Editor’s note: In this month’s edition of Equipment Dealer Magazine, we sit down with Eric Wareham to take a deeper look into right to repair legislation – what it is and what it isn’t. Wareham is vice president of government affairs for the Western Equipment Dealers Association.
Let’s look at the history of right to repair. While it’s not necessarily a new thing since people have been working on their “stuff” for eons, it seems the term has become more defined by the technology that is wrapped into the products we buy.
Smartphones, televisions, toasters, microwave ovens – even doorbells with cameras – have incorporated technology into design and use features. While some may argue these are low-cost items when compared to vehicles and machinery, others don’t look for parallels and believe if you buy something you own it and you should be able to fix it if you have the tools, the instructions, the parts, and the ability.
But the concept of right to repair when broken down between buying something and owning something leaves a lot of room for discussion. What some people may not realize is there is a lot of distance between buying and owning, especially when it comes down to the technology that is crucial to operate many of the things we purchase.
The Western Equipment Dealers Association is against right to repair legislation but not for the reasons that people support right to repair. Many of those in the latter group believe opponents of right to repair, as it applies to farm machinery, want to take screwdrivers and wrenches out of the hands of equipment users, which couldn’t be further from the truth, according to Eric Wareham, vice president of government affairs, for WEDA.
Wareham explains that right to repair has nothing to do with replacing a water pump on a tractor or a radiator on a combine.
Three years ago, Wareham wrote about right to repair as an emerging issue. Since then he has traveled throughout North America (U.S. and Canada) talking about an issue that may not be an issue if people understood the compelling reasons behind the association’s work to thwart right to repair legislation.
As Wareham has explained to legislators and shown with assistance from WEDA members through actual equipment demonstrations, right to repair considerations are not about replacing parts or performing routine machinery maintenance.
Wareham says the issues involve the following:
Right to Repair, Not to Modify
“The right to repair your own equipment has never been challenged. The issue is really about whether equipment owners or third parties have the right to modify equipment. Modification through chipping, tuning, Engine Control Unit, known as ECU, remapping or software modification brings a whole host of issues into the discussion that are part of the other points of consideration.”
Safety
“Safety is a paramount concern. Dealer technicians and subsequent owners working on equipment that has been modified are often in the dark on whether equipment has been modified and how. It is difficult to assess the modifications that have been made and the range of issues that develop from modifying something like the telematics, for instance, are far ranging. During our dealer demonstrations, we have heard from technicians about the number of issues they face that pose serious risk to them when working on modified equipment. We have also seen litigation arise from catastrophic engine failures resulting in physical damage to people operating equipment that had been modified.”
Environment
“On the environment, everyone is aware of how engines have been engineered to comply with strict emissions standards created over the last few decades. Modifying equipment to circumvent these emissions control systems creates additional wear and tear on equipment that really has an impact on the used equipment market, which we are beginning to see. Dealers also have major liability concerns arising out of working on or selling equipment that does not comply with emissions standards. The penalties and fines for manufacturers and dealers who sell equipment that is not Clean Air Act compliant can be up to ten times the amount that others face for similar actions.”
Data Security
“Data Security is a pretty obvious consideration once you start looking at what proponents of right to repair are seeking. The technology protection measures that protect embedded software also protect machine data, which is important to producers and often commoditized. Legislation that forces manufacturers to reveal their encryption would also open up data protections. At a time when we are seeing the proliferation of data security legislation across the country and more burdens on business to protect customer data, right to repair legislation would compromise those data protections and expose dealers to liability.”
Copyright Protections
“As for copyright, the issue here is about a legal term called preemption. Most are familiar with the concept that the federal law is the supreme law of the land and trumps state law. In some cases, the federal government has legislated an area of the law so completely that there is no room for states to make law concerning that topic, that is called field preemption. The classic example given for field preemption is copyright law. The federal government controls every aspect of copyright law and states have no ability to change it. State right to repair legislation relating to any type of software deals directly with copyright law and would be entirely preempted by federal statutes.”
