The fight for and against Right to Repair

Who should have the right to access auto and truck makers' diagnostic data to make repairs on the increasingly complex commercial vehicles that keep America moving?

That's a question with no definitive answers but plenty of opinions. OEMs, dealers, lobbyists, vehicle owners and operators, aftermarket suppliers, and independent shops all have a stake in who has the right to repair—and all have something to fight for.

And what they are fighting for "is completely opposite of each other," noted longtime industry consultant Darry Stuart, president and CEO of DWS Fleet Management Services. "The dealers' objective is obviously to make money, sell labor, and turn a profit; the fleet side's [objective] is to haul freight and fix trucks as inexpensively as they can and maximize the utilization of the vehicle," he said.

Almost a decade ago, the sides appeared to reconcile on Right to Repair, but the rise of telematics and wireless communication has reignited the debate.

There's been some recent movement on Right to Repair at the state and federal level, including Massachusetts' recently approved Data Access Law, and the introduction in Congress of the Right to Equitable and Professional Auto Industry Repair (REPAIR) Act (H.R. 906), which outlines the rights of owners and repairers to vehicle-generated data and "to diagnose, repair, and maintain a motor vehicle in the same manner as any motor vehicle manufacturer or motor vehicle dealer." On the enforcement side, shops could file complaints concerning violations with the Federal Trade Commission, which would have five months to act.

See also: Exploring the new 'Right to Repair Pact'

This issue may not be as complex as a MY2023 Class 8 truck, but there are a lot of moving parts and forces working against each other, and anyone involved in vehicle maintenance should have an idea of what's going on. The following is what we know:

What is Right to Repair?

At its core, the Right to Repair argument is all about how much access the owner of a product has to the device's inner workings and data and their freedom to decide who can fix it. The "product" could be anything from a smartphone to a Class 8 truck, but for this story, we'll focus on commercially used vehicles.

Right to Repair legislation and agreements do already exist, kicked off by Massachusetts' Right to Repair law of 2013. On the automotive side, a national memorandum of understanding (MOU) that mirrors this law was signed in 2014 between representatives of the independent aftermarket and auto OEMs. Key elements include providing independent repair shops with equal access to diagnostic tools, software, repair information, and vehicle ECUs. This is for vehicles under 14,000 lbs. In 2015, an MOU for commercial vehicles over 14,000 lbs. was signed by Truck and Engine Manufacturers Association (EMA) members. This compelled truck OEMs to license diagnostic tools and software to any shops, not just their dealer network.

Right to Repair in the Digital Age

All was well until connectivity and telematics complicated matters, essentially rebooting the conversation.

"The problem is the technology is so advanced," explained Marc Karon, president of Florida-based aftermarket distributor Total Truck Parts.

"Cars right now—and soon trucks—are no longer going to be able to be allowed to transmit data through a data port. It's now going to be transmitted by telematics."

Trucks have an added need for diagnostics due to the complexity of federally mandated emissions systems.

"There are things that go on in the engine that you just can't figure out unless you can get this electronic information," Karon said. "You can't determine which injector is not working correctly or if there's an ECU that's not working correctly."

Stuart added that you need the OEM's tools and diagnostic software to get this information.

"A lot of the repairs today are built around emissions—or electronics or harnesses—and the fleets can spend hours and hours trying to figure it out, especially if they don't have the software," noted Stuart, a former chairman of the American Trucking Associations' Technology & Maintenance Council.

Historically, this has given dealerships' service centers an advantage.

"The dealer has a better chance of fixing it quicker, because it's usually a repetitive-type repair that they see all the time," Stuart explained.

Digging in for a fight

OEMs are reluctant to provide the after­market with telematics data necessary for modern maintenance and repair, asserted Karon, former chair of Commercial Vehicle Solutions Network's (CVSN) Legislative Committee.

"The reason why we're pursuing [Right to Repair] now so heavily is because the OEMs have basically dug their heels in the ground," Karon explained.

Karon rattled off several reasons truck makers have given, from "its proprietary information" to "all kinds of horror stories that can come out" due to cyber­security attacks.

In June, NHTSA advised automakers not to comply with the new Massachusetts Data Access Law because of the potential for hackers to use telematics devices as an entry point from which they could remotely commandeer the steering, acceleration, and braking systems.

"I'm not saying that that can't happen," Karon offered, "but the fact is, they have to come up with a solution."

We reached out to the major truck OEMs in the U.S. to get their side and were referred to the EMA, which did not respond to multiple requests for comment. Diagnostic OEs and providers also declined to comment (which is understandable, as jumping into the middle of a fight between two of your friends can go sideways fast).

Navistar, however, did respond. According to the company statement, "Navistar values its customers and customer choice. However, security of customer data is a critical safety issue, and Navistar opposes any legislation that could put customer safety at risk."

There's also the matter of defeat devices that circumvent emissions systems. The EPA said that from 2009 to 2020, defeat devices in diesel trucks contributed to the emission of 570,000 tons of excess NOx and 5,000 tons of excess particulate matter. In 2022, the EPA fined three shops more than $200,000 for installing or selling these devices.

"You're always going to get that backyard guy that's going to try to hack an ECM and delete the emissions from a truck—that's all over the place," Stuart noted. "Most people don't realize how widespread that is."

Stuart noted that Right to Repair gives vehicle owners more freedom.

"They'll have more places to go to have their truck repaired. They'll have choices, which is important," he said, adding that the competition would reduce service costs.

The cost of gatekeeping

That reluctance has had consequences.

"I do think that they've kept [vehicle data] pretty close and, to some degree, kept us hostage in the industry to go back to the dealers for everything," Stuart said.

