Revision: Nov. 17, 2017, 9:11 a.m.
HB 1733-FN - AS INTRODUCED
2018 SESSION
18-2385
05/03
HOUSE BILL 1733-FN
AN ACT relative to digital electronic product repair.
SPONSORS: Rep. Irwin, Sull. 6; Rep. Luneau, Merr. 10
COMMITTEE: Commerce and Consumer Affairs
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ANALYSIS
This bill requires manufacturers of digital electronic products to provide independent repair facilities with diagnostic and repair information for such products.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
18-2385
05/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
AN ACT relative to digital electronic product repair.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Chapter; Digital Electronic Product Repair. Amend RSA by inserting after chapter 358-S the following new chapter:
CHAPTER 358-T
DIGITAL ELECTRONIC PRODUCT REPAIR
358-T:1 Definitions. In this chapter:
I. "Authorized repair provider" means a business organization or individual to which a manufacturer or distributor transfers, orally or in writing, license to use a trade name or service mark for the purposes of offering repair services under the name of the manufacturer.
II. "Digital electronic product" means a part or machine containing a microprocessor originally manufactured for distribution and sale in the United States; provided, however, that digital electronic product shall not include a class III medical device as defined in 21 U.S.C. section 360c(a)(1)(C).
III. "Documentation" means manuals, schematic diagrams, reporting output, or service code descriptions provided to the authorized repair provider for the purposes of effecting repair.
IV. "Embedded software" means programmable instructions provided on firmware delivered with the digital electronic product for the purposes of product operation, including all relevant patches and fixes made by the manufacturer for this purpose, including but not limited to basic internal operating system, internal operating system, machine code, assembly code, root code, and microcode.
V. "Fair and reasonable terms" means terms where consideration is given to relevant factors, including but not limited to:
(a) The net cost to the authorized repair provider for similar parts obtained from manufacturers, less any discounts, rebates, or other incentive programs;
(b) The cost to the manufacturer of preparing and distributing the parts or product, excluding any research and development costs incurred in designing and implementing, upgrading, or altering the product, but including amortized capital costs for the preparation and distribution of the parts; and
(c) The price charged by other manufacturers for similar parts or products.
VI. "Independent repair provider" means a person or business operating in New Hampshire, that is not affiliated with a manufacturer of a digital electronic product or such manufacturer's authorized dealer, which is engaged in the diagnosis, service, maintenance, or repair of a digital electronic product. A manufacturer's authorized dealer shall be considered an independent repair provider for the purposes of those instances when the dealer engages in the diagnosis, service, maintenance, or repair of a digital electronic product that is not affiliated with the manufacturer.
VII. "Manufacturer" means a person or business who, in the ordinary course of its business, is engaged in the business of selling or leasing new digital electronic products to consumers or other end users, and is engaged in the diagnosis, service, maintenance, or repair of that product.
VIII. "Motor vehicle" means any vehicle that is designed for transporting persons or property on a street or highway and is certified by the manufacturer under all applicable federal safety and emissions standards and requirements for distribution and sale in the United States, but excluding a motorcycle or a recreational vehicle or an auto home equipped for habitation.
IX. "Owner" means a person or business who lawfully acquires a digital electronic product purchased or used in New Hampshire.
X. "Service mark" shall have the same meaning as in RSA 350-A:1, II.
XI. "Service parts" means replacement parts, either new or used, made available by the manufacturer to the authorized repair provider for the purposes of effecting repair.
XII. "Trade secret" means anything tangible or intangible or electronically stored or kept which constitutes, represents, evidences, or records intellectual property including secret or confidentially held designs, processes, procedures, formulas, inventions, improvements, or secrets of confidentially held scientific, technical, merchandising, production, financial, business, or management information, or anything within the definition in 18 U.S.C. section 1839(3).
358-T:2 Duties of Manufacturers of Digital Electronic Products. Any manufacturer of digital electronic products sold on or after December 31, 2010 in New Hampshire shall:
I. Make available to independent repair facilities and owners of the manufacturer's products, free of charge and in the same manner, the same diagnostic and repair information that it makes available to its authorized repair providers. Such information shall include repair technical updates, diagnostic software, service access passwords, updates and corrections to firmware, and related documentation.
II. Make available for purchase by the product owner, or the authorized agent of the owner, such service parts, inclusive of any updates to the firmware of the parts, for purchase upon fair and reasonable terms.
358-T:3 Sale of Diagnostic, Service, or Repair Information. No manufacturer that sells any diagnostic, service, or repair information to any independent repair provider or any other third party provider in a format that is standardized with other manufacturers, and on terms and conditions more favorable than the manner and the terms and conditions pursuant to which an authorized repair provider obtains the same diagnostic, service, or repair information, shall require any authorized repair provider to continue purchasing diagnostic, service, or repair information in a proprietary format, unless such proprietary format includes diagnostic, service, repair, or dealership operations information or functionality that is not available in such standardized format.