Right to repair misconceptions
For those who believe manufacturers and dealers have orchestrated a lockout on equipment owners being able to “work on their machines,” Wareham says that simply isn’t the case. As Wareham points out during his travels, and sometimes to the surprise of supporters of right to repair, equipment owners have access to a considerable amount of information about the machines they operate.
“We often have producers whose operations vary in size from small to medium to large and extremely large attend our dealer demonstrations. I have yet to meet a producer at one of our demonstrations that doesn’t walk away saying, ‘I didn’t know that.’”
Adds Wareham, “The extent to which manufacturers and dealers already provide information directly to owners is pretty astounding. There are apps, websites, training, and diagnostic tools already made widely available that people seem to know very little about. Our industry needs to do a better job educating its customers about what is currently available to help them maximize uptime by performing their own repairs and often preventing repairs before breakdowns occur.”
As shown in this graphic used by Wareham during his meetings, what is already available to equipment customers makes right to repair legislation moot for everyone except the bad actors who are looking to modify equipment. He says this graphic shows the industry’s level of engagement now and where it will be by 2021.
Industry Commitment (OEMs and Dealers)
Some of the following is currently provided to equipment end-users and additional items will be available y 2021 for tractors and combines.
- Manuals (operator, parts, service)
- Product Guides
- Product service demonstrations, training, seminars, or clinics
- Fleet management information
- Onboard diagnostics via diagnostics port or wireless interface
- Electronic filed diagnostic service tools and training
- other publications with information on service, parts and operation
Despite what the industry shares, some equipment users want more and it’s the more (things that could modify the machinery and perhaps render it useless), the association is working to prevent.
Photo courtesy of Heritage Tractor, Jefferson City, Missouri.
Built into this Deere 8345 R tractor (shown here for illustrative purposes only) is technology developed by Deere and Company. The “recipe” or embedded proprietary software for how things function on the machine is what the association, dealers and manufacturers are trying to protect. While software updates are performed by manufacturers, the skills needed to access certain programs requires training and only a few technicians in most dealerships have the training to run diagnostics and ensure software is performing correctly.
Unraveling a legislative solution
At least one U.S. Democratic presidential candidate supports right to repair legislation, but what’s occurring at the state level concerns the association. In 2018, 20 states introduced right to repair bills. The association’s work with dealers and manufacturers prevented those bills from moving through legislatures and many of those bills were not reintroduced in 2019.
Red marks the states and provinces where Eric Wareham has spoken about right to repair
Industry Engagement
- Dealer Demonstrations
- Joint Effort Between Manufacturers and Dealers
- Industry Commitment to Share
- Discuss Issues and Partners on Challenges
But in 2020, Wareham is back on the campaign trail to stop right to repair. He recently met with legislators in Idaho and he had a member of the association with him. Wareham explains what he was up against, how his visit turned out and the importance of having a dealer at the table with him.
“In Idaho, we held two dealer demonstrations this past fall for Idaho Farm Bureau members to get their feedback on our industry commitment. After not hearing from them, we were surprised to find Farm Bureau supporting right to repair legislation at the Capitol,” recalls Wareham. “We had our work cut out for us because many members of the legislature have a difficult time understanding the intricacies of our industry. especially when they’re hearing misleading information about what is currently available to help producers perform their own repairs.
“Luckily, we had outstanding engagement from dealers in the state. Our ace in the hole was Jason Behrend, vice president of sales and customer experience, of Stotz Equipment, Pocatello, Idaho. Behrend attended many high-level meetings at the Capitol prior to testifying in committee. His voice in the conversation was really the deciding factor that convinced legislators of the on-the-ground reality that dealers are doing everything possible to partner with their customers to increase uptime,” notes Wareham. “Without Behrend’s contributions to the process, the outcome in Idaho could have been very different. Having dealers involved in the policy making process is the number one tactic we have in defeating misguided right to repair legislation.”
Following the meeting in Idaho, Wareham traveled to Missouri’s capital city, Jefferson City, where another right to repair bill has surfaced in the state’s legislature.
Wareham (standing) explains WEDA’s position to a group of Missouri legislators during a meeting and equipment demonstration at Heritage Tractor, Jefferson City, Missouri.
