By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The Federal Trade Commission (FTC) on Wednesday voted 5-0 to issue a policy statement outlining a new enforcement policy for right to repair restrictions.
This initiative comes as no surprise. In May, the FTC published a report , Nixing the Fix: an FTC Report to Congress on Repair Initiatives discussing the issue (see Big Tech Goes All In to Thwart Right to Repair Initiatives). And earlier this month, as part of a broader executive order to promote competition, President Joe Biden directed the FTC to address restrictions that thwart consumer efforts to repair products they own (see Steve Wozniak Endorses the Right to Repair).
The policy statement explained the FTC’s basis and rationale for the new policy:
Restricting consumers and businesses from choosing how they repair products can substantially increase the total cost of repairs, generate harmful electronic waste, and unnecessarily increase wait times for repairs. In contrast, providing more choice in repairs can lead to lower costs, reduce e-waste by extending the useful lifespan of products, enable more timely repairs, and provide economic opportunities for entrepreneurs and local businesses.
In 2019, the Commission convened a workshop on “Nixing the Fix” and sought input from consumers, independent businesses, manufacturers, and others. Through this work, the Commission uncovered evidence that manufacturers and sellers may, without reasonable justification, be restricting competition for repair services in numerous ways, including: imposing physical restrictions (e.g., the use of adhesives); limiting the availability of parts, manuals, diagnostic software, and tools to manufacturers’ authorized repair networks; using designs that make independent repairs less safe; limiting the availability of telematics information (i.e., information on the operation and status of a vehicle that is collected by a system contained in the vehicle and wirelessly relayed to a central location, often the manufacturer or dealer of the vehicle); asserting patent rights and enforcement of trademarks in an unlawful, overbroad manner; disparaging non-OEM parts and independent repair; using unjustified software locks, digital rights management, and technical protection measures; and imposing restrictive end user license agreements.
The Commission’s report on repair restrictions explores and discusses a number of these issues and describes the hardships repair restrictions create for families and businesses. The Commission is concerned that this burden is borne more heavily by underserved communities, including communities of color and lower-income Americans. The pandemic exacerbated these effects as consumers relied more heavily on technology than ever before [Jerri-Lynn here: citations omitted].
Noting that “unlawful repair restrictions have generally not been an enforcement priority for a number of years,” the policy statement succinctly outlined the legal steps the FTC will take to enforce the right to repair. These rely on existing statutory authority, including antitrust laws, the Magnuson-Moss Warranty Act, and Section 5 of the Federal Trade Commission Act.
First, the Commission urges the public to submit complaints and provide other information to aid in greater enforcement of the Magnuson-Moss Warranty Act and its implementing regulations. While current law does not provide for civil penalties or redress, the Commission will consider filing suit against violators of the Magnuson-Moss Warranty Act to seek appropriate injunctive relief. The Commission will also closely monitor private litigation to determine whether the Commission may wish to investigate a pattern of unfair or deceptive acts or practices or file an amicus brief. Further, the Commission will explore rulemaking, as appropriate.
Second, the Commission will scrutinize repair restrictions for violations of the antitrust laws. For example, certain repair restrictions may constitute tying arrangements or monopolistic practices—such as refusals to deal, exclusive dealing, or exclusionary design—that violate the Sherman Act. Violations of the Sherman Act also violate the prohibition on unfair methods of competition codified in Section 5 of the Federal Trade Commission Act.
Third, the Commission will assess whether repair restrictions constitute unfair acts or practices, which are also prohibited by Section 5 of the Federal Trade Commission Act. In addition, the Commission will analyze any material claims made to purchasers and users to ascertain whether there are any prohibited deceptive acts or practices, in violation of Section 5 of the Federal Trade Commission Act.
Finally, the Commission will bring an interdisciplinary approach to this issue, using resources and expertise from throughout the agency to combat unlawful repair restrictions. The FTC will also closely coordinate with state law enforcement and policymakers to ensure compliance and to update existing law and regulation to advance the goal of open repair markets [Jerri-Lynn here: citations omitted].
Note that FTC promise to work with states on both enforcement and on drafting state right to repair laws. The right to repair movement has been steadily advancing at the state level, with 27 states considering such laws so far this year, according to a press release issued by U.S. PIRG, a public interest group that has spearheaded many of these initiatives. FTC support will help galvanise these efforts. Once one state passes such a measure, manufacturers may “voluntarily” extend the protections countrywide – as happened when Massachusetts passed an auto right to repair provision in 2013 (see Right to Repair Redux: Massachusetts Ballot Questions).
Bravo FTC. I hope this is just the first of many pro-consumer policies that will emerge from an active, energized agency under the leadership of new chair Lina Khan (see Biden Taps Lina Khan to Chair the FTC). Enforcement of the right to repair was an issue teed up and ready to be implemented, due to previous preparatory work done before Khan’s appointment. The new policy statement enjoys the unanimous support of all five FTC commissioners.
