RIGHT TO REPAIR By Scott Schloegel, Senior Vice President, Government Relations Motorcycle Industry Council (MIC)
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ver the past two years, dozens of state houses across the country, and now the U.S. House of Representatives, have introduced digital Right to Repair bills. In most cases, these bills originated through frustration with two groups: those looking to repair their electronics like laptops and mobile phones, and farmers seeking the ability to repair agricultural equipment in rural areas with limited access to Dealer-certified facilities. Unfortunately for everyone in powersports, the bills also capture many other types of equipment and vehicles, including motorcycles, ATVs and UTVs. These bills call for OEs and aftermarket companies to supply their codes for free and sell repair equipment at cost. The Government Relations Office (GRO) team of the Motorcycle Industry Council (MIC) tracks and weighs in on every bill introduced across the country, requesting that motorcycles, ATVs and ROVs be excluded from them. They have been quite successful in securing language to exclude our products or defeat the bills altogether. However, they are fighting a large, extremely well-organized, and well-funded group pushing to pass and expand Right to Repair bills. Advocates for Right to Repair have now expanded their fights from the state houses to Washington, D.C. where they are trying to secure additional regulations and enforcement through the Federal Trade Commission (FTC) and secure additional law through the recently introduced bill HR 4006. The bill introduced by Congressman Morelle (D-NY) in the U.S. House of Representatives at the end of June includes language that excludes “motor vehicles,” which are most commonly defined as on-road motorcycles that are regulated by the National Highway Traffic Safety Administration (NHTSA). However, off-road motorcycles, ATVs and ROVs are not usually defined as motor vehicles because they are regulated by the Consumer Product Safety Commission (CPSC), so the MIC GRO is seeking an amendment to the bill clarifying that it does not apply to on- or off-road vehicles. Last week the FTC handed a victory to the pro Right to Repair advocates when they voted unanimously on a policy statement targeted at “Repair Restrictions Imposed by Manufacturers and Sellers” stating that “the Commission has determined that it will devote more enforcement resources to combat these practices. Accordingly, the Commission will now prioritize investigations into unlawful repair restrictions under relevant statutes such as the Magnuson-Moss Warranty Act and Section 5 of the Federal Trade Commission Act.” The FTC stressed four main areas they will devote the resources to:
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1. Greater enforcement of the Magnuson-Moss Warranty Act and its implementing regulations; 2. Scrutinizing repair restrictions for violations of the antitrust laws, including repair restrictions that may constitute tying arrangements or monopolistic practices — such as refusals to deal, exclusive dealing, or exclusionary design — that violate the Sherman Act; 3. Assess whether repair restrictions constitute unfair acts or practices, which are also prohibited by Section 5 of the Federal Trade Commission Act, and analyze any material claims made to purchasers and users to ascertain whether there are any prohibited deceptive acts or practices, in violation of Section 5 of the Federal Trade Commission Act; and 4. Bring an interdisciplinary approach to this issue, using resources and expertise from throughout the agency and coordinate with state law enforcement and policymakers to ensure compliance. What this means for powersports: The damaging effects of digital right to repair regulation or legislation would be felt across the entire powersports industry. Dealers- Right to Repair regulation or legislation would mean customers tampering with their vehicles thinking that they can fix them as well as the factory-trained dealerships can. This may result in bringing vehicles to the dealership after further damaging it and expecting you to fix it under the warranty despite possibly violating the warranty. This could create significant ill-will with consumers and raise Magnuson-Moss Warranty Act issues at a time of heightened enforcement by FTC. OEs- Having untrained/undertrained people attempting to work on today’s highly sophisticated vehicles could potentially alter the effectiveness of high tech safety equipment, could damage the electronics, could negatively impact emissions, could be detrimental to performance, and could result in completely unwarranted reputational damage to their brand. Consumers- No doubt many weekend wrenchers love the idea behind this effort but having unfettered access to codes and repair equipment will be a tempting proposition to tamper with sophisticated machinery. This could jeopardize safety systems, negatively impact emissions and performance, and nullify the warranty. Repairing and maintaining these highly technical vehicles requires intense specialized training as well as continued education. This will be a topic of discussion during MIC’s annual Washington, D.C. Fly-In September 20-21st. Learn more about how you can add your voice to this discussion and participate in the fly-in at www.capitolhillflyin.com