Fate of Right to Repair remains uncertain

Jan. 1, 2020
A much debated Right to Repair law will remain in federal limbo as Congress closes the door on another year.

WASHINGTON, D.C. — A much debated Right to Repair law will remain in federal limbo as Congress closes the door on another year. Technicians, volunteer coalitions and legislators have encountered difficulties placing a price tag on a manufacturer’s intellectual property, as well as determining how much information can, or should, be shared so vehicles can be properly repaired in the aftermarket.

Introduced last year to the House of Representatives and as a companion Senate bill earlier this year, the Right to Repair proposal seeks to prevent manufacturers from unfairly restricting access to the information and tools necessary to diagnose and repair vehicles.

Many of the Motor Vehicle Owners’ Right to Repair sponsors in the House and Senate will be back next year, and plans are in the works to reintroduce the bill at that time.

Recent actions surrounding the measure have included a request for a federal audit from the Motor & Equipment Manufacturers Association (MEMA) to assess the effectiveness of the voluntary information-sharing now in place, announcement of an Environmental Protection Agency (EPA) audit and a letter issued by the Federal Trade Commission that expresses concern over ambiguities in the proposed legislation and its susceptibility to possible controversies and litigation.

Because the FTC would be an enforcement arm of this legislation, the letter has had a serious effect throughout the aftermarket. 

Addressed to U.S. Rep. John Dingell (D-Mich.), a ranking member of the House Energy and Commerce Committee, the letter states the bill would place the FTC in the role of reviewing vast amounts of documents beyond its expertise, and it would be difficult to determine which information would constitute trade secrets — considered exempt from the legislation. Also unclear is how the cost of this information would affect the industry.

If the bill were to require the disclosure of repair information at no cost, the FTC wonders how this would ultimately fare for the consumer. Manufacturers currently may recoup the costs of developing software and diagnostic tools by charging for this information, sometimes in the thousands of dollars, so a provision to provide the information for free could negatively impact the consumer in other areas. Conversely, how would the FTC establish a fair price if the legislation were to mandate a price tag on diagnostic information?

A number of technicians have contacted Aftermarket Business in response to an earlier story on the issue. One reported an initial $8,000 investment for a small business just for basic diagnostic information, with $3,000 in annual update fees. Others reported paying much less, but one thing’s for sure: obtaining diagnostic and repair information is not cheap.

The Automotive Aftermarket Industry Association (AAIA), which supports Right to Repair legislation, states the FTC merely needs to look to emissions service information access guidelines put in place by both the EPA and the California Air Resources Board (CARB).

“Most of the issues [the FTC] mentioned have already been worked on by the EPA,” says Aaron Lowe, AAIA’s vice president of regulatory and government affairs. Regarding the FTC’s pricing concerns, “We’ve worked for years with the EPA and have regulations in place regarding cost.”

The EPA has set up a three-tiered price structure that designates short-, mid- and long-term information as well as requires OEs to substantiate their costs. Though the EPA’s focus was emissions-related information, agency officials say just about every system on a vehicle has an impact on emissions.

The AAIA issued an official response to the FTC letter that urges meetings to address the agency’s concerns, but Lowe says the FTC has so far refused to re-examine its position.

While the FTC agrees the legislation seeks a “laudable goal,” it feels the parties involved should first seek a voluntary mechanism for compliance. Acknowledging the inherent sluggishness of government channels, the letter states, “Self-regulatory programs, when successful, can address issues with greater speed and more flexibility than government regulation.”

Voluntary efforts led by the Automotive Service Association (ASA) are currently in use for the exchange of this vehicle information and some technicians feel that enough information is being shared; it’s the cost and training that are hindering efforts to fairly repair vehicles, they add.

The ASA has lobbied against Right to Repair and MEMA, which has appointed itself a “watchdog” to help ensure OE compliance, believes the ideal solution is a “spirit of cooperation” among parties. In September, MEMA urged Congress to request a General Accounting Office assessment of the voluntary system as it pertains to non-emissions related diagnostic, service and repair information. If that cooperative spirit erodes, MEMA says it will support enforcement.

Robert Redding, Washington representative for ASA, puts more merit in an EPA audit, which is expected to be under way before the end of the year. The EPA, he says, has more specialized knowledge to determine the true effectiveness of the current voluntary program.

“We think the (voluntary) agreement provides the necessary service information,” says Redding, who adds that an overwhelming majority of technicians rely on third-party information providers rather than websites, so the legislation covers only a small piece of the overall information puzzle.

Feelings among technicians are mixed. Some feel the manufacturers are withholding repair information. Others state that the current volunteer arrangement facilitated by the ASA has worked smoothly and legislation would only heap confusion onto an already complicated issue.

Yet others believe that the real problem lies in the training needed to interpret the wealth of diagnostic information already available.

Because Congress is out for the year, the debate over pending legislation will ensue next year. And whatever the case, don’t expect the push for legislation, or the debate over this hotly contested issue, to go away anytime soon.

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