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S00710 Summary:

BILL NOS00710
 
SAME ASNo Same As
 
SPONSORBOYLE
 
COSPNSRADDABBO, GALLIVAN, RAMOS
 
MLTSPNSR
 
Add §399-nn, Gen Bus L
 
Relates to the sale of mobile devices and computers; requires original equipment manufacturers to provide diagnostic and repair information.
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S00710 Actions:

BILL NOS00710
 
01/09/2019REFERRED TO CONSUMER PROTECTION
01/08/2020REFERRED TO CONSUMER PROTECTION
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S00710 Memo:

Memo not available
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S00710 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           710
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 9, 2019
                                       ___________
 
        Introduced  by  Sens. BOYLE, GALLIVAN -- read twice and ordered printed,
          and when  printed  to  be  committed  to  the  Committee  on  Consumer
          Protection
 
        AN  ACT  to  amend  the general business law, in relation to the sale of
          mobile devices and  computers  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 "mobile device and computer 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 and repair of mobile devices and  computers.  1.  Defi-
     6  nitions.  For  the  purposes  of this section, the following terms shall
     7  have the following meanings:
     8    (a) "Mobile device" means any  hand-held  mobile  telephone,  personal
     9  digital  assistant  (PDA),  hand-held  device  with  mobile data access,
    10  laptop computer, pager, broadband personal communication device, two-way
    11  messaging device, or portable computing device.
    12    (b) "Computer" means an electronic, magnetic,  optical,  electrochemi-
    13  cal,  or  other  high-speed  data  processing device performing logical,
    14  arithmetic, or storage functions, and includes any data storage facility
    15  or communications facility directly related to or operating in  conjunc-
    16  tion with such device, but such term does not include an automated type-
    17  writer  or  typesetter, a portable handheld calculator, or other similar
    18  device.
    19    (c) "Authorized repair provider" means an individual or  business  who
    20  is  unaffiliated  with an original equipment manufacturer and who has an
    21  arrangement with the original equipment manufacturer, for a definite  or
    22  indefinite  period,  under  which  the  original  equipment manufacturer
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04576-01-9

        S. 710                              2
 
     1  grants to the individual or business a license  to  use  a  trade  name,
     2  service mark, or other proprietary identifier for the purposes of offer-
     3  ing  the services of diagnosis, maintenance, or repair of mobile devices
     4  or  computers  under the name of the original equipment manufacturer, or
     5  other arrangement with the original equipment manufacturer to offer such
     6  services on behalf of the original equipment manufacturer.  An  original
     7  equipment  manufacturer  who  offers  the services of diagnosis, mainte-
     8  nance, or repair of its own mobile device or computer, and who does  not
     9  have  an  arrangement described in this subdivision with an unaffiliated
    10  individual or business, shall be considered an authorized repair provid-
    11  er with respect to such mobile devices or computers.
    12    (d) "Documentation"  means  any  manual,  diagram,  reporting  output,
    13  service  code description, schematic diagram, or similar kinds of infor-
    14  mation provided to an authorized repair provider  for  purposes  of  its
    15  effecting  the  services  of  diagnosis,  maintenance,  or repair of the
    16  mobile device or computer.
    17    (e) "Embedded software" means any programmable  instructions  provided
    18  on firmware delivered with the mobile device or computer, or with a part
    19  for  such  mobile  device  or computer, for purposes of mobile device or
    20  computer operation, including all relevant patches and fixes made by the
    21  manufacturer of such  mobile  device  or  computer  or  part  for  these
    22  purposes.
    23    (f)  "Fair  and  reasonable  terms"  for  obtaining  a part or tool or
    24  documentation means at costs and terms, including convenience of  deliv-
    25  ery,  and  including rights of use, equivalent to what is offered by the
    26  original equipment manufacturer to an authorized repair provider,  using
    27  the net costs that would be incurred by an authorized repair provider in
    28  obtaining  an equivalent part or tool or documentation from the original
    29  equipment manufacturer, accounting for any discounts, rebates, or  other
    30  incentive  programs  in arriving at the actual net costs. For documenta-
    31  tion, including any relevant updates, "fair and reasonable terms"  means
    32  at  no charge, except that, when the documentation is requested in phys-
    33  ical printed form, a charge may be included for  the  reasonable  actual
    34  costs of preparing and sending the copy.
    35    (g)  "Firmware"  means  a  software  program  or  set  of instructions
    36  programmed on the mobile device or computer,  or  on  a  part  for  such
    37  mobile  devices  or computers, to allow the mobile device or computer or
    38  part to communicate with  other  components  of  the  mobile  device  or
    39  computer.
    40    (h)  "Independent  repair  provider"  means  an individual or business
    41  operating in this state, who does not have an arrangement  described  in
    42  paragraph (c) of this subdivision with an original equipment manufactur-
    43  er,  and  who  is not affiliated with any individual or business who has
    44  such an arrangement, and who is engaged in the  services  of  diagnosis,
    45  maintenance,  or  repair  of  mobile  device or computer, except that an
    46  original equipment manufacturer or, with respect to that original equip-
    47  ment manufacturer, an individual or business who has such an arrangement
    48  with that original equipment manufacturer, or who is affiliated with  an
    49  individual  or  business  who has such an arrangement with that original
    50  equipment  manufacturer,  shall  be  considered  an  independent  repair
    51  provider  for  purposes  of  those  instances in which it engages in the
    52  services of diagnosis, maintenance, or repair of the  mobile  device  or
    53  computer  that  is  not  manufactured  by or sold under the name of that
    54  original equipment manufacturer.

