Biden’s EO ‘Encourages’ FTC Rules Promoting Independent Repair

The broadly framed executive order that President Joe Biden signed Friday on promoting competitiveness in the U.S. economy will “make it easier and cheaper to repair items you own by limiting manufacturers from barring self-repairs or third-party repairs of their products,” said a White House fact sheet. The EO “includes 72 initiatives by more than a dozen federal agencies to promptly tackle some of the most pressing competition problems across our economy,” it said. See our news bulletin here.

The EO “encourages the FTC to issue rules against anticompetitive restrictions on using independent repair shops or doing” do-it-yourself repairs “of your own devices and equipment,” said the White House. Tech companies “impose restrictions on self and third-party repairs, making repairs more costly and time-consuming, such as by restricting the distribution of parts, diagnostics, and repair tools,” it said. Two months earlier the FTC reported it has “a number of authorities it can and should deploy to address repair restrictions and help open repair markets,” including by enforcing existing consumer protections in the 1975 Magnuson-Moss Warranty Act (see 2105060066).

The order “seems likely to be directed at the FTC to engage in rule-making, which is a long process,” emailed Repair Association Executive Director Gay Gordon-Byrne. “Since the FTC has already endorsed our R2R principles and state efforts, I'm very encouraged to see the attention. It should help us push multiple bills over the finish line.” Right-to-repair legislation is “active” in the Massachusetts and Pennsylvania state houses, “and we're only 6 months away from the 2022 sessions,” she said. CTA, which has defended tech company restrictions on independent repair, didn’t comment.

The EO “recognizes what repair advocates have said all along: If you buy a product, you own it,” said iFixit U.S. Policy Head Kerry Sheehan. “You should be able to fix it however you choose -- either by yourself or with the help of an independent repair professional. We’re grateful that the administration is taking aggressive steps to protect everyone’s Right to Repair, and eager to see how the FTC takes up the call.”

The administration’s right-to-repair directive “will deliver direct benefits to consumers, researchers and innovation, and demonstrates the value it places on pro-consumer policies,” said Re:Create Executive Director Joshua Lamel. “The idea that copyright law can be abused to prevent Americans from doing perfectly legal activities shows the breadth and damage that can happen if left unchecked while powerful industries fight to prevent consumers from repairing their stuff. We urge the FTC to act in an expeditious manner to deliver these right-to-repair benefits to American consumers as quickly as possible.”

Biden’s EO also would save hearing-impaired Americans “thousands of dollars by allowing hearing aids to be sold over the counter at drug stores,” said the fact sheet. The Food and Drug Administration acknowledged last summer missing its statutory August 2020 deadline under the FDA Reauthorization Act of 2017 for proposing rules to create a category of OTC hearing aids for people with mild or moderate hearing loss (see 2008200024).

The order directs Health and Human Services “to consider issuing proposed rules within 120 days for allowing hearing aids to be sold over the counter,” said the fact sheet. The actual EO, released late Friday, goes a step further in directing HHS to publish a proposed OTC rule for notice and comment within 120 days. CTA has had a certification mark for compliant OTC hearing aids on file at the Patent and Trademark Office for three years, but is hamstrung from using the logo in commerce until the FDA creates and authorizes the product category.

The EO also “tackles” three Big Tech areas “in which dominant tech firms are undermining competition and reducing innovation,” said the White House. It crafts new administration policy on “greater scrutiny of mergers, especially by dominant internet platforms,” it said. It also encourages the FTC to establish rules against Big Tech on “surveillance and the accumulation of data,” and for barring “unfair methods of competition on internet marketplaces.”

The order also would save Americans money on their internet bills “by banning excessive early termination fees, requiring clear disclosure of plan costs to facilitate comparison shopping, and ending landlord exclusivity arrangements that stick tenants with only a single internet option,” said the White House. Biden “encourages the FCC to prevent ISPs from making deals with landlords that limit tenants’ choices,” it said.