How much control over accessing OEM data and tools to repair vehicles do your operations currently enjoy? Is it enough to achieve 100 percent of your repair schedule or are there items that just can't be done without taking the vehicle to the dealer? These are the questions fueling The Motor Vehicle Right to Repair Act of 2005, H.R. 2048, which is being heavily lobbied for and against on the Hill in Washington, D.C. In short, this bill would require automakers to provide the same service information and tools to independent auto and maintenance shops, as well as to consumers, that the OEM dealership service centers receive.
HISTORY IN THE HOUSE
The Motor Vehicle Right to Repair Act of 2005, House Resolution 2048 was introduced in May 2005 by chairman of the House Judiciary Committee on Energy and Commerce, Joe Barton, (R-TX), who is the sponsor of the bill; and representatives Edolphus Towns, (D-NY) and Darrell Issa (R-CA).
H.R. 2048 is a scaled down version of an earlier bill, H.R. 2735, the Motor Vehicle Owners' Right to Repair Act of 2001, that was introduced by Mr. Barton and Mr. Towns in August 2001 and again in July 2003 and had as its goal that "if enacted, the legislation would require original equipment manufacturers (OEMs) to provide access to service information, both emissions and non-emissions, to the independent repairer." This bill never became law.
In 1990, the Clean Air Act amendments required auto manufacturers to include more sophisticated equipment for emissions reduction, as well as a standardization of an On-Board Diagnostics system (OBD). Since that time, computer-controlled technology has expanded from emissions systems to other core auto components such as the engine, traction control, electrical systems, and comfort features.
Barton explains that while the EPA issued a rule in 1995 that requires manufacturers to provide the OBD information necessary to carry out emissions service and repair to anyone engaged in the process, including the independent shops, the rule is limited to emissions-related repairs. No such requirement exists for the other functions that have since been incorporated into OBD computer systems.
"My goal is and has always been to put vehicle owners in the driver's seat when it comes to choosing where to have their car repaired," Barton said during the November 2005 hearing. "It is not about gaining proprietary information, and my legislation explicitly preserves trade secrets."
Automakers contend that this bill is unnecessary as they feel service information is available to everyone either online or via tech help lines. Automakers are concerned about having to upload proprietary information. Original Equipment Manufacturers (OEMs) spend a lot of time and money on design and development and do not wish to be mandated in distributing the intellectual property they worked hard to build.
"In our coalition, they've made it very clear that they want to protect intellectual property," says Bob Redding, Automotive Service Association (ASA) legislative representative in Washington, D.C. "They are serious about protecting their product, whether it is in the design, the computer systems, etc. However, OEMs do want the information out there and want the technician trained as best as possible so that the car owner will be happy with their purchase now and post-warranty."
"It is the intent of auto manufacturers to make information available," says John Cabaniss director, environment and energy with the Association of International Automobile Manufacturers (AIAM) and current chair of the National Automotive Service Task Force (NASTF). "That said, the vehicle security issue is a serious item with respect to information distribution. Privacy and liability, insurance, and law enforcement issues surround this aspect in making information available and I think everyone recognizes that."
The majority of bills never make it out of committee, but proponents of H.R. 2048, such as David Parde, president of CARE (Coalition of Auto Repair Equality) in Alexandria, VA, feels that this time, Right to Repair will pass.
"If you have a monopoly, who cares?" says Parde. "If the dealership is the only shop with the information and tools and software to repair vehicles, that's the only place you can go. More and more of the dealership's money comes from repairs than from selling the cars."
He continues, "Our feeling is ‘If the dealer gets it, we should get it.' If you're giving or selling to the dealership, then the proprietary information or intellectual property is not protected. We're not asking to have it given to us, we'll pay for it."
"This is our number one priority in trying to get it [H.R. 2048] passed," Parde explains. "Chairman Barton is determined to move this legislation. We're confident it will pass the floor of the House and move on to the Senate. We feel this is our best shot so far."
