The Executive Order On Repair Is Out And It’s Awesome

...but don’t get too excited

As promised, #46, President Joe Biden, issued his Executive Order addressing repair restrictions Friday afternoon…and its f***ing awesome. But those of us who have been agitating for a legal right to repair shouldn’t get too excited - at least not yet.

Under The Hood: A Bit of Everything

As we wrote earlier in the week: the expectation for this Executive Order was that it was going to address anti-competitive practices generally, not just repair restrictions. Those predictions proved accurate. The Executive Order (PDF), which was published Friday afternoon, logs in at more than 6,900 words - around 31 pages - and covers a lot of ground. In all, the Executive Order includes 72 initiatives by more than a dozen federal agencies to tackle what are described as “some of the most pressing competition problems across our economy.”

In addition to the language addressing restrictions on repair and servicing of various devices, there is language about non-compete clauses and onerous state licensing requirements, purchase of medical equipment like hearing aids over the counter, the sharing of financial data between financial services firms, importing lower cost drugs from Canada, unfair fees for airplane WiFi and even accurate labeling of meat imported to the U.S. from other countries.

The broad theme, of course, is promoting competition and curtailing deceptive and anti-competitive practices across industries and as it effects both consumers and professionals.

Repair For Farmers, Drivers and (Almost) Everyone Else

On the issue of restrictions on repair, the Biden Executive Order starts by calling out restrictions on repair in the agriculture sector and example of “corporate consolidation” that is hurting both farmers and consumers.

“Over the past few decades, key agricultural markets have become more concentrated and less competitive. The markets for seeds, equipment, feed, and fertilizer are now dominated by just a few large companies, meaning family farmers and ranchers now have to pay more for these inputs. For example, just four companies control most of the world’s seeds, and corn seed prices have gone up as much as 30% annually.” - Biden Executive Order

“Corporate consolidation even affects farmers’ ability to repair their own equipment or to use independent repair shops,” the Executive Order notes. It continues: “powerful equipment manufacturers—such as tractor manufacturers—use proprietary repair tools, software, and diagnostics to prevent third-parties from performing repairs. For example, when certain tractors detect a failure, they cease to operate until a dealer unlocks them. That forcers farmers to pay dealer rates for repairs that they could have made themselves, or that an independent repair shop could have done more cheaply.”

A Polite Shove For The FTC on Ag Repair

That’s an oblique reference to the notorious “limp mode” that many agricultural equipment makers have implemented, which cripples critical farm equipment in the event of even minor software- or sensor errors. As we noted, equipment makers like John Deere claim that such steps are needed to stay in compliance with Federal Clean Air laws - an expansive reading of federal clean air laws that require equipment makers to produce farm equipment that complies with EPA clean air regulations, but doesn’t deputize them to enforce those laws on behalf of the federal- or state governments.

In the Executive Order, President Biden “encourages the FTC to limit powerful equipment manufacturers from restricting people’s ability to use independent repair shops or do DIY repairs—such as when tractor companies block farmers from repairing their own tractors.”

That’s bound to be popular with small farmers, who are struggling under the thumb of onerous restrictions imposed by the likes of John Deere. It’s also likely to be welcome news to lawmakers like Sen. John Tester of Montana, who in April secured a promise from the FTC to look at repair restrictions on farm equipment.

Calling Out Anti Competitive Practices On Electronics

Beyond agricultural equipment, the Executive Order calls out a range of anti-competitive practices affecting the technology sector including repair restrictions put in place by cell phone manufacturers and others.

“Tech and other companies impose restrictions on self and third-party repairs, making repairs more costly and time-consuming, such as by restricting the distribution of parts, diagnostics, and repair tools,” the Executive Order notes in a section titled “Cell phone manufacturers and others are “blocking out independent repair shops.” The text includes links to articles like this 2019 Vox coverage of Apple’s repair monopoly and Jason Koebler’s coverage of Apple’s Potemkin “Authorized Service Provider” program.

In response, the EO “encourages the FTC to issue rules against anticompetitive restrictions on using independent repair shops or doing DIY repairs of your own devices and equipment.”

Don’t Get Too Excited…Yet

As we observed earlier this week: this kind of language is a huge leap forward for the right to repair movement. In recent years, advocates have struggled to be heard by federal lawmakers, and even to get federal regulators to acknowledge anti-competitive behavior relating to repair and servicing, let alone take action against it. So President Biden sending down an unequivocal message about the need to crack down on anti-repair practices is a big development and, presumably, will lead to some incisive rule-making by the Federal Trade Commission to curtail anti-competitive practices related to repair.

That said: don’t get too excited - at least not yet. For one thing: this is an Executive Order, not legislation. That means it is in force as long as the President continues to stand behind it and occupy the Oval Office. A new President, more disposed to the interests of corporations over consumers, could simply issue a new EO directing the agencies under their control to do the opposite. In our hyper-partisan, gridlocked reality, Executive Orders have mostly taken the place of actual legislation written and passed by Congress. Because new laws effectively require a super majority of Senators to pass, they are a rarity - especially when they concern contentious issues like consumer vs. corporate power. As this article notes: EOs are “swift, powerful and easily reversed.”

Also, as Politico notes in their coverage of the EO, the President has not ordered the agencies under his direction to implement his ideas. In the spirit of “I Am Not Donald Trump,” he has couched his directives as suggestions and encouragements to the FTC and other agencies. That puts the President in the more comfortable position of recommending policy direction, while leaving it to professionals in Executive agencies to craft the actual policies themselves.

Practically, though, that means that the rule making when it comes, may well be different in scope from what is called for in the Executive Order.

And then there is the rule making process itself which, for much of the past 40 years, has been a lengthy and bureaucratic one. However, that may be about to change. Earlier this month, the FTC voted 3-2 to radically remake and “modernize” the way it issues Trade Regulation Rules under Section 18 of the FTC Act, possibly leading to much more rapid rule making than has been seen since the 1970s.

States Still on Point

As exciting and dramatic as the developments this week with President Biden’s Executive Order, not much has changed for supporters of a right to repair. For all the reasons mentioned above, state legislatures are still the most likely venues for passage of substantive right to repair legislation. That is the case today, as it was a week, a month or a year ago.

The question is whether the Executive Order may change the dynamic this year within those few state legislatures, like Massachusetts’, that are still considering right to repair legislation. As I wrote earlier in the week: the Executive Order from President Biden dispenses with the idea that Right to Repair is a niche issue and unworthy of lawmakers’ attention. That’s true on Capitol Hill, but it’s also true of the states, where lawmakers have repeatedly shut down right to repair legislation in committee with the argument that they have more important business to attend to, or that right to repair isn’t well enough understood as an issue.

The next few months will be telling, both in Washington D.C. and in state capitols. Stay tuned.