of limiting consumer repair choices are illegal. A revised Interpretation of the MMWA, however, is not a panacea. First, it would only strengthen repair rights for products that are sold with a written warranty and only during the duration of the warranty period. Thus, manufacturers could entirely avoid the anti-tying provision by refraining to offer written warranties. Second, consumers would be left without repair rights during the time period when they are most likely to use them—after the warranty has expired. Finally, because the MMWA only applies to consumer products, a revised Interpretation would not address repair restrictions imposed on owners of products that fall outside the scope of the MMWA.[1]
The Commission could also pursue a rulemaking under the FTC Act. Any such rulemaking would require a complex assessment of the variety of repair restrictions, their widespread use by multiple industries, the rationale for the restrictions, and the interplay of repair restrictions with statutorily created intellectual property rights. Given, however, the breadth of concern about and potential harm to consumers and markets from widespread repair restrictions and the inefficiency of ex post enforcement, the Commission may decide it is worth the investment of its energy and attention to pursue rulemakings in this area.
While industry self-regulation can be beneficial, the broad range of industries and products involved would make it a challenge to create and implement a single self-regulatory scheme. And, aside from the auto industry, no other manufacturing sectors have successfully created and implemented one.
For any manufacturing sector interested in creating a self-regulatory mechanism for expanding repair options, the experience of the automobile industry provides some guidance. In January 2014, two car manufacturer trade groups and two trade groups representing independent repair shops and manufacturers of aftermarket parts entered into a Memorandum of Understanding (“MOU”) that had the effect of creating a broad, if not complete, right to repair in the automotive industry across the United States.[2]
The MOU came about after Massachusetts passed its own automotive right to repair law. In an effort to prevent the passage of state bills around the country that all contained differing requirements,[3] manufacturers agreed to sell the diagnostic and repair information that manufacturers make available to their dealers to car owners and independent repair shops.[4] In
- ↑ See, supra, note 212.
- ↑ See Memorandum of Understanding (“MOU”), (Jan. 15, 2014), https://web.archive.org/web/20180310231358/https:/www.autocare.org/workarea/DownloadAsset.aspx?id=1440&gmssopc=1. Members of the manufacturer trade groups individually executed letters of endorsement to signify their agreement to comply with the MOU. Id. at 1. Every car manufacturer but Tesla has signed on to the MOU. See Transcript, at 179.
- ↑ See Gabe Nelson, Automakers agree to ‘right to repair deal,’ Automotive News (Jan. 25, 2014), https://www.autonews.com/article/20140125/RETAIL05/301279936/automakers-agree-to-right-to-repair-deal.
- ↑ MOU, at 1.
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