Fair Repair Act
Bill: H.R.4006 | Sponsor: Rep. Morelle, Joseph D. (D-NY)
Policy area: Commerce

Summary:
Fair Repair Act
This bill requires an original equipment manufacturer (OEM) to make diagnostic, maintenance, and repair equipment available to independent repair providers.
Specifically, for digital electronic equipment sold or used in the United States, an OEM shall make documentation, parts, and tools available to independent repair providers in a timely manner and on fair and reasonable terms. Further, if an OEM has made an express warranty for digital electronic equipment with a wholesale price of $100 or more, the OEM must provide such items at an equitable price and convenience of delivery to enable the repair of the equipment during the warranty period.
The bill provides for enforcement of its provisions by the Federal Trade Commission and state attorneys general.

To require original equipment manufacturers of digital electronic 
  equipment to make available certain documentation, diagnostic, and 
   repair information to independent repair providers, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fair Repair Act''.

SEC. 2. REQUIREMENT TO MAKE DIAGNOSTIC, MAINTENANCE, AND REPAIR 
              EQUIPMENT AVAILABLE TO INDEPENDENT REPAIR PROVIDERS.

    (a) General Requirement.--For digital electronic equipment sold or 
used in the United States, an original equipment manufacturer shall 
make available, for the purposes of diagnosis, maintenance, or repair 
of such equipment, to independent repair providers or owners of such 
digital electronic equipment manufactured by or on behalf of, or sold 
or otherwise supplied by the original equipment manufacturer, in a 
timely manner and on fair and reasonable terms, documentation, parts, 
and tools, inclusive of any updates to information or embedded 
software.
    (b) Additional Requirements Related to an Express Warranty.--When 
the OEM has made an express warranty with respect to digital electronic 
equipment and the wholesale price of the equipment is $100 or more, the 
manufacturer shall provide such parts, tools, and documentation as to 
enable the repair of the equipment during the warranty period, at an 
equitable price and convenience of delivery and of enabling 
functionality, in light of--
            (1) the actual cost to the OEM to prepare and distribute 
        the part, tool, or documentation, exclusive of any research and 
        development costs incurred;
            (2) the ability of owners and independent repair providers 
        to afford the part, tool, or documentation; and
            (3) the means by which the part, tool, or documentation is 
        distributed.

SEC. 3. ENFORCEMENT.

    (a) Enforcement by the Federal Trade Commission.--
            (1) Unfair or deceptive acts or practices.--A violation of 
        section 2 shall be treated as a violation of a rule defining an 
        unfair or deceptive act or practice prescribed under section 
        18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 
        57a(a)(1)(B)).
            (2) Powers of the commission.--
                    (A) In general.--The Commission shall enforce this 
                Act and any regulations promulgated under this Act in 
                the same manner, by the same means, and with the same 
                jurisdiction, powers, and duties as though all 
                applicable terms and provisions of the Federal Trade 
                Commission Act (15 U.S.C. 41 et seq.) were incorporated 
                into and made a part of this Act, and any person who 
                violates this Act or a regulation promulgated under 
                this Act shall be subject to the penalties and entitled 
                to the privileges and immunities provided in the 
                Federal Trade Commission Act.
                    (B) Regulations.--The Commission may, under section 
                553 of title 5, United States Code, prescribe any 
                regulations it determines necessary to carry out this 
                Act.
                    (C) Effect on other laws.--Nothing in this Act 
                shall be construed in any way to limit the authority of 
                the Commission under any other provision of law.
    (b) Enforcement by State Attorneys General.--
            (1) In general.--If the chief law enforcement officer of a 
        State, or an official or agency designated by a State, has 
        reason to believe that any person has violated or is violating 
        section 2, the attorney general, official, or agency of the 
        State, in addition to any authority it may have to bring an 
        action in State court under its consumer protection law, may 
        bring a civil action in any appropriate United States district 
        court or in any other court of competent jurisdiction, 
        including a State court, to--
                    (A) enjoin further such violation by such person;
                    (B) enforce compliance with such section;
                    (C) obtain civil penalties; and
                    (D) obtain damages, restitution, or other 
                compensation on behalf of residents of the State.
            (2) Notice and intervention by the ftc.--The attorney 
        general (or other such officer) of a State shall provide prior 
        written notice of any action under paragraph (1) to the 
        Commission and provide the Commission with a copy of the 
        complaint in the action, except in any case in which such prior 
        notice is not feasible, in which case the attorney general 
        shall serve such notice immediately upon instituting such 
        action. The Commission shall have the right--
                    (A) to intervene in the action;
                    (B) upon so intervening, to be heard on all matters 
                arising therein; and
                    (C) to file petitions for appeal.
            (3) Limitation on state action while federal action is 
        pending.--If the Commission has instituted a civil action for 
        violation of this Act, no State attorney general, or official 
        or agency of a State, may bring an action under this paragraph 
        during the pendency of that action against any defendant named 
        in the complaint of the Commission for any violation of this 
        Act alleged in the complaint.
            (4) Relationship with state law claims.--If the attorney 
        general of a State has authority to bring an action under State 
        law directed at acts or practices that also violate this Act, 
        the attorney general may assert the State law claim and a claim 
        under this Act in the same civil action.

