NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7006B
SPONSOR: Fahy TITLE OF BILL:
An act to amend the general business law, in relation to the sale of
digital electronic equipment and providing diagnostic and repair infor-
mation
PURPOSE OR GENERAL IDEA OF BILL:
This bill requires original equipment manufacturers (OEM) to make diag-
nostic and repair information for digital electronic parts and equipment
available to independent repair providers and consumers if such parts
and repair information are also available to OEM authorized repair
providers.
SUMMARY OF PROVISIONS:
Section 1. Titled "Digital Fair Repair Act"
Section 2. Adds a new § 399-nn of the General Business Law.
1. Definitions
2. Requires OEMs to make available, for purposes of diagnosis, mainte-
nance, or repair, to any independent repair provider, or to the owner of
digital electronic equipment manufactured by or on behalf of, or sold
by, the OEM, on fair and reasonable terms, documentation, parts, and
tools, inclusive of any updates to information. Nothing in this section
requires an OEM to make available a part if the part is no longer avail-
able to the OEM. For equipment that contains an electronic security lock
or other security-related function, the OEM shall make available to the
owner and to independent repair providers, on fair and reasonable
terms,, any special documentation, tools, and parts needed to access and
reset the lock or function when disabled in the course of diagnosis,
maintenance, or repair of the equipment. Such documentation, tools, and
parts may be made available through appropriate secure release systems.
3. Provides for limitations to the requirements. This section does not
require an OEM to divulge a trade secret to an owner or an independent
service provider; or alter the terms of any arrangement between =n OEM
and authorized repair provider. It does not require on OEM or authorized
repair provider to, make available parts, tools, or documentation for
making modifications to digital electronic equipment. It also does not
require an OEM or authorized repair provider to make available parts,
tools, or documentation for certain public safety communications equip-
ment used for emergency response or prevention.
* any digital electronic equipment whose diagnosis, maintenance, or
repair would be inconsistent with or in violation of federal law.
* diagnosis, maintenance, or repair of any home appliance with a digital
electronic product embedded within it.
4. Provides for specific exclusions from the provisions of the bill
including, but not limited to, the following products:
* motor vehicles and motor vehicle equipment;
* medical devices; and
* off road equipment including, but not limited to, farm and utility,
forestry, industrial, construction, and mining equipment.
5. Provides that no original equipment manufacturer or authorized repair
provider shall be liable for any damage or injury caused to digital
electronic equipment by an independent repair provider or owner which
occurs during the course of repair, diagnosis, maintenance, or modifica-
tion, including but not limited to indirect, incidental, special or
consequential damages; any loss of data, privacy or profits; or any,
inability to use, or reduced functionality of, the digital electronic
equipment.
6. Provides for enforcement by the Attorney General.
Section 3. Effective date. This act shall take effect one year after it
shall have become a law.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION:
This version makes technical clarifications to the bill, including
providing that the requirements will apply to products with a value over
ten dollars, adjusted annually based on the consumer price index. Anoth-
er adds that nothing in the section will require that an OEM or author-
ized repair provider make available any parts, tools or documentation if
the intended use is for making modifications to digital electronic
equipment. Others provide that nothing in the section will require an
OEM or authorized repair provider to make available parts, tools or
documentation for 1) public safety communications equipment used for
emergency response or prevention purposes by an emergency service organ-
ization, 2) where it may be in violation of federal law such as with
gaming and entertainment consoles, related software, and components, or
3) home appliances with digital electronics embedded within them.
Manufacturers, distributors, importers, or dealers of off-road equipment
are added to the exclusions, those to whom the requirements would not
apply. Amendments also include extending the effective date of the bill
from 120 days to one year after it shall have become a law.
JUSTIFICATION:
This bill will protect consumers from the monopolistic practices of
digital electronics manufacturers. This legislation will require
manufacturers to make non-trade secret diagnostic and repair information
available for sale third party repairers. Nothing prevents third party
repairers from being technically competent to complete digital repairs
other than the lack of information being withheld by manufacturers.
