by Amy Antenora
Managing Editor, aftermarketNews.com

WASHINGTON — In the continuing legislative process regarding HR 2735 — The Motor Vehicle Owner’s Right to Repair Act, the Federal Trade Commission (FTC) recently sent a letter to U.S. Rep John Dingell (D-Mich.), a member of the Energy and Trade Committee, in response to Dingell’s request for feedback from the FTC on the proposed legislation.

Babcox Publications, along with other media outlets, received the unsigned, undated letter yesterday from the Automotive Service Association (ASA). The letter has not been posted on either the FTC’s or Congressman Dingell’s Web sites. Both Bob Redding, from ASA’s Washington, D.C. office, and Ron Pyle, ASA’s president, responded to our phone calls requesting more information but declined to comment about the letter on the record. Pyle acknowledged that they provided the letter in an effort to keep the media informed.

The letter comes after the Congressional hearings that took place on Sept. 22 in Washington, D.C., before the House Subcommittee on Commerce, Trade and Consumer Protection of the House and Energy Commerce Committee. If passed, HR 2735 would mandate that car manufacturers make available all service and repair information to independent service technicians.

While some media outlets issued news stories about the letter implying that the FTC was giving HR 2735 a definitive “thumbs down”, upon closer inspection of the document, the letter makes it clear that the FTC is addressing and analyzing the issue from many angles.

In the letter, authored by Donald Clark, secretary of the FTC, it was stated that H.R. 2735, has “certain complexities and ambiguities in its language, which could result in unintended consequences.” In the letter, the FTC recognized the importance of this issue to U.S. consumers. It also acknowledged awareness of the voluntary service information agreement reached in 2002 between OEMs, the Automotive Service Association (ASA), the Association of International Automobile Manufacturers and the Alliance of Automobile Manufacturers.

While the letter expresses concerns regarding the ambiguity of the bill’s language, it is clear that one of the FTC’s primary concerns with the bill’s passage is about the FTC’s ability to handle the administrative and technical responsibilities of the legislation, should it be passed.

The letter states: “Section 3(b)(1) would apparently put the FTC in the position of reviewing potentially massive amounts of highly technical information on an ongoing basis to determine whether particular information is entitled to trade secret protection. The FTC is not equipped to perform such a function. It is a law enforcement agency, not a document screening agency, and has no analogous ongoing document review responsibilities in other industries.”

According to Aaron Lowe, the vice president of regulatory and government affairs for the Automotive Aftermarket Industry Association — which spearheaded the effort for HR 2735 — the FTC’s involvement may not be as extensive as the letter implies.

“I don’t think the FTC’s involvement (should the bill be passed) is to the extent that they’ve made it out to be,” said Lowe. “They’ve increased their workload beyond what the bill would require them to do in our opinion. An important point: The EPA has already implemented service information rules for emissions-related information and tools, and so has the California Air Resources Board. They have created a framework for how information is to be shared, regarding proprietary information and regarding cost. The FTC makes a point that they would be required to go through every piece of car company information, which is a great clue-in that they are just creating more work for themselves than is required by the legislation. Their role would just be to develop regulations. We envision that they would just build upon the framework that has already been built through EPA and CARB. We don’t see that they couldn’t handle this workload. Their role is to protect competition and to protect consumers.”

It is also not clear whether those copied on the letter, including one of the bill’s co-sponsors, House Energy and Commerce Committee Chairman Joe Barton (R-Texas), had received the letter as of yesterday.

While this letter was reported on in numerous publications, other industry initiatives regarding HR 2735 have gone under the radar recently, with far less publicity. The Motor & Equipment Manufacturers Association (MEMA) recently sent a letter to Congressman Cliff Stearns (R-Fla.), chairman of the House Committee on Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection, urging Congress to request a study from the General Accounting Office assessing the effectiveness of the current non-legislative voluntary system between the automakers and the independent repair industry on non-emissions related diagnostic, service and repair information.

MEMA has also scheduled a meeting with Holly Pugliesse who is with the Certification and Compliance Division of the EPA to discuss the survey audit the EPA will undertake to determine the accessibility of emissions repair information. She has agreed in principle to have MEMA team up with her audit for non-emissions parts as well. In addition, MEMA scheduled a meeting with the NASTF to discuss appointing a permanent leader for the organization (instead of volunteer leadership) and to investigate how the independent aftermarket can take advantage of the automobile manufacturers’ to provide the same training they provide their dealership technicians to the independent aftermarket.

According to Paul Foley, vice president of the Automotive Aftermarket Suppliers Association — a market segment of MEMA, the letter doesn’t really affect MEMA’s position either way. Foley said more work needs to be done, with or without legislation.

“There is certainly a lot of work to do – with or without legislation – to make sure that the independent aftermarket is receiving the information they need to provide the consumer with the proper options on where he or she can get their vehicle fixed,” Foley said.

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