Light Duty: The Fight Over Right to Repair

A simple question, though the answer is anything but.

Right to Repair is nothing new, but as technology improves, some say it is becoming more important than ever. Since computers began taking over vehicle functions in the 1980s, manufacturers and their dealerships have often been at loggerheads with the folks who run independent aftermarket and repair facilities.

The point of contention is how much repair information OEMs should provide to the shops, giving fleets more (and presumably lower-priced) options when getting their vehicles serviced. Some in the aftermarket repair industry say manufacturers are making access to this information increasingly difficult and costly to obtain, while others say both sides are working well enough together on the issue, and forced solutions like Right to Repair (R2R) could ruin that.

H.R. 2694

This is the latest version of the federal Motor Vehicle Owners’ Right to Repair Act, which “prevents vehicle manufacturers and others from unfairly restricting access to the information, parts and tools necessary to accurately diagnose, repair, re-program or install automotive replacement parts.” Introduced in June 2007, the bill has 42 co-sponsors; fewer than in years past.

The legislation calls for the Federal Trade Commission (FTC) to institute and enforce regulations that ensure competition in the vehicle repair business, and would permit the FTC, vehicle owners and independent repair facilities to take legal action to ensure all information and tools are available and affordable. The act does not affect the dealer’s right to perform any service, including warranty work, and does not unconstitutionally take the manufacturer’s intellectual property or require them to disclose trade secrets. Legislators in several states, including Massachusetts and New Jersey, are also considering similar Right to Repair laws.

Aaron Lowe, vice-president of governmental affairs with the Automotive Aftermarket Industry Association (AAIA), said the industry successfully lobbied for access to emissions information as part of the 1990 Clean Air Act, and with computers controlling more of the vehicle today, still more information is needed. He says a new law is not a must to ensure a level playing field, but it would at least ensure compliance.

“We would be in favor of a non-legislative agreement, but it would have to be legally enforceable—there would have to be some action we could take to make sure the manufacturers make the information available,” Lowe says. “Right now, all they’ve done is sent a letter saying they promise to make the information available, which is fine and good, but there is nothing to hold them to that if they decide, unilaterally, not to do that anymore.”

DIS-AGREEMENT

That promise is part of the 2002 ASA-Automaker Service Information Agreement between OEMs and independent repair shops that set up the National Automotive Service Task Force (NASTF) as the forum to address access issues. It is comprised of OEMs and aftermarket associations representing tool and equipment companies, independent shops, parts companies and dealers, but there is significant disagreement about its effectiveness.

“It has absolutely no teeth at all, and it’s only been effective because there is a Right to Repair Act there keeping the manufacturers honest,” Lowe says. “If the bill were to go away, manufacturer cooperation would go away because there would be no legal repercussions if they decided not to follow their promise.”

Lowe says while the agreement has improved things between OEMs and independent shops, some information is still unavailable.
“A lot of reprogramming and the ability to re-initialize systems is not being made available, and we’re going to continue to fight to make sure that information is available to us,” Lowe says.

By refusing access to repair information, he says OEMs are eliminating competition to gain a stranglehold on the market.
“As long as there’s competition out there, you have to be careful that someone doesn’t undercut your price, and that you’re offering the best service possible,” he says. “If the dealers are the only place to get certain services, what is their incentive to provide good services at a good price? All we’re asking for is that the owner has a choice in where they go. Where we’re headed is the car company/dealer is going to have more control over your repair than you will.”

NO COMPETITION

A lack of competition for repairs is a problem for fleets as well as the everyday person, Lowe says.

“We have a company up in New Jersey that had a fleet of light trucks that needed computers re-programmed to fix a problem, and the shop owner could not get the ability to re-program the systems from the manufacturer,” he says. “So the fleet owner was forced to bring the vehicle to a dealer, and it took them several days to get that done. So it is absolutely critical, especially from a fleet owner’s perspective, to quickly and efficiently get their fleets serviced, and if the dealer is the only place to do it, they can be in big trouble.”

