4 mentation is distributed. 5 SEC. 3. ENFORCEMENT. 6 (a) ENFORCEMENT BY THE FEDERAL TRADE COM- 7 MISSION.— 8 (1) UNFAIR OR DECEPTIVE ACTS OR PRAC- 9 TICES.—A violation of section 2 shall be treated as 10 a violation of a rule defining an unfair or deceptive 11 act or practice prescribed under section 18(a)(1)(B) 12 of the Federal Trade Commission Act (15 U.S.C. 13 57a(a)(1)(B)). 14 (2) POWERS OF THE COMMISSION.— 15 (A) IN GENERAL.—The Commission shall 16 enforce this Act and any regulations promul- 17 gated under this Act in the same manner, by 18 the same means, and with the same jurisdic- 19 tion, powers, and duties as though all applicable 20 terms and provisions of the Federal Trade 21 Commission Act (15 U.S.C. 41 et seq.) were in- 22 corporated into and made a part of this Act, 23 and any person who violates this Act or a regu- 24 lation promulgated under this Act shall be sub- 25 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 4006 IH ject to the penalties and entitled to the privi- 1 leges and immunities provided in the Federal 2 Trade Commission Act. 3 (B) REGULATIONS.—The Commission 4 may, under section 553 of title 5, United States 5 Code, prescribe any regulations it determines 6 necessary to carry out this Act. 7 (C) EFFECT ON OTHER LAWS.—Nothing in 8 this Act shall be construed in any way to limit 9 the authority of the Commission under any 10 other provision of law. 11 (b) ENFORCEMENT BY STATE ATTORNEYS GEN- 12 ERAL.— 13 (1) IN GENERAL.—If the chief law enforcement 14 officer of a State, or an official or agency designated 15 by a State, has reason to believe that any person has 16 violated or is violating section 2, the attorney gen- 17 eral, official, or agency of the State, in addition to 18 any authority it may have to bring an action in 19 State court under its consumer protection law, may 20 bring a civil action in any appropriate United States 21 district court or in any other court of competent ju- 22 risdiction, including a State court, to— 23 (A) enjoin further such violation by such 24 person; 25 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 4006 IH (B) enforce compliance with such section; 1 (C) obtain civil penalties; and 2 (D) obtain damages, restitution, or other 3 compensation on behalf of residents of the 4 State. 5 (2) NOTICE AND INTERVENTION BY THE 6 FTC.—The attorney general (or other such officer) 7 of a State shall provide prior written notice of any 8 action under paragraph (1) to the Commission and 9 provide the Commission with a copy of the complaint 10 in the action, except in any case in which such prior 11 notice is not feasible, in which case the attorney gen- 12 eral shall serve such notice immediately upon insti- 13 tuting such action. The Commission shall have the 14 right— 15 (A) to intervene in the action; 16 (B) upon so intervening, to be heard on all 17 matters arising therein; and 18 (C) to file petitions for appeal. 19 (3) LIMITATION ON STATE ACTION WHILE FED- 20 ERAL ACTION IS PENDING.—If the Commission has 21 instituted a civil action for violation of this Act, no 22 State attorney general, or official or agency of a 23 State, may bring an action under this paragraph 24 during the pendency of that action against any de- 25 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 4006 IH fendant named in the complaint of the Commission 1 for any violation of this Act alleged in the complaint. 2 (4) RELATIONSHIP WITH STATE LAW CLAIMS.— 3 If the attorney general of a State has authority to 4 bring an action under State law directed at acts or 5 practices that also violate this Act, the attorney gen- 6 eral may assert the State law claim and a claim 7 under this Act in the same civil action. 8 SEC. 4. RULES OF CONSTRUCTION, LIMITATIONS, AND NON- 9 APPLICATION. 10 The following rules of construction, limitations, and 11 non-application provision apply to this Act: 12 (1) SECURITY-RELATED FUNCTIONS NOT EX- 13 CLUDED.—For equipment that contains an elec- 14 tronic security lock or other security-related func- 15 tion, the original equipment manufacturer shall 16 make available to the owner and to independent re- 17 pair providers, on fair and reasonable terms, any 18 special documentation, tools, and parts needed to 19 disable the lock or function, and to reset it when dis- 20 abled in the course of diagnosis, maintenance, or re- 21 pair of the equipment. Such documentation, tools, 22 and parts may be made available to owners and 23 independent repair facilities through appropriate se- 24 cure data release systems. 25 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 4006 IH (2) PROTECTION OF TRADE SECRETS.—Nothing 1 in this Act shall be construed to require an original 2 equipment manufacturer to divulge a trade secret, as 3 defined in section 1839 of title 18, United States 4 Code, to an owner or an independent repair provider 5 except as necessary to provide documentation, parts, 6 and tools on fair and reasonable terms. 7 (3) TERMS OF AGREEMENT WITH AUTHORIZED 8 REPAIR PROVIDERS.—Notwithstanding any law, rule 9 or regulation to the contrary, no provision in this 10 Act shall be construed to abrogate, interfere with, 11 contradict or alter the terms of any arrangement de- 12 scribed in section 5(1)(A), including the performance 13 or provision of warranty or recall repair work by an 14 authorized repair provider on behalf of an original 15 equipment manufacturer pursuant to such arrange- 16 ment, except that any provision in such terms that 17 purports to waive, avoid, restrict or limit an OEM’s 18 obligations to comply with this Act shall be void and 19 unenforceable. 20 (4) NON-APPLICATION TO MOTOR VEHICLE OR 21 MOTOR VEHICLE EQUIPMENT MANUFACTURERS.