NY State Senate Bill 2017-S9058

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 15, 2018	referred to rules

co-Sponsors

2017-S9058 (ACTIVE) - Details

Current Committee:: Senate Rules
Law Section:: General Business Law
Laws Affected:: Add §399-nn, Gen Bus L
Versions Introduced in 2019-2020 Legislative Session:: S710

2017-S9058 (ACTIVE) - Summary

Relates to the sale of mobile devices and computers; requires original equipment manufacturers to provide diagnostic and repair information.

2017-S9058 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S9058

SPONSOR: BOYLE
 
TITLE OF BILL:

An act to amend the general business law, in relation to the sale of
mobile devices and computers and providing diagnostic and repair infor-
mation

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill will require original equipment manufacturers (OEM) of mobile
devices and computers to make diagnostic and repair information for
electronic parts and equipment sold or used in this state after January
1, 2019 available to consumers and independent repair providers.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Titled "Mobile Devices and Computer Fair Repair Act".

Section 2. Adds a new § 399-nn of the General Business Law.

1. Definitions.

2. Requires OEMs of mobile devices and computers and parts sold or used
in New York in and after 2019 to make diagnostic and repair information,
parts and tools available for purchase by consumer owners and independ-
ent repair providers of such products. The OEMs shall make available for
purchase the diagnostics, tools, parts and software patches necessary to
effectuate repair to consumers and independent repair providers on fair
and reasonable terms for purposes of repair.

3. Directs the Attorney General to enforce the provisions of this act by
enjoining and restraining the continuance of a violation and to assess
civil penalties.

4. Nothing in this act requires an OEM or authorized repair provider to
divulge a trade secret. The act does not affect current agreements
between manufacturers and authorized repair providers that do not
attempt to waive, avoid, restrict or limit an OEM's compliance with the
provisions of this act. Nor does the act compel an OEM or authorized
repair provider to provide to an owner or independent repair provider
access to information, other than documentation, that is provided by the
OEM to an authorized repair provider.

5. Effective Date

 
JUSTIFICATION:

This bill will protect consumers of mobile device and computer from the
monopolistic repair practices by manufacturers. Consumers need to be
restored options to repair their consumer electronics. Repair is normal,
legal, and necessary to keep our homes and businesses running. The more
technology equipment enters our lives - the more essential it has become
that repair options keep pace.

Without widespread access to repair, consumers of phones, tablets,
computers and other electronic device continue to be frustrated and
inclined to do what manufacturers want them to do-toss their gadgets and
replace them with new ones. This is costly to consumers directly,
destroys the value of used equipment and is exploding the volume of
electronic waste in our communities. Limitations on repair also create
perverse incentives for manufacturers to build the least durable
products possible.

Currently, repairs of digital items are intentionally limited by the
manufacturer. Manufacturers will require consumers to pay for repair
services through their repair division or manufacturer-authorized repair
providers. The practices by manufacturers essentially create a monopoly
on these repair services. These limited authorized channels result in
inflated, high repair prices and high turnover of electronic items.

The significant amount of electronic waste created by the inability to
affordably repair broken electronics is a concern to everyone, including
municipalities and taxpayers. Lack of competition in the digital repair
industry creates high costs for consumers, businesses, and government
operations and the early retirement of equipment with a remaining useful
life. This bill will open the digital repair market to competition and
all its benefits.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None to the State.

 
EFFECTIVE DATE:
This law shall take effect on January 1, 2019.