One argument against R2R is it would force OEMs to share trade secrets and proprietary information, which Lowe says is bunk.
“I guess if repair information is proprietary, then yeah, we do want their repair information, because we want our guys to be able to repair those cars,” he says. “(But) if you define it as information necessary to build replacement parts, we’re not looking for that information and the bill prohibits that being made available to us. We really want information that the dealers have on how to repair cars. Maybe they consider their repair information proprietary and would like to give it to who they want, and that’s exactly what we’re trying to fight.”

MAKING PROGRESS

Charlie Gorman, executive manager of the Equipment and Tool Institute and volunteer chairman of NASTF, says the ASA agreement has gone a long way in clearing up information access issues.

“From the equipment and tools standpoint, this has been tremendous,” he says. “Starting in 2003, we started getting just a ton of information that we never got from the OEMs, and there are a couple import car companies that are still a little difficult for us, but for the most part, we’ve slowly but surely gotten the information we need to build those tools.”

Automotive Service Association Washington, D.C. representative Robert Redding, Jr. says the main reason Right to Repair has lost momentum in recent years is because the 2002 ASA agreement largely solved the problem.

“Out of a half a billion repairs in the independent marketplace—post-warranty repairs—far less than 1 percent of all the (vehicles) coming in our doors suffer complaints,” he says. “We have a system that works.”

Redding, Jr. says when problems arise, the NASTF is well-equipped to step in and solve them.

“There are going to be gaps, and frankly, there’s information that dealers can’t get and it’s not because somebody’s hiding it, it’s because we’re dealing with a universe of repairs that’s just huge,” he says. “This is about people saying, ‘OK, we’ve looked at this, it’s not on the site, it’s not available—how do we make this available?’ That is the point of the NASTF—to resolve any glitches. We haven’t had a situation where the OEMs are saying, ’We’re not going to give you that.’ We have seen no indication of anybody withholding anything.”

Gorman says the task force has resolved any legitimate Right to Repair complaints brought to them so far. He says most complaints regard a lack (or perceived lack) of access to repair information.

“(NASTF will investigate) if (an OEM) says that something doesn’t exist and we find out it does,” he says. “Or we find something doesn’t exist and the company decides to make it available—it might even be something they didn’t even make available to their dealers. Remember, with Right to Repair, no one is required to provide anything beyond what they provide to their dealers, so in some cases OEMs might be a little remiss in providing information, period.”

In the case of collision information, Gorman says some OEMs do not make it available to anyone.

“So when someone looks for that, you’re not going to get it because it doesn’t exist,” he says. “So you run into those kinds of situations, because there is no law requiring dealerships to have body shops, and in most cases, they don’t.”

Gorman says many complaints are not R2R issues, but training-related.

“The problem is there is little knowledge that this information even exists,” he says. “People (are) afraid if they pay their $25 for the (repair) information, then they won’t be able to complete the repair. Just like any business, you have to invest in the training, in the equipment and you have to understand what you’re getting into before you get into it. And until we improve that situation, the aftermarket’s always going to have a beef.”

FILLING A NEED

Gorman says NASTF does not have a position on Right to Repair, but he hopes their work will be able to produce enough results so the legislation is not needed.

“There has to be a group of experts to decide whether or not something should be provided or not be provided, and those experts will not be found in government, they will be found within the people who actually use the information and produce it,” he says. “So an organization like ours needs to exist, regardless.”

As in many arguments, neither “side” is right in the R2R debate, Gorman says.

“The Right-to-Repair folks think NASTF is useless, and it’s not; we’ve been very successful on certain fronts,” he says. “Our work is not done, though, so the people who are on the other side of the fence that say NASTF is 100 percent successful and there’s no need for any pressure or anything like that, that’s not true either.”

The task force’s goal, says Gorman, is to come up with documents that the OEMs sign that “basically say they are going to play ball to the same level as if we had legislation.” He said members are working on that project, which would replace the current ASA-OEM agreement and hopefully remove any need to legislation.

