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Divided We Stand


5/1/2005
By Michael Freeze

What kind of issue is the "Right to Repair?" It depends on whom you ask. Why does this issue divide technicians, distributors and manufacturers? What can the aftermarket industry learn from this critical debate?
 

Meet Bob Merrill. Bob works in Windham, ME, a half-hour northwest of Portland. He's the owner of Horsepower Auto Care, a full-service NAPA AutoCare Center that he's operated since Jimmy Carter was president.

Merrill's shop performs all types of repairs, big and small. He's a Master ASE technician who's been working on vehicles for more than 40 years. Needless to say, Bob hasn't seen a vehicle he couldn't fix - until recently.

Merrill has been noticing in his shop, as well as other shops, that some vehicles weren't the easy fixes like others. Occasionally, he would run into this scenario: The shops had no remedy for what ailed certain vehicles, so they had to send them to back to the dealership's service bays.

To avoid this, Merrill has found himself looking for service information on the vehicle manufacturers' Web sites, often to no avail. If he does find information, he sometimes discovers only more hurdles.

"We have a Porsche with a dome light out and we don't have a wiring diagram for it," explained Merrill. "So, we (go to the Porsche service Web site) and they asked for $110for a wiring diagram."

Meet Donald L. Seyfer, but you can call him Donny. He, along with his father, Don, run Seyfer Automotive, Inc. in Wheat Ridge, CO, just west of Denver. Their shop is also a NAPA AutoCare Center. Seyfer Automotive is a growing auto repair facility and Donny is president of the Automotive Service Association (ASA)-Colorado mechanical division.

Though Seyfer and Merrill operate similar businesses, each has a different take on the availability of vehicle repair information, illustrating the gulf in opinion that has widened within the aftermarket.

"I have no problem repairing cars when I can't find information," said Seyfer. "I contact the (vehicle manufacturers' Web sites) and I get quick responses."

Donny considers himself to have a "Ford-centric" point of view as a technician. He has had a good track record with the nameplate's scan tools and software. But unlike Merrill, he doesn't run into a roadblock when problems arise.

"I bought (Ford's) brand new tools and there were some bugs in the software and they solved the problem in 24 hours. All it required was rewriting some code," said Seyfer.

Other than both running NAPA AutoCare Centers, what these two gentlemen share is a strong passion concerning the so-called "Right to Repair" legislation. Unfortunately, they do not share the same opinion about it.

Merrill strongly supports legislation. So much, that he made his first-ever trip to Washington, D.C. to testify to the House sub-committee on Commerce, Trade and Consumer Protection last September. Seyfer strongly opposes legislation. He also made that trip to Washington to testify at the sub-committee, as well.

The best way to comprehend why these two independent repair shop owners - each of whom offers the same services to similar types of consumers - stand on extreme sides of an issue that directly impacts their profession requires an understanding of its beginnings.

THE BEGINNING
The genesis of the great industry debate over having/not having the "right to repair" started, arguably, with the Clean Air Act of 1990.

With vehicle manufacturers developing on-board diagnostic (OBD) computers to monitor vehicle emission-related components, it was only a matter of time before computers eventually began to monitor and control other non-emission related components such as brakes, lights and air bags.

Over time, these computers have become so integral to vehicle function, that information about them sometimes must be used during the repair process. However, vehicle manufacturers considered this information to be proprietary. The automotive aftermarket, in general, contended that the information was needed to conduct repair service. If that information weren't available, then the aftermarket industry would be at a severe disadvantage. This brought several of the aftermarket industry's associations and larger retail entities together to form a coalition to seek a solution.

This group, called the Coalition for Auto Repair Equality (CARE), included, among others, the Automotive Aftermarket Industry Association (AAIA), American Automobile Association (AAA) and the Automotive Service Association (ASA). The CARE group also consisted of major aftermarket distributors such as NAPA, CARQUEST, CSK, AutoZone and O'Reilly. These groups initially joined forces to lobby the nation's capital in support of what is now known as The Motor Vehicle Owner's Right to Repair Act (H.R. 2735).

This act, if made into law, would legally require vehicle manufacturers to provide access to service information, both emissions and non-emissions related. The Federal Trade Commission (FTC) would oversee the law's enforcement and its language and stipulations.

