In a unanimous vote, the Federal Trade Commission (FTC) sent a strong message regarding the right to repair. The clears a path for consumers to be able to repair electronic and automotive devices themselves or via non-manufacturer repairers.
The FTC vote comes less than two weeks after President Joe Biden issued an executive order promoting competition in the American economy that addressed right to repair concerns.
The recently issued policy statement on repair restrictions imposed by manufacturers and sellers is available online.
The policy statement includes the following:
“First, the Commission urges the public to submit complaints and provide other information to aid in greater enforcement of the Magnuson-Moss Warranty Act and its implementing regulations. While current law does not provide for civil penalties or redress, the Commission will consider filing suit against violators of the Magnuson-Moss Warranty Act to seek appropriate injunctive relief. The Commission will also closely monitor private litigation to determine whether the Commission may wish to investigate a pattern of unfair or deceptive acts or practices or file an amicus brief. Further, the Commission will explore rulemaking, as appropriate.
Second, the Commission will scrutinize repair restrictions for violations of the antitrust laws. For example, certain repair restrictions may constitute tying arrangements or monopolistic practices—such as refusals to deal, exclusive dealing, or exclusionary design—that violate the Sherman Act.8 Violations of the Sherman Act also violate the prohibition on unfair methods of competition codified in Section 5 of the Federal Trade Commission Act. Third, the Commission will assess whether repair restrictions constitute unfair acts or practices, which are also prohibited by Section 5 of the Federal Trade Commission Act. In addition, the Commission will 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.
Finally, the Commission will bring an interdisciplinary approach to this issue, using resources and expertise from throughout the agency to combat unlawful repair restrictions. The FTC will also closely coordinate with state law enforcement and policymakers to ensure compliance and to update existing law and regulation to advance the goal of open repair markets.”
The U.S. PIRG issued a news release regarding the FTC decision.
The Federal Trade Commissioners voted unanimously Wednesday, five to zero, to approve a new policy statement that outlines anti-repair practices it will view as illegal, the release states.
U.S. PIRG points out that the new guidance comes two months after the FTC issued its landmark “Nixing the Fix” report on repair restrictions. That report found many examples of manufacturers’ practices it has now ruled are enforceable violations.
“Manufacturers, be warned: It’s time to clean up your act and let people fix their stuff,” said U.S. PIRG Right to Repair Senior Campaign Director Nathan Proctor. “With unanimous support from commissioners, there’s a new sheriff in town. The FTC is ready to act to stop many of the schemes used to undermine repair, while support is increasing for new legislation to further crack down.”
Among the important features from the new policy statement are:
- A pledge to “devote more enforcement resources to combat” any “unlawful repair restrictions.”
- The commission announced plans to investigate repair restrictions as violations of antitrust and consumer protection laws that would be targets for enforcement.
- Urges the public to report warranty abuse on the type U.S. PIRG Education Fund documented, to ensure manufacturers do not use the threat of a voided warranty to push consumers to use manufacturer-branded repair services. Specifically, “the Commission will consider filing suit against violators” of warranty law meant to protect consumers and repair competition.
“In my eight-plus years serving my community, I’ve seen the number of devices we can prevent from going to landfills by extending their lifecycle, as well as the amount of money our community can save,” said Alex Castillo, owner of DigiTech Electronic Solutions in Roslindale, Mass. “But restrictions are limiting the amount of devices we can save and forcing people to replace expensive devices. This action will help me cut through these restrictions and continue to help my neighbors.”
The commissioners also noted they want to use the FTC to engage more with state lawmaking to help states craft effective Right to Repair laws. Some 27 states have considered such laws so far this year.
“The FTC is no longer on the sidelines. They have pledged to assist states in making Right to Repair improvements, and to tackle illegal behavior from manufacturers. Earlier this year, U.S. PIRG, Repair.org and iFixit delivered more than 15,000 comments asking for the FTC to start taking action to end repair restrictions. Today, the FTC is poised to do just that,” said Proctor.
