Pub. 20 2021-2022 Issue 2

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S 29 new jersey auto retailer W W W . N J C A R . O R G part of the signatory associations. It provided a solution whose national application was an easier and fairer remedy, compared to every state implementing its own solution. The FTC’s raising of telematics was likely spawned by recent activities, again, in Massachusetts. On Nov. 3, 2020, Massachusetts passed a ballot initiative known as Question 1, expanding its 2013 law to include access to telematics commencing with 2022 automotive models. Under the new law, automotive manufacturers must provide a standardized open-access data platform, accessible to vehicle owners or third parties such as repair shops, starting with the 2022 model year. The new Massachusetts law provided a private right of action by owners, and authorized independent repair shops denied access to the data. Penalties for each denial of entry are the greater of treble damages or $10,000. The current interest in access to telematics raises more complex issues than did the original law. Unlike the original 2013 law, which resulted in the MOU, this current law raises practical automotive competition issues for Massachusetts because it applies to 2022 vehicles, but the law was passed only in 2020. It raises compliance and sizable intellectual property issues for automotive manufacturers. It elevates privacy issues and safety and cybersecurity concerns for the public and the federal government. In written testimony presented to the Massachusetts House and Senate Joint Committee on Consumer Protection and Professional Licensure during its consideration of the ballot measure, Deputy Administrator of the National Highway Transportation Safety Administration (NHTSA) James Owen cautioned: “ Steps proposed to ease access for serviceability cannot be allowed to compromise vehicle cybersecurity and public safety. ” After the ballot’s passage, a federal lawsuit challenging the new law was f iled in the U.S. District Court for the District of Massachusetts on November 20, 2020, by the Alliance for Automotive Innovation, a group of automotive manufacturers that represents General Motors, Ford, Toyota, Volkswagen and other automakers. They challenge the law’s constitutionality and allege that making telematic data readily available could put drivers at risk by making hacking a vehicle easier and potentially encouraging hackers to orchestrate motor vehicle accidents. With confusion over the effective date of the legislation, on November 30, the Massachusetts Attorney General’s Off ice agreed not to enforce the new law. Supporters and opponents of the legislation anticipate the law will be challenged in the court. For this 2020-2021 legislative session, the New Jersey Legislature has not introduced legislation concerning telematics. Nor should it. Issues concerning access to automotive manufacturers’ data require a national response. A 50-state remedy does not assist consumers or manufacturers. Magdalena Padilla is NJ CAR’s Director of Government Affairs. She can be reached at mpadilla@njcar.org or 609.883.5056, x345. Two months after the FTC’s report, on July 9, 2021, President Biden issued an “Executive Order on Promoting Competition in the American Economy” that directs agencies to further policies that seek to address practices that inhibit competition, including restrictions on third-party repair or self-repair of items.