In too many instances,, repairs of digital items are intentionally
limited by the manufacturer. Manufacturers will require consumers to pay
for repair services exclusively through their repair division or manu-
facturer-authorized repair providers. The practices by manufacturers
essentially create a monopoly on these repair services. These limited
authorized channels result in inflated, high repair prices, poor service
or non-existent service in rural areas and unnecessarily high turnover
rates for electronic products. Another concern is the significant amount
of electronic waste created by the inability to affordably repair broken
electronics. Lack of competition in the digital repair industry creates
high costs for consumers, businesses, and government operations, limits
used equipment markets and results in the early retirement of equipment
with a remaining useful life. This bill will open the digital repair
market up to competition and all its consumer, entrepreneurial and envi-
ronmental benefits.
PRIOR LEGISLATIVE HISTORY:
A7416-A of 2019-20 (Lupardo)
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
This legislation will have no fiscal implications for the State.
EFFECTIVE DATE:
This act shall take effect one year after it becomes law.
STATE OF NEW YORK
________________________________________________________________________
7006--B
2021-2022 Regular Sessions
IN ASSEMBLY
April 19, 2021
___________
Introduced by M. of A. FAHY, LUPARDO, MAGNARELLI, GLICK, GOTTFRIED,
BRONSON, L. ROSENTHAL, STECK, McDONALD, DICKENS, REYES, SIMON,
GUNTHER, SEAWRIGHT, PHEFFER AMATO, NIOU, COLTON, GRIFFIN, FALL, GALEF,
ZINERMAN, BURKE, HUNTER, WOERNER, J. RIVERA, MAMDANI, JACKSON,
FORREST, THIELE, B. MILLER, CLARK, HEVESI, BLANKENBUSH, JEAN-PIERRE,
KIM, WALLACE, CARROLL, LUNSFORD, BURDICK, GALLAGHER, JACOBSON, BURGOS,
GIBBS, KELLES, GONZALEZ-ROJAS, ZEBROWSKI, ENGLEBRIGHT, STERN --
Multi-Sponsored by -- M. of A. BRAUNSTEIN, DAVILA -- read once and
referred to the Committee on Consumer Affairs and Protection -- recom-
mitted to the Committee on Consumer Affairs and Protection in accord-
ance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- reported and referred to the Committee on Codes -- reported and
referred to the Committee on Rules -- Rules Committee discharged, bill
amended, ordered reprinted as amended and recommitted to the Committee
on Rules
AN ACT to amend the general business law, in relation to the sale of
digital electronic equipment and providing diagnostic and repair
information
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "digital fair repair act".
3 § 2. The general business law is amended by adding a new section 399-
4 nn to read as follows:
5 § 399-nn. Sale of digital electronic equipment; diagnostic and repair
6 information. 1. Definitions. For the purposes of this section, the
7 following terms shall have the following meanings:
8 (a) "Authorized repair provider" means an individual or business who
9 has an arrangement with the original equipment manufacturer under which
10 the original equipment manufacturer grants to the individual or business
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06580-13-2
A. 7006--B 2
1 a license to use a trade name, service mark, or other proprietary iden-
2 tifier for the purposes of offering the services of diagnosis, mainte-
3 nance, or repair of digital electronic equipment under the name of the
4 original equipment manufacturer, or other arrangement with the original
5 equipment manufacturer to offer such services on behalf of the original
6 equipment manufacturer. An original equipment manufacturer who offers
7 the services of diagnosis, maintenance, or repair of its own digital
8 electronic equipment, and who does not have an arrangement described in
9 this subdivision with an unaffiliated individual or business, shall be
10 considered an authorized repair provider with respect to such equipment.
11 (b) "Digital electronic equipment" or "equipment" means any product
12 with a value over ten dollars, adjusted annually by the rate of change
13 in the consumer price index as reported by the bureau of labor statis-
14 tics of the United States department of labor, that depends for its
15 functioning, in whole or in part, on digital electronics embedded in or
16 attached to the product.
17 (c) "Documentation" means any manual, diagram, reporting output,
18 service code description, schematic diagram, security codes, passwords,
19 or similar kinds of information used in effecting the services of diag-
20 nosis, maintenance, or repair of digital electronic equipment.
21 (d) "Fair and reasonable terms" means making available parts, tools,
22 or documentation as follows:
23 (i) With respect to documentation, that such documentation is made
24 available by the original equipment manufacturer at no charge, except
25 that, when the documentation is requested in physical printed form, a
26 charge may be included for the reasonable actual costs of preparing and
27 sending the copy.