A rural customer might have to drive two hours to an OEM-preferred service center, and along with cost, convenience is a factor in more than one in five drivers putting off maintenance, according to RepairAct.com, an advocacy campaign supported by AutoCare Association, MEMA Aftermarket Suppliers, SEMA, and the CAR Coalition. The groups also say maintenance costs at dealerships are 36% higher than independent shops.

It's reasonable for dealer costs to be somewhat higher, since they typically have a premium level of expertise. But as trucks evolve, gatekeeping data would ensure dealers remain the only ones who can do specific jobs. That's not ideal if you're a trucker in the middle of nowhere and the only shop around can't find the root cause of an aftertreatment issue.

Data deprivation will have a dramatic impact on a shop's lifespan.

"If you can't diagnose what's wrong with the truck, then you're done," Karon surmised.

To keep up, independent shops must buy various diagnostic tools and license the OEM software. Stuart noted that each location needs to license that engine software, which he recalled once was free. "If you've got 42 garages, you're going to buy 42 [annual] subscriptions," he noted.

An issue is that all-makes shops might not see enough business to justify costs. If they don't, that means they must turn away customers. Either way, this impacts fleets in need of service options.

"On the commercial side, there really isn't a plethora of repair facilities, and it's declining every year," Karon said. "Now these trucks are having to wait longer and longer periods of time to get the repairs."

Karon, whose company also has 22 shop bays (and broke ground on a new 16-bay facility this year), said his customers are selling off shop real estate and outsourcing maintenance, putting more pressure on remaining repair shops.

He acknowledged the dealers and OEMs have a financial incentive to gatekeep access, "but in practicality, these people need to have their trucks fixed." Four to six days is the average repair wait time, he said.

"We just don't have the people or the space to repair them," he said, "so Right to Repair is very, very important for the transportation industry."

New legislation

In 2020, Massachusetts voters approved a Right to Repair referendum to make OEM telematics data available to all shops via an interoperable and standardized open-access platform across all of a manufacturer's makes and models, including heavy-duty vehicles.

"Specifically, the 2020 law extended Right to Repair to address concerns the industry has seen with onboard secure vehicle gateways, lack of access for heavy duty and motorcycle, and the coming wave of telematics powered by autonomous vehicles, EVs, and ADAS systems," explained Brian Herron, president and CEO of Opus IVS, an aftermarket diagnostic solution provider.

Three years later, the data law was still being challenged. The lobbyist group Alliance For Automotive Innovation sued Massachusetts over the law, saying an open data landscape would cause "irreparable harm" to its members. Then, in June, NHTSA told the OEMs to resist the new Right to Repair Act.

Things cooled down in August when NHTSA approved the law with the caveat that remote access remain short-range, with Bluetooth being an acceptable communication signal. The fight is far from over, though, as aftermarket trade groups have countered NHTSA's position.

Paul McCarthy, president and CEO of MEMA Aftermarket Suppliers, stated to FleetOwner affiliate Fleet Maintenance that:

"While we support NHTSA and the Massachusetts Attorney General's‘ goals of consumer choice in repair facilities and vehicle safety,' a short-range wireless protocol is insufficient to provide a broad, nation­wide, level playing field. It also does nothing to advance efforts to protect repairability for heavy-duty vehicles.

"Furthermore, the letter from NHTSA underscores the imperative for a federal solution that covers ALL motor vehicles and ensures both repair choice and enhanced safety on our roads. Moreover, it emphasizes the need for a cyber secure, technical solution that prioritizes consumers and fleets and is developed by and agreed on by all stakeholders."

Herron sees both sides, saying that "shops may be missing the same level of diagnostic access that dealers have and be forced to find other ways to repair these cars, which can ultimately increase costs and raise safety concerns," while he understands automakers' concerns that access to their telematics may not be secure.

"While each party line holds strong to their position publicly, I know from the many conversations I continue to have around R2R that there are supporters within automakers and the aftermarket that see the good in a compromise, as long as the aftermarket has the same access as dealers, in the same ways dealers do," Herron said. "For me, that is what Right to Repair is really all about."

It seems that conflict mediation will require government intervention.

R2R from sea to shining sea

"What we're fighting for now is federal legislation to force the OEMs to [provide access to data]," Karon said. "And the OEMs are using this technological threat situation to fight it."

CVSN advocates for both state and federal Right to Repair laws. MEMA Aftermarket Suppliers is also a staunch advocate for the REPAIR Act, introduced in February by Rep. Neal Dunn (FL-02). The bipartisan bill has 40 co-sponsors. One of the first three was Rep. Warren Davidson (OH-08), who owned a manufacturing plant in southern Ohio that made OEM and aftermarket oil filter parts.

Davidson, who holds a patent, noted that while the OEMs have the right to protect their intellectual property, "once you buy something, then you actually need to own it. If you can't actually repair it, then do you really own it?"

The other issue is that with only one service option, "you have no leverage on price, you have no leverage on service, and so you don't have the kind of responsiveness that you need," he explained. "We can't copy that [IP] and launch a competing product or anything, but we should be able to diagnose it and repair it."

Right to Repair advocates are gaining an advantage in Massachusetts, but even if and when federal legislation passes, the OEMs will not go quietly.

"It's going to be a continual fight, step by step, after the legislation is passed," Stuart theorized. "There's going to be lawsuits…and I suspect that this thing will go all the way to the Supreme Court because it affects commercial trade and every commerce. I think the OEMs are prepared to take this all as far as they can. And who knows where to go from there?"

This article originally appeared on Fleet Maintenance, a FleetOwner affiliate and Endeavor Business Media publication.