January 12, 2023
Re: CERTAIN ACTIVE MATRIX ORGANIC LIGHT-EMITTING DIODE DISPLAY PANELS AND MODULES FOR MOBILE DEVICES, AND COMPONENTS THEREOF
Docket number: 3661
To Whom it May Concern,
The Repair Association, formally known as the Digital Right to Repair Coalition, is a
501(c)6 trade association founded in July of 2013 to support individuals and businesses engaged in repair, reuse, and recycling of digital electronic parts and products.
The Repair Association represents the combined interests of repair professionals in the technology aftermarket. Its members span the interests of individuals, non-profits, and for-profits engaged in the repair, resale, recycling, and re-commerce of technology. Its mission is to advocate for repair-friendly policies, regulations, statues and standards. Our members range in size from individual hobbyists to multinational repair and services providers, and include consumer rights organizations, sustainability advocates, agricultural organizations, flexible labor networks, equipment trading networks, and parts distributors.
PIRG, the Public Interest Research Group is an advocate for the public interest. We speak out for the public and stand up to special interests on problems that affect the public's health, safety and wellbeing. By giving every consumer and small business access to the parts, tools and service information they need to repair products from cell phones to tractors, we can keep products in use longer and reduce unnecessary waste.
The environmental impact of product manufacturing is significant. E-waste is the fastest growing waste stream, a problem that Nature describes as a “crisis.” The United Nation’s Global E-waste Monitor found that people disposed of 53.6 million metric tonnes of e-waste in 2019, and expects this to increase by nearly 40% by 2030. PIRG’s research finds that if Americans held onto their our phones for one more year on average, the emissions reductions would be equivalent to taking 636,000 cars off the road for a year. For products like smartphones that break frequently, repair is the best strategy to increase product lifetimes.
Consumers should be free both to repair products themselves and to contract with a third-party service technician of their choice. Consumers who want to fix their products simply want to return their smartphones back to working order. Often, they require the help from repair professionals to do that. And those repair professionals require access to a marketplace of repair parts that frequently does not include an ‘authorized’ Original Equipment Manufacturer part. The increasing complexity of modern displays means that any rule that bars imports of service parts in effect bars Americans from fixing their devices at all.
The challenges that consumers and independent repair shops are having accessing parts for smartphones is well documented in the New York Times, the Wall Street Journal, and hundreds of other publications. In his July, 2021 Executive Order Promoting Competition in the American Economy, President Biden asked federal agencies to seek ways to “Make it easier and cheaper to repair items you own by limiting manufacturers from barring self-repairs or third-party repairs of their products.”
The smartphone repair industry in the United States is fragmented, with thousands of unaffiliated repair shops. This distributed network is robust, but importation and distribution of service parts is handled by a small number of companies, many of whom are cited in this complaint. Smartphone displays provide an outsized share of revenue for the industry, and severing this supply chain will have a significant impact on the repair industry and consumer ability to access repair services in the United States.
One of the most prominent voices in the repair industry is Youtuber Louis Rossmann, whose 1.75 million subscriber channel frequently raises the inability to purchase parts due to exclusionary contracts and non licensable patents. Rossmann described this ITC complaint as a “killshot on [the] entire repair industry.”
Exclusionary contracts are frequently used to prevent the sale of original parts, forcing the repair market to seek alternatives. Rossmann describes this in an interview with National Review. “So with the newest MacBook, there’s one particular charging chip that I cannot get anywhere. I used to be able to purchase this from other vendors. I used to, a long time ago, be able to go to Mouser, Digi-Key, Newark, and buy them. Now what I need to do, because [Apple] told Intersil, “Don’t sell to anybody but us,” is I have to buy a $120 wireless-charging, extended-battery case thing for the iPhone XR, rip that chip off of it, and then put it into the Macbook.”
Exclusionary contracts frequently prevent repair providers from purchasing parts or licensing patents required to manufacture competing service parts. In their “Nixing the Fix” investigation, the Federal Trade Commission describes anti-competitive practices around limiting access to service parts. “Other tactics described by commenters involve allegations of potentially exclusionary conduct, such as making products difficult or impossible to disassemble, in order to maintain market position and exclude aftermarket competitors, or the anti-competitive assertion of patent rights and enforcement of trademarks by manufacturers to restrict repairs not authorized by OEMs.”
A June 2022 survey of 253 repair shops conducted by PIRG demonstrated the threat that repair restrictions represent for independent repair businesses. Of the shops surveyed, 42% stated that they frequently have to “turn away potential customers because of restricted access to repair parts materials, software or information.” When asked, “if Right to Repair does not become law and manufacturers could continue to restrict access to repair materials, how might it affect your business?” 84% responded that it would reduce the number of customers they could serve, and 45% responded that they might have to close their doors. Only 4% said that it would not affect their business.
In response, the Repair Association has advised state governments on new right to repair laws that would provide access to service parts not currently available for sale. New York’s new “Digital Fair Repair Act” will cover products manufactured starting Jul 1, 2023 will go into effect on Dec 28, 2023. This law will require manufacturers such as Apple to sell the service parts described in this complaint.
The success of this approach strongly suggests that societal interests and broad consumer access to repair are aligned, that improving access to repair can both be served by well-considered policy.
Exclusionary contracts have caused a host of unintended consequences to otherwise lawful activities, including repair. We are not an OLED patent experts, but if Samsung’s patents are implicated, a solution that would provide the most clarity for consumers, repair professionals, and parts distributors, would be fair and reasonable licensing of the patents under dispute. To the best of my knowledge, Samsung did not propose any licensing terms or attempt to negotiate with the industry prior to filing this complaint.
Repair technicians are the lifeblood of so many communities across this country. Please do your best to avoid the significant disruptions to the economy that would result from barring aftermarket displays from the market.
Gay Gordon-Byrne
Executive Director, Repair.org
Nathan Proctor
Right to Repair Campaign Director, US Public Interest Research Group