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I nearly fell out of my chair.
Go Lina Khan. She’s the one Facebook tried to squash.
I’m starting to like this lady.
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Right to repair is one of the first few steps toward distributed mfg & refurbishment of consumer appliances by small-scale operators. This may be a niche that can stand the onslaught of the global supply chain.
Someday I hope to help fund (kickstarter, or something like that) a shop that takes in 2 or 3 types of appliances, like washers, dryers, and maybe air-condioner units, and does a make-over on it:
– replace old motors with latest hi-efficiency-and-durability new motors
– replace the controls with wifi-enabled web-based control panel (smart-phone)
– replace the bearings (washer n drier) with industrial-strength ones, last forever
– replace the compressor (fridge) with latest stuff. My new fridge is massively more efficient than my old one
Throw a cool-looking retro paint-job on it, and sell it for the cost of the parts plus a few hours labor. Run the shop as a co-op.
Have you priced appliances lately? This is not as ridiculous as it (may) sound at first blush.
And just to extend the fantasy part of this story…have you looked inside a washing machine lately? Or a dryer? There’s very little in there, and what’s in there is the cheapest, most awkward, hard to service, built-to-fail junk you ever laid eyes on.
Sheet metal isn’t hard to form into rectangles. Most of the innards of washers and dryers can be sourced directly from 3rd parties. Hardest part to acquire is the bowl/tumbler – that’s a bit specialized.
I like your idea … but I am not sure about some of the details. I would not want a wifi-enabled anything. Replace the controls with reliable mechanical switches and the mechanical timer switchers or a simple controller with commodity micro-controller chips in sockets on a simple board with discrete components. Replacing old motors and compressors with newer more reliable and more efficient units sounds good as long as the improvements possible are more than small increments. I would also prefer a widely available easily replaced motor or compressor to a high end, possibly disproportionately expensive unit. You could replace the bearing on the washer and drier with roller skate or bicycle quality ceramic bearings. Industrial strength sounds like overkill. I could do without the glossy enameled boxes to hold things. I’d rather have my appliance mounted in a simple frame with some good quality rollers so I could stash the units in a closet or shove them into a far corner out of the way when I am not using them. For beauty I perhaps I could bolt some wood paneling to the frame — maybe a section of wood or simulated wood flooring material.
Thinking further out, I wonder how many of the current high convenience high electric power use appliances might obtain mechanical power directly from pedal power, bicycle chain, and a perhaps a flywheel. They could be quieter, generate less heat, and combine exercise with doing the wash. The work and electric use of the dryer could be reduced using old-fashioned hand ringers and clothes lines for sunny days. The work a lot of appliances do could be greatly reduced by rethinking the kitchen and laundry areas. At a minimum there should be some way to move heat exhaust from the stove and oven and the rear of the refrigerator outside of the kitchen area for other uses in winter and to avoid over heating the kitchen with respect to the rest of the house.
How different are bowls/tumblers and are there any that are common enough to use as a standard? Get rid of the metal box and you would have more latitude in using different parts. Design a set of frame sections to use for modifying an existing frame to fit a new configuration.
Trot out a beautiful quarter-horse and by the time the committee gets done with it you end up with a camel with two tails and no humps.
Thx for the input. Lot of good ideas there on several dimensions (widely different uses, designs, mfg techniques, component selection criteria, usability). Good stuff.
Ah! Hump-free! What I always wanted. I’m just in reading this after hanging out our second load of the day on our clothesline. One more to go. My automatic dryer–the sun! To be brief, unmentionables and socks go on a portable drying rack in the middle of the yard–saves space (and embarrassment? not underwear, holey socks).
Washer manufacturers can kill your business model by making the rubber gasket that interfaces the drum to the door a $250 spare part.
Yes. Big problem. My opening gambit will be to narrow down the range of models to few that we can source cheap parts for, better yet find the manufacturer that actually makes them .vs. integrates them.
Carefully choosing and sourcing replacement parts can go a long way towards making this work. Ever tried to get a replacement door gasket for a frig lately ? Expensive, long lead time, dubious quality.
And the seal industry particularly automotive seals (think doors) is very robust.
The trick is to focus on replacement parts with a decent volume, a decent price point, and a reliable quality manufacturer.
I like most of this a lot but very much against “wifi-enabled web-based control panel (smart-phone)”.
It makes no sense to have a controller/display that is not on the device. While it may seem charming to be able to turn the stove or washing machine on from bed, it invites all kinds of unnecessary risk, from hijacking (possibly unintentional by a neighbor, or malicious by a stranger, who doesn’t even have to be nearby if there is a bridge to internet somewhere along the connection), to incinerating or otherwise damaging something (or someone) that’s ill-positioned on or in the device.