358-T:4 Purchase of Diagnostic Repair Tools by Owner. Any manufacturer of digital electronic products sold or used in New Hampshire shall make available for purchase by owners and independent repair facilities all diagnostic repair tools, incorporating the same diagnostic repair and remote diagnostic capabilities that such manufacturer makes available to its own repair or engineering staff or any authorized repair providers, upon fair and reasonable terms.
358-T:5 Responsibility of Manufacturer to Provide Repair Information. Any manufacturer that provides repair information to aftermarket tool, diagnostics, or third party service information publications and systems shall have fully satisfied its obligations under this chapter and thereafter shall not be responsible for the content and functionality of aftermarket diagnostic tools or service information systems.
358-T:6 Repair Information for Security-Related Functions. No manufacturer of digital electronic products sold or used in New Hampshire for the purposes of providing security-related functions may exclude diagnostic, service, and repair information necessary to reset a security-related electronic function from information provided to owners and independent repair facilities.
358-T:7 Trade Secrets. Nothing in this chapter shall be construed to require a manufacturer to divulge a trade secret.
358-T:8 Non-Diagnostic and Non-Repair Information. Nothing in this chapter requires a manufacturer or authorized repair provider to provide an owner or independent repair provider access to non-diagnostic and non-repair information provided by a manufacturer to an authorized repair provider pursuant to the terms of an authorizing agreement.
358-T:9 Remedies.
I. An independent repair provider or owner who believes that a manufacturer has failed to provide information, including documentation, updates to firmware, safety and security corrections, diagnostics, documentation, or a tool required by this chapter shall notify the manufacturer in writing. The manufacturer shall have 30 days from the date the manufacturer receives the complaint to cure the failure. If the manufacturer cures the failure within the cure period, damages shall be limited to actual damages in any subsequent litigation.
II. If the manufacturer fails to respond to the notice under paragraph I, or if an independent repair facility or owner is not satisfied with the manufacturer's cure, the independent repair facility or owner may file a complaint in district court. The complaint shall include the following:
(a) Written information confirming that the complainant has attempted to acquire and use, through the then available standard support function provided by the manufacturer, all relevant diagnostics, tools, service parts, documentation, and updates to embedded software, including communication with customer assistance via the manufacturer's then standard process, if made available by the manufacturer; and
(b) Evidence of manufacturer notification as required by paragraph I.
358-T:10 Acts Unlawful. In addition to any other remedies that may be available, a violation of this chapter shall be deemed to be an unfair method of competition and an unfair or deceptive act or practice in the conduct of trade or commerce in violation of RSA 358-A:2.
358-T:11 Exemption. Nothing in this chapter shall apply to a motor vehicle.
2 Effective Date. This act shall take effect January 1, 2019.
18-2385
11/16/17
HB 1733-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to digital electronic product repair.
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
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| Estimated Increase / (Decrease) | |||
STATE: | FY 2019 | FY 2020 | FY 2021 | FY 2022 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ ] Other | |||
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METHODOLOGY:
This bill requires manufacturers of digital electronic products sold on or after December 31, 2010 in New Hampshire to make diagnostic and repair information available to independent repair facilities and owners of the manufacturer's products free of charge. Service parts shall also be made available for purchase by product owners or their agents at reasonable prices. A repair facility or owner who believes a manufacturer has failed to provide required information may notify the manufacturer and if the manufacturer fails to respond or the facility or owner is unsatisfied with the response, the repair facility or owner may file a complaint in district court. Violations of these provisions shall be deemed to be an unfair method of competition and an unfair or deceptive act or practice in violation of RSA 358-A:2 (Consumer Protection Act).
The Department of Justice is responsible for enforcing the Consumer Protection Act. The Department indicates it is unable to estimate either the number of cases that would be generated by this bill or the number of hours required to investigate and/or prosecute such a violation, therefore the fiscal impact is indeterminable.
The Judicial Branch indicates a complaint regarding the nature of specific performance by the manufacturer under proposed RSA 358-T:9, II, would be a complaint appropriately filed in superior court as a complex equity petition. The average complex equity case in the superior court is estimated to cost $740 in FY 2019 and $746 in FY 2020. Proposed RSA 358-T:10 provides that a violation of the chapter is deemed a violation of the unlawful acts provision of the Consumer Protection Act. Such claims are often hard fought and carry the potential for enforcement by the Attorney General (RSA 358-A:4), criminal prosecution (RSA 358-A:6) and private actions involving treble damages (RSA 358-A:10). Appeals that may be taken following a trial will increase costs.
The Department of Corrections and New Hampshire Association of Counties state this bill will have no impact on the Department or counties.
AGENCIES CONTACTED:
Department of Justice, Judicial Branch, Department of Corrections, and New Hampshire Association of Counties