The association is also concerned about an increase in equipment chipping in Canada, where equipment owners are altering machinery software to increase horsepower, torque, groundspeed – even to modify emissions. Wareham has met with Canadian officials about the problems this represents.
“The issue in Canada is that regulators did not foresee the possibility that people would be chipping farm equipment to circumvent emissions standards. It’s really an education effort that needs to take place among all stakeholders in this conversation to explain the consequences of modification,” explains Wareham.
“That is why we also recently attended the CropConnect conference in Winnipeg, Manitoba, to give a presentation addressing the issue of right to repair head on. The conversations that came out of that presentation were enlightening and again showed the need to share what the industry is already doing to help people repair their own equipment without modifying it.”
Workforce development, broadband access matter in a big way
Perhaps two little-known pieces in the right to repair discussion are the lack of qualified technicians in the industry and poor broadband access in rural areas.
While these two things might not be on the high end of the discussion or foremost in the thinking of right to repair supporters, not having qualified technicians and poor broadband service could be the drivers to this whole issue and they matter in a big way.
“This is spot-on. There are simply not enough qualified technicians in our industry to perform complicated repairs that take years of education and training to be able to troubleshoot. The shortage of technicians is a major contributor to the growth of so-called right to repair legislation,” offers Wareham.
“Dealers are having a difficult time servicing all of their customers, especially during critical periods such as harvest and planting season. This is creating downtime for producers who are frustrated they cannot perform the repairs themselves. The industry needs to put more focus on how we are going to recruit and retain the technician workforce of tomorrow and that needs to happen yesterday. Without more qualified technicians, the shouts from right to repair advocates will continue to grow louder even though giving them everything under the sun will not help them perform complex repairs that give the best technicians trouble.”
The other side of that equation is rural broadband, continues Wareham. “The problems created by technology can often be fixed with the right technology. Farm machinery has been equipped with remote diagnostic capabilities for some time now. The digital infrastructure to support that technology is still woefully inadequate. The lack of rural broadband strongly correlates with the amount of time technicians have to be dispatched to the field, which reduces the amount of time they can be in the shop turning a wrench or fixing complex problems.”
Equipment Dealer Broadband Survey Is broadband availability a problem for your dealership and your customers? Dealerships – Yes 48.15% and Customers – Yes 87.04%
“If remote diagnostic capabilities are used to their full potential, that would require far less technician hours to diagnose problems and leave more hours to serve more customers. This is mission-critical for dealers serving customers in rural areas, which is just about everyone,” says Wareham
Where do we go from here?
Wareham says continued education is key. “Dealers and manufacturers need to educate their customers on the tools that are currently out there and they need to talk about the limitations imposed on them by lack of rural broadband,” suggests Wareham. “In the meantime, the association needs to continue its advocacy efforts by educating lawmakers about our industry, the pitfalls of right to repair legislation, and what the industry is doing voluntarily to support repair and increase uptime.”
“We have seen that if we continue on this path of education, the right to repair debate fades away and the discussion becomes how can we team up to push workforce development and rural broadband forward. That benefits everyone in the long run.”
What can dealers do to support the association and the industry?
“As the Idaho experience indicates, dealer involvement is the most important aspect in defeating right to repair legislation and moving the conversation forward to workforce development and rural broadband. Many dealers may be surprised at how much their association already does to support these issues,” says Wareham.
The hidden gems of the association are its foundations that support technician training through scholarships and technician program support. “We need to continue growing support for the Canada Equipment Dealers and Western Equipment Dealers Foundations because they’re not only beneficial to dealers, they also give the association a tremendous political advantage to discuss what WEDA is already doing in the area of workforce development to make it better,” adds Wareham.
In closing
According to Wareham, good public policy happens with good engagement. “The right to repair issue has been elevated to a level at which we cannot ignore it – and we shouldn’t. Our industry has the moral high ground on this issue and it gives us a chance to share all the good that we are doing despite the tough challenges we face. That is a great opportunity for our dealers and the association.”
Article Written By Eric Wareham
ERIC WAREHAM is the Vice President of government affairs for the Western Equipment Dealers Association. He is a graduate of the Willamette University College of Law and Augusta State University. Eric may be reached by writing to ewareham@westerneda.com.
