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‘Scant Evidence’

Tech's Repair Arguments to Hochul Were Debunked in 2021 FTC Report

The recent arguments of 15 tech groups that self-repair or independent servicing of smartphones, laptops and other electronic devices would expose consumers to risk of injury, force public disclosure of manufacturer trade secrets or weaken safeguards against consumer data and privacy breaches were debunked in a May 2021 FTC report to Congress that found “scant evidence to support manufacturers’ justifications for repair restrictions.”

The tech groups, including CTA, CTIA and the Information Technology Industry Council, wrote New York Gov. Kathy Hochul (D) with those arguments June 29, urging her to veto the nation’s first digital electronics repair legislation (S-4104/A-7006) after it cleared the New York Assembly on a 145-1 vote more than a month ago (see 2207060004). Hochul's office has said little about the governor's intention to veto the legislation or sign it into law.

Consumer tech devices “are at risk of hacking, and weakening of the privacy and security protections of those products,” as the legislation will do, “will increase risks to consumers,” the tech groups told Hochul. The legislation also provides no protection for consumers and independent repair shops against injury, they also argued. Finally, they warned that providing unauthorized repair facilities and individuals “with access to proprietary information without the contractual safeguards currently in place between OEMs and authorized service providers places OEMs, suppliers, distributors, and repair networks at risk.”

But the FTC found that the information manufacturers already share with authorized repair centers “may not qualify for trade secret protection,” said the May 2021 report. The report followed a two-year FTC proceeding into manufacturer repair restrictions and their impact on consumer protections in the 1975 Magnuson-Moss Warranty Act (MMWA) that included a daylong "Nixing the Fix" workshop and an extended notice-and-comment period. “With regards to other possible trade secrets, model right to repair legislation exempts trade secrets from disclosure,” said the commission. The New York legislation, drafted after the FTC report came out, contains such trade-secret exemptions.

Safety considerations “are a critical part of any discussion about repairs,” said the FTC report's discussion contesting manufacturer assertions that self-repair increases injury risks to consumers. Concerns about the safety of users, repair personnel and the public “should not automatically justify restricting repairs to authorized repair networks without further analysis,” it said. Manufacturers have provided no “factual support for their statements that authorized repair persons are more careful or that individuals or independent repair shops fail to take appropriate safety precautions, or that independent repair workers who enter homes pose more of a safety risk to consumers than authorized repair workers,” it said.

On manufacturers’ assertions that consumers face significant risks when they give a device containing sensitive personal information to an independent repair shop, “the record contains no empirical evidence to suggest that independent repair shops are more or less likely than authorized repair shops to compromise or misuse customer data,” said the FTC report. The commission sided with right-to-repair advocates who said “replacing a part on a device with an identical OEM part or functionally equivalent aftermarket part is unlikely to create a cybersecurity risk.”

The FTC is acting against grill maker Weber “for illegally restricting customers’ right to repair their purchased products,” in violation of the MMWA, said the agency Thursday. The FTC alleges Weber’s warranty “included terms that conveyed that the warranty is void if customers use or install third-party parts on their grill products,” it said. It’s ordering Weber to fix its warranty and to “come clean with customers about their ability to use third-party parts,” it said. Weber didn’t immediately comment.

The action against Weber is the FTC’s “third right-to-repair lawsuit in as many weeks,” following similar complaints against Harley-Davidson and Westinghouse, said Samuel Levine, director-FTC Bureau of Consumer Protection. “Companies that use their warranties to illegally restrict consumers’ right to repair should fix them now.” The FTC, in a 2021 policy statement issued just after the report to Congress, vowed to use its MMWA authority to ramp up investigations into illegal repair restrictions. The agency, to our knowledge, hasn’t taken action under the year-old enforcement policy against any electronics manufacturer.