Federal Bill Could Fix Faltering Auto Right to Repair
Americans’ ability to service and repair their vehicles hinges on a 10 year-old Massachusetts law. But with automakers turning against it, the federal REPAIR ACT is needed now more than ever.
When residents of other U.S. states think of Massachusetts a few things likely come to mind. We’re the home of the “shot heard ‘round the world” and the birthplace of the American Revolution, sure. If you’re not a history buff, however, “Massachusetts” may conjure thoughts of obnoxious Patriots fans, or the historic (and bitter) rivalry between the Red Sox and Yankees. When it comes to public policy, however, Massachusetts has given the country a lot more than freedom from tyranny (you’re welcome); good micro-brew beer; the greatest sports comeback of all time and some exciting Super Bowls.
Your Auto Right to Repair from BOS-TON.
Many of the nation’s most progressive laws have had their start in the Bay State. That includes our first-in-the-nation legalization of same-sex marriage ( in 2004) which set the stage for passage of similar laws in other states and, eventually, federal recognition of same-sex marriages. Add to that list the Bay State’s automobile right to repair act - the U.S.’s first law of its kind, which was passed by ballot initiative in 2012, with 86% of voters approving.
That law required automakers to make available to vehicle owners and independent repair shops any diagnostic software and information they make available to dealerships and authorized repair providers.
While the state law only applies to vehicle owners who live in Massachusetts, a memorandum of understanding (MOU) signed by major automakers and aftermarket repair and service providers in 2014 essentially federalized the Massachusetts law. In essence: both sides of the fight for the right to repair in Massachusetts agreed to a détente in the wake of the law’s success at the ballot box. Automakers agreed to abide by the Massachusetts law in every other state.
Backers of the law (the Automotive Aftermarket Industry Association and the Coalition for Auto Repair Equality), in return, agreed not to endorse or sponsor other right to repair laws. Finally, the two groups agreed to meet to assess how well the MOU was working and “to work together to resolve any future or related R2R issues that might otherwise be the subject of state legislation.”
No Takers in the States
In the decade since that law passed, hundreds of millions of Americans have enjoyed benefits that Massachusetts voters bestowed upon them: the freedom to repair their own vehicles as well as a competitive market for auto service and repair that encompasses authorized service shops, independent service shops and individuals.
That’s because - unlike same sex marriage - no other state followed Massachusetts in creating a right to repair automobiles in the years after the Bay State passed its bill. Some tried, only to see them fall to intense lobbying pressure. Similarly, there was no action on the federal front in Washington D.C., where the first auto right to repair bill was proposed more than two decades ago, in 2001, but where the issue has had a low profile ever since.
RIP MOU?
Fortunately, the 2014 MOU served its purpose, with automakers honoring their commitment to make repair tools and diagnostic data available to owners and independent repair shops.
But recent events show the détente between automakers and independent auto repair is fragmenting.
First: the 2012 law (which was subsequently modified by the Massachusetts Legislature) contained a major loophole for automakers: it exempted wireless telematics data from the information that OEMs agreed to give owners and independent shops access to. But by 2019, it was clear that car makers were not simply sending Spotify playlists and GPS data through telematics systems, but using them to facilitate repair and diagnosis of a wide range of issues. In place of laptops or crash carts at repair shops, automakers were piping diagnostic information to centralized repair servers in the cloud. Owners and independent shops had no access to that data.
With no concession on access to telematics data on the part of automakers, the independent repair community responded with another Massachusetts ballot measure, Question 1, which sought to modify the state’s existing auto right to repair law to include access to telematics data. In November 2020, that measure - Question 1 - passed overwhelmingly, with almost 75% of the vote.
Unlike a decade ago, however, automakers weren’t willing to accept defeat at the polls in 2020. Immediately following passage, they sued in federal court to block implementation of the bill, arguing that Massachusetts was superseding federal law and that it was impossible for them to create a platform to share telematics data in the timeframe provided. (Though, I’m sorry, isn’t that what this is?)
The case, Alliance for Automotive Innovation v. Healy (PDF) has been slowly working its way through the courts ever since. (We wrote about it back in August). A ruling is now expected by March, but recent headlines have thrown shade on the industry’s legal argument, including revelations that two automakers - Subaru and KIA - are already in compliance with the new law.
In the meantime, automakers appear ready to take a hard stance on the Massachusetts law if they don’t prevail in federal court. At the state level, auto dealerships are pushing legislation to delay implementation of the expanded right to repair law by three years. And if the automakers don’t prevail in court or the legislature, it seems likely that they will follow the route of Subaru and KIA: disabling telematics features to comply with the law by eliminating telematics features rather than giving owners and independent repair shops access to service and repair data.
Automakers take their telematics and go home
Here’s the problem: so long as the auto right to repair exists only in Massachusetts, such a bare knuckle approach by automakers could work. By getting Bay State car owners to associate their right to repair law with an inconvenience (no remote start feature, for example) rather than a convenience (choice and affordability in car repair), automakers could turn voters against the law. The lost revenue from telematics enabled features in Massachusetts’ 3 million vehicles may be worth it - at least in the short term.
And, as Cory Doctorow recently noted, if car makers can maintain a legal barrier to repair, they can “force independent mechanics out of business and scare investors away from parts manufacturers. Do it long enough and the car makers won't need to fight right to repair, because there won't be any indie fix-it shops left,” he noted.
But the “take our telematics and go home” approach doesn’t work if more states adopt laws similar to the Bay State. Should California pass a Question 1 style law, for example, automakers would have little choice but to find a way to comply with it rather than forego telematics access to that state’s 18 million vehicles.
And, of course, the automakers’ opposition would completely collapse in the face of a federal law modeled on the Massachusetts right to repair language.
Just in time: the REPAIR Act
And that’s what we saw last week, when Illinois Democratic Rep. Bobby Rush introduced the Right to Equitable and Professional Auto Industry Repair (REPAIR) Act (H.R. 6570). The legislation would “preserve consumer access to high quality, affordable vehicle repair by ensuring that vehicle owners and independent repair shops have equal access to repair and maintenance tools and data as car companies and licensed dealerships.”
The proposed legislation is modeled on the Massachusetts right to repair law and directly addresses the issues that animated Question 1 in Massachusetts. “As cars become more technologically advanced, vehicle data is increasingly being transmitted wirelessly and sent only to vehicle manufacturers, who then have the ability to determine who can access the data and at what cost,” reads a statement by Rep. Rush. “Independent repair shops — which are cheaper than dealerships and preferred by the vast majority of car owners — are effectively locked out.”
Limited access to data has already impacted repairs for 37% of vehicles in the U.S., and this number is set to increase dramatically in the coming years — by 2030, 95% of new vehicles sold around the world by 2030 will have wireless data transmission capabilities,” he said.
The REPAIR Act will update existing laws to reflect the modernization of automobiles and the importance of consumer choice in auto repair, according to a statement.“The legislation is written to foster a competitive environment for vehicle repair while prioritizing cybersecurity and safety for vehicle systems,” he said.
Of course, passage of the REPAIR Act - like any legislation these days - is no guarantee. Automakers, who have considerable sway on Capitol Hill, could be expected to bring all their firepower to bear to prevent anything like Massachusetts’ expanded auto right to repair bill to pass at the federal level.
That said, the right to repair is having something of a “moment” in state houses and Washington D.C., with new legislation introduced targeting repair restrictions in agriculture and electronics, as well as a bill to reform the Digital Millennium Copyright Act to permit circumventing digital locks for the purpose of repair and servicing. That could bode well for the REPAIR Act, despite the odds.