The FTC’s move this week to require appliance makers to publish service manuals is the latest evidence that the Commission is willing to flex its considerable legal authority to enact pro-consumer and pro-repair policies.
The Big News
There’s a scene in the movie The Matrix in which Keanu Reeves’ character, Neo, visits a figure known as The Oracle who is supposed to tell him whether he is “The One”—the person prophesied to free humankind from its enslavement (as organic batteries) to machine overlords. At the Oracle’s apartment, Neo encounters a young boy who is keeping himself busy (apparently) bending spoons with his mind (a not-so-subtle reference to the famous trick performed by magician Uri Geller).
As Neo looks on, the boy gives him the secret to the trick. “Do not try and bend the spoon. That’s impossible. Instead, only try to realize the truth.” The “truth,” the boy explains, is that “there is no spoon.”
It’s a fateful scene in the story arc of the Matrix—a moment when Neo begins to inhabit the identity of “The One,” in part by realizing that the supposed limitations of the world he knew are illusions and that his ability to manipulate the simulated world is limited only by his imagination.
Proposed Rule Requires Repair Instructions
That scene came to mind for me this week when I read the FTC’s announcement that it was weighing a new rule that would, in one fell swoop, create something pretty close to a federal right to repair for a wide range of consumer products including home appliances. Like Neo, the FTC’s commissioners appear to be realizing that, when it comes to supposed impediments to removing anti-competitive practices, “there is no spoon”—they already have the regulatory tools they need to make change.
In an “Advance Notice of Rulemaking” (PDF) released on Monday, the FTC said it was considering a change to the Federal Energy Labeling Rule to “require manufacturers to include information on how consumers can repair their products.” Access to repair information, the FTC explained, “will strengthen consumers’ right to repair damaged products, without the need to go back to the manufacturer, providing them with potentially lower-cost repair options.” Easy access to repair information could also help ensure that independent repairers can compete with manufacturers and licensed dealers, giving consumers more choices when seeking to have an appliance repaired. And, obviously, consumers repairing versus replacing damaged appliances is good for the environment.
Making repair instructions part of the Federal energy label is a powerful move. That’s because the FTC’s Energy Labeling Rule requires manufacturers to attach labels to major home appliances and other consumer products to help consumers compare the energy usage and costs of competing models, while prohibiting retailers from removing or altering the labels. Presumably, that would extend to repair instructions, as well.
FTC Flexing Long-Dormant Powers
But this is no radical power grab by the agency. Like Neo’s powers, the FTC’s ability to enact pro-repair policies is a power the Commission has long possessed, even if the agency was reluctant to use it.
Energy labeling authority, for example, is granted to the FTC under the Energy Policy and Conservation Act of 1975. In addition to the energy labeling authority, that law gives the FTC the ability to require “additional information relating to energy consumption, including instructions for the maintenance, use, or repair of the covered product” if the Commission finds such information would assist with purchasing decisions or in the use of the product.
However, this is the first time that the Commission is asking whether consumers and independent repair shops would benefit from having repair information more widely available on energy labels, FTC Chair Lina Khan said in a published statement accompanying the notice: “Such a provision could help consumers more easily repair everything from refrigerators and dishwashers to washing machines, air conditioners, water heaters, and televisions—products currently covered under the Rule.”
The notice comes on the heels of both the FTC’s 2021 release of the Nixing the Fix report, which called out the “scant evidence to support manufacturers’ justification for repair restrictions,” as well as recent actions taken against companies like grill-maker Weber, Harley Davidson, and Westinghouse for illegal restrictions on repairing their products.
As Cory Doctorow noted in a blog post over at Pluralistic.net, the pro-repair rule-making is an outgrowth of an Executive Order issued by President Biden in July, 2021, that turned 50 years of (timid) federal enforcement of anti-trust and anti-monopoly laws on its ear. That Executive Order called on the FTC to “enforce the antitrust laws to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly (in) repair markets.” Citing laws like the Competition in Contracting Act of 1984, it called on the Secretary of Defense to look into anti-competitive practices in defense contracting, including repair restrictions that affect the ability of the military to maintain their equipment.
In doing so, the Biden Administration is urging federal agencies like the FTC to simply exert powers they already have under more than a century of lawmaking designed to limit the power and influence of trusts and monopolies across the economy—laws like the Bank Holding Company Act of 1956, and the Packers and Stockyards Act of 1921.