SEC. 4. RULES OF CONSTRUCTION, LIMITATIONS, AND NON-APPLICATION.

    The following rules of construction, limitations, and non-
application provision apply to this Act:
            (1) Security-related functions not excluded.--For equipment 
        that contains an electronic security lock or other security-
        related function, the original equipment manufacturer shall 
        make available to the owner and to independent repair 
        providers, on fair and reasonable terms, any special 
        documentation, tools, and parts needed to disable the lock or 
        function, and to reset it when disabled in the course of 
        diagnosis, maintenance, or repair of the equipment. Such 
        documentation, tools, and parts may be made available to owners 
        and independent repair facilities through appropriate secure 
        data release systems.
            (2) Protection of trade secrets.--Nothing in this Act shall 
        be construed to require an original equipment manufacturer to 
        divulge a trade secret, as defined in section 1839 of title 18, 
        United States Code, to an owner or an independent repair 
        provider except as necessary to provide documentation, parts, 
        and tools on fair and reasonable terms.
            (3) Terms of agreement with authorized repair providers.--
        Notwithstanding any law, rule or regulation to the contrary, no 
        provision in this Act shall be construed to abrogate, interfere 
        with, contradict or alter the terms of any arrangement 
        described in section 5(1)(A), including the performance or 
        provision of warranty or recall repair work by an authorized 
        repair provider on behalf of an original equipment manufacturer 
        pursuant to such arrangement, except that any provision in such 
        terms that purports to waive, avoid, restrict or limit an OEM's 
        obligations to comply with this Act shall be void and 
        unenforceable.
            (4) Non-application to motor vehicle or motor vehicle 
        equipment manufacturers.--Nothing in this Act shall apply to a 
        motor vehicle manufacturer, a manufacturer of motor vehicle 
        equipment, or a motor vehicle dealer, acting in that capacity.
            (5) Non-application to manufacturers of medical devices.--
        Nothing in this Act shall apply to a manufacturer of a medical 
        device, acting in that capacity.

SEC. 5. DEFINITIONS.

