The debate over right to repair in 2022

Right to repair became a hot topic again when the Biden administration in July introduced an executive order promoting competition in the economy.

Biden's Executive Order

The executive order signed by President Biden called on the Federal Trade Commission (FTC) to limit anticompetitive practices as a way to promote economic growth in the United States. Included in this order was a recommendation to the FTC to make it easier and cheaper for consumers to repair items they own by limiting manufacturers' ability to bar self-repairs or third-party repairs of their products, according to a fact sheet from the White House.

While right to repair affects many products, agricultural markets are specifically noted as becoming increasingly concentrated and less competitive — meaning farmers and ranchers have to pay more to fix their products.

Equipment manufacturers' use of proprietary repair tools, software, and diagnostics has prevented farmers from repairing their own equipment, according to the White House fact sheet. This forces them to pay dealer rates for repairs that a farmer or third-party repair shop could have done much cheaper.

• READ MORE: BIDEN BACKS 'RIGHT TO REPAIR,' FROM TRACTORS TO TECH

The FTC voted unanimously to adopt this order and to ramp up law enforcement against repair restrictions. The commission said it would target repair restrictions violating antitrust laws enforced by the FTC or the FTC Act's prohibitions on unfair or deceptive acts or practices.

"These types of restrictions can significantly raise costs for consumers, stifle innovation, close off business opportunity for independent repair shops, create unnecessary electronic waste, delay timely repairs, and undermine resiliency," says Lina M. Khan, FTC chair.

In November, Apple, a major player in the right-to-repair movement, announced a new self-service repair program that enables customers to purchase genuine parts and tools to repair their phones, tablets, and computers through the Apple Self Service Repair Online Store. With Apple controlling the store and allowing only genuine parts, this is still a far cry from true third-party support for the right to repair.

What manufacturers are saying

The Association of Equipment Manufacturers (AEM) is a North American-based international trade group representing more than 1,000 off-road equipment manufacturers and suppliers in the agricultural and construction industries.

"Equipment manufacturers have always supported a farmer's right to safely maintain, diagnose, and repair their equipment," says Stephanie See, director of state government relations for AEM. "That is why we remain committed to helping farmers reduce downtime and maximize productivity. We will continue to work with elected officials on common sense, bipartisan solutions to strengthen the agricultural economy and revitalize rural America."

Kurt Coffey, vice president of Case IH North America, says the company is working with AEM and other partners across the industry to make sure Case IH is meeting customers' needs on this issue.

"We at Case IH aspire to make sure that the customer can have access to repair," says Coffey. "Now that means [being able to] fix or run a code to say which sensor is failing, and have access to the part."

Case IH offers diagnostic tools for dealers and customers to plug into their CAN bus to identify what they may need to repair, as well as the parts to do so.

John Deere said in a statement it supports a customer's right to "safely maintain, diagnose, and repair" equipment and provides the tools, parts, and information for farmers to work on machines. John Deere also offers a diagnostic tool customers can use to view schematics, code definitions, and other information to make their own repairs.

John Deere does not support the right to modify equipment software, citing safety risks, emission compliance, and engine performance.

Senator Tester's bill

Senator Jon Tester (D-MT) introduced the Agricultural Right to Repair Act that would guarantee farmers the right to repair their own equipment and end current restrictions on the repair market.

"I've been a farmer my whole life, and I've seen the unfair practices of equipment manufacturers make it harder and harder for folks to work on their tractors themselves — forcing them to go to an authorized mechanic and pay an arm and a leg for necessary repairs," says Tester. "Manufacturers have prevented producers from fixing their own machines in order to bolster corporate profits, and they've done it at the expense of family farmers and ranchers, who work hard every day to harvest the food that feeds families across the country. Farmers operate in tight windows and on tight margins, and they simply can't afford to waste time or money bringing their equipment to dealer authorized mechanics in the middle of a season. They need to be able to repair their own equipment, and this legislation will secure them that right."

Tester's bill would require equipment manufacturers to make available any parts, tools, software, and documentation owners would need to repair, diagnose, and maintain their own equipment. It would ensure parts are replaceable with commonly available tools or that specialized tools are provided to owners at fair and reasonable terms. When a manufacturer no longer produces documentation, parts, software, or tools for a product, this bill requires copyrights and patents to be placed in the public domain.

Additionally, this bill would require data ownership be returned to farmers, means are provided to disable and re-enable digital security functions on equipment, and third-party software be able to provide interoperability with other parts or tools.

Tester's proposed legislation found support with the American Economic Liberties Project, which works to translate intellectual victories of anti-monopoly movements into concrete policy.

"With this legislation, Senator Tester is taking an important step towards revitalizing American agriculture and putting power back where it belongs: with American farmers, ranchers, and producers," says J.D. Scholten, senior adviser at American Economic Liberties Project.

This Senate bill, co-sponsored by Senator Ben Ray Luján (D-NM), has been introduced, but no further action has been taken yet.

Congressman Bobby Rush (D-IL), a member of the House Committee on Energy and Commerce, introduced the Right to Equitable and Professional Auto Industry Repair (REPAIR) Act. The act is aimed to take similar action as Tester's bill against the automotive industry, ensuring consumers access to affordable vehicle repair, tools, and secure vehicle data.

Right-to-repair litigation

Three lawsuits have been filed this year against John Deere over the right to repair.

Forest River Farms in North Dakota filed an antitrust class action lawsuit in January over what the suit claims to be a monopolization of the repair service market for Deere equipment built with onboard central computer engine control units (ECUs). The suit is seeking damages for farmers who have repaired equipment through Deere from January 12, 2018, to the present.

According to the plaintiffs, owners of John Deere tractors have historically been able to repair their own equipment or take it to an independent repair shop. Now that software is essential to equipment function and Deere is choosing to make it available only to authorized dealerships and technicians, the software essentially locks owners out of making repairs.

The suit calls Deere "indisputably the biggest player in agricultural machinery markets in the U.S.," saying the company's market share is larger than the next two largest manufacturers combined.

The second lawsuit was filed on behalf of Trinity Dale Wells, a farmer in Alabama, and the third class action lawsuit was filed by Plum Ridge Farms in Illinois, making similar allegations.

• READ MORE: FARM GROUPS ASK FTC FOR RIGHT TO REPAIR DEERE EQUIPMENT

In March, the National Farmers Union, six affiliates, Farm Action, and four consumer groups filed a complaint to the FTC alleging Deere unlawfully forces farmers to pay a dealer when their tractors or other equipment break down. The groups are asking the FTC to order Deere to end its "policy of withholding from its customers diagnostic software and other information necessary to repair Deere equipment they own."

John Deere says it does not comment on pending litigation.