As numerous right to repair laws languish in state houses and on Capitol Hill, the FTC’s actions are a reminder that much (though not all) of what repair advocates are hoping to realize in new laws can also be obtained—on a less permanent basis—simply through effective enforcement of existing laws to protect consumers, small businesses and the environment.
While earlier drafts covered items ranging from tractors and lawn mowers to gaming consoles and microwaves, a burst of end-of-session lobbying from companies worth billions and their affiliated trade associations pressed legislators to whittle it down until limited to devices like smartphones, tablets, and laptops.
Insiders told the Times Union that lobbyists realized late in the legislative session that the bill, which had been introduced each year for about a decade, had a good chance of passing in the Senate—where it ended up going through even before the Assembly—something they had previously thought unlikely. So they rushed to make themselves heard. (Timesunion.com)
Over the past decade, cars have gotten more complex and computerized. Each vehicle is now studded with sensors, packed with hundreds or thousands of computer chips, and controlled by software. Auto industry insiders have waxed poetic about the safety benefits of the “software-defined vehicle”—which also enables revenue-boosting data collection and subscriptions that make it safer to be an auto executive too.
Less talked about are the consequences of computerized cars at the auto shop. Fixing complex vehicles requires increasingly expert and expensive knowledge, and tools that are in limited supply. It’s part of the same trend that has driven some farmers to hack their own tractors and triggered legal fights over what rights consumers have over their own vehicles. (Wired.com)
Kurt Hamel believes it’s becoming harder to do his job.
The district manager of VIP Tires & Service walked to a Lincoln SUV at the company’s Scarborough workshop and plugged in a diagnostic computer. Moments later, he pointed to the screen.
The information he wanted about the temperature of the car’s catalytic converter instead read, “Not supported.” Without that information, Hamel said he couldn’t tell if the part was overheating, thus causing the car’s check-engine light to come on. He was operating with blind spots.
“Think about it as you’ve got a map with an X on it, right? There’s a process for you to get to that X,” Hamel explained. “So, that’s what you’re getting; you’re getting a map with an X on it and without the information to be able to get to that X.”
Hamel argued that while car manufacturers are producing more and more advanced models with thousands of data points in their computer systems, the companies restrict access to some of that data.
“It’s your car; it’s your data,” Winkeler said. “If you want that data to go back to the car manufacturer, great. But if you want that data to be accessible by an independent repair shop, then that should be your choice because you own the car; you should own the data.” (Newscentermaine.com)
The Federal Trade Commission is considering new rules that would require any appliances touting a familiar yellow EnergyGuide label to also include “information on how consumers can repair their products.”
Citing its own “Nixing the Fix Report,” the FTC states that repair information will “strengthen consumers’ right to repair damaged products, without the need to go back to the manufacturer.” That could save customers money, allow non-licensed dealers and repair techs to better compete, and protect the environment, the FTC claims.
What will be crucial to any proposed requirement for repair information is access to appliance firmware and software: diagnostics, resetting warnings, and enabling repair beyond the basics. If a consumer repair manual instructs you to use a software tool to finish installing a new belt or filter, but that software program is not available or costs hundreds of dollars, an FTC-mandated manual isn’t strengthening anyone’s right to repair. (Ars Technica)
‘It’s Always Sunny in Philadelphia’ Actor Stuck in a Parking Garage for Days After His Key Fob Broke
Glenn Howerton detailed a frustrating experience where his Tesla was stuck in a parking garage for over 24 hours in a podcast on Monday. Howerton told his costars on “The Always Sunny Podcast” that he was locked out of his Tesla on Friday night after his key fob broke. The actor said he was also unable to connect to WiFi on the bottom floor of a Los Angeles parking garage in order to use the electric-car maker’s app for accessing the vehicle—a fail-safe against issues with the key fob.
On its website Tesla says for its Model X that “your phone and vehicle must both be actively connected to cellular service to allow the mobile app to communicate with your vehicle.”
Tesla first introduced its keyless entry system in 2017 and other carmakers have followed suit, using Bluetooth technology to allow for keyless entry, but, unlike other automakers, Tesla does not supply drivers with a traditional key that can be inserted into the vehicle. Though, the carmaker can give owners more than one key fob. It’s unclear what Tesla model Howerton owns. Newer Tesla models do not require internet connectivity to use the app to open and start the car. The newer vehicles also come with key cards. Over the past few years, Tesla has also begun supplying drivers with backup key cards that can be used to get into the car and start it. (Business Insider)