FTC puts hardware makers on warning for potential ‘unlawful repair restrictions’
As phones and other consumer devices have gained feature after feature, they have also declined in how easily they can be repaired, with Apple at the head of this ignoble pack. The FTC has taken note, admitting that the agency has been lax on this front but that going forward it will prioritize what could be illegal restrictions by companies as to how consumers can repair, repurpose and reuse their own property.
Devices are often built today with no concessions made toward easy repair or refurbishment, or even once-routine upgrades like adding RAM or swapping out an ailing battery. While companies like Apple do often support hardware for a long time in some respects, the trade-off seems to be that if you crack your screen, the maker is your only real option to fix it.
That’s a problem for many reasons, as right-to-repair activist and iFixit founder Kyle Wiens has argued indefatigably for years (the company posted proudly about the statement on its blog). The FTC sought comment on this topic back in 2019, issued a report on the state of things a few months ago, and now (perhaps emboldened by new chair Lina Khan’s green light to all things fearful to Big Tech companies) has issued a policy statement.
The gist of the unanimously approved statement is that they found that the practice of deliberately restricting repairs may have serious repercussions, especially among people who don’t have the cash to pay the Apple tax for what ought to be (and once was) a simple repair.
The Commission’s report on repair restrictions explores and discusses a number of these issues and describes the hardships repair restrictions create for families and businesses. The Commission is concerned that this burden is borne more heavily by underserved communities, including communities of color and lower-income Americans. The pandemic exacerbated these effects as consumers relied more heavily on technology than ever before.
While unlawful repair restrictions have generally not been an enforcement priority for the Commission for a number of years, the Commission has determined that it will devote more enforcement resources to combat these practices. Accordingly, the Commission will now prioritize investigations into unlawful repair restrictions under relevant statutes…
The statement then makes four basic points. First, it reiterates the need for consumers and other public organizations to report and characterize what they perceive as unfair or problematic repair restrictions. The FTC doesn’t go out and spontaneously investigate companies, it generally needs a complaint to set the wheels in motion, such as people alleging that Facebook is misusing their data.
Second is a surprising antitrust tie-in, where the FTC says it will look at said restrictions aiming to answer whether monopolistic practices like tying and exclusionary design are in play. This could be something like refusing to allow upgrades, then charging an order of magnitude higher than market price for something like a few extra gigs of storage or RAM, or designing products in such a way that it moots competition. Or perhaps arbitrary warranty violations for doing things like removing screws or taking the device to a third party for repairs. (Of course, these would depend on establishing monopoly status or market power for the company, something the FTC has had trouble doing.)
More in line with the FTC’s usual commercial regulations, it will assess whether the restrictions are “unfair acts or practices,” which is a much broader and easier to meet requirement. You don’t need a monopoly to make claims of an “open standard” to be misleading, or for a hidden setting to slow the operations of third-party apps or peripherals, for instance.
And lastly the agency mentions that it will be working with states in its push to establish new regulations and laws. This is perhaps a reference to the pioneering “right to repair” bills like the one passed by Massachusetts last year. Successes and failures along those lines will be taken into account and the feds and state policymakers will be comparing notes.
This isn’t the first movement in this direction by a long shot, but it is one of the plainest. Tech companies have seen the writing on the wall, and done things like expand independent repair programs — but it’s arguable that these actions were taken in anticipation of the FTC’s expected shift toward establishing hard lines on the topic.
The FTC isn’t showing its full hand here, but it’s certainly hinting that it’s ready to play if the companies involved want to push their luck. We’ll probably know more soon once it starts ingesting consumer complaints and builds a picture of the repair landscape.