— 22 Nothing in this Act shall apply to a motor vehicle 23 manufacturer, a manufacturer of motor vehicle 24 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 4006 IH equipment, or a motor vehicle dealer, acting in that 1 capacity. 2 (5) NON-APPLICATION TO MANUFACTURERS OF 3 MEDICAL DEVICES.—Nothing in this Act shall apply 4 to a manufacturer of a medical device, acting in that 5 capacity. 6 SEC. 5. DEFINITIONS. 7 In this Act, the following definitions apply: 8 (1) The term ‘‘authorized repair provider’’ 9 means— 10 (A) with respect to an OEM, a person or 11 business that is unaffiliated with the OEM and 12 that has an arrangement with the OEM for a 13 definite or indefinite period in which the OEM 14 grants to a person or business license to use a 15 trade name, service mark or other proprietary 16 identifier for the purposes of offering the serv- 17 ices of diagnosis, maintenance, or repair of dig- 18 ital electronic equipment under the name of the 19 OEM, or other arrangement with the OEM to 20 offer such services on behalf of the OEM; or 21 (B) an OEM that offers the services of di- 22 agnosis, maintenance, or repair of digital elec- 23 tronic equipment manufactured by it or on its 24 behalf, and who does not have an arrangement 25 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 4006 IH described in subparagraph (A) with an unaffili- 1 ated individual or business with respect to pro- 2 viding such services, shall be considered an au- 3 thorized repair provider with respect to such 4 equipment. 5 (2) The term ‘‘digital electronic equipment’’ 6 means any product that depends for its functioning, 7 in whole or in part, on digital electronics embedded 8 in or attached to the product. 9 (3) The term ‘‘documentation’’ means any 10 manuals, diagrams, reporting output, service code 11 descriptions, schematic, or other guidance or other 12 information used in effecting the services of diag- 13 nosis, maintenance, or repair of digital electronic 14 equipment. 15 (4) The term ‘‘embedded software’’ means any 16 programmable instructions provided on firmware de- 17 livered with digital electronic equipment, or with a 18 part for such equipment, for the purposes of equip- 19 ment operation, including all relevant patches and 20 fixes made by the manufacturer of such equipment 21 or part for this purpose. 22 (5) The term ‘‘fair and reasonable terms’’, with 23 respect to a part, tool, or documentation, means at 24 costs and terms that are equivalent to the most fa- 25 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 4006 IH vorable costs and terms under which an OEM offers 1 the part, tool, or documentation to an authorized re- 2 pair provider— 3 (A) accounting for any discount, rebate, 4 convenient means of delivery, means of enabling 5 fully restored and updated functionality, rights 6 of use, or other incentive or preference the 7 OEM offers to an authorized repair provider, or 8 any additional cost, burden, or impediment the 9 OEM imposes on an independent repair pro- 10 vider; 11 (B) not conditioned on or imposing a sub- 12 stantial obligation or restriction that is not rea- 13 sonably necessary for enabling the owner or 14 independent repair provider to engage in the di- 15 agnosis, maintenance, or repair of digital elec- 16 tronic equipment made by or on behalf of the 17 OEM; and 18 (C) not conditioned on an arrangement de- 19 scribed in section 5(1)(a). 20 (6) The term ‘‘firmware’’ means a software pro- 21 gram or set of instructions programmed on digital 22 electronic equipment, or on a part for such equip- 23 ment, to allow the equipment or part to commu- 24 nicate within itself or with other computer hardware. 25 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 4006 IH (7) The term ‘‘independent repair provider’’ 1 means with respect to an OEM, a person that is not 2 affiliated with the OEM or with an authorized repair 3 provider of the OEM, which is engaged in the diag- 4 nosis, maintenance, or repair of digital electronic 5 equipment, except that an OEM or, with respect to 6 that OEM, a person who has such an arrangement 7 with that OEM, or who is affiliated with a person 8 who has such an arrangement with that OEM, shall 9 be considered an independent repair provider for the 10 purposes of those instances when such OEM or per- 11 son engages in the diagnosis, service, maintenance, 12 or repair of digital equipment that is not manufac- 13 tured by or sold under the name of that OEM. 14 (8) The term ‘‘medical device’’ has the meaning 15 given the term ‘‘device’’ under section 201(h) of the 16 Federal Food, Drug and Cosmetic Act (21 U.S.C. 17 321(h)). 18 (9) The term ‘‘original equipment manufac- 19 turer’’ or ‘‘OEM’’ means any person who, in the or- 20 dinary course of its business, is engaged in the busi- 21 ness of selling, leasing, or otherwise supplying new 22 digital electronic equipment or parts of equipment 23 manufactured by or on behalf of itself, to any indi- 24 vidual or business. 25 VerDate Sep 11 2014 03:58 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H4006.IH H4006 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 4006 IH (10) The term ‘‘owner’’ means a person who 1 owns or leases a digital electronic equipment. 2 (11) The term ‘‘part’’ means any replacement 3 parts, either new or used, made available by an 4 OEM for purposes of effecting the services of main- 5 tenance or repair of digital electronic equipment 6 manufactured by or on behalf of, sold or otherwise 7 supplied by the OEM. 8 (12) The term ‘‘tools’’ means any softwa [Text truncated for display. 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