Regular Session 2021-2022 House Bill 1152 P.N. 1208

PRINTER'S NO. 1208

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

1152

Session of

2021

INTRODUCED BY DIAMOND, COOK, A. DAVIS, DRISCOLL, GREGORY,

GUZMAN, HILL-EVANS, HOHENSTEIN, HOWARD, ISAACSON, JAMES,

MENTZER, MILLARD, MOUL, SAYLOR, SCHMITT, STRUZZI, WHEELAND

AND ZIMMERMAN, APRIL 12, 2021

REFERRED TO COMMITTEE ON COMMERCE, APRIL 12, 2021

AN ACT

Providing for duties of original equipment manufacturers

relating to diagnosis, maintenance and repair of digital

electronic equipment and for enforcement by Attorney General.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Short title.

This act shall be known and may be cited as the Digital Fair

Repair Act.

Section 2. Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Authorized repair provider." The term includes:

(1) An individual or business that is unaffiliated with

an original equipment manufacturer and has:

(i) an arrangement with the original equipment

manufacturer, for a definite or indefinite period, under

which the original equipment manufacturer grants to the

individual or business a license to use a trade name,

service mark or other proprietary identifier for the

purposes of offering the services of diagnosis,

maintenance or repair of digital electronic equipment

under the name of the original equipment manufacturer; or

(ii) some other arrangement with the original

equipment manufacturer to offer the services under

subparagraph (i) on behalf of the original equipment

manufacturer.

(2) An original equipment manufacturer that offers the

services of diagnosis, maintenance or repair of its own

digital electronic equipment and does not have an arrangement

described under paragraph (1) with an unaffiliated individual

or business, with respect to the equipment.

"Digital electronic equipment." A product that depends for

its functioning, in whole or in part, on digital electronics

embedded in or attached to the product.

"Documentation." A manual, diagram, reporting output,

service code description, schematic diagram or similar kind of

information provided to an authorized repair provider for

purposes of effecting the services of diagnosis, maintenance or

repair of digital electronic equipment by the authorized repair

provider.

"Embedded software." Programmable instructions provided on

firmware delivered with digital electronic equipment or with a

part for such equipment for purposes of equipment operation,

including all relevant patches and fixes made by the

manufacturer of the equipment or part for such purposes.

"Fair and reasonable terms." The term includes:

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(1) For obtaining a part or tool or documentation, at

costs and terms, including convenience of delivery, and

including rights of use, equivalent to the most favorable

costs and terms offered by the original equipment

manufacturer to an authorized repair provider, using the net

costs that would be incurred by the authorized repair

provider in obtaining an equivalent part or tool or

documentation from the original equipment manufacturer,

accounting for any discounts, rebates or other incentive

programs in arriving at the actual net costs.

(2) In addition to the requirements under paragraph (1),

for documentation, including any relevant updates, at no

charge, except that, when the documentation is requested in

physical printed form, a charge may be included for the

reasonable actual costs of preparing and sending the copy.

"Firmware." A software program or set of instructions

programmed on digital electronic equipment or on a part for such

equipment to allow the equipment or part to communicate with

other computer hardware.

"Independent repair provider." As follows:

(1) The term includes an individual or business that:

(i) operates in this Commonwealth;

(ii) does not have an arrangement described in the

definition of "authorized repair provider" with an

original equipment manufacturer;

(iii) is not affiliated with any individual or

business that has such an arrangement; and

(iv) is engaged in the services of diagnosis,

maintenance or repair of digital electronic equipment.

(2) An original equipment manufacturer or, with respect

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to that original equipment manufacturer, an individual or

business that has an arrangement as described in the

definition of "authorized repair provider" with the original

equipment manufacturer, or is affiliated with an individual

or business that has such an arrangement as described in the

definition of "authorized repair provider" with that original

equipment manufacturer, shall be considered an independent

repair provider for purposes of those instances in which it

engages in the services of diagnosis, maintenance or repair

of digital electronic equipment not manufactured by or sold

under the name of that original equipment manufacturer.

"Manufacturer of motor vehicle equipment." A business

engaged in the business of manufacturing or supplying components

used in the manufacture, maintenance or repair of a motor

vehicle.

