MEP EP#286: FTC “Nixing The Fix” Report

MEP EP#286: FTC “Nixing The Fix” Report

FTC “Nixing The Fix” Report

The debate around repair restrictions illustrates the limitations of MMWA’s anti-tying provision in repair markets. While the anti-tying provision gives consumers the right to make repairs on their own or through an independent repair shop without voiding a product’s warranty, repair restrictions have made it difficult for consumers to exercise this right. Although manufacturers have offered numerous explanations for their repair restrictions, the majority are not supported by the record.

• How manufacturers may limit repairs by consumers and repair shops, and how those limitations may increase costs, limit choice, and impact consumers’ rights under the Magnuson-Moss Warranty Act
  • The statute is remedial and is intended to protect consumers from deceptive warranty practices
    Consumer products are not required to have warranties, but if one is given, it must comply with the Magnuson-Moss Act.
  • Defines definitions and disclosure standards
  • Bars manufacturers from using access to warranty coverage as a way of obstructing consumers’ ability to have their consumer products maintained or repaired using third-party replacement parts and independent repair shops.
• A manufacturer with market power that has refused to provide consumers or aftermarket service providers with key inputs (such as parts, manuals, or diagnostic software and tools) may be subject to antitrust liability for maintaining its monopoly, if the effect of such conduct is to harm competition
  • What is market power?
• Repair Restrictions
  • Physical
    • iFixit has a repair index for devices
    • Should manufacturers disclose how “repairable” the device is?
    • Reports indicate that consumers would rather have a long lasting device over a “sexy” device.
  • Restrictions on parts, repair manuals, software, tools
  • Designs making repair unsafe
    • manufacturers provided no data to support their argument that injuries are tied to repairs performed by consumers or independent repair shops.
  • Telematics
  • Quality of Service of the Repair Process
    • Dealerships suck in terms of service
    • Mainly covers safety and “proper repairs"
    • Right to Repair advocates state that OEMs do this to themselves by not providing proper documentation on repair practices
  • Application of patent rights / Trademarks
  • Disparagement of non-OEM parts
  • Software locks
  • EULAs
  • Liability and Reputational Harm
• Talking points for right to repair
  • Timing of Repairs
  • Price of repairs
  • Environmental Harm
  • Small Businesses and Employment
• What can the FTC actually do?
  • Revise its Interpretations of the MMWA to
  • Make clear that certain repair restrictions could violate the MMWA
  • Is this like the ATF “reinterpreting the laws”?
  • Self-regulation
  • Transparency of Repairability by OEMs/Industry