        S. 710                              3
 
     1    (i) "Original equipment manufacturer" means a business engaged in  the
     2  business  of selling or leasing new mobile devices or computers manufac-
     3  tured by or on behalf of itself, to any individual or business.
     4    (j)  "Owner" means an individual or business who owns or leases mobile
     5  devices or computers purchased or used in this state.
     6    (k) "Part" means any replacement part, either new or used, made avail-
     7  able by an original equipment manufacturer for purposes of effecting the
     8  services of maintenance or repair of mobile devices or  computers  manu-
     9  factured or sold by the original equipment manufacturer.
    10    2.  Requirements.  (a)  For mobile devices or computers, and parts for
    11  such mobile devices or  computers,  sold  or  used  in  this  state,  an
    12  original  equipment  manufacturer  shall make available, for purposes of
    13  diagnosis, maintenance, or repair, to any independent  repair  provider,
    14  or  to  the owner of the mobile device or computer manufactured by or on
    15  behalf of, or sold by, the original equipment manufacturer, on fair  and
    16  reasonable  terms,  documentation,  parts,  and  tools, inclusive of any
    17  updates to information or embedded software.  Nothing  in  this  section
    18  requires  an original equipment manufacturer to make available a part if
    19  the part is no longer available to the original equipment manufacturer.
    20    (b) For mobile devices or computers that contain an electronic securi-
    21  ty lock or  other  security-related  function,  the  original  equipment
    22  manufacturer shall make available to the owner and to independent repair
    23  providers,  on  fair  and  reasonable  terms, any special documentation,
    24  tools, and parts needed to reset the lock or function when  disabled  in
    25  the  course of diagnosis, maintenance, or repair of the mobile device or
    26  computer. Such documentation, tools, and parts  may  be  made  available
    27  through appropriate secure release systems.
    28    3.  Enforcement  by  attorney  general.  Whenever  there  shall  be  a
    29  violation of this section, an application may be made  by  the  attorney
    30  general in the name of the people of the state of New York to a court or
    31  justice  having jurisdiction by a special proceeding to issue an injunc-
    32  tion, and upon notice to the defendant of not less than  five  days,  to
    33  enjoin  and  restrain the continuance of such violation; and if it shall
    34  appear to the satisfaction of the court or justice  that  the  defendant
    35  has, in fact, violated this section, an injunction may be issued by such
    36  court or justice, enjoining and restraining any further violation, with-
    37  out  requiring  proof  that  any  person  has,  in fact, been injured or
    38  damaged thereby. In any such proceeding, the court may  make  allowances
    39  to  the attorney general as provided in paragraph six of subdivision (a)
    40  of section eighty-three hundred three of  the  civil  practice  law  and
    41  rules,  and direct restitution.  Whenever the court shall determine that
    42  a violation of this section has occurred, the court may impose  a  civil
    43  penalty of not more than five hundred dollars for each violation result-
    44  ing  from a single act or incident. In connection with any such proposed
    45  application, the attorney general is authorized to take proof and make a
    46  determination of the relevant facts and to issue subpoena in  accordance
    47  with the civil practice law and rules.
    48    4.  Limitations.  (a)  Nothing  in  this section shall be construed to
    49  require an original equipment manufacturer to divulge a trade secret  to
    50  an owner or an independent service provider.
    51    (b) No provision in this section shall be construed to alter the terms
    52  of any arrangement described in paragraph (c) of subdivision one of this
    53  section  in  force between an authorized repair provider and an original
    54  equipment manufacturer, including, but not limited to,  the  performance
    55  or  provision  of warranty or recall repair work by an authorized repair
    56  provider on behalf of an original  equipment  manufacturer  pursuant  to

        S. 710                              4
 
     1  such  arrangement, except that any provision in such terms that purports
     2  to waive, avoid, restrict, or limit the original  equipment  manufactur-
     3  er's  obligations  to  comply  with this section shall be void and unen-
     4  forceable.
     5    (c)  Nothing in this section shall be construed to require an original
     6  equipment manufacturer or an authorized repair provider to provide to an
     7  owner or independent repair provider access to information,  other  than
     8  documentation,  that  is provided by the original equipment manufacturer
     9  to an authorized repair provider pursuant to the terms of an arrangement
    10  described in paragraph (c) of subdivision one of this section.
    11    5. Applicability. This section applies with respect to mobile  devices
    12  or  computers  sold  or  in  use  on or after the effective date of this
    13  section.
    14    § 3. This act shall take effect January 1, 2020.
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