28 (ii) With respect to tools, that such tools are made available by the
29 original equipment manufacturer at no charge and without requiring
30 authorization or internet access for use or operation of such tool, or
31 imposing impediments to access or use of the tool to diagnose, maintain,
32 or repair and enable full functionality of digital electronic equipment,
33 or in a manner that impairs the efficient and cost-effective performance
34 of any such diagnosis, maintenance, or repair, except that, when such
35 tool is requested in physical form, a charge may be included for the
36 reasonable, actual costs of preparing and sending such tool.
37 (iii) With respect to parts, that such parts are made available by the
38 original equipment manufacturer, either directly or through an author-
39 ized repair provider, to independent repair providers and owners at
40 costs and terms that are equivalent to the most favorable costs and
41 terms under which an original equipment manufacturer offers the part to
42 an authorized repair provider and which:
43 A. accounts for any discount, rebate, convenient and timely means of
44 delivery, means of enabling fully restored and updated functionality,
45 rights of use, or other incentive or preference the original equipment
46 manufacturer offers to an authorized repair provider, or any additional
47 cost, burden, or impediment the original equipment manufacturer imposes
48 on an owner or independent repair provider;
49 B. is not conditioned on or imposing a substantial obligation or
50 restriction that is not reasonably necessary for enabling the owner or
51 independent repair provider to engage in the diagnosis, maintenance, or
52 repair of digital electronic equipment made by or on behalf of the
53 original equipment manufacturer; and
54 C. is not conditioned on an arrangement described in paragraph (a) of
55 this subdivision.
A. 7006--B 3
1 (iv) Such parts, tools, and documentation shall be made available to
2 an authorized repair provider, and shall further be made available by an
3 authorized repair provider to any independent repair provider or owner,
4 provided that such authorized repair provider is contractually and prac-
5 tically permitted by the original equipment manufacturer to sell such
6 parts, tools, and documentation to any independent repair provider or
7 owner, and provided further that such original equipment manufacturer
8 shall not:
9 A. retaliate against or hinder the ability of any authorized repair
10 provider to sell such parts, tools, or documentation through any means,
11 including advertising restrictions or product allocation limitations
12 unrelated to legitimate product shortages; or
13 B. condition or impose a substantial obligation or restriction that is
14 not reasonably necessary for enabling the owner or independent repair
15 provider to engage in the diagnosis, maintenance, or repair of digital
16 electronic equipment made by or on behalf of the original equipment
17 manufacturer.
18 (e) "Independent repair provider" means an individual or business
19 operating in this state, that does not have an arrangement described in
20 paragraph (a) of this subdivision with an original equipment manufactur-
21 er, and who is engaged in the services of diagnosis, maintenance, or
22 repair of digital electronic equipment.
23 (f) "Manufacturer of motor vehicle equipment" means a business engaged
24 in the business of manufacturing or supplying components that are used
25 in the manufacture, maintenance, or repair of a motor vehicle.
26 (g) "Medical device" means an instrument, apparatus, implement,
27 machine, contrivance, implant, or other similar or related article,
28 including a component part, or accessory, as defined in the federal
29 Food, Drug and Cosmetic Act, 21 USC, Section 321 (h) as amended from
30 time to time, which is intended for use in the diagnosis of disease or
31 other conditions, or in the cure, mitigation, treatment, or prevention
32 of disease, in man or other animals.
33 (h) "Motor vehicle" means a vehicle that is designed for transporting
34 persons or property on a street or highway and is certified by the
35 manufacturer under all applicable federal safety and emissions standards
36 and requirements for distribution and sale in the United States.
37 (i) "Motor vehicle dealer" means an individual or business who, in the
38 ordinary course of business, is engaged in the business of selling or
39 leasing motor vehicles to an individual or business pursuant to a fran-
40 chise agreement, has obtained a license under the vehicle and traffic
41 law, and is engaged in the services of diagnosis, maintenance, or repair
42 of motor vehicles or motor vehicle engines pursuant to such franchise
43 agreement.
44 (j) "Motor vehicle manufacturer" means a business engaged in the manu-
45 facturing or assembling of motor vehicles.
46 (k) "Original equipment manufacturer" means any individual or business
47 that, in the normal course of business, is engaged in the business of
48 selling or leasing digital electronic equipment manufactured by or on
49 behalf of itself, to any individual or business.