2017-S9058 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9058
 
                             I N  S E N A T E
 
                               June 15, 2018
                                ___________
 
 Introduced  by  Sen.  BOYLE  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the general business law, in relation  to  the  sale  of
   mobile  devices  and  computers  and  providing  diagnostic and repair
   information
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Short  title. This act shall be known and may be cited as
 the "mobile device and computer fair repair act".
   § 2. The general business law is amended by adding a new section  399-
 nn to read as follows:
   §  399-NN.  SALE  AND REPAIR OF MOBILE DEVICES AND COMPUTERS. 1. DEFI-
 NITIONS. FOR THE PURPOSES OF THIS SECTION,  THE  FOLLOWING  TERMS  SHALL
 HAVE THE FOLLOWING MEANINGS:
   (A)  "MOBILE  DEVICE"  MEANS  ANY HAND-HELD MOBILE TELEPHONE, PERSONAL
 DIGITAL ASSISTANT (PDA),  HAND-HELD  DEVICE  WITH  MOBILE  DATA  ACCESS,
 LAPTOP COMPUTER, PAGER, BROADBAND PERSONAL COMMUNICATION DEVICE, TWO-WAY
 MESSAGING DEVICE, OR PORTABLE COMPUTING DEVICE.
   (B)  "COMPUTER"  MEANS AN ELECTRONIC, MAGNETIC, OPTICAL, ELECTROCHEMI-
 CAL, OR OTHER HIGH-SPEED  DATA  PROCESSING  DEVICE  PERFORMING  LOGICAL,
 ARITHMETIC, OR STORAGE FUNCTIONS, AND INCLUDES ANY DATA STORAGE FACILITY
 OR  COMMUNICATIONS FACILITY DIRECTLY RELATED TO OR OPERATING IN CONJUNC-
 TION WITH SUCH DEVICE, BUT SUCH TERM DOES NOT INCLUDE AN AUTOMATED TYPE-
 WRITER OR TYPESETTER, A PORTABLE HANDHELD CALCULATOR, OR  OTHER  SIMILAR
 DEVICE.
   (C)  "AUTHORIZED  REPAIR PROVIDER" MEANS AN INDIVIDUAL OR BUSINESS WHO
 IS UNAFFILIATED WITH AN ORIGINAL EQUIPMENT MANUFACTURER AND WHO  HAS  AN
 ARRANGEMENT  WITH THE ORIGINAL EQUIPMENT MANUFACTURER, FOR A DEFINITE OR
 INDEFINITE PERIOD,  UNDER  WHICH  THE  ORIGINAL  EQUIPMENT  MANUFACTURER
 GRANTS  TO  THE  INDIVIDUAL  OR  BUSINESS A LICENSE TO USE A TRADE NAME,
 SERVICE MARK, OR OTHER PROPRIETARY IDENTIFIER FOR THE PURPOSES OF OFFER-
 ING THE SERVICES OF DIAGNOSIS, MAINTENANCE, OR REPAIR OF MOBILE  DEVICES
 OR  COMPUTERS  UNDER THE NAME OF THE ORIGINAL EQUIPMENT MANUFACTURER, OR
 OTHER ARRANGEMENT WITH THE ORIGINAL EQUIPMENT MANUFACTURER TO OFFER SUCH
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD16299-01-8

