HB3682 - Relating to the diagnosis, maintenance, and repair of digital electronic equipment.

  89R11277 SRA-D     By: Luther H.B. No. 3682       A BILL TO BE ENTITLED   AN ACT   relating to the diagnosis, maintenance, and repair of digital   electronic equipment.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subtitle C, Title 5, Business & Commerce Code, is   amended by adding Chapter 122 to read as follows:   CHAPTER 122. DIAGNOSIS, MAINTENANCE, AND REPAIR OF DIGITAL   ELECTRONIC EQUIPMENT           Sec. 122.001.  DEFINITIONS. In this chapter:                 (1)     "Authorized repair provider" means an individual   or business entity that is not an affiliate of but has an   arrangement with an original equipment manufacturer:                       (A)     under which the original equipment   manufacturer grants to the individual or business entity a license   to use a trade name, service mark, or other proprietary identifier   for the purpose of offering diagnosis, maintenance, or repair   services for digital electronic equipment under the name of the   original equipment manufacturer; or                       (B)     to offer diagnosis, maintenance, or repair   for digital electronic equipment services on behalf of the original   equipment manufacturer.                 (2)     "Digital electronic equipment" means any product   that, to function, depends wholly or partly on digital electronics   embedded in or attached to the product.                 (3)     "Documentation" means any manual, diagram,   reporting output, service code description, schematic, or other   guidance or information provided to an authorized repair provider   used in the diagnosis, maintenance, or repair of digital electronic   equipment.                 (4)     "Embedded software" means any programmable   instructions provided on firmware that is delivered with digital   electronic equipment or with a replacement part for that equipment   for the purpose of equipment operation, including all relevant   patches and fixes made by the original equipment manufacturer of   the digital electronic equipment or replacement part for that   purpose.                 (5)  "Fair and reasonable terms" means:                       (A)     with respect to making available a   replacement part or a tool that is not software, making the part or   tool available:                             (i)     under costs and terms equivalent to the   most favorable net cost and terms offered to an original equipment   manufacturer's authorized repair provider for obtaining an   equivalent part or tool, accounting for any discounts, rebates,   means of enabling fully restored and updated functionality, rights   of use, convenience of delivery, or other incentive program offered   to the authorized repair provider, or any additional cost, burden,   or impediment the manufacturer imposes on an independent repair   provider;                             (ii)     without any condition, substantial   obligation, or restriction that is not reasonably necessary to   allow the owner or independent repair provider to engage in the   diagnosis, maintenance, or repair of the manufacturer's digital   electronic equipment; and                             (iii)     without conditioning that   availability on the recipient being an authorized repair provider;                       (B)     with respect to making available a tool that   is software, making the tool available at no charge, without   requiring authorization or Internet access, and without imposing   any other impediment to access or use of the tool in a manner that   impairs the efficient and cost-effective diagnosis, maintenance,   or repair of the equipment; or                       (C)     with respect to making available   documentation, including any relevant updates to the   documentation, making the documentation available at no cost,   except that an original equipment manufacturer may charge the   reasonable actual cost of preparing and sending a copy of the   documentation when the documentation is requested in physical   printed form.                 (6)     "Firmware" means a software program or set of   instructions programmed on digital electronic equipment or on a   replacement part for the equipment that allows the equipment or   replacement part to communicate with itself or other computer   hardware.                 (7)     "Independent repair provider" means an individual   or business entity operating in this state:                       (A)     who does not, on the individual or entity's   own behalf or through an affiliate, have an arrangement with an   original equipment manufacturer as described by Subdivision (1) and   who is engaged in diagnosis, maintenance, or repair of digital   electronic equipment; or                       (B)     that is an original equipment manufacturer,   or who is an individual or business entity who has an arrangement   with that original equipment manufacturer as described by   Subdivision (1), only with respect to diagnosis, maintenance, or   repair of digital electronic equipment not manufactured by or sold   under the name of that original equipment manufacturer.                 (8)     "Original equipment manufacturer" means a   business entity that sells, leases, or supplies new digital   electronic equipment manufactured by or on behalf of the business   entity.                 (9)     "Owner" means an individual or business entity who   owns or leases digital electronic equipment purchased or used in   this state.                 (10)     "Replacement part" means a new or used   replacement part made available by the original equipment   manufacturer for the purpose of maintenance or repair of digital   electronic equipment manufactured, sold, or supplied by the   original equipment manufacturer.                 (11)     "Tool" means any software program, hardware   implement, or other apparatus used for diagnosis, maintenance, or   repair of digital electronic equipment, including software or   another mechanism that:                       (A)  provisions, programs, or pairs a new part;                       (B)  calibrates functionality; or                       (C)     performs any other function required to   restore the equipment to fully functional condition.                 (12)     "Trade secret" has the meaning assigned by 18   U.S.C.   Section 1839, as that section existed on January 1, 2025.           Sec.   122.002.     REQUIREMENTS FOR ORIGINAL EQUIPMENT   MANUFACTURERS. (a) For digital electronic equipment, including   parts for that equipment, sold or used in this state, the original   equipment manufacturer of the equipment or part shall make   available on fair and reasonable terms to any independent repair   provider or to an owner of digital electronic equipment   manufactured by or on behalf of, sold by, or supplied by the   original equipment manufacturer:                 (1)     documentation, replacement parts, and tools,   including any updates to information or embedded software, for that   equipment or replacement part; and                 (2)     for equipment containing an electronic security   lock or other security-related function, any special   documentation, replacement part, or tool needed to disable and   reset the lock or function when disabled in the course of diagnosis,   maintenance, or repair of the equipment.           (b)     An original equipment manufacturer may make available   the documentation, replacement part, or tool under Subsection   (a)(2) through an appropriate secure release system.           (c)     Notwithstanding Subsection (a), if an original   equipment manufacturer provides an express warranty with respect to   digital electronic equipment and the wholesale price of that   equipment is at least $100, the manufacturer shall provide any   replacement part, tool, or documentation to enable repair of that   equipment during the manufacturer's warranty period at an equitable   price, including convenience of delivery and enabling   functionality, that takes into consideration:                 (1)     the actual cost to the manufacturer to prepare and   distribute the part, tool, or documentation, without considering   research and development costs;                 (2)     the ability of owners and independent repair   providers to afford the part, tool, or documentation; and                 (3)     the means by which the part, tool, or   documentation is distributed.           (d)     This section does not require an original equipment   manufacturer to make available a replacement part if the part is no   longer available to the original equipment manufacturer.           (e)     An original equipment manufacturer who offers the   services of diagnosis, maintenance, or repair of the manufacturer's   own digital electronic equipment, and who does not have an   authorized repair arrangement with an individual or business entity   that is not an affiliate, is considered to be an authorized repair   provider with respect to that equipment.           Sec.   122.003.     CONSTRUCTION OF CHAPTER. (a) Nothing in this   chapter may be construed to require an original equipment   manufacturer to divulge a trade secret to an owner or an independent   repair provider except as necessary to provide documentation,   replacement parts, and tools on fair and reasonable terms as   provided by this chapter.           (b)     Nothing in this chapter may be construed to alter the   terms of an arrangement described by Section 122.001(1) between an   authorized repair provider and original equipment manufacturer,   including the performance or provision of warranty or recall repair   work by the authorized repair provider on behalf of the original   equipment manufacturer under an arrangement described by Section   122.001(1), except that any provision in an agreement between an   authorized repair provider and original equipment manufacturer   that purports to waive, avoid, restrict, or limit the original   equipment manufacturer's obligation to comply with this chapter is   void and unenforceable.           Sec.   122.004.     DECEPTIVE TRADE PRACTICE. A violation of   this chapter is a deceptive trade practice in addition to the   practices described by Subchapter E, Chapter 17, and is actionable   under that subchapter.          SECTION 2.  To the extent of a conflict between Chapter 122,   Business & Commerce Code, as added by this Act, and a provision of   an agreement between an authorized repair provider and original   equipment manufacturer entered into before the effective date of   this Act, the provision of the agreement prevails.          SECTION 3.  This A [Text truncated for display. Full text available on Congress.gov.]