Bill S.2204

FILED ON: 4/3/2012

SENATE . . . . . . . . . . . . . . No. 2204

The Commonwealth of Massachusetts

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In the Year Two Thousand Twelve

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An Act relative to the 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. The General Laws are hereby amended by inserting after chapter 93I the following chapter:-

CHAPTER 93J

RIGHT TO REPAIR

Section 1. As used in this chapter, the following words shall, unless the context clearly indicates a different meaning, have the following meanings:

"Authorized repair facility", a person or business operating in the commonwealth that is affiliated, by contract or otherwise, with an authorized dealer or motor vehicle manufacturer and is engaged in the diagnosis, service, maintenance or repair of motor vehicles or motor vehicle engines.

"Dealer", a person or business authorized by a manufacturer to lease or sell such manufacturer’s new motor vehicles at retail; provided, however, that such dealer is also engaged in the diagnosis, service, maintenance or repair of motor vehicles or motor vehicle engines.

"Immobilizer system", an electronic device designed for the sole purpose of preventing the theft of a motor vehicle by preventing the motor vehicle in which it is installed from starting without the correct key code.

"Independent repair facility", a person or business operating in the commonwealth engaged in the diagnosis, service, maintenance or repair of motor vehicles or motor vehicle engines and that is not affiliated with a manufacturer or a dealer.

"Manufacturer", any person or business engaged in the business of manufacturing or assembling new motor vehicles.

"Motor vehicle", a vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads and highways, but excluding: (i) a vehicle that may be operated only on a rail line; (ii) a recreational vehicle or auto home equipped for habitation; (iii) an ambulance; (iv) a bus, motor coach or trackless trolley designed for the carriage of persons for hire or for school-related purposes; (v) vehicles used for purposes other than the transportation of property and incapable of being driven at a speed exceeding 12 miles per hour and used exclusively for the building, repair and maintenance of highways or designed especially for use elsewhere than on the travelled part of ways; (vi) any vehicle with a gross vehicle weight rating of more than 10,000 pounds; and (vii) any vehicle excluded from the definition of “motor vehicle” in chapter 90.

"Owner", a person or business who owns, leases or otherwise has the legal right to use and possess a motor vehicle or the agent of such person.

"Trade secret", anything tangible or intangible or electronically kept or stored, which constitutes, represents, evidences or records a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention or improvement.

Section 2. (a) Except as provided in subsection (d), for vehicles manufactured in 2002 and thereafter, a manufacturer of motor vehicles sold in the commonwealth shall make available for purchase by owners of motor vehicles manufactured by such manufacturer and by independent repair facilities the same diagnostic and repair information, including repair technical updates, that such manufacturer makes available to its dealers and authorized repair facilities through the manufacturer's Internet-based diagnostic and repair information system or other electronically accessible manufacturers repair information system. All content in any such manufacturer’s repair information system shall be made available to owners and to independent repair facilities in the same form and manner and to the same extent as is made available to dealers and authorized repair facilities utilizing such diagnostic and repair information system. Each manufacturer shall provide access to such manufacturer's diagnostic and repair information system for purchase by owners and independent repair facilities on an hourly, daily, monthly or yearly subscription basis and upon such terms and at a cost no greater than the fair market value for such access and shall not discriminate against such owners or independent repair facilities as compared with the terms and costs charged to dealers or authorized repair facilities.

(b) For vehicles manufactured in 2002 and thereafter, each manufacturer of motor vehicles sold in the commonwealth shall make available for purchase by owners and independent repair facilities all diagnostic repair tools incorporating the same diagnostic, repair and wireless capabilities that such manufacturer makes available to its dealers and authorized motor vehicle repair facilities. Such tools shall incorporate the same functional repair capabilities that such manufacturer makes available to dealers and authorized repair facilities. Each manufacturer shall offer such tools for sale to owners and to independent repair facilities upon such terms and at a cost no greater than the fair market value for such tools and shall not discriminate against such owners or independent repair facilities as compared to the terms and costs charged by such manufacturer to dealers or authorized repair facilities.

(c) Commencing in 2015, except as provided in subsection (d), manufacturers of motor vehicles sold in the commonwealth shall provide access to their diagnostic and repair information system, as required under this section, through a non-proprietary vehicle interface device that complies with SAE J2534, or any successor as may be recognized or accepted by the United States Environmental Protection Agency for purposes of 40 CFR § 86.1808-01(f). Each manufacturer shall provide access to the diagnostic and repair information system through such interface device in the same form and in the same manner and provide the same diagnostic and repair information, including technical updates, as is made available to dealers and authorized motor vehicle repair facilities utilizing such information system.

(d) Manufacturers of motor vehicles sold in the commonwealth shall exclude diagnostic, service and repair information necessary to reset an immobilizer system or security-related electronic modules from information provided to owners and independent repair facilities. Information necessary to reset an immobilizer system or security-related electronic modules shall be obtained by dealers, authorized motor vehicle repair facilities, owners and independent motor vehicle repair facilities through the secure data release model system as currently used by the National Automotive Service Task Force or other known, reliable and accepted law enforcement Internet-based systems.

Section 3. Nothing in this chapter shall be construed to require a manufacturer to divulge a trade secret.

Section 4. Nothing in this chapter shall be construed to abrogate, interfere with, contradict or alter the terms of any agreement made by a manufacturer, dealer or authorized repair facility executed and in force as of the effective date of this chapter. On and after January 1, 2013, no person shall make or enter an agreement that purports to waive, avoid, restrict or limit a manufacturer's compliance with this chapter and any such agreement shall be void and unenforceable.

Section 5. (a) Any violation of this chapter shall be deemed to be an unfair method of competition and an unfair or deceptive act or practice in the conduct of trade or commerce in violation of section 2 of chapter 93A. In addition to the remedies available under said chapter 93A, the court shall assess damages in an amount not less than $10,000 per violation.

(b) In the event of a dispute concerning the determination of fair market value under this chapter, the parties may agree to binding arbitration under the rules of the American Arbitration Association or, absent such agreement, either party may initiate an action in the superior court for relief under chapter 231A.