Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S142 Compare Versions

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

Old	New	Differences
1	1	1 of 1
2	2	SENATE DOCKET, NO. 793 FILED ON: 1/18/2023
3	3	SENATE . . . . . . . . . . . . . . No. 142
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Michael D. Brady
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 :Michael D. BradySecond Plymouth and NorfolkSal N. DiDomenicoMiddlesex and Suffolk1/30/2023Anne M. GobiWorcester and Hampshire2/9/2023Jack Patrick Lewis7th Middlesex2/10/2023Joanne M. ComerfordHampshire, Franklin and Worcester2/14/2023Nick CollinsFirst Suffolk2/15/2023Patricia D. JehlenSecond Middlesex3/2/2023 1 of 6
16	16	SENATE DOCKET, NO. 793 FILED ON: 1/18/2023
17	17	SENATE . . . . . . . . . . . . . . No. 142
18	18	By Mr. Brady, a petition (accompanied by bill, Senate, No. 142) of Michael D. Brady, Sal N.
19	19	DiDomenico, Anne M. Gobi, Jack Patrick Lewis and other members of the General Court for
20	20	legislation relative to digital right to repair. Consumer Protection and Professional Licensure.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE SENATE, NO. 166 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act relative to digital right to repair.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 The General Laws are hereby amended by inserting after chapter 93K the following
32	32	2Chapter:-
33	33	3 Chapter 93L Portable Wireless Device Repair Act
34	34	4 Section 1. As used in this chapter, the following terms shall, unless the context clearly
35	35	5requires otherwise, have the following meanings:
36	36	6 "Authorized repair provider” means, with respect to an manufacturer, an individual or
37	37	7business who is unaffiliated with the manufacturer and who has an arrangement with
38	38	8manufacturer under which the manufacturer grants to the individual or business a license to use a
39	39	9trade name, service mark, or other proprietary identifier for the purposes of offering the services 2 of 6
40	40	10of diagnosis, maintenance, or repair of portable wireless devices under the name of the
41	41	11manufacturer, or other arrangement with the manufacturer to offer such services on behalf of
42	42	12manufacturer. A manufacturer who offers the services of diagnosis, maintenance, or repair of
43	43	13portable wireless devices manufactured by it or on its behalf, or sold or otherwise supplied by it,
44	44	14and who does not do so exclusively through one or more arrangements as described in this
45	45	15subsection with an unaffiliated individual or business, shall be considered an authorized repair
46	46	16provider with respect to such equipment.
47	47	17 “Portable Wireless Device” means a product which includes a battery, microphone,
48	48	18speaker and display designed to send and receive transmissions through a cellular radiotelephone
49	49	19service.
50	50	20 "Documentation", means any manual, diagram, reporting output, service code
51	51	21description, schematic, security codes or passwords, or other information used in effecting the
52	52	22services of diagnosis, maintenance, or repair of portable wireless devices.
53	53	23 “Fair and reasonable terms”, for obtaining a part or tool or documentation means costs
54	54	24and terms that are equivalent to the most favorable costs and terms under which manufacturer
55	55	25offers the part, tool, or documentation to an authorized repair provider accounting for any
56	56	26discount, rebate, convenient and timely means of delivery, means of enabling fully restored and
57	57	27updated functionality, rights of use, or other incentive or preference the manufacturer offers to an
58	58	28authorized repair provider, or any additional cost, burden, or impediment the manufacturer
59	59	29imposes on an owner or independent repair provider. For documentation, including any relevant
60	60	30updates, “fair and reasonable terms” also means at no charge, except that, when the 3 of 6
61	61	31documentation is requested in physical printed form, a charge may be included for the reasonable
62	62	32actual costs of preparing and sending the copy.
63	63	33 "Independent repair provider" means, with respect to a manufacturer, an individual or
64	64	34business operating in the Commonwealth, who does not have an arrangement as an authorized
65	65	35repair provider with the manufacturer, and who is not affiliated with any individual or business
66	66	36who has such an arrangement with the manufacturer, when that individual or business is engaged
67	67	37in the services of diagnosis, maintenance, or repair of portable wireless devices. A manufacturer
68	68	38or, with respect to that manufacturer, an individual or business who has such an arrangement
69	69	39with that manufacturer, or who is affiliated with an individual or business who has such an
70	70	40arrangement with that manufacturer, shall be considered an independent repair provider when
71	71	41engaging in the services of diagnosis, maintenance, or repair of portable wireless devices that is
72	72	42not manufactured by or on behalf of, or sold or otherwise supplied by, that manufacturer.
73	73	43 "Manufacturer", means a business engaged in the business of selling, leasing, or
74	74	44otherwise supplying new portable wireless devices, or parts of equipment, manufactured by or on
75	75	45behalf of itself, to any individual or business.
