SENATE DOCKET, NO. 2411 FILED ON: 2/11/2010
SENATE . . . . . . . . . . . . . . No. 2268
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The Commonwealth of Massachusetts
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In the Year Two Thousand Ten
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An Act to protect motor vehicle owners’ and independent repairers’ right to repair.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1:Whereas the ability to diagnose, service, and repair a motor vehicle in a timely, reliable, and affordable manner is essential to the safety and well-being of individuals in the Commonwealth;
Whereas individuals are entitled to choose among competing repair facilities for the convenient, reliable, and affordable repair of their motor vehicles;
Whereas, independent motor vehicle repair facilities operating in a free-market economy should have access to vehicle repair information and functional diagnostic tools;
Whereas increased competition among motor vehicle repair facilities will benefit vehicle owners in the Commonwealth;
Whereas computers of various kinds are commonly being used in motor vehicle systems, such as pollution control, transmission, antilock brakes, electronic and mechanical systems, heating and air conditioning, tire pressure, and steering;
Whereas the diagnosis, service and repair of these vehicle systems are essential to the safe and proper operation of motor vehicles; and
Whereas motor vehicle owners and independent motor vehicle repair facilities in the Commonwealth should have the right to obtain all information necessary to provide for the diagnosis, service, and repair of a motor vehicle.
The General Court finds that to reestablish an equitable auto repair industry in the Commonwealth in which all repair shops have equal access to complete repair information and functional diagnostic tools requires that motor vehicle owners and independent repair shops have access to the legal system through a civil remedy to enforce the provisions of this Act.
SECTION 2. The General Laws, as appearing in the 2008 Official Edition, are hereby amended by inserting after Chapter 93I the following new chapter:-
Chapter 93J. Motor vehicle Diagnosis, Service Information and Right to Repair.
Section 1.Definitions. The following words and phrases, as used in this chapter, unless the context otherwise requires, shall have the following meanings:—
"Authorized motor vehicle repair facility" a person or business that is associated with an authorized dealer or motor vehicle manufacturer.
“Dealer”, a business authorized by a new vehicle manufacturer to lease or sell the
manufacturer’s new motor vehicles at retail, pursuant to a franchise agreement, and which is engaged in the diagnosis, service, maintenance, or repair of motor vehicles or motor vehicle engines.
“Franchise agreement”, an oral or written arrangement for a definite or indefinite
period in which a manufacturer or distributor grants to a motor vehicle dealer a license to use a trade name, service mark, or related characteristic, and in which there is a community of interest in the marketing of new motor vehicles or services related thereto at wholesale, retail, leasing, or otherwise.
“Independent motor vehicle repair facility" a person or business that is not associated with a manufacturer's authorized dealer of motor vehicles and which is engaged in the diagnosis, service, maintenance, or repair of motor vehicles or motor vehicle engines.
“Motor vehicle owner" any person who owns, leases, or otherwise has the legal right to use and possess a motor vehicle, or the agent of such person.
“Trade secret" a formula, process device, or other business information that is kept confidential to maintain an advantage over competitors including a formula, patterns, compilation, program, device, method, technique, or process that derives independent economic value, actual or potential, from not being generally known or readily ascertainable by others who can obtain economic value from its disclosure or use.
Section 2.The manufacturer of any motor vehicle sold in the Commonwealth shall provide to any independent motor vehicle repair facility in the Commonwealth all information and tools related to the proper and complete diagnosis, service, and repair of the vehicle, including all service and training information.
The information and tools that the manufacturer shall provide to any motor vehicle owner or independent motor vehicle repair facility shall include but not be limited to the following:
1.The same information for the diagnosis, service, or repair of any motor vehicle that the manufacturer makes available to its authorized dealers and authorized motor vehicle repair facilities. This information must be made available on a reasonable and non-discriminatory basis and cost as compared to the terms and costs charged to an authorized dealer or an authorized motor vehicle repair facility by the motor vehicle manufacturer; and in the same form and in the same manner as it is made available to an authorized dealer or an authorized motor vehicle repair facility of the motor vehicle, and must include all information, including any diagnostic codes used to activate all controls that must be activated by a repair technician to diagnose, service, and repair the motor vehicle.
2.The same tools and software capabilities, including wireless capabilities, related to the diagnosis, service, and repair of a motor vehicle that the manufacturer makes available to an authorized dealership or an authorized motor vehicle repair facilities of the motor vehicle. The motor vehicle manufacturer shall make available to any independent motor vehicle repair facility in the Commonwealth any tools relating to the proper and complete diagnosis, service, and repair of the vehicle on a reasonable and non-discriminatory basis and cost as compared to the terms and costs charged to an authorized dealer or an authorized motor vehicle repair facility by the motor vehicle manufacturer. The motor vehicle manufacturer shall also provide aftermarket tool companies with information that will allow the aftermarket tool companies to manufacture tools with the same functional characteristics as those tools made available by the manufacturers to authorized dealers or to an authorized motor vehicle repair facility, for the purpose of allowing independent motor vehicle repair facilities to diagnose, service, and repair motor vehicles.
3.Failure to comply with the requirements of this chapter shall be a violation of subsection (a) of section 3 of this chapter and section 2 of Chapter 93A. A motor vehicle owner or an independent motor vehicle repair facility may institute a civil action for equitable relief and or damages in any court of competent jurisdiction as a remedy for such violation. A prevailing plaintiff is entitled to recover damages, which may be trebled as provided for in Chapter 93A, and the cost of litigation including expert witness and attorney fees.
Section 3.Notwithstanding any General or Special law, or any rule or regulation to the contrary, nothing in this chapter shall require a motor vehicle manufacturer to divulge information that is a trade secret. No diagnosis, service or repair information of any motor vehicle may be withheld by a manufacturer on the grounds that it is a trade secret if that information is provided, directly or indirectly, to an authorized dealer and any authorized motor vehicle repair facility.
Section 4. Notwithstanding any General or Special law, or any rule or regulation to the contrary, nothing in this chapter shall (1) interfere with the authority of the Administrator of the Environmental Protection Agency under section 202(m) of the Clean Air Act (42 U.S.C. 7521(m)) with regard to motor vehicle emissions control diagnostics systems; or (2) conflict with rules prescribed by the Administrator of the Environmental Protection Agency.
Section 5. Notwithstanding any General or Special law, or any rule or regulation to the contrary, no provision in this chapter shall be read, interpreted, or construed to abrogate, interfere with, contradict, or alter the terms of a franchise agreement, and the business practices of the parties there-under, executed and in force between a dealer and a manufacturer, including, but not limited to, the performance or provision of warranty or recall repair work by a dealer on behalf of a manufacturer pursuant to such franchise agreement provided that any provision in the franchise agreement that purports to waive, avoid, restrict or limit a manufacturer’s compliance with this chapter shall be void and unenforceable.