Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S2478 Compare Versions

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

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1	1	SENATE . . . . . . . . . . . . . . No. 2478
2	2	The Commonwealth of Massachusetts
3	3	_______________
4	4	In the One Hundred and Ninety-Third General Court
5	5	(2023-2024)
6	6	_______________
7	7	SENATE, October 19, 2023.
8	8	The committee on Consumer Protection and Professional Licensure, to whom was
9	9	referred the petitions (accompanied by bill, Senate, No. 142) of Michael D. Brady, Sal N.
10	10	DiDomenico, Anne M. Gobi, Jack Patrick Lewis and other members of the General Court for
11	11	legislation relative to digital right to repair; and (accompanied by bill, House, No. 360) of Adrian
12	12	C. Madaro and others relative to digital right to repair, reports the accompanying bill (Senate,
13	13	No. 2478).
14	14	For the committee,
15	15	John J. Cronin 1 of 6
16	16	FILED ON: 10/16/2023
17	17	SENATE . . . . . . . . . . . . . . No. 2478
18	18	The Commonwealth of Massachusetts
19	19	_______________
20	20	In the One Hundred and Ninety-Third General Court
21	21	(2023-2024)
22	22	_______________
23	23	An Act relative to digital right to repair.
24	24	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
25	25	of the same, as follows:
26	26	1 SECTION 1. The General Laws are hereby amended by inserting after chapter 93L the
27	27	2following Chapter:-
28	28	3 Chapter 93M. Portable Wireless Device Repair Act
29	29	4 Section 1. As used in this chapter, the following terms shall, unless the context clearly
30	30	5requires otherwise, have the following meanings:
31	31	6 "Authorized repair provider” means, with respect to a manufacturer, an individual or
32	32	7business who is unaffiliated with the manufacturer and who has an arrangement with
33	33	8manufacturer under which the manufacturer grants to the individual or business a license to use a
34	34	9trade name, service mark, or other proprietary identifier for the purposes of offering the services
35	35	10of diagnosis, maintenance, or repair of portable wireless devices under the name of the
36	36	11manufacturer, or other arrangement with the manufacturer to offer such services on behalf of
37	37	12manufacturer. A manufacturer who offers the services of diagnosis, maintenance, or repair of
38	38	13portable wireless devices manufactured by it or on its behalf, or sold or otherwise supplied by it, 2 of 6
39	39	14and who does not do so exclusively through one or more arrangements as described in this
40	40	15subsection with an unaffiliated individual or business, shall be considered an authorized repair
41	41	16provider with respect to such equipment.
42	42	17 “Portable Wireless Device” means a handheld product which includes a battery,
43	43	18microphone, speaker and display designed to send and receive transmissions through a cellular
44	44	19radiotelephone service.
45	45	20 "Documentation", means any manual, diagram, reporting output, service code
46	46	21description, schematic, security codes or passwords, or other information used in effecting the
47	47	22services of diagnosis, maintenance, or repair of portable wireless devices.
48	48	23 “Fair and reasonable terms”, for obtaining a part or tool or documentation means costs
49	49	24and terms that are equivalent to the most favorable costs and terms under which manufacturer
50	50	25offers the part, tool, or documentation to an authorized repair provider accounting for any
51	51	26discount, rebate, convenient and timely means of delivery, means of enabling fully restored and
52	52	27updated functionality, rights of use, or other incentive or preference the manufacturer offers to an
53	53	28authorized repair provider, or any additional cost, burden, or impediment the manufacturer
54	54	29imposes on an owner or independent repair provider. For documentation, including any relevant
55	55	30updates, “fair and reasonable terms” also means at no charge, except that, when the
56	56	31documentation is requested in physical printed form, a charge may be included for the reasonable
57	57	32actual costs of preparing and sending the copy.
58	58	33 "Independent repair provider" means, with respect to a manufacturer, an individual or
59	59	34business operating in the Commonwealth, who does not have an arrangement as an authorized
60	60	35repair provider with the manufacturer, and who is not affiliated with any individual or business 3 of 6
61	61	36who has such an arrangement with the manufacturer, when that individual or business is engaged
62	62	37in the services of diagnosis, maintenance, or repair of portable wireless devices. A manufacturer
63	63	38or, with respect to that manufacturer, an individual or business who has such an arrangement
64	64	39with that manufacturer, or who is affiliated with an individual or business who has such an
65	65	40arrangement with that manufacturer, shall be considered an independent repair provider when
66	66	41engaging in the services of diagnosis, maintenance, or repair of portable wireless devices that is
67	67	42not manufactured by or on behalf of, or sold or otherwise supplied by, that manufacturer.