“It’s a slow process, but we’re pretty far along,” he says. “Of course, we have to sell them to the OEMs. That doesn’t mean (OEMs) are not cooperating, but our goal from the beginning was to put this formal piece together—not necessarily for our purposes, but to satisfy the Right-to-Repair side.”

While he can understand concerns about OEMs not living up to non-legally binding agreements, Gorman thinks manufacturers have gone too far to turn back.

“The information you get in a manual and the technical service bulletins—I’m 99.99 percent satisfied they already provide everything,” he says. “We have not been able to find one instance where they don’t already provide the information. It’s more the subtle stuff that’s not described in the Right To Repair Act where if there are issues, they exist, and that’s being able to produce aftermarket tools that emulate the OEM tools, the OEM tools themselves, which are not always easy to get, and the security side—in other words, being able to finish the job at your site without driving or towing the vehicle to a dealership to get re-initialized.”

LEGISLATIVE ROADBLOCK

Right to Repair has been brought up every year since 2001, but Lowe says support is waning in the face of strong opposition from OEMs and dealer networks.

“They do strongly fund campaigns, and our industry is typically not as strong in that area,” he says. “We’re still hopeful we’ll get a bill through in the not-too-distant future. There’s a great possibility we could see legislations in the states before the federal effort, and so we’re working in any area we think is reasonable to try to get this bill done. It’s critical to the future of our industry, we think.”
If Right to Repair is left to die on the vine, Lowe says it will not be long before independent repair shops feel the pain.

“You’re not going to see every shop go out of business tomorrow,” Lowe says. “What our concern is, over the long term, is that this will continue to eat into the customer base of our independent shops.”

Gorman says while the possibility of legislation never goes away, if there were serious problems between OEMs and aftermarket repair shops, there would be a unanimous call to action against the manufacturers. He says he would prefer a more binding agreement between the two sides that does not involve political or legal action.

“Everybody involved in this thing has a horse in the race, so to speak, but I think we’re on the right track,” he says. “I want to get something solid with teeth in it just to end the argument. Put it to rest so we can go on.”

Redding says the sooner R2R disappears the better for the industry, and he thinks that day is fast approaching.

“It’s dead,” he says. “It’s not going anywhere in the Congress. My biggest concern is the resources it’s taking out of the industry, when we’ve got bigger issues.”

Redding, Jr. says the independent repair marketplace has been damaged by Right to Repair efforts.

“Some of these distributors are telling folks, ‘The independent (shops) can’t repair your (vehicle),’” he says. “What does that do for us? We can repair the cars and our members are telling us cars are coming into bays and they’re repairing them and getting paid for it, and that’s the message we want to send. Not ‘We can’t repair cars because the OEM’s won’t give us the information,’ because that’s not true.”

END GAME

Redding, Jr. says this issue is not “David versus Goliath,” as portrayed by some, and that OEMs and independent repair shops have been mending fences in recent years—something that would be compromised by R2R legislation.

“It is important we protect the voluntary system we have today, because there is a lot more at stake than service information,” he says. “One of the biggest issues here for us is training, and we have a system now in place with NASTF that there’s a future for independent techs. New fuel and new engine technologies are coming into play, and every single climate or energy bill that rolls out of Congress has new funds for private sector and for public institutions to do new fuel and new engine technology research. We have to be prepared for that. If we’re in federal court suing the OEMs, what kind of voluntary relationship would we have with them then?”

“This isn’t about the OEMs trying to squeeze us out; this is about the OEMs seeing that we are an industry partner. We’re repairing cars, and they want us to repair them well. We want to get service information and tool information, but we’ve got to have the training. We need to be doing more (training) and partnering with (OEMs).”

Lowe says the whole issue boils down to competition—those who want it and those who don’t.

“(OEMs) and their dealers are making a lot more money off their service departments and parts than they are from the sales of the cars, so for anybody to think it’s in the manufacturer’s best interest not to maximize that area of their business is ignoring the facts of life, and we’re in competition with them,” he says. “(The information gap) is going to continue to get worse as there’s more innovation and changes. Until we’re on a total level playing field with them, and we have some guarantee that’s going to continue into the future, we’re not going anywhere.”

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