By Robert J. Kerwin
On May 6, 2021, the Federal Trade Commission, a federal agency with a mission to protect consumers and promote competition, issued its long-awaited report, Nixing the Fix: An FTC Report to Congress on Repair Restrictions
. The report follows a docket the FTC opened in 2019 seeking comments on the subject, as well as a public workshop entitled “Nixing the Fix” later that year, featuring supporters and opponents of repair restrictions across multiple industries. Although the report focused on consumer protection and antitrust issues, medical device repair issues were also discussed.
Notwithstanding manufacturer explanations for repair restrictions, the FTC report observed that proponents of repair restrictions did not provide sufficient data to support their argument that safety issues could occur because of repairs by consumers or independent repair shops.
40-year history of repair restrictions and new methods of restricting repairs
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The FTC report acknowledged concerns with repair restrictions dating back 40 years. Issues like voiding a consumer warranty (when a consumer uses a servicer other than the manufacturer to repair the equipment) have been prohibited. The FTC also identified new issues which may be violative of the law. Practices such as (i) inhibiting independent repair by development of product designs that prevent repair, (ii) undertaking to make parts unavailable and (iii) imposing software locks were viewed as new forms of restrictions that must be examined to determine if they are unlawful.
FTC report discusses approaches to repair restrictions
The 54-page FTC report traces right to repair issues in nine separate sections. The first and second sections review the FTC’s prior record of enforcement and analyze the competition issues related to repair markets. These sections give an overview of past priorities. Sections three and four analyze the information collected from the public FTC docket and workshop, and catalog the types of repair restrictions being implemented across industries. Section five is the most revealing of the FTC assessments as it summarizes the manufacturer justifications for imposing repair restrictions. The positions of "advocates for change" [of the repair restrictions] are highlighted in section six. In section seven, the FTC describes the approaches which could support consumer choice in light of the situation. Section eight explores in further detail the ways in which these repair restriction challenges could be addressed. [Note: if you find wading through the full report a bit daunting, begin with the 3-page Executive Summary and then move to the areas which most interest you.]