68	68	43 "Manufacturer", means a business engaged in the business of selling, leasing, or
69	69	44otherwise supplying new portable wireless devices, or parts of equipment, manufactured by or on
70	70	45behalf of itself, to any individual or business.
71	71	46 "Owner", an individual or business who lawfully acquires a portable wireless device
72	72	47purchased or used in the Commonwealth.
73	73	48 “Part” means any replacement part, either new or used, made available by or to a
74	74	49manufacturer for purposes of effecting the services of maintenance or repair of portable wireless
75	75	50devices manufactured by or on behalf of, sold or otherwise supplied by the manufacturer.
76	76	51 “Tool” means any software program, hardware implement, or other apparatus used for
77	77	52diagnosis, maintenance, or repair of portable wireless devices, including software or other
78	78	53mechanisms that provision, program, or pair a part, calibrate functionality, or perform any other
79	79	54function required to bring the product back to fully functional condition.
80	80	55 "Trade secret" means anything tangible or intangible or electronically stored or kept
81	81	56which constitutes, represents, evidences, or records intellectual property including secret or
82	82	57confidentially held designs, processes, procedures, formulas, inventions or improvements, or 4 of 6
83	83	58secrets of confidentially held scientific, technical, merchandising, production, financial, business
84	84	59or management information, or anything within the definition in 18 U.S.C. 1839(3).
85	85	60 Section 2. Manufacturers of portable wireless devices, or parts for such equipment,
86	86	61manufactured by it or on its behalf, or sold or otherwise supplied by it in the Commonwealth,
87	87	62shall make available to owners of such devices and to independent repair providers, on fair and
88	88	63reasonable terms, documentation, parts, and tools, inclusive of any updates, for purposes of
89	89	64diagnosis, maintenance, or repair of such devices. Nothing in this subsection requires a
90	90	65manufacturer to make available a part that is no longer available to the manufacturer.
91	91	66 Section 3. Manufacturers that sell any diagnostic, service, or repair information to any
92	92	67independent repair provider or any other third-party provider in a format that is standardized with
93	93	68other manufacturers, and on terms and conditions more favorable than the manner and the terms
94	94	69and conditions pursuant to which an authorized repair provider obtains the same diagnostic,
95	95	70service, or repair information, shall be prohibited from requiring any authorized repair provider
96	96	71to continue purchasing diagnostic, service, or repair information in a proprietary format, unless
97	97	72such proprietary format includes diagnostic, service, repair, or dealership operations information
98	98	73or functionality that is not available in such standardized format.
99	99	74 Section 4. Nothing in this chapter shall be construed to require a manufacturer to divulge
100	100	75a trade secret, except as necessary to provide documentation, parts, and tools on fair and
101	101	76reasonable terms.
102	102	77 Section 5. Nothing in this chapter requires manufacturers or authorized repair providers
103	103	78to provide an owner or independent repair provider access to non-diagnostic and non-repair 5 of 6
104	104	79information provided by a manufacturer to an authorized repair provider pursuant to the terms of
105	105	80an authorizing agreement.
106	106	81 Section 6. (a) An independent repair provider or owner who believes that a manufacturer
107	107	82has failed to provide documentation, parts, and tools for purposes of diagnosis, maintenance, or
108	108	83repair of portable wireless devices as required by this chapter shall notify the manufacturer in
109	109	84writing and give the manufacturer 30 days from the time the manufacturer receives the complaint
110	110	85to cure the failure. If the manufacturer cures such a complaint within the cure period, damages
111	111	86shall be limited to actual damages in any subsequent litigation.
112	112	87 (b) If the manufacturer fails to respond to the notice provided pursuant to subsection (a),
113	113	88or if an independent repair provider or owner is not satisfied with the manufacturer's cure, the
114	114	89independent repair provider or owner may file a complaint in superior court. The complaint shall
115	115	90include the following:
116	116	91 (1) written information confirming that the complainant has attempted to acquire and use,
117	117	92through the then available standard support function provided by the manufacturer, relevant
118	118	93documentation, parts, and tools, including communication with customer assistance via the
119	119	94manufacturer's then standard process, if made available by the manufacturer; and
120	120	95 (2) evidence of manufacturer notification as required by subsection (a).
121	121	96 Section 7. In addition to any other remedies that may be available, a violation of this
122	122	97chapter shall be deemed to be an unfair method of competition and an unfair or deceptive act or
123	123	98practice in the conduct of trade or commerce in violation of section 2 of chapter 93A. 6 of 6
124	124	99 Section 8. Nothing in this chapter shall apply to a device approved by the United States
125	125	100Food and Drug Administration.
126	126	101 SECTION 2. This Act applies with respect to equipment sold or in use on or after the
127	127	102effective date of this Act.
128	128	103 SECTION 3. This Act shall take effect on January 1, 2024.