Texas-based ASA backed earlier bills, but is now against H.R. 2048, citing an agreement from July 2002 between the automakers, the Alliance of Automobile Manufacturers, the Association of International Automobile Manufacturers, and ASA as being adequate in lieu of legislation. The agreement also states that NASTF would continue to provide a forum for OEM and aftermarket industry issues.
"If it doesn't pass, maintenance organizations will have a continued increase in flow of service information, tools, etc. and continuing through NASTF will be a positive experience," says Redding. "If it does pass, there will be more regulation. What does the Federal Trade Commission (FTC) do with it? They're not interested. Our concern is passage of this bill would slow down flow of information. It may be harmful to those fleets that are narrow in scope."
Currently, NASTF is a volunteer task force that exists to fill any gaps with training, tools, and information. Plans are set for a general meeting in January 2006 to discuss formalizing NASTF.
"It's clear that there is value in having this kind of forum," says Cabaniss. "There will always be progress we can make in training, new tools, new technology, how to provide information, and in vehicle security. The next step is forming a full-time staff that focuses on this stuff every day."
Not everyone agrees. "We believe NASTF should be an advocate for the technician and consumer but it is not in its present form," says CARE's Parde. "There have been proposals to have FTC appoint an oversight board. They would probably like to see a non-legislative solution, but if Congress says, ‘This is what you're going to do,' then they'll have to find a way to make it work."
Redding says ASA's concern with regard to legislation is that if it isn't broken, don't fix it.
"We feel the process is working," offers Redding. "We estimate that our sector handles about a half a billion repairs a year and there were only 48 formal complaints last year with respect to not being able to get information and tools. We are concerned about the FTC's ability and willingness to provide oversight."
The Federal Trade Commission stated as much in a letter to the Committee on Energy and Commerce in 2004. The agency cited "unclear and unsettled issues" with The Motor Vehicle Owners' Right to Repair Act of 2003 and stated, "Self-regulatory programs, when successful, can address issues with greater speed and more flexibility than government regulation. That may be particularly true here where the groups would have much greater familiarity with automobile technology as it evolves than the FTC's attorneys and economists. If a suitable resolution can be obtained through the Task Force or similar mechanism, it may be preferable to governmental intervention."
Still, NASTF has handled less than 50 complaints regarding technicians being unable to access OEM information or tools to repair vehicles. Is this because the current system is working? Or, is it more likely that technicians don't feel the need or desire to go through the process of filing a complaint with NASTF?
"I think it's some of both," says Cabaniss. "Every day, shops face problems with vehicles they haven't seen before. You need some help. Think about how most people get information: independent shops go to an AllData or a Mitchell1 or Identifix; explain the problem and ask, ‘Can you help me?' The situation for the AllDatas is, where do they get their information? Answer: They get it from the OEM and probably from OEM websites. The reason these companies exist is that they have a ‘one-stop shop' feel to them. Independent shops are familiar with them and that format for solving problems. There's a value to them and I think there will always be that value."
Cabaniss feels that most information is available, but it's a question of knowing how to get it and what form this data is in. He cites an "un-awareness" problem with NASTF. "Even though, we get hundreds, maybe thousands, of hits on the NASTF website, there are a lot of people in the automotive industry that don't know who we are or what we can provide."
With respect to enforcement, NASTF feels the market for cars is very competitive and that it's no longer the playground of the Big Three.
"There are probably six or seven that make up 90 percent of the market. You cannot afford to have unhappy customers with as much competitiveness going on," says Cabaniss, adding, "Self-policing is best and there appears to be no need for penalties and fines. Besides, what would those penalties be? Who would say what was a fair penalty or punishment?"
OEM WEBSITES- A TANGLED WEB?
Cabaniss explains that over the past few years, all of the automakers have launched websites.
"It's simply a matter of having a username and PIN, choosing a subscription and essentially, all are set up for 365-day access. Most independent shops are using short-term access (24-72 hrs.) that range from around $25 for the information. Our website, nastf.org, tries to stay up to date on this and we have a page that lists the OEM websites and charges for information."