In August 2001, U.S. Representatives Joe Barton (R-TX) and Edolphus Towns (D-NY) introduced H.R. 2735, which was followed by the companion Senate bill (S.B. 2617), introduced by the late U.S. Senator Paul Wellstone (D-MN) in June 2002.

Although a bill had been proposed, various members of CARE could not agree on the specifics of the bill. ASA disagreed with what it viewed as language dealing with parts and the integration and design of those parts.

Around the Spring of 2002, ASA told the coalition lobbyists that they were concerned the bill wasn't gaining any momentum. If it continued at that pace, ASA suggested the coalition search for an agreement.

Despite these differences, the CARE coalition was running smoothly until a Senate hearing in July 2002. CARE and representatives of the vehicle manufacturers came to Washington, D.C. to discuss with members of Congress the pros and cons of the proposed legislation. During this hearing, Subcommittee Chairman Sen. Byron Dorgan (D-ND), along with Sen. Wellstone concluded that both sides must reach an agreement - or else Congress would be forced to pursue legislation.

"We took it pretty seriously," recalled Ron Pyle, ASA president. "The second week in September 2002, an opportunity arose because the OEs were ready to have some serious discussion about a compromise agreement."

So, the leadership of ASA, much to the chagrin of the CARE coalition, along with the Alliance of Automobile Manufacturers (AAM) and the Association of International Automobile Manufacturers (AIAM), signed a voluntary agreement on September 18, 2002 with the vehicle manufacturers. This agreement stipulated (in non-legally binding terms) essentially the same thing as H.R. 2735: that vehicle manufacturers would provide service information and diagnostic tools via various OE service Web sites.

THE DEBATE
Those in favor of legislation say it's the only way to hold the vehicle manufacturers' feet to the fire since the ASA agreement has no 'teeth' behind it. Proponents of the legislation say it is important to keep vehicle manufacturers honest and to ensure a level playing field.

"There are major concerns we have with the voluntary agreement," said Aaron Lowe, vice president, regulatory and governmental affairs for AAIA. "It is a non-enforceable agreement. If that agreement were to be broken, nothing could be done. It would be difficult to take any action. The one thing (technicians) get (from legislation) is assurance for the future."

Those opposing the legislation say the voluntary agreement is working and an act of Congress should only be enacted if the vehicle manufacturers don't hold up to their end of the agreement. Opponents say the vehicle manufacturers have a reason not to break the agreement: They don't want to mess with Congress again. Besides, opponents say, the National Automotive Service Task Force (NASTF) - a group that consists of representatives from the service, equipment and tool and automotive manufacturing industries - will ensure communication between repair shops and the vehicle manufacturers. In other words, NASTF is the watchdog that monitors the agreement's effectiveness.

"The system is in place to deal with issues that may arise," said Bob Redding, Washington, D.C. representative for ASA. "If I can't get specific information to repair a vehicle (on the manufacturer's or third party's) Web site or hotline, I'll send the complaint to NASTF and they will resolve it. That is how we view it."

The vehicle manufacturers have created the repair information Web sites to assist technicians, who are at the core of this debate. More than a few of them, however, take issue with the vehicle manufacturers that provide the data.

"I go on to these information sites and if you can pick your way through the ads, you can get the information," said Merrill. "You could spend God-only-knows how long trying to get this informationand at a very high cost."

For Merrill, service information is a big concern for the small repair shops in his area. Moreover, he feels the information issue transforms into one of time, delaying a repair for a long period of time while waiting for data to be found, thus affecting his, and his peers', bottom lines.

Then again, other techs feel that the lack of service information boils down to an education issue. According to Seyfer, knowing what's really going on is half the battle.

"(Other technicians) hear it's going to cost them $30,000 a year for (repair) information and another $30,000 for a scan tool," said Seyfer, "I think a lot of this (type of thinking) is because they are misinformed. It becomes the responsibility of all of us to educate one another. That is the number-one problem."

Another concern for those who oppose legislation is the fact that the government would get involved in the industry, something to which Pyle has a strong objection. For example, if the bill were to pass, the Federal Trade Commission (FTC) would oversee the regulations. Pyle has recommended an alternative (and non-governmental) regulatory body: NASTF.

"I think what is holding up the process is that some associations like us support NASTF, and everyone else is in waiting to see what happens," said Pyle. "If NASTF had the full support of both the aftermarket and the OEs, it could be strengthened to the point where it could have the kind of visibility and clout necessary to keep the OEs honest."

