Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H360 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 of 1
2	2	HOUSE DOCKET, NO. 3826 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 360
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Adrian C. Madaro
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to digital right to repair.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Adrian C. Madaro1st Suffolk1/20/2023Samantha Montaño15th Suffolk1/25/2023Sal N. DiDomenicoMiddlesex and Suffolk1/30/2023Angelo L. D'Emilia8th Plymouth1/30/2023David M. Rogers24th Middlesex2/3/2023Carole A. Fiola6th Bristol2/13/2023Lindsay N. Sabadosa1st Hampshire2/13/2023Jack Patrick Lewis7th Middlesex2/13/2023William C. Galvin6th Norfolk2/13/2023Joanne M. ComerfordHampshire, Franklin and Worcester2/14/2023Jonathan D. Zlotnik2nd Worcester3/6/2023 1 of 6
16	16	HOUSE DOCKET, NO. 3826 FILED ON: 1/20/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 360
18	18	By Representative Madaro of Boston, a petition (accompanied by bill, House, No. 360) of
19	19	Adrian C. Madaro and others relative to digital right to repair. Consumer Protection and
20	20	Professional Licensure.
21	21	The Commonwealth of Massachusetts
22	22	_______________
23	23	In the One Hundred and Ninety-Third General Court
24	24	(2023-2024)
25	25	_______________
26	26	An Act relative to digital right to repair.
27	27	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
28	28	of the same, as follows:
29	29	1 The General Laws are hereby amended by inserting after chapter 93K the following
30	30	2Chapter:-
31	31	3 Chapter 93L Portable Wireless Device Repair Act
32	32	4 Section 1. As used in this chapter, the following terms shall, unless the context clearly
33	33	5requires otherwise, have the following meanings:
34	34	6 "Authorized repair provider” means, with respect to an manufacturer, an individual or
35	35	7business who is unaffiliated with the manufacturer and who has an arrangement with
36	36	8manufacturer under which the manufacturer grants to the individual or business a license to use a
37	37	9trade name, service mark, or other proprietary identifier for the purposes of offering the services
38	38	10of diagnosis, maintenance, or repair of portable wireless devices under the name of the
39	39	11manufacturer, or other arrangement with the manufacturer to offer such services on behalf of
40	40	12manufacturer. A manufacturer who offers the services of diagnosis, maintenance, or repair of 2 of 6
41	41	13portable wireless devices manufactured by it or on its behalf, or sold or otherwise supplied by it,
42	42	14and who does not do so exclusively through one or more arrangements as described in this
43	43	15subsection with an unaffiliated individual or business, shall be considered an authorized repair
44	44	16provider with respect to such equipment.
45	45	17 “Portable Wireless Device” means a product which includes a battery, microphone,
46	46	18speaker and display designed to send and receive transmissions through a cellular radiotelephone
47	47	19service.
48	48	20 "Documentation", means any manual, diagram, reporting output, service code
49	49	21description, schematic, security codes or passwords, or other information used in effecting the
50	50	22services of diagnosis, maintenance, or repair of portable wireless devices.
51	51	23 “Fair and reasonable terms”, for obtaining a part or tool or documentation means costs
52	52	24and terms that are equivalent to the most favorable costs and terms under which manufacturer
53	53	25offers the part, tool, or documentation to an authorized repair provider accounting for any
54	54	26discount, rebate, convenient and timely means of delivery, means of enabling fully restored and
55	55	27updated functionality, rights of use, or other incentive or preference the manufacturer offers to an
56	56	28authorized repair provider, or any additional cost, burden, or impediment the manufacturer
57	57	29imposes on an owner or independent repair provider. For documentation, including any relevant
58	58	30updates, “fair and reasonable terms” also means at no charge, except that, when the
59	59	31documentation is requested in physical printed form, a charge may be included for the reasonable
60	60	32actual costs of preparing and sending the copy.
61	61	33 "Independent repair provider" means, with respect to a manufacturer, an individual or
62	62	34business operating in the Commonwealth, who does not have an arrangement as an authorized 3 of 6
63	63	35repair provider with the manufacturer, and who is not affiliated with any individual or business
64	64	36who has such an arrangement with the manufacturer, when that individual or business is engaged
65	65	37in the services of diagnosis, maintenance, or repair of portable wireless devices. A manufacturer
66	66	38or, with respect to that manufacturer, an individual or business who has such an arrangement
67	67	39with that manufacturer, or who is affiliated with an individual or business who has such an
68	68	40arrangement with that manufacturer, shall be considered an independent repair provider when
69	69	41engaging in the services of diagnosis, maintenance, or repair of portable wireless devices that is
70	70	42not manufactured by or on behalf of, or sold or otherwise supplied by, that manufacturer.
