Samuel Metz/AP Photo
Independent repair shop owner Curtis Jones poses at the Technology Center in Sparks, Nevada, March 30, 2021. Jones is among a group of independent repair shop owners who say tech companies have made it increasingly difficult to access parts and schematics needed to fix devices.
On Tuesday, word came out that President Joe Biden would direct the Federal Trade Commission to issue new rules surrounding the “right to repair.” The move, long a priority of anti-monopoly advocates, could drastically curtail large manufacturers’ ability to prevent consumers and farmers from repairing products they own at independent repair shops or by themselves. This is currently prohibited by corporate giants in the tech and agricultural sectors, like Apple and John Deere.
The executive order marks one of the biggest commitments the Biden administration has made on their own authority, after largely shying away from the use of executive action in recent weeks. Instating the right to repair was one of the major priorities articulated by the Prospect in the Day One Agenda, a 2019 special issue highlighting the extent of the executive authority a Democratic president would have without congressional majorities. Of the 77 possible executive actions identified in that package, Biden has now enacted nine in total and 11 in part. The executive order also directs the FTC to ban or limit noncompete agreements, as well as “unnecessary” occupational licensing restrictions. The Day One Agenda also proposed that the FTC issue a ban on noncompetes.
Biden’s right-to-repair order, which is expected to be released in the coming days, will mark not only the first time a president has taken action to defend Americans’ ability to repair the things they own as a consumer protection issue, but the first time a president has spoken on that issue at all. Right to repair has gained in popularity and visibility in recent years. The European Commission, the executive branch of the European Union, has also recently announced plans to enact a new right-to-repair protocol for consumer electronics, including phones and laptops.
While the FTC will ultimately decide the size and scope of the order, it’s expected to target consumer electronics, agricultural equipment like tractors, and possibly even military and weapons manufacturers that supply the Department of Defense. For years, right to repair has been an issue dogging the American military, which is beholden to predatory pricing arrangements with military vehicle manufacturers like Oshkosh.
Biden’s right-to-repair order will mark the first time a president has spoken on that issue at all.
In recent years, big companies like Microsoft, Apple, John Deere, and others have shored up their own monopoly position with “repair monopolies,” which prohibit the purchasers of their products from going to independent repair shops or fixing things themselves, often via the use of software locks or proprietary parts sold at huge markups. If a product is worked on by an unlicensed vendor (i.e., unowned by the company in question), those machines can shut themselves down or void warranties, an arrangement burnished by lopsided user-end agreements and pro-corporate intellectual-property law.
Activists ranging from small-business alliances to consumer rights groups have fought against this predatory pricing arrangement at the state level, championing legislation that would ban software locks and compel companies to sell repair parts and guides widely. New York, with its Democratic supermajority, has been a leader on this, passing a bill in the state Senate just last month to that end, though it’s still waiting for passage in the Assembly.
The executive action is especially important not only for its pathbreaking nature. It’s a politically useful move for Democrats in parts of the country where they struggle electorally. Big agricultural monopolies have wrung massive profits out of farmers via these sorts of provisions, and antitrust proposals could prove extremely popular in rural areas.
What’s good for farmers is also good for geeks, who may have little interest in tractors but plenty of enthusiasm for unlocked iPhones. In fact, the executive order signals something of a break with the corporate titans of Silicon Valley. The relationship between the Democratic Party and Big Tech, long fast friends, has been strained in recent months by some of Biden’s staffing decisions, and this move, which will cut into their profits, will not be cheered. It’s a win for the environment, as activists have long pointed out that the inability to repair consumer electronics results in their ending up in landfills, often unnecessarily.
The noncompete order, meanwhile, would help workers, particularly in low-wage sectors where Republicans have been making gains. Noncompete clauses in employment contracts restrict workers from taking a job with another employer in the same industry. In recent years, noncompetes have proliferated to a ridiculous degree, hitting fast-food workers, janitors, summer camp counselors, and doggy day care minders. The clear object of such clauses is to ensure workers cannot bargain for higher wages for their services, since they’d be locked out of similar jobs if they quit. Banning them would give Biden leeway to take credit for coming to the aid of those who toil for low wages.
Most important, the total lack of urgency in the current legislative session makes this action, and Biden’s (at least momentarily) renewed interest in executive authority, all the more important. And while he has evinced some convictions on climate, health care, judicial and democracy reforms, and more, his appointments to agencies like the FTC now allow for a fairly aggressive anti-monopoly program to begin even without legislation. So while much of the Democratic agenda twists in the weak wind of bipartisanship, there’s still hope that some priorities will be enacted even as Congress drags its heels and a fearsome 2022 midterm cycle looms.
