S. 3821 — Fair Repair Act

This section requires original equipment manufacturers (OEMs) of digital electronic equipment to make available to independent repair providers and equipment owners, on fair and reasonable terms, documentation, parts, and tools—including updates—for diagnosis, maintenance, or repair. The section prohibits OEMs from using parts pairing or other mechanisms to (1) prevent installation or functioning of otherwise-functional parts, including non-OEM replacements; (2) inhibit or reduce part functioning, causing reduced equipment performance; (3) create false, misleading, deceptive, or non-dismissible alerts about parts; (4) charge additional fees or increased prices for future repairs; or (5) limit parts purchases or repair services.

This section authorizes the Federal Trade Commission (FTC) to enforce violations of section 2 of the Act as violations of a rule defining unfair or deceptive acts or practices under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)). (Thus, the FTC may use all powers, jurisdiction, duties, penalties, privileges, and immunities of the FTC Act (15 U.S.C. 41 et seq.); promulgate necessary regulations under 5 U.S.C. 553; and retain all other statutory authorities.) This section further authorizes the chief law enforcement officer of a State (or designee) to bring civil actions in federal or state court to enjoin section 2 violations, enforce compliance, obtain civil penalties, and secure damages, restitution, or other compensation for State residents. State actions require prior written notice to the FTC (or immediate notice if infeasible), which may intervene and appeal; are barred during any FTC action against the same defendant for the alleged violation; and may be combined with concurrent State law claims.

This section establishes rules of construction, limitations, and non-application provisions for the Act, including (1) requiring original equipment manufacturers (OEMs) to provide owners and independent repair providers, on fair and reasonable terms, with documentation, tools, and parts needed to disable and reset electronic security locks or functions in digital electronic equipment during diagnosis, maintenance, or repair to restore full functionality; (2) prohibiting requirements to divulge trade secrets, as defined in 18 U.S.C. §1839, except as necessary to provide such documentation, parts, and tools; (3) preserving agreements between OEMs and authorized repair providers except to the extent they waive, restrict, or limit OEM obligations under the Act, which are void; and (4)-(7) excluding application to (4) motor vehicle or motor vehicle equipment manufacturers and dealers; (5) medical device manufacturers; (6) manufacturers, distributors, importers, or dealers of off-road or non-road vehicles (e.g., aircraft, motorcycles, marine vessels, all-terrain vehicles, utility terrain vehicles, recreational vehicles, racing vehicles); and (7) manufacturers of safety communications equipment for emergency services organizations (e.g., police, fire, medical, and rescue agencies).

This section limits the liability of original equipment manufacturers (OEMs) and authorized repair providers for damage or injury to digital electronic equipment, persons, or property resulting from repair, diagnosis, maintenance, or modification by independent repair providers or owners using OEM-provided parts, tools, or documentation. It (1) exempts such OEMs and providers from liability for indirect, incidental, special, or consequential damages; loss of data, privacy, or profits; or reduced functionality of the equipment; (2) relieves OEMs of any requirement to warrant repairs by independent providers or owners; and (3) exempts OEMs from liability for improper use of personal data or any data privacy or security breach connected to such activities.

This section establishes definitions applicable to this Act for terms used in provisions concerning the repair of digital electronic equipment, including (1) authorized repair provider (i.e., an entity with an arrangement with an original equipment manufacturer (OEM) to offer repair services or the OEM itself); (2) digital electronic equipment (i.e., any product that depends on digital electronics); (3) documentation (i.e., manuals, schematics, security codes, or other repair information); (4) fair and reasonable terms (i.e., costs and terms equivalent to those offered to authorized repair providers, without unnecessary restrictions); (5) independent repair provider (i.e., a person not affiliated with an OEM or its authorized providers); (6) medical device (as defined in 21 U.S.C. 321(h)); (7) motor vehicle; (8) motor vehicle dealer; (9) motor vehicle manufacturer; (10) original equipment manufacturer (OEM); (11) owner; (12) part; (13) parts pairing (i.e., using software to identify parts via unique identifiers); and (14) tool.