    In this Act, the following definitions apply:
            (1) The term ``authorized repair provider'' means--
                    (A) with respect to an OEM, a person or business 
                that is unaffiliated with the OEM and that has an 
                arrangement with the OEM for a definite or indefinite 
                period in which the OEM grants to a person or business 
                license to use a trade name, service mark or other 
                proprietary identifier for the purposes of offering the 
                services of diagnosis, maintenance, or repair of 
                digital electronic equipment under the name of the OEM, 
                or other arrangement with the OEM to offer such 
                services on behalf of the OEM; or
                    (B) an OEM that offers the services of diagnosis, 
                maintenance, or repair of digital electronic equipment 
                manufactured by it or on its behalf, and who does not 
                have an arrangement described in subparagraph (A) with 
                an unaffiliated individual or business with respect to 
                providing such services, shall be considered an 
                authorized repair provider with respect to such 
                equipment.
            (2) The term ``digital electronic equipment'' means any 
        product that depends for its functioning, in whole or in part, 
        on digital electronics embedded in or attached to the product.
            (3) The term ``documentation'' means any manuals, diagrams, 
        reporting output, service code descriptions, schematic, or 
        other guidance or other information used in effecting the 
        services of diagnosis, maintenance, or repair of digital 
        electronic equipment.
            (4) The term ``embedded software'' means any programmable 
        instructions provided on firmware delivered with digital 
        electronic equipment, or with a part for such equipment, for 
        the purposes of equipment operation, including all relevant 
        patches and fixes made by the manufacturer of such equipment or 
        part for this purpose.
            (5) The term ``fair and reasonable terms'', with respect to 
        a part, tool, or documentation, means at costs and terms that 
        are equivalent to the most favorable costs and terms under 
        which an OEM offers the part, tool, or documentation to an 
        authorized repair provider--
                    (A) accounting for any discount, rebate, convenient 
                means of delivery, means of enabling fully restored and 
                updated functionality, rights of use, or other 
                incentive or preference the OEM offers to an authorized 
                repair provider, or any additional cost, burden, or 
                impediment the OEM imposes on an independent repair 
                provider;
                    (B) not conditioned on or imposing a substantial 
                obligation or restriction that is not reasonably 
                necessary for enabling the owner or independent repair 
                provider to engage in the diagnosis, maintenance, or 
                repair of digital electronic equipment made by or on 
                behalf of the OEM; and
                    (C) not conditioned on an arrangement described in 
                section 5(1)(a).
            (6) The term ``firmware'' means a software program or set 
        of instructions programmed on digital electronic equipment, or 
        on a part for such equipment, to allow the equipment or part to 
        communicate within itself or with other computer hardware.
            (7) The term ``independent repair provider'' means with 
        respect to an OEM, a person that is not affiliated with the OEM 
        or with an authorized repair provider of the OEM, which is 
        engaged in the diagnosis, maintenance, or repair of digital 
        electronic equipment, except that an OEM or, with respect to 
        that OEM, a person who has such an arrangement with that OEM, 
        or who is affiliated with a person who has such an arrangement 
        with that OEM, shall be considered an independent repair 
        provider for the purposes of those instances when such OEM or 
        person engages in the diagnosis, service, maintenance, or 
        repair of digital equipment that is not manufactured by or sold 
        under the name of that OEM.
            (8) The term ``medical device'' has the meaning given the 
        term ``device'' under section 201(h) of the Federal Food, Drug 
        and Cosmetic Act (21 U.S.C. 321(h)).
            (9) The term ``original equipment manufacturer'' or ``OEM'' 
        means any person who, in the ordinary course of its business, 
        is engaged in the business of selling, leasing, or otherwise 
        supplying new digital electronic equipment or parts of 
        equipment manufactured by or on behalf of itself, to any 
        individual or business.
            (10) The term ``owner'' means a person who owns or leases a 
        digital electronic equipment.
            (11) The term ``part'' means any replacement parts, either 
        new or used, made available by an OEM for purposes of effecting 
        the services of maintenance or repair of digital electronic 
        equipment manufactured by or on behalf of, sold or otherwise 
        supplied by the OEM.
            (12) The term ``tools'' means any software program, 
        hardware implement, or other apparatus used for diagnosis, 
        maintenance, or repair of digital electronic equipment, 
        including software or other mechanisms that provision, program, 
        or pair a new part, calibrate functionality, or perform any 
        other function required to bring the equipment back to fully 
        functional condition.

SEC. 6. EFFECTIVE DATE.

    This Act shall take effect 60 days after the date of enactment of 
this Act and shall apply with respect to equipment sold or in use on or 
after the effective date of this Act.
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