"Motor vehicle." A vehicle designed for transporting persons

or property on a street or highway and certified by the

manufacturer under all applicable Federal safety and emissions

standards and requirements for distribution and sale in the

United States. The term does not include:

(1) a motorcycle; or

(2) a recreational vehicle or an auto home equipped for

habitation.

"Motor vehicle dealer." An individual or business that in

the ordinary course of business is engaged in the business of

selling or leasing new motor vehicles to an individual or

business under a franchise agreement, has obtained a license

from the Commonwealth and is engaged in the services of

diagnosis, maintenance or repair of motor vehicles or motor

vehicle engines under the franchise agreement.

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"Motor vehicle manufacturer." A business engaged in the

business of manufacturing or assembling new motor vehicles.

"Original equipment manufacturer." A business engaged in the

business of selling or leasing new digital electronic equipment

manufactured by or on behalf of itself to an individual or

business.

"Owner." An individual or business that owns or leases

digital electronic equipment purchased or used in this

Commonwealth.

"Part." A replacement part, either new or used, made

available by an original equipment manufacturer for purposes of

effecting the services of maintenance or repair of digital

electronic equipment manufactured or sold by the original

equipment manufacturer.

"Trade secret." The term has the meaning given in section

102 of the act of February 14, 2008 (P.L.6, No.3), known as the

Right-to-Know Law.

Section 3. Duties of original equipment manufacturers.

(a) Digital electronic equipment being diagnosed, maintained

or repaired.--

(1) For digital electronic equipment, and parts for

digital electronic equipment, sold or used in this

Commonwealth, an original equipment manufacturer shall make

available, for the purposes of diagnosis, maintenance or

repair to an independent repair provider or to the owner of

digital electronic equipment manufactured by or on behalf of

or sold by the original equipment manufacturer on fair and

reasonable terms, any documentation, part or tool, including

any update to information or embedded software.

(2) Nothing in this section may be construed to require

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an original equipment manufacturer to make available a part

if the part is no longer available to the original equipment

manufacturer.

(b) Digital electronic equipment with electronic security

locks.--

(1) For equipment that contains an electronic security

lock or other security-related function, the original

equipment manufacturer shall make available to the owner and

to an independent repair provider, on fair and reasonable

terms, any special documentation, tool or part needed to

reset the lock or function when disabled in the course of

diagnosis, maintenance or repair of the digital electronic

equipment.

(2) The documentation, tool or part may be made

available through an appropriate secure release system.

Section 4. Enforcement by Attorney General.

A violation of a provision of this act is an unlawful

practice under the act of December 17, 1968 (P.L.1224, No.387),

known as the Unfair Trade Practices and Consumer Protection Law.

All remedies, penalties and authority granted to the Attorney

General by that act shall be available to the Attorney General

for the enforcement of this act.

Section 5. Construction.

Nothing in this act may be construed to:

(1) Require an original equipment manufacturer to

divulge a trade secret to an owner or an independent repair

provider, except as necessary to provide any documentation,

part or tool on fair and reasonable terms.

(2) Alter the terms of an arrangement described in the

definition of "authorized repair provider" in section 2 in

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force between an authorized repair provider and an original

equipment manufacturer, including, but not limited to, the

performance or provision of warranty or recall repair work by

an authorized repair provider on behalf of an original

equipment manufacturer under such arrangement, except that a

provision in the arrangement that purports to waive, avoid,

restrict or limit the original equipment manufacturer's

obligations to comply with this act shall be void and

unenforceable.

(3) Require an original equipment manufacturer or an

authorized repair provider to provide to an owner or

independent repair provider access to information, other than

documentation, that is provided by the original equipment

manufacturer to an authorized repair provider under the terms

of an arrangement described in the definition of "authorized

repair provider" except as necessary to comply with section

Section 6. Exclusions.

Nothing in this act applies to a motor vehicle manufacturer,

manufacturer of motor vehicle equipment or motor vehicle dealer,

acting in that capacity, or to a product or service of a motor

vehicle manufacturer, manufacturer of motor vehicle equipment or

motor vehicle dealer, acting in that capacity.

Section 7. Applicability.

This act applies with respect to equipment sold or in use on

or after the effective date of this act.

Section 8. Effective date.

This act shall take effect in 60 days.

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