Exercising your Right to Repair: The federal debate heats up

This is Part 1 of a three-part feature that orignally appeared in the June print issue of Fleet Maintenance and has been updated to reflect recent legislative actions in Congress.

Among the 10 amendments of the Bill of Rights, the Right to Repair (R2R) is nowhere to be found. To be fair, as prescient as the Founding Fathers were in drafting the nation’s charter, they could not predict how complicated vehicle repair would become. Horses didn’t have sensors to indicate when they needed to visit the farrier, nor would a wagon send an alert a week before an axle snapped. They were interested in creating a living document that would survive for centuries—and they did a darn good job.

But in today’s transportation industry, everything is driven by data. This data gives a truck’s location, its health and performance, and can remotely diagnose issues. Some of this is shared by the OEMs with fleets and independent shops to enable optimal uptime and efficient repairs, and some of it is secured within their dealer networks.

Shops can also pay for access via certain OEM and all-makes software subscriptions, and can clear codes on an individual repair basis through a one-time fee. But that is more a conditional privilege for those who can afford it than a right.

OEMs and aftermarket groups signed a memorandum of understanding in 2014 covering light-duty vehicles and followed with a separate agreement in 2015 covering vehicles over 14,000 lbs. GVWR. Some states, such as Massachusetts and Maine, have also codified the Right to Repair, adding language this decade to include telematics data rights for consumers. Lawsuits and enforcement questions have slowed the transition in New England, though progress has been made in recent years to clear the confusion.  

The fact remains that Right to Repair is not currently backed by the federal government, and therefore, it is not a right for all American businesses engaged in repair—only those that can afford access.

And many in the industry would like that to change, because for commercial vehicle fleets and independent repair shops, the freedom to access diagnostic and telematics data and calibration and service information determines how quickly an asset can get fixed and back on the road. For a fleet, this means it will start generating revenue again. For shops, it means they can move on to the next job and also generate more revenue.

And as vehicle repair adds additional complexity and becomes more reliant on clearing codes and bypassing network protocols, some feel that revenue could be in jeopardy. Could there be a point where everything is so interconnected that even a simple wire repair could require an OEM scan tool and a costly software subscription fee? And will that tool bring in enough revenue to justify the purchase?

And if they don’t have full access to the vehicle, does that create a monopoly for dealers, who can then raise prices, eating more into fleets’ already slim margins?

These are questions with which the industry is grappling, and aftermarket’s lobbying groups, Auto Care Association, and MEMA, the Vehicle Suppliers Association, say they are trying to solve. They are backing federal legislation called the Right to Equitable and Professional Auto Industry Repair (REPAIR) Act. If passed, the bill would guarantee the right to data by ensuring the tools and software equivalent to those that authorized dealers use are available outside of those networks.

Proponents say this would allow fleet facilities and their independent service providers to perform more work on assets and dramatically reduce how much work must be outsourced to dealerships. In large, less populated states, that dealership could be hours away.

The House Committee on Energy and Commerce has not voted on the REPAIR Act yet, but did approve R2R provisions as part of the Motor Vehicle Modernization Act (H.R. 7389). The committee marked up and passed this bill on May 21. The provisions codify the 2014 auto and 2015 heavy-duty MOUs to ensure access to certain repair info.

The bill also names the Federal Trade Commission as the enforcement authority, and calls for the FTC to perform a study on barriers to aftermarket repair, including data, parts, and tools, and report back in four years. Congress frequently alters and amends these types of bills, so it is possible other R2R protections may be added.

As it stands now, the lack of universal access to telematics reduces this new pathway to R2R to a “watered down version [of the REPAIR Act] derailed by parties that stand to gain from the status quo,” argued REPAIR Act lead sponsor Rep. Neal Dunn (R-Fla.).

Rep. Dunn, who spoke to stakeholders from all facets of vehicle repair to craft a bill that ensures Americans have access to safe and affordable repairs, was undeterred.

“I want to get the real REPAIR Act done, and I will not back down from this fight,” he vowed.

Earlier this month, President Donald Trump casually mentioned a meeting with automakers in the Oval Office where he said, “they don't want people to fix their car.” He then assured us, “But we'll get it all straightened out.”

Shortly after Trump’s comments, The Detroit Free Press interviewed Ford CEO Jim Farley on the subject. He said Ford is not trying prevent people from fixing their own cars for non-warranty work, adding, “These are very complicated cars and we don’t think that’s safe for many of the repairs on our vehicles.” He admitted that while he himself could work on a 1973 Bronco, the new model requires specialty tools and skills, which if a repair lacks, “would put people’s lives at risk.”

There were some positives from this recent action (granted the bill is made law), such as resolving the fear from the aftermarket that the MOUs could be abandoned in the future leading to a dealer monopoly.

Plus, some action is better than no action, according to ACA, which on May 28 told Fleet Maintenance:

“The committee’s action represents the first significant congressional movement on federal Right to Repair legislation in several years and establishes a framework for federal enforcement and further policy development. It also initiates a formal federal review of ongoing market barriers … While this outcome is not the full solution our industry has been working toward, it marks meaningful progress and keeps federal right to repair legislation moving forward.”

Looking at both sides

As an all-makes supplier, Noregon works with both aftermarket customers and OEMs to ensure its heavy-duty diagnostic tools meet the rising complexity.

“Through these relationships, Noregon hears from customers how important it is to have tools that allow them to service and maintain all fleet vehicles,” explained product manager Jason Hedman. He reasoned that, if passed, “The legislation can help independent shops and fleets protect their margins; keeping work in house results in higher uptime and lower repair costs, which directly impacts profitability.”

Profits are only one angle, though. When dealing with any motor vehicle, let alone one with an 80,000-lb. GVWR; safety, and security take precedence. The REPAIR Act includes language to protect OEM intellectual property and cybersecurity, but opponents argue the wording doesn’t adequately safeguard OEM interests.

And that is something Congress must also consider. The manufacturers put up the capital to develop and maintain the technology and also train their support staff and the industry as a whole. They have rights, too.

It’s certainly as complicated an issue as the modern powertrains, emissions systems, and safety systems being repaired. Whether data access should remain a privilege provided by the OEMs or an inalienable right for all maintainers will be decided by Congress and the president. They may choose to move forward or not.

And as stated, the MOU signed by the OEMs guarantees a basic level of repair equality. And all 50 states have considered R2R laws in recent years, which also extend beyond vehicle repair to electronics and appliances. Seven states have passed legislation, though, for a nationwide fleet or repair chain, which could make things more complicated, though not on a scale of differing state emissions laws.

At this point, it’s really out of shop managers’ hands, save for writing to representatives or running for Congress themselves. Each shop, however, can determine how severe its lack of access is, if at all, and then how to keep it from stifling uptime and efficiency.

As this issue is highly complex, we will continue the topic in Part 2 on the truth about data lockouts and Part 3 on available ways shops can overcome barriers to diagnosing and repairing modern vehicles.