 S. 9058                             2
 
 SERVICES ON BEHALF OF THE ORIGINAL EQUIPMENT MANUFACTURER.  AN  ORIGINAL
 EQUIPMENT  MANUFACTURER  WHO  OFFERS  THE SERVICES OF DIAGNOSIS, MAINTE-
 NANCE, OR REPAIR OF ITS OWN MOBILE DEVICE OR COMPUTER, AND WHO DOES  NOT
 HAVE  AN  ARRANGEMENT DESCRIBED IN THIS SUBDIVISION WITH AN UNAFFILIATED
 INDIVIDUAL OR BUSINESS, SHALL BE CONSIDERED AN AUTHORIZED REPAIR PROVID-
 ER WITH RESPECT TO SUCH MOBILE DEVICES OR COMPUTERS.
   (D) "DOCUMENTATION"  MEANS  ANY  MANUAL,  DIAGRAM,  REPORTING  OUTPUT,
 SERVICE  CODE DESCRIPTION, SCHEMATIC DIAGRAM, OR SIMILAR KINDS OF INFOR-
 MATION PROVIDED TO AN AUTHORIZED REPAIR PROVIDER  FOR  PURPOSES  OF  ITS
 EFFECTING  THE  SERVICES  OF  DIAGNOSIS,  MAINTENANCE,  OR REPAIR OF THE
 MOBILE DEVICE OR COMPUTER.
   (E) "EMBEDDED SOFTWARE" MEANS ANY PROGRAMMABLE  INSTRUCTIONS  PROVIDED
 ON FIRMWARE DELIVERED WITH THE MOBILE DEVICE OR COMPUTER, OR WITH A PART
 FOR  SUCH  MOBILE  DEVICE  OR COMPUTER, FOR PURPOSES OF MOBILE DEVICE OR
 COMPUTER OPERATION, INCLUDING ALL RELEVANT PATCHES AND FIXES MADE BY THE
 MANUFACTURER OF SUCH  MOBILE  DEVICE  OR  COMPUTER  OR  PART  FOR  THESE
 PURPOSES.
   (F)  "FAIR  AND  REASONABLE  TERMS"  FOR  OBTAINING  A PART OR TOOL OR
 DOCUMENTATION MEANS AT COSTS AND TERMS, INCLUDING CONVENIENCE OF  DELIV-
 ERY,  AND  INCLUDING RIGHTS OF USE, EQUIVALENT TO WHAT IS OFFERED BY THE
 ORIGINAL EQUIPMENT MANUFACTURER TO AN AUTHORIZED REPAIR PROVIDER,  USING
 THE NET COSTS THAT WOULD BE INCURRED BY AN AUTHORIZED REPAIR PROVIDER IN
 OBTAINING  AN EQUIVALENT PART OR TOOL OR DOCUMENTATION FROM THE ORIGINAL
 EQUIPMENT MANUFACTURER, ACCOUNTING FOR ANY DISCOUNTS, REBATES, OR  OTHER
 INCENTIVE  PROGRAMS  IN ARRIVING AT THE ACTUAL NET COSTS. FOR DOCUMENTA-
 TION, INCLUDING ANY RELEVANT UPDATES, "FAIR AND REASONABLE TERMS"  MEANS
 AT  NO CHARGE, EXCEPT THAT, WHEN THE DOCUMENTATION IS REQUESTED IN PHYS-
 ICAL PRINTED FORM, A CHARGE MAY BE INCLUDED FOR  THE  REASONABLE  ACTUAL
 COSTS OF PREPARING AND SENDING THE COPY.
   (G)  "FIRMWARE"  MEANS  A  SOFTWARE  PROGRAM  OR  SET  OF INSTRUCTIONS
 PROGRAMMED ON THE MOBILE DEVICE OR COMPUTER,  OR  ON  A  PART  FOR  SUCH
 MOBILE  DEVICES  OR COMPUTERS, TO ALLOW THE MOBILE DEVICE OR COMPUTER OR
 PART TO COMMUNICATE WITH  OTHER  COMPONENTS  OF  THE  MOBILE  DEVICE  OR
 COMPUTER.
   (H)  "INDEPENDENT  REPAIR  PROVIDER"  MEANS  AN INDIVIDUAL OR BUSINESS
 OPERATING IN THIS STATE, WHO DOES NOT HAVE AN ARRANGEMENT  DESCRIBED  IN
 PARAGRAPH (C) OF THIS SUBDIVISION WITH AN ORIGINAL EQUIPMENT MANUFACTUR-
 ER,  AND  WHO  IS NOT AFFILIATED WITH ANY INDIVIDUAL OR BUSINESS WHO HAS
 SUCH AN ARRANGEMENT, AND WHO IS ENGAGED IN THE  SERVICES  OF  DIAGNOSIS,
 MAINTENANCE,  OR  REPAIR  OF  MOBILE  DEVICE OR COMPUTER, EXCEPT THAT AN
 ORIGINAL EQUIPMENT MANUFACTURER OR, WITH RESPECT TO THAT ORIGINAL EQUIP-
 MENT MANUFACTURER, AN INDIVIDUAL OR BUSINESS WHO HAS SUCH AN ARRANGEMENT
 WITH THAT ORIGINAL EQUIPMENT MANUFACTURER, OR WHO IS AFFILIATED WITH  AN
 INDIVIDUAL  OR  BUSINESS  WHO HAS SUCH AN ARRANGEMENT WITH THAT ORIGINAL
 EQUIPMENT  MANUFACTURER,  SHALL  BE  CONSIDERED  AN  INDEPENDENT  REPAIR
 PROVIDER  FOR  PURPOSES  OF  THOSE  INSTANCES IN WHICH IT ENGAGES IN THE
 SERVICES OF DIAGNOSIS, MAINTENANCE, OR REPAIR OF THE  MOBILE  DEVICE  OR
 COMPUTER  THAT  IS  NOT  MANUFACTURED  BY OR SOLD UNDER THE NAME OF THAT
 ORIGINAL EQUIPMENT MANUFACTURER.
   (I) "ORIGINAL EQUIPMENT MANUFACTURER" MEANS A BUSINESS ENGAGED IN  THE
 BUSINESS  OF SELLING OR LEASING NEW MOBILE DEVICES OR COMPUTERS MANUFAC-
 TURED BY OR ON BEHALF OF ITSELF, TO ANY INDIVIDUAL OR BUSINESS.
   (J) "OWNER" MEANS AN INDIVIDUAL OR BUSINESS WHO OWNS OR LEASES  MOBILE
 DEVICES OR COMPUTERS PURCHASED OR USED IN THIS STATE.
   (K) "PART" MEANS ANY REPLACEMENT PART, EITHER NEW OR USED, MADE AVAIL-
 ABLE BY AN ORIGINAL EQUIPMENT MANUFACTURER FOR PURPOSES OF EFFECTING THE