But AAIA president and CEO Kathleen Schmatz disagrees and argues that the FTC is a perfect fit for this issue.

"The FTC has been on the fast track, learning a lot more about our industry than they have been before," said Schmatz, "There have been a lot of educational meetings and conversations and they certainly have a better appreciation for our industry. The reason why we have the Federal Trade Commission is to protect the consumer, the little guy. It doesn't exist for the car manufacturers."

WHERE DO WE GO
On May 4, 2005, Rep. Barton re-introduced The Motor Vehicle Owners' Right to Repair Act in Congress, under the new number H.R. 2048. The legislation has been showing signs of progress, with 118 co-sponsors to the bill last year.

"Congressmen Barton has always been a supporter of a free market economy," said Brooks Landgraff, Rep. Barton's press secretary, "He views this problem as something that inhibits a free market and that's not good for consumers."

In the meantime, what can the industry learn from this spirited debate? One thing is for certain, this debate isn't going away anytime soon. It is one that, at first, drew the line clearly between the independent aftermarket and the vehicle manufacturers. But now it leaves parts manufacturers, distributors and technicians divided as well.

"If the bill doesn't pass, I think it's going to be a sad day for all the small shops across the country," warned Merrill. "You'll see an awful lot of doors close and lose a lot of good people and we need all the good people we can get."

To Seyfer, communication throughout the industry is the key going forward.

"It's very important that before any of us make decisions on what we're going to do, we should really talk to each other," said Seyfer. "I know that the aftermarket, the parts end of the world - the people who created CARE - didn't talk to us."

Other aftermarket insiders would like to see the passion in this issue placed into other challenges facing the industry. In fact, those who oppose legislation feel a system for dialogue between technicians and vehicles manufacturers already exists and it is time to move on. Redding also believes that with the industry's full support, the current agreement will certainly have a stronger foundation to stand on.

"The key issue for us was service information," said Redding. "From our perspective, that has been resolved. The entire aftermarket should work together and come up with any issues out there and go in as a group to meet with automakers and try to work it out. At the end of the day, if it can't be resolved, then have legislation. We'd support it."

When that day is done, no matter who is on the winning side, the final lesson that the aftermarket should be focused on is being politically active and working together.

"The importance of being active legislatively and politically, having an active aftermarket grassroots effort, contacting your elected officials, makes a huge difference in the impact we're going to have in the future, whether you oppose or support legislation," said Lowe. "If anything, what this experience can show is that when we all pull together to work really hard we can accomplish a lot. Whether we fail or not, we need to be active politically. It is critical to the future of the industry."

On the Road to Becoming A Law:

Every piece of legislation has to go through a strenuous process. It is in these stages that bills flourish into law or die in the congressional halls. In the real world of the nation's capital, the road to new law is intertwined with detours and fast tracks. Here's a basic explanation of that path:

Bill -
Members of the House or Senate introduce bills for consideration by the Congress. Anyone from the president or a federal agency head to a member of the cabinet can also propose legislation.

Committee Action -
After debate in Congress, the bill is sent to committee for review and revisions. Hearings are held and the committee issues a report with its recommendations. If a committee does not act on a bill it is said to "die" and will not progress further.

If approved, the bill will return to the House or Senate for approval.

When similar bills are presented and passed in the House and Senate, a conference committee of the two chambers is formed to reconcile differences. The new bill is reintroduced and acted on.

Floor Action -
The bill is returned to the House or Senate for further debate and approval. At this point members may propose amendments to the bill, add additional text or otherwise alter the bill.

Vote -
House and Senate members vote on the proposed bill.

Presidential Action -
When a bill is passed by both houses, it is sent to the president to be signed. If the president does not act within 10 days, the bill automatically becomes law. If Congress adjourns during those 10 days the bill is vetoed in what is called a "pocket veto." When a president comments on and refuses to sign a bill it is known as a veto. A vetoed bill may return to Congress for reconsideration. Congress may attempt to override the veto, which would require a two-thirds roll-call vote of the members.

Law -
Once a bill is signed by the president or his veto is overridden by both houses, it becomes a law and is assigned an official number.

Courtesy of Duke University and Project Vote Smart















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