50 (l) "Owner" means an individual or business that owns or leases
51 digital electronic equipment purchased or used in this state.
52 (m) "Part" means any replacement part, either new or used, made avail-
53 able by an original equipment manufacturer for purposes of effecting the
54 services of maintenance or repair of digital electronic equipment manu-
55 factured or sold by the original equipment manufacturer.
A. 7006--B 4
1 (n) "Tool" means any software program, hardware implement, or other
2 apparatus used for diagnosis, maintenance, or repair of digital elec-
3 tronic equipment, including software or other mechanisms that provide,
4 program, or pair a part, calibrate functionality, or perform any other
5 function required to bring the equipment or part back to fully func-
6 tional condition, including any updates.
7 (o) "Repair" means any act needed to restore digital electronic equip-
8 ment or equipment to fully working order.
9 (p) "Maintenance" means any act necessary to keep currently working
10 digital electronic equipment or equipment in fully working order.
11 (q) "Diagnosis" means the process of identifying the issue or issues
12 that cause digital electronic equipment or equipment to not be in fully
13 working order.
14 (r) "Modifications" or "modify" means any alteration to digital elec-
15 tronic equipment that is not maintenance and not a repair.
16 2. Requirements. (a) For digital electronic equipment and parts for
17 such equipment that are sold or used in this state, an original equip-
18 ment manufacturer shall make available to any independent repair provid-
19 er and owner of digital electronic equipment manufactured by or on
20 behalf of or sold by such original equipment manufacturer, on fair and
21 reasonable terms, any documentation, parts, and tools required for the
22 diagnosis, maintenance, or repair of such digital electronic equipment
23 and parts for such equipment. Such documentation, parts, and tools
24 shall be made available either directly by such original equipment
25 manufacturer or via an authorized repair provider.
26 (b) For equipment that contains an electronic security lock or other
27 security-related function, the original equipment manufacturer shall
28 make available to any owner and independent repair provider, on fair and
29 reasonable terms, any special documentation, tools, and parts needed to
30 access and reset the lock or function when disabled in the course of
31 diagnosis, maintenance, or repair of such equipment. Such documenta-
32 tion, tools, and parts may be made available through appropriate secure
33 release systems.
34 3. Limitations. (a) Nothing in this section shall be construed to
35 require an original equipment manufacturer to divulge any trade secret
36 to any owner or independent service provider.
37 (b) Nothing in this section shall be construed to alter the terms of
38 any arrangement described in paragraph (a) of subdivision one of this
39 section in force between an authorized repair provider and an original
40 equipment manufacturer, including, but not limited to, the performance
41 or provision of warranty or recall repair work by an authorized repair
42 provider on behalf of an original equipment manufacturer pursuant to
43 such arrangement, except that any provision in such terms that purports
44 to waive, avoid, restrict, or limit the original equipment manufactur-
45 er's obligations to comply with this section shall be void and unen-
46 forceable.
47 (c) Nothing in this section shall be construed to require an original
48 equipment manufacturer or an authorized repair provider to provide to an
49 owner or independent repair provider access to information, other than
50 documentation, that is provided by the original equipment manufacturer
51 to an authorized repair provider pursuant to the terms of an arrangement
52 described in paragraph (a) of subdivision one of this section.
53 (d) Nothing in this section shall be construed to require an original
54 equipment manufacturer or authorized repair provider to make available
55 any parts, tools or documentation for the purposes of modifying or
56 making modifications to any digital electronic equipment.
A. 7006--B 5
1 (e) Nothing in this section shall be construed to require an original
2 equipment manufacturer or authorized repair provider to make available
3 any parts, tools, or documentation required for the diagnosis, mainte-
4 nance, or repair of public safety communications equipment, the intended
5 use of which is for emergency response or prevention purposes by an
6 emergency service organization such as a police, fire or emergency
7 medical services agency.
8 (f) Nothing in this section shall be construed to require any original
9 equipment manufacturer or authorized repair provider to make available
10 any parts, tools, or documentation required for the diagnosis, mainte-
11 nance, or repair of digital electronic equipment in a manner that is
12 inconsistent with or in violation of any federal law, such as gaming and
13 entertainment consoles, related software and components.