"Repairers and technicians are still using Chilton's, Mitchell1, and AllData," says ASA's Redding, "and these OEM websites have not altered that." Redding says that ASA has funded a program involving ASA staff who go out on the road to help technicians navigate the OEM sites.
CARE's Parde offers that their staff and members monitor the OEM sites. "We hear from our members who send us reports on how they are not getting information. It's time consuming but we're getting there."
"I think we hear a lot of outdated and anecdotal incidents that they can't do this or this information is not available," says Cabaniss. "Dealers are required to fix anything on the vehicle but an independent shop can pick and choose what they do. Not all shops work on front ends or brakes or transmissions or whatever, but the dealer has to. Sometimes, it can be convenient for the shop to say, ‘We don't have the training or the tools,' but it is really because the shop has made the choice as a business not to be trained on that component or system--not because training or information wasn't available."
MAKE OR BREAK SITUATION
This bill is alive until the end of 2006. If it does not pass by then, proponents will have to start over with a new Congress in 2007.
"It's going to be the lobbying that will make or break this proposal," says Aaron Lowe, vice president, Regulatory & Government Affairs, Automotive Aftermarket Industry Association of Bethesda, MD. "It's the grassroots efforts and the car owners that will make this thing go. We can't compete on a dollar per dollar basis with OEMs. Energy and Commerce committee will be voting on the not too distant future. The sooner the better to get letters in to your federal congressmen.
Lowe adds, "They keep carping on the Intellectual Property but we don't think it's an issue because they can't point to anything in the bill that says we get their trade secrets. We don't want to know how their computers work, we just want the same repair information and diagnostic tools that are available to the dealerships, available to the aftermarket operators as well."
CARE's Parde feels the biggest selling point of this bill is that when you buy a car you should have the right to have all information available to protect your investment. "You also should be able to choose who takes care of it—whether it's the dealer, the aftermarket, or yourself—you should be able to get it fixed by your choice. It's obvious after the warranty is over and done with, that most customers take their vehicles to the aftermarket."
Parde adds complacency to the list of bill killers. "People just get tired of fighting. These guys can fight forever, but we're chipping away."
ASA's Redding offers that his organization is concerned that the voluntary process would be dissolved with passage of this bill. "Rather than filing a complaint, our concern is that a 1-800-COMPLAIN number would be set up through the FTC," he says. "The FTC is not interested in overseeing this because adding this to their jurisdiction would require money and resources to throw at it, which probably would not happen quickly."
AAIA's Lowe says, "In our opinion, consumers will have more choice on where they can get things repaired. All we're looking for is a level playing field. We have a difficult road against OEMs. This is going to be a tough battle."
"We're not after the intellectual property, says Parde. "If we need to strengthen the language, we'll do it. OEMs feel the aftermarket wants their proprietary information so they can turn around and manufacture cheaper parts. It's not about that, but if OEM's have language they want to satisfy this bill, we'll do it."
To Lowe, changes brought about with the passage of the bill would grow more significant over time.
"The main thing would be the long-term assurance that they will be able to get the information they need to repair vehicles," says Lowe. "It may not change things drastically the next day, but as technology advances, it will be in place and a way to take recourse in the event of non-compliance."
"We would like to end up with an industry solution and not a legislative process, says Redding. "I feel like it will be resolved in 2006, one way or the other, but legislative change won't come quickly -- the EPA took 13 years to do the Emissions Service Information Regulation."
Cabaniss advises that issues or complaints need to be brought forward. "We can't fix what we don't know so we have to hear about concerns and problems in the field."
A common bond opposing sides share is that training, more than any other issue associated with this bill, is absolutely necessary for the aftermarket industry. Training in accessing and applying data, obtaining and using tools, as well as how to best communicate problems to automakers are critical in servicing customers' vehicles.
"Whether there's a bill passed or not, we will always need a forum to hammer out the issues," says Cabaniss. "Advancing technology on cars will open another door with respect to tools and training. It's usually around three to five years before these new cars show up in the aftermarket. We need to, as an industry, take a look at some of these training issues and what they portend for the future. We need to think in terms of the future, not just what's happening today."