 S. 9058                             3
 
 SERVICES  OF  MAINTENANCE OR REPAIR OF MOBILE DEVICES OR COMPUTERS MANU-
 FACTURED OR SOLD BY THE ORIGINAL EQUIPMENT MANUFACTURER.
   2.  REQUIREMENTS.  (A)  FOR MOBILE DEVICES OR COMPUTERS, AND PARTS FOR
 SUCH MOBILE DEVICES OR  COMPUTERS,  SOLD  OR  USED  IN  THIS  STATE,  AN
 ORIGINAL  EQUIPMENT  MANUFACTURER  SHALL MAKE AVAILABLE, FOR PURPOSES OF
 DIAGNOSIS, MAINTENANCE, OR REPAIR, TO ANY INDEPENDENT  REPAIR  PROVIDER,
 OR  TO  THE OWNER OF THE MOBILE DEVICE OR COMPUTER MANUFACTURED BY OR ON
 BEHALF OF, OR SOLD BY, THE ORIGINAL EQUIPMENT MANUFACTURER, ON FAIR  AND
 REASONABLE  TERMS,  DOCUMENTATION,  PARTS,  AND  TOOLS, INCLUSIVE OF ANY
 UPDATES TO INFORMATION OR EMBEDDED SOFTWARE.  NOTHING  IN  THIS  SECTION
 REQUIRES  AN ORIGINAL EQUIPMENT MANUFACTURER TO MAKE AVAILABLE A PART IF
 THE PART IS NO LONGER AVAILABLE TO THE ORIGINAL EQUIPMENT MANUFACTURER.
   (B) FOR MOBILE DEVICES OR COMPUTERS THAT CONTAIN AN ELECTRONIC SECURI-
 TY LOCK OR  OTHER  SECURITY-RELATED  FUNCTION,  THE  ORIGINAL  EQUIPMENT
 MANUFACTURER SHALL MAKE AVAILABLE TO THE OWNER AND TO INDEPENDENT REPAIR
 PROVIDERS,  ON  FAIR  AND  REASONABLE  TERMS, ANY SPECIAL DOCUMENTATION,
 TOOLS, AND PARTS NEEDED TO RESET THE LOCK OR FUNCTION WHEN  DISABLED  IN
 THE  COURSE OF DIAGNOSIS, MAINTENANCE, OR REPAIR OF THE MOBILE DEVICE OR
 COMPUTER. SUCH DOCUMENTATION, TOOLS, AND PARTS  MAY  BE  MADE  AVAILABLE
 THROUGH APPROPRIATE SECURE RELEASE SYSTEMS.
   3.  ENFORCEMENT  BY  ATTORNEY  GENERAL.  WHENEVER  THERE  SHALL  BE  A
 VIOLATION OF THIS SECTION, AN APPLICATION MAY BE MADE  BY  THE  ATTORNEY
 GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK TO A COURT OR
 JUSTICE  HAVING JURISDICTION BY A SPECIAL PROCEEDING TO ISSUE AN INJUNC-
 TION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN  FIVE  DAYS,  TO
 ENJOIN  AND  RESTRAIN THE CONTINUANCE OF SUCH VIOLATION; AND IF IT SHALL
 APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE  THAT  THE  DEFENDANT
 HAS, IN FACT, VIOLATED THIS SECTION, AN INJUNCTION MAY BE ISSUED BY SUCH
 COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER VIOLATION, WITH-
 OUT  REQUIRING  PROOF  THAT  ANY  PERSON  HAS,  IN FACT, BEEN INJURED OR
 DAMAGED THEREBY. IN ANY SUCH PROCEEDING, THE COURT MAY  MAKE  ALLOWANCES
 TO  THE ATTORNEY GENERAL AS PROVIDED IN PARAGRAPH SIX OF SUBDIVISION (A)
 OF SECTION EIGHTY-THREE HUNDRED THREE OF  THE  CIVIL  PRACTICE  LAW  AND
 RULES,  AND DIRECT RESTITUTION.  WHENEVER THE COURT SHALL DETERMINE THAT
 A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT MAY IMPOSE  A  CIVIL
 PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS FOR EACH VIOLATION RESULT-
 ING  FROM A SINGLE ACT OR INCIDENT. IN CONNECTION WITH ANY SUCH PROPOSED
 APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A
 DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENA IN  ACCORDANCE
 WITH THE CIVIL PRACTICE LAW AND RULES.
   4.  LIMITATIONS.  (A)  NOTHING  IN  THIS SECTION SHALL BE CONSTRUED TO
 REQUIRE AN ORIGINAL EQUIPMENT MANUFACTURER TO DIVULGE A TRADE SECRET  TO
 AN OWNER OR AN INDEPENDENT SERVICE PROVIDER.
   (B) NO PROVISION IN THIS SECTION SHALL BE CONSTRUED TO ALTER THE TERMS
 OF ANY ARRANGEMENT DESCRIBED IN PARAGRAPH (C) OF SUBDIVISION ONE OF THIS
 SECTION  IN  FORCE BETWEEN AN AUTHORIZED REPAIR PROVIDER AND AN ORIGINAL
 EQUIPMENT MANUFACTURER, INCLUDING, BUT NOT LIMITED TO,  THE  PERFORMANCE
 OR  PROVISION  OF WARRANTY OR RECALL REPAIR WORK BY AN AUTHORIZED REPAIR
 PROVIDER ON BEHALF OF AN ORIGINAL  EQUIPMENT  MANUFACTURER  PURSUANT  TO
 SUCH  ARRANGEMENT, EXCEPT THAT ANY PROVISION IN SUCH TERMS THAT PURPORTS
 TO WAIVE, AVOID, RESTRICT, OR LIMIT THE ORIGINAL  EQUIPMENT  MANUFACTUR-
 ER'S  OBLIGATIONS  TO  COMPLY  WITH THIS SECTION SHALL BE VOID AND UNEN-
 FORCEABLE.
   (C) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO REQUIRE AN  ORIGINAL
 EQUIPMENT MANUFACTURER OR AN AUTHORIZED REPAIR PROVIDER TO PROVIDE TO AN
 OWNER  OR  INDEPENDENT REPAIR PROVIDER ACCESS TO INFORMATION, OTHER THAN