14 (g) Nothing in this section shall be construed to require any original
15 equipment manufacturer or authorized repair provider to make available
16 any parts, tools, or documentation required for the diagnosis, mainte-
17 nance, or repair of any home appliance that has a digital electronic
18 product embedded within it, including, but not limited to, refrigera-
19 tors, ovens, microwaves, air conditioning and heating units, including
20 any related software and components.
21 4. Exclusions. Nothing in this section shall apply to:
22 (a) a motor vehicle manufacturer, manufacturer of motor vehicle equip-
23 ment, or motor vehicle dealer acting in such capacity, or to any product
24 or service of a motor vehicle manufacturer, manufacturer of motor vehi-
25 cle equipment, or motor vehicle dealer acting in such capacity;
26 (b) a medical device, as defined in this section, or a digital elec-
27 tronic product found in a medical setting including diagnostic, monitor-
28 ing, or control equipment or any product or service that they offer; or
29 (c) a manufacturer, distributor, importer, or dealer of any off-road
30 (non-road) equipment, including but not limited to, farm and utility
31 tractors, farm implements, farm machinery, forestry equipment, indus-
32 trial equipment, utility equipment, construction equipment, compact
33 construction equipment, mining equipment, turf, yard and garden equip-
34 ment, outdoor power equipment (including portable generators), marine,
35 all-terrain sports and recreational vehicles (including racing vehi-
36 cles), stand-alone or integrated stationary or mobile internal
37 combustion engines, other power sources, (including without limitation,
38 generator sets, electric/battery and fuel cell power), power tools, and
39 any tools, technology, attachments, accessories, components and repair
40 parts for any of the foregoing.
41 5. No original equipment manufacturer or authorized repair provider
42 shall be liable for any damage or injury caused to any digital electron-
43 ic equipment by an independent repair provider or owner which occurs
44 during the course of repair, diagnosis, maintenance, or modification,
45 including but not limited to, any indirect, incidental, special or
46 consequential damages; any loss of data, privacy or profits; or any
47 inability to use, or reduced functionality of, the digital electronic
48 equipment.
49 6. Enforcement by the attorney general. (a) Whenever the attorney
50 general shall believe from evidence satisfactory to the attorney general
51 that any person, firm, corporation or association or agent or employee
52 thereof has engaged in or is about to engage in any acts or practices in
53 violation of this section, the attorney general may bring an action in
54 the name and on behalf of the people of the state of New York to enjoin
55 such unlawful acts or practices and to obtain restitution of any moneys
56 or property obtained directly or indirectly by any such acts or prac-
A. 7006--B 6
1 tices in violation of this section. In such proceeding preliminary
2 relief may be granted under article sixty-three of the civil practice
3 law and rules.
4 (b) Except as provided herein, before any violation of this section is
5 sought to be enjoined, the attorney general shall give such person,
6 firm, corporation, or association against whom such proceeding is
7 contemplated notice and an opportunity to show in writing, within five
8 business days after the delivery of such notice, why proceedings should
9 not be instituted against such person, firm, corporation, or associ-
10 ation. Such notice by the attorney general shall be delivered by certi-
11 fied mail and by first-class mail with proof of mailing. In any proceed-
12 ing in which the attorney general seeks preliminary relief, such notice
13 shall not be required upon a finding by the attorney general that such
14 notice and opportunity is not in the public interest.
15 (c) In connection with any proposed proceeding under this section, the
16 attorney general is authorized to take proof and make a determination of
17 the relevant facts, and to issue subpoenas in accordance with the civil
18 practice law and rules.
19 (d) This subdivision shall apply to all acts or practices declared to
20 be in violation of this section, whether or not subject to any other law
21 of this state, and shall not supersede, amend or repeal any other law of
22 this state under which the attorney general is authorized to take any
23 action or conduct any inquiry.
24 (e) Any person, firm, corporation or association or agent or employee
25 thereof who engages in any acts or practices in violation of this
26 section shall be liable to a civil penalty of not more than five hundred
27 dollars for each violation, which shall accrue to the state of New York
28 and may be recovered in a civil action brought by the attorney general.
29 (f) Except in the instance of a dispute arising between an original
30 equipment manufacturer and an authorized repair provider related to
31 either party's compliance with an existing authorized repair agreement,
32 an authorized repair provider shall have all the rights and remedies
33 provided in this section.
34 § 3. This act shall take effect one year after it shall have become a
35 law.