Right to repair makes fixing knobs and buttons on devices as reasonable is it always should have been, spiffy interfaces on smart phones (which also require said smart phone, if not a wifi hotspot/router) were always a hedge against R2R. Discrete control components have become more expensive because the demand for them fell (while build quality improved), but that pendulum can swing back easily if enterprising producers (including yourself) bring them back.
Perhaps a useful long-term effort would be to strike at the heart of the beast with open-source appliance designs.
These people
https://www.opensourceecology.org/
haven’t got to appliances yet, but perhaps they will some day, or others will beat them to it.
My favorite machine in this archive is the compressed earth block maker. It might help to solve the housing shortage; I feel pretty confident that the for-profit builders are not going to do that.
Samuel – this is where I want to get. Thx for the link to opensourceecology. Hopefully, you’ll circle back and see these next remarks.
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I have two over-arching goals:
Economics. Enable the household to capture more of the benefits of productivity; direct more income into, or reduce wealth leakage from households. This, in my opinion, is the biggest _economic_ thing wrong here in the U.S. today
Environment. Refit our product designs to work with, instead of against, the fundamental processes of the biosphere. No waste streams (nutrients, materials, etc.), minimum transport, sun as energy source…that sort of stuff. Generally: redesign products and services to fit into the natural world as it is
I am eager to find others who see those goals as worthwhile.
Check out these folks too http://livingenergyfarm.org/
These goals sound good to me!
The big and the easy money is in replacing older induction motors that run 24/7 with new, controllable, energy efficient ones (here, “IE2” or “IE3”).
These motors are typically installed in pumps, extraction fans and air conditioning system f.ex.
R.O.I. is about 2 years on most of those, except if it is a Grundfoss pump, they did all this 10++ years ago.
Perfect. Thx for the pointer.
Not to rain on this otherwise-excellent parade, but IMO this particular item is not like the others. If your goal is to produce simple, long-lasting appliances, then any kind of network interface or connection to an outside digital device is not the way to go. The standards and implementations for such things tend to change radically every few years, often in unforseen ways that are not under the control of the appliance builder. The result is frequently something that can no longer be used, even though it still “works”.
The usual design life for appliances is (or should be) 20-30 years. The design life for smartphones is 2 years. The internet barely existed 30 years ago. Try to imagine what it will look like in 2050.
Genius, albeit premature. I know of companies that re-engineer the controls for industrial machinery. I’ve thought of doing the same myself as a retirement plan. Unfortunately, interconnections between components are often private and do not respect any published standard, and that goes 20x for cell phones, each of which would entail its own software engineering project. Also, semiconductor devices have a diffusion-limited time to failure which shrinks as feature sizes shrink. Fortunately, there are other low-cost but usable front panel input devices, such as buttons, switches, LEDs, new-production touch screens made on less sensitive processes…
I do think such a business would do well in the case Chinese or Russian sanctions disrupt our access to white goods for a prolonged period and there is still a functional “middle class” demanding private laundry facilities.
The kind of appliances I would get from an appliance craft service such as this, would be the ones which have all the digital cooties stripped out of them, and all the digital lampreys and barnacles scraped off of them, so that they were strictly and only analog and chipless.
Dumm washer, dumm dryer, dumm air conditioner, dumm furnace, dumm fridge, dumm toaster, dumm alarm clock, etc.
If you could do this with “three out of four” of the “replaces” you list, I would be interested in it. One of the “four replaces” , however, is deeply repellent to me. And that one is . . .
— replace the controls with wifi-enabled web-based control panel ( smart-phone).
I would like to see the appliances you describe be totally “analog” and not contain any digital cooties or digital AIDS/HIV germs or any digital cancer cells of any kind. I want an appliance with zero wifi anything, zero web-based contamination or points of contact with any sources of web-contamination, zero web-based control panel of any sort. The controls must be strictly manual. Switches, dials, etc. Zero chips. Zero digital anything.
You’re going to need the help of either Arduino hackers, or perhaps, the old school mechanical timers are still available. Lots of this stuff dies because boards loaded with SMT and firmware dies, and the replacement is unavailable or too expensive.
Throw tons of features no one actually needs out and put in a mechanical timer .
Great idea, all told.
Have to say, I like your idea better than Tom Pfotzer’s above.
I bought only used major appliances for years, for budgetary reasons. A while back, my used gas clothes dryer quit. A friend put me in touch with a guy named Chris who ran a business repairing and re-selling used appliances. He sold all of his appliances for $100 with a 90-day guarantee. He’d cart your broken item away (and of course repair it and re-sell it). Chris worked alone and moved all the appliances by himself. He worked REALLY hard. His stock was also augmented when he picked up appliances people had set out on their tree-lawns for city trash crews to remove. Apparently, he could fix anything (my friend maintained, “he’s a genius!”). Anyway, so Chris delivered and installed a working gas dryer for me, and hauled my old one away.