76	76	46 "Owner", an individual or business who lawfully acquires a portable wireless device
77	77	47purchased or used in the Commonwealth.
78	78	48 “Part” means any replacement part, either new or used, made available by or to a
79	79	49manufacturer for purposes of effecting the services of maintenance or repair of portable wireless
80	80	50devices manufactured by or on behalf of, sold or otherwise supplied by the manufacturer.
81	81	51 “Tool” means any software program, hardware implement, or other apparatus used for
82	82	52diagnosis, maintenance, or repair of portable wireless devices, including software or other 4 of 6
83	83	53mechanisms that provision, program, or pair a part, calibrate functionality, or perform any other
84	84	54function required to bring the product back to fully functional condition.
85	85	55 "Trade secret" means anything tangible or intangible or electronically stored or kept
86	86	56which constitutes, represents, evidences, or records intellectual property including secret or
87	87	57confidentially held designs, processes, procedures, formulas, inventions or improvements, or
88	88	58secrets of confidentially held scientific, technical, merchandising, production, financial, business
89	89	59or management information, or anything within the definition in 18 U.S.C. 1839(3).
90	90	60 Section 2. Manufacturers of portable wireless devices, or parts for such equipment,
91	91	61manufactured by it or on its behalf, or sold or otherwise supplied by it in the Commonwealth,
92	92	62shall make available to owners of such devices and to independent repair providers, on fair and
93	93	63reasonable terms, documentation, parts, and tools, inclusive of any updates, for purposes of
94	94	64diagnosis, maintenance, or repair of such devices. Nothing in this subsection requires a
95	95	65manufacturer to make available a part that is no longer available to the manufacturer.
96	96	66 Section 3. Manufacturers that sell any diagnostic, service, or repair information to any
97	97	67independent repair provider or any other third-party provider in a format that is standardized with
98	98	68other manufacturers, and on terms and conditions more favorable than the manner and the terms
99	99	69and conditions pursuant to which an authorized repair provider obtains the same diagnostic,
100	100	70service, or repair information, shall be prohibited from requiring any authorized repair provider
101	101	71to continue purchasing diagnostic, service, or repair information in a proprietary format, unless
102	102	72such proprietary format includes diagnostic, service, repair, or dealership operations information
103	103	73or functionality that is not available in such standardized format. 5 of 6
104	104	74 Section 4. Nothing in this chapter shall be construed to require a manufacturer to divulge
105	105	75a trade secret, except as necessary to provide documentation, parts, and tools on fair and
106	106	76reasonable terms.
107	107	77 Section 5. Nothing in this chapter requires manufacturers or authorized repair providers
108	108	78to provide an owner or independent repair provider access to non-diagnostic and non-repair
109	109	79 information provided by a manufacturer to an authorized repair provider pursuant to the
110	110	80terms of an authorizing agreement.
111	111	81 Section 6.
112	112	82 (a) An independent repair provider or owner who believes that a manufacturer
113	113	83 has failed to provide documentation, parts, and tools for purposes of diagnosis,
114	114	84maintenance, or repair of portable wireless devices as required by this chapter shall notify the
115	115	85manufacturer in writing and give the manufacturer 30 days from the time the manufacturer
116	116	86receives the complaint to cure the failure. If the manufacturer cures such a complaint within the
117	117	87cure period, damages shall be limited to actual damages in any subsequent litigation.
118	118	88 (b) If the manufacturer fails to respond to the notice provided pursuant to subsection (a),
119	119	89or if an independent repair provider or owner is not satisfied with the manufacturer's cure, the
120	120	90independent repair provider or owner may file a complaint in superior court. The complaint shall
121	121	91include the following:
122	122	92 (1) written information confirming that the complainant has attempted to acquire and use,
123	123	93through the then available standard support function provided by the manufacturer, relevant 6 of 6
124	124	94documentation, parts, and tools, including communication with customer assistance via the
125	125	95manufacturer's then standard process, if made available by the manufacturer; and
126	126	96 (2) evidence of manufacturer notification as required by subsection (a).
127	127	97 Section 10. In addition to any other remedies that may be available, a violation of this
128	128	98chapter shall be deemed to be an unfair method of competition and an unfair or deceptive act or
129	129	99practice in the conduct of trade or commerce in violation of section 2 of chapter 93A.
130	130	100 Section 11. This Act applies with respect to equipment sold or in use on or after the
131	131	101effective date of this Act.
132	132	102 Section 12. This Act takes effect Jan. 1, 2024.
133	133	103 Section 13. Nothing in this chapter shall apply to a device approved by the United States
134	134	104Food and Drug Administration.