H 4982

SECTION 1. The General Laws, as appearing in the 2024 Official Edition, are hereby amended by inserting after chapter 93L the following chapter:- CHAPTER 93M. PORTABLE WIRELESS DEVICE REPAIR. Section 1. As used in this chapter, the following terms shall have the following meanings unless the context clearly requires otherwise: "Authorized repair provider”, an individual or business who is unaffiliated with a manufacturer and who has an arrangement with the manufacturer under which the manufacturer grants to the individual or business a license to use a trade name, service mark, or other proprietary identifier for the purposes of offering the services of diagnosis, maintenance, or repair of portable wireless devices under the name of the manufacturer, or other arrangement with the manufacturer to offer such services on behalf of manufacturer; provided, however, that a manufacturer who offers the services of diagnosis, maintenance, or repair of portable wireless devices manufactured by the manufacturer on its behalf, or sold or otherwise supplied by the manufacturer, and who does not do so exclusively through at least 1 arrangement as described herein, shall be considered an authorized repair provider with respect to such equipment. "Documentation", a manual, diagram, reporting output, service code description, schematic, security code or password or other information used in effecting the services of diagnosis, maintenance or repair of portable wireless devices. “Fair and reasonable terms”, costs and terms for obtaining a part, tool or documentation that are equivalent to the most favorable costs and terms under which the manufacturer offers the part, tool or documentation to an authorized repair provider accounting for any discount, rebate, convenient and timely means of delivery, means of enabling fully restored and updated functionality, rights of use, or other incentive or preference the manufacturer offers to an authorized repair provider, or any additional cost, burden, or impediment the manufacturer imposes on an owner or independent repair provider; provided, however, that for documentation, including any relevant updates, “fair and reasonable terms” also means at no charge, except that, when the documentation is requested in physical printed form, a charge may be included for the reasonable actual costs of preparing and sending the copy. "Independent repair provider", an individual or business operating in the commonwealth, who does not have an arrangement as an authorized repair provider with a manufacturer and who is not affiliated with any individual or business who has such an arrangement with the manufacturer, that is engaged in the services of diagnosis, maintenance or repair of portable wireless devices; provided, however, that “independent repair provider” shall include a manufacturer or an individual or business who has an arrangement with that manufacturer, or who is affiliated with an individual or business who has such an arrangement with that manufacturer, that engages in the services of diagnosis, maintenance, or repair of portable wireless devices that is not manufactured by or on behalf of, or sold or otherwise supplied by, that manufacturer. "Manufacturer", a business engaged in the business of selling, leasing or otherwise supplying new portable wireless devices, or parts of equipment, manufactured by or on behalf of itself, to any individual or business. "Owner", an individual or business who lawfully acquires a portable wireless device purchased or used in the commonwealth. “Part”, a replacement part, either new or used, made available by or to a manufacturer for purposes of effecting the services of maintenance or repair of portable wireless devices manufactured by or on behalf of, sold or otherwise supplied by the manufacturer. “Portable wireless device”, a handheld product sold at retail for personal, household, family or home office use that includes a battery, microphone, speaker and display designed to send and receive transmissions through a cellular radiotelephone service; provided, however, a “portable wireless device” does not include any product sold under a business-to-government or business-to-business contract that is not typically offered for sale directly by a retail seller. “Tool”, a software program, hardware implement or other apparatus used for diagnosis, maintenance or repair of portable wireless devices, including software or other mechanisms that provision, program, or pair a part, calibrate functionality or perform any other function required to bring the product back to fully functional condition. "Trade secret", anything tangible or intangible or electronically stored or kept that constitutes, represents, evidences, or records intellectual property, including secret or confidentially held designs, processes, procedures, formulas, inventions or improvements, secrets of confidentially held scientific, technical, merchandising, production, financial, business or management information or anything within the definition in 18 U.S.C. 1839(3). Section 2. Manufacturers of portable wireless devices or parts for such equipment, manufactured by the manufacturer or on its behalf, or sold or otherwise supplied by the manufacturer in the commonwealth shall make available to owners of such devices and to independent repair providers, on fair and reasonable terms, documentation, parts and tools, inclusive of any updates, for purposes of diagnosis, maintenance or repair of such devices. Nothing in this section shall require a manufacturer to make available a part that is no longer available to the manufacturer. Section 3. Manufacturers that sell any diagnostic, service or repair information to any independent repair provider or any other third-party provider in a format that is standardized with other manufacturers and on terms and conditions more favorable than the manner and the terms and conditions pursuant to which an authorized repair provider obtains the same diagnostic, service or repair information shall be prohibited from requiring any authorized repair provider to continue purchasing diagnostic, service or repair information in a proprietary format unless such proprietary format includes diagnostic, service or repair information or functionality that is not available in such standardized format. Section 4. Nothing in this chapter shall require a manufacturer to divulge a trade secret, except as necessary to provide documentation, parts and tools on fair and reasonable terms. Section 5. Nothing in this chapter shall require manufacturers or authorized repair providers to provide an owner or independent repair provider access to non-diagnostic and non-repair information provided by a manufacturer to an authorized repair provider pursuant to the terms of an authorizing agreement. Section 6. (a) No manufacturer or authorized repair provider shall be liable for any damage or injury to any portable wireless device, owner or property that occurs as a result of repair, diagnosis, maintenance or modification performed by an independent repair provider. (b) No manufacturer shall be liable for any act that is reasonably necessary to protect owner privacy, security or digital safety. (c) No manufacturer shall be liable for improper use of personal data or any data privacy or security breach in connection with repair, diagnosis, maintenance or modification performed by an independent repair provider. Section 7. (a) An independent repair provider shall conspicuously post at their place of business and provide to an owner prior to any diagnosis or repair written notice that the independent repair provider is not an authorized repair provider for the portable wireless device, an owner’s obligation to review the terms and conditions of any warranty for the portable wireless device, and the owner’s rights and protections relative to chapter 93A and warranties governed by the federal Magnuson-Moss Warranty Act, 15 U.S.C. 50. (b) An independent repair provider or authorized repair provider shall, prior to the repair of a portable wireless device, disclosure to the owner in writing and obtain a written acknowledgement thereof: (1) which parts, if any, were not provided or produced by the manufacturer, and the name of the parts provider; (2) if used parts are to be used during the repair, and the duration and type of the part’s previous use; (3) the total anticipated cost of the repair, including itemized cost of parts and labor; (4) whether the technician performing the repair is certified or has completed training to repair such portable wireless device, including any training required by the manufacturer; and (5) any exposure to the owner’s personal data that may be involved in the repair, including access to personal data by the independent repair provider or authorized repair provider, and the protections to be taken to safeguard personal data. Such written disclosure shall be provided to the owner upon completion of the repair. Section 8. (a) The attorney general may initiate an action to seek an injunction to restrain any violations of this chapter and seek any relief authorized in chapter 93A. (b) Prior to initiating any action under this section against an individual or a business, the attorney general shall provide the individual or business 30 days’ written notice identifying the specific provisions of this chapter the attorney general alleges have been or are being violated; provided, however, that if within the 30-day period the individual or business cures the noticed violation and provides the attorney general a written statement that the alleged violations have been cured and that no such further violations shall occur, no action shall be initiated against the individual or business. Written notice by the attorney general shall be delivered by certified mail and by first-class mail with proof of mailing. If an individual or business continues to violate this chapter following this cure period or breaches an express written statement provided to the attorney general under this subsection, the attorney general may initiate an action pursuant to subsection (a). Section 9. Nothing in this chapter shall apply to a device approved by the United States Food and Drug Administration. SECTION 2. This act shall take effect on January 1, 2027.