Within a few days, I noticed that the dryer was making a strange noise. I called Chris and informed him of the noise. He came promptly to investigate and reported that he could not stop the noise, but pointed out that the dryer was still working fine. He had guaranteed a working appliance, not a silent one. Fair enough.
My clothes dryer still makes the same noise, and still works fine. Chris delivered it in 1998. Pretty good for a hundred bucks, huh?
Mark:
Yup. Thx to both you and Carla for feedback.
I can do the control system, use a cheap & tiny Linux computer with a few relays and a tiny 5v power supply. No sweat.
But…using a timer is better, simpler, easier to maintain, fewer parts, cheaper and readily available anywhere.
I’m hearing the “keep it simple” theme.
Keep the ideas, objections, suggestions coming. I’ll store all this stuff and trot it out when it’s time to implement.
Reminds me of an engineering principle I read about back when I was beginning to learn programming. It’s an analogy to mechanical engineering applied to software. “The cheapest, most reliable part is the one that isn’t there. Always make your design as simple as possible.” That’s one reason I will always try to avoid “smart” devices. Internet of Things is the invention of the Devil.
I’m not too sure on how useful this will be, but I am really surprised and grateful. It is really nice to see the government do something for the masses.
The FTC policy statement details a catalog of vendor offenses. To say that unlawful repair restrictions have generally not been an enforcement priority for a number of years at the FTC lends a touch of comedy. The new FTC enforcement policy described in this post — seeking injunctive relief, civil suits, application of the Sherman Act in scrutinizing vendor offenses. The FTCs promise to work with states for enforcement and drafting state right to repair laws deflates a lot of the enthusiasm I might muster for the FTC policy statements. The “interdisciplinary approach” — hardly sounds like the sharp bite of enforcement teeth. State-by-state haphazard right to repair enforcement of state right to repair laws may be an improvement over the chaos of present non-enforcement … but I think I will wait before I break out the champagne. The intent “to advance the goal of open repair markets” adds a strangely Neoliberal dissonance.
Does the US still have an Attorney General at the justice Department? Is there any chance Congress might pass a few broad federal laws with enforcement teeth that the FTC and justice Department might use to bring Federal Criminal Cases? Can our FBI find time to help with some Criminal investigations? Of course that leaves a lot of power in hands of our courts and judges. Maybe it’s all hopeless. On the bright side I suppose a few Law Firms will make off with some nice fees.
Appliances have all kinds of non-interchangeable parts that are stupid expensive to replace. My mom’s clothes dryer has a funky kidney-shaped lint filter that started falling apart. This is basically a plastic rim with some window screen and struts, maybe $5 if standardized, but $50 since it was obscure. A 3d printed replacement might have been possible but not worth the hassle.
My other rage is towards vendor lock-in through non-interchangeable batteries. Power tools are notorious for this (Ridgid, Ryobi, Milwaukee, and Hart have the same parent company and roughly speaking the same tools, but the batteries don’t interchange). Cameras are similar. Stuff like phones were like that in the past, but are even worse now, since the batteries are sealed inside so you end up throwing the phone away rather than dealing with the hassle of special tools etc.
Camera batteries are an issue with me, it’s crazy that they are not standardized. As far as phone batteries, I would never throw away a working phone simply because it needs the battery replaced. Many computer shops are able to replace phone batteries. Of course it would far better if the batteries were standardized and phones made so that consumers could easily swap them out themselves, and it’s ridiculous that this is not the case.
Artist Chris Jordan has made some amazing pieces that highlight consumer waste — https://www.artworksforchange.org/portfolio/chris-jordan/
The key to increasing availability of repairable products is to put an explicit cost on junking. Most Apple products are made to be junked. They are deliberately designed to be difficult to repair, and spare parts are not readily available. This is done ostensibly to make Apple devices more compact, but mainly to promote regular replacement. Manufacturers should be assessed a junking tax on every un-repairable device they make. The should also be required to provide specifications and licensing rights to all spare parts for discontinued models so that third parties can manufacture and provide spares.
“Manufacturers” or distributors should be required by law to take it all back. 1. everything electronic. 2. major appliances, which probably is redundant, because just about everything IS electronic. 3. autos. I would also add everything mostly plastic, but we need to start with electronics and their children first. (I put “manufacturers” in quotes because I am aware that almost everything is an assembly from actual manufacturers. Distributors can go back to their parts makers, as I’m sure many do, to enforce replaceability, if not returnability.)