Letter to Assemblymember Fahy from Sam Levine and Elizabeth Wilkins

UNITED STATES OF AMERICA
Federal Trade Commission
Washington, DC 20580
Samuel Levine
Director
Bureau of Consumer Protection
Elizabeth Wilkins
Director
Office of Policy Planning
August 19, 2022
VIA ELECTRONIC MAIL
The Honorable Patricia Fahy
New York State Assembly
LOB 424
Albany, NY 12248
Re: 	New York’s Digital Fair Repair Act
Dear Assemblymember Fahy:
We write this letter as the heads of the FTC’s Bureau of Consumer Protection and its Office of
Policy Planning, the FTC office that provides advocacy and submits filings supporting
competition and consumer protection principles to state legislatures, regulatory boards, and
officials.
Congratulations on the recent passage of New York’s Digital Fair Repair Act (the “Digital Fair
Repair Act” or “Act”), which will soon be presented to Governor Hochul. The resounding
bipartisan support for the Digital Fair Repair Act (passing 145 to 1 in the Assembly and 49 to 14
in the Senate) reflects the widespread understanding that consumers need more choices when it
comes to fixing the products they own and that small, independent repair businesses need access
to parts, diagnostic tools and repair instructions in order to provide repair services. It also
underscores the New York state legislature’s commitment to ensuring that consumers have those
choices and that small businesses can compete against manufacturers. As the first state
legislature to pass a general digital right to repair law, New York has taken a significant step in
advancing these important goals.

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In May 2021, the Federal Trade Commission (the “Commission”) issued its Nixing the Fix
Report to Congress.1 The report, which was issued unanimously by the bipartisan Commission,
found that many manufacturers restrict independent repair and repair by consumers through:
• Product designs that complicate or prevent repair;
• Unavailability of parts and repair information;
• Designs that make independent repairs less safe;
• Policies or statements that steer consumers to manufacturer repair networks;
• Application of patent rights and enforcement of trademarks;
• Disparagement of non-OEM parts and independent repair;
• Software locks and firmware updates; or
• End User License Agreements.
The Commission’s report also observed that the burden of repair restrictions may fall more
heavily on communities of color and lower-income communities. Many Black-owned small
businesses are in the repair and maintenance industries, and difficulties facing small businesses
can disproportionately affect small businesses owned by people of color. Repair restrictions for
some products—such as smartphones—also may place a greater financial burden on
communities of color and lower-income Americans. As noted in the report, Pew Research found
that Black and Hispanic Americans are about twice as likely as white Americans to have
smartphones but no broadband access at home. Similarly, lower-income Americans are more
likely to be smartphone-dependent. This smartphone dependency makes repair restrictions on
smartphones more likely to affect these communities adversely.
Manufacturers explain that these repair restrictions often arise from their desire to protect
intellectual property rights and prevent injuries and other negative consequences resulting from
improper repairs. The Commission’s report found that there is scant evidence to support
manufacturers’ justifications for repair restrictions, including their claims that opening repairs to
owners and independent repair shops would pose safety issues and that open repair markets
would introduce cybersecurity issues that would compromise consumer data.
The passage of the Digital Fair Repair Act is an important milestone, as the Act promises to
expand repair markets significantly. If enacted, New York consumers will have the ability to fix
some products themselves or to use independent repair shops. For many consumers, these
expanded repair options will enable them to extend the useful lives of their products, thereby
driving down the cost of ownership and reducing the amount of e-waste generated. Furthermore,
the Digital Fair Repair Act will provide opportunities for small independent repair shops to
deliver vital services for consumers.
Again, congratulations on the passage of the Digital Fair Repair Act. As the Commission
informed Congress in the Nixing the Fix Report, we stand ready to work with legislators at the
state and federal level in order to ensure that consumers have choices when they need to repair
products that they purchase and own.
1 Federal Trade Commission. Nixing the Fix: An FTC Report to Congress on Repair Restrictions. (May 2021)
https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-
repairrestrictions/nixing_the_fix_report_final_5521_630pm-508_002.p

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Sincerely,
/s/ Samuel Levine 	/s/ Elizabeth Wilkins
Director 	Director
Bureau of Consumer Protection 	Office of Policy Planning