a lousy repair shop will stay in business, and it doesn’t mean that a lousy dealership will stay in business. It just means opportunity.”[1]
The submissions to the docket and discussion at the Workshop catalogued a variety of benefits independent repair provides to consumers, including access to local and timely repair,[2] competition in the cost of repairs, and access to repairs that manufacturers do not offer.[3] In addition, as Theresa McDonough explained at the Workshop, “I’ve read some of the requirements that these companies have. You have to have a line of credit. You have to have a certain amount of employees… the bar is very high. And for a small business, when you live in a state of 600,000 people, I just don’t see it beneficial to spend that sort of money on a certification….”[4] Finally, movement towards a more open repair system does not necessitate giving manuals, tools, and parts away for free, nor does it necessitate doing away with certifications or trainings that businesses can advertise to potential customers.
The Commission has a number of authorities it can and should deploy to address repair restrictions and help open repair markets. First, the Commission will enforce existing requirements under MMWA, where appropriate. Comments submitted by PIRG and others raise serious concerns about the extent to which manufacturers are complying with the MMWA.[5]
In addition, in some instances, a manufacturer’s use of a repair restriction could be challenged as an unfair practice under Section 5 of the FTC Act if the repair restriction causes substantial injury (e.g., monetary harm or unwarranted health and safety risks) that is not outweighed by countervailing benefits to consumers or competition that the practice produces, and the injury could not have been reasonably avoided by consumers. Moreover, as explained in Section II, there may be some specific circumstances in which the Commission could address repair restrictions as violations of antitrust law.
Alternatively, the Commission could engage in rulemaking to declare certain types of repair restrictions illegal. The Commission could revise its Interpretations of the MMWA to make clear that certain repair restrictions could violate the MMWA’s anti-tying provision. Such an amendment would put all parties on notice that certain repair restrictions that have the effect
- ↑ Id. at 134.
- ↑ See Id. At 155–56; See discussion infra Section V.
- ↑ See iFixit empirical research, at 9.
- ↑ Transcript, at 55. See also, Mike Peterson, Lawyers Say Apple’s Independent Repair Program Contract is ‘Crazy,’ ‘Onerous’, iDropNews (Feb. 6, 2020), https://www.idropnews.com/news/lawyers-say-apples-independent-repair-program-contract-is-crazy-onerous/129006/ (for example, “the contract stipulates repair technicians may be subject to ‘unannounced audits and inspections by Apple’ …. And if independent repair shops leave the program, the contract actually includes a term that gives Apple the right to ‘continue inspecting repair shops for up to five years’ after it ends.”).
- ↑ See supra Section I.
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