 S. 9058                             4
 
 DOCUMENTATION, THAT IS PROVIDED BY THE ORIGINAL  EQUIPMENT  MANUFACTURER
 TO AN AUTHORIZED REPAIR PROVIDER PURSUANT TO THE TERMS OF AN ARRANGEMENT
 DESCRIBED IN PARAGRAPH (C) OF SUBDIVISION ONE OF THIS SECTION.
   5.  APPLICABILITY. THIS SECTION APPLIES WITH RESPECT TO MOBILE DEVICES
 OR COMPUTERS SOLD OR IN USE ON OR  AFTER  THE  EFFECTIVE  DATE  OF  THIS
 SECTION.
   § 3. This act shall take effect January 1, 2019.

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Senate Bill S9058

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

co-Sponsors

2017-S9058 (ACTIVE) - Details

2017-S9058 (ACTIVE) - Summary

2017-S9058 (ACTIVE) - Sponsor Memo

2017-S9058 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S9058

Share this bill

Sponsored By

Phil Boyle

Archive: Last Bill Status - In Senate Committee Rules Committee

co-Sponsors

John E. Brooks

Luis R. Sepúlveda

2017-S9058 (ACTIVE) - Details

2017-S9058 (ACTIVE) - Summary

2017-S9058 (ACTIVE) - Sponsor Memo

2017-S9058 (ACTIVE) - Bill Text download pdf

Comments