71	71	43 "Manufacturer", means a business engaged in the business of selling, leasing, or
72	72	44otherwise supplying new portable wireless devices, or parts of equipment, manufactured by or on
73	73	45behalf of itself, to any individual or business.
74	74	46 "Owner", an individual or business who lawfully acquires a portable wireless device
75	75	47purchased or used in the Commonwealth.
76	76	48 “Part” means any replacement part, either new or used, made available by or to a
77	77	49manufacturer for purposes of effecting the services of maintenance or repair of portable wireless
78	78	50devices manufactured by or on behalf of, sold or otherwise supplied by the manufacturer.
79	79	51 “Tool” means any software program, hardware implement, or other apparatus used for
80	80	52diagnosis, maintenance, or repair of portable wireless devices, including software or other
81	81	53mechanisms that provision, program, or pair a part, calibrate functionality, or perform any other
82	82	54function required to bring the product back to fully functional condition.
83	83	55 "Trade secret" means anything tangible or intangible or electronically stored or kept
84	84	56which constitutes, represents, evidences, or records intellectual property including secret or 4 of 6
85	85	57confidentially held designs, processes, procedures, formulas, inventions or improvements, or
86	86	58secrets of confidentially held scientific, technical, merchandising, production, financial, business
87	87	59or management information, or anything within the definition in 18 U.S.C. 1839(3).
88	88	60 Section 2. Manufacturers of portable wireless devices, or parts for such equipment,
89	89	61manufactured by it or on its behalf, or sold or otherwise supplied by it in the Commonwealth,
90	90	62shall make available to owners of such devices and to independent repair providers, on fair and
91	91	63reasonable terms, documentation, parts, and tools, inclusive of any updates, for purposes of
92	92	64diagnosis, maintenance, or repair of such devices. Nothing in this subsection requires a
93	93	65manufacturer to make available a part that is no longer available to the manufacturer.
94	94	66 Section 3. Manufacturers that sell any diagnostic, service, or repair information to any
95	95	67independent repair provider or any other third-party provider in a format that is standardized with
96	96	68other manufacturers, and on terms and conditions more favorable than the manner and the terms
97	97	69and conditions pursuant to which an authorized repair provider obtains the same diagnostic,
98	98	70service, or repair information, shall be prohibited from requiring any authorized repair provider
99	99	71to continue purchasing diagnostic, service, or repair information in a proprietary format, unless
100	100	72such proprietary format includes diagnostic, service, repair, or dealership operations information
101	101	73or functionality that is not available in such standardized format.
102	102	74 Section 4. Nothing in this chapter shall be construed to require a manufacturer to divulge
103	103	75a trade secret, except as necessary to provide documentation, parts, and tools on fair and
104	104	76reasonable terms.
105	105	77 Section 5. Nothing in this chapter requires manufacturers or authorized repair providers
106	106	78to provide an owner or independent repair provider access to non-diagnostic and non-repair 5 of 6
107	107	79 information provided by a manufacturer to an authorized repair provider pursuant to the
108	108	80terms of an authorizing agreement.
109	109	81 Section 6.
110	110	82 (a) An independent repair provider or owner who believes that a manufacturer
111	111	83 has failed to provide documentation, parts, and tools for purposes of diagnosis,
112	112	84maintenance, or repair of portable wireless devices as required by this chapter shall notify the
113	113	85manufacturer in writing and give the manufacturer 30 days from the time the manufacturer
114	114	86receives the complaint to cure the failure. If the manufacturer cures such a complaint within the
115	115	87cure period, damages shall be limited to actual damages in any subsequent litigation.
116	116	88 (b) If the manufacturer fails to respond to the notice provided pursuant to subsection (a),
117	117	89or if an independent repair provider or owner is not satisfied with the manufacturer's cure, the
118	118	90independent repair provider or owner may file a complaint in superior court. The complaint shall
119	119	91include the following:
120	120	92 (1) written information confirming that the complainant has attempted to acquire and use,
121	121	93through the then available standard support function provided by the manufacturer, relevant
122	122	94documentation, parts, and tools, including communication with customer assistance via the
123	123	95manufacturer's then standard process, if made available by the manufacturer; and
124	124	96 (2) evidence of manufacturer notification as required by subsection (a).
125	125	97 Section 10. In addition to any other remedies that may be available, a violation of this
126	126	98chapter shall be deemed to be an unfair method of competition and an unfair or deceptive act or
127	127	99practice in the conduct of trade or commerce in violation of section 2 of chapter 93A. 6 of 6
128	128	100 Section 11. This Act applies with respect to equipment sold or in use on or after the
129	129	101effective date of this Act.
130	130	102 Section 12. This Act takes effect January 1, 2024.
131	131	103 Section 13. Nothing in this chapter shall apply to a device approved by the United States
132	132	104Food and Drug Administration.