lairdb:
Incidentally, careful there. Your first statement is correct under current case law if you meant that the combined activities of MAP and price minimums is illegal.
If you meant that each of those activities individually is illegal, that is incorrect -- the
CD price fixing decree says that "an explicit or implied agreement on minimum price" is unlawful; the Nine West and Reebok decrees have similar language. MAP is not
per se illegal, though it may constitute or be a component of an unreasonable restraint of trade or a facilitating practice, as it was found to be in the CD price fixing case.
(Mike, Genesis, and others have, if I recall correctly, told us that explicit or implied agreements on minimum price are commonplace, however, 1.someone has to bring that the the FTC's attention, 2.they have to become interested, 3.they have to accumulate evidence including cooperative testimony.)
Unfortunately, laws and enforcement are two different things. Rest assured that this issue has been brought to the FTC's attention but please send your own complaint. Maybe if they hear it enough times something will change.
Since you asked for some specifics, let's start with the following, taken directly from Aqualung's web site:
The Free Parts For Life Agreement is a three party agreement that involves responsibilities of the original owner, the authorized Aqua Lung Dealer and Aqua Lung. If all of the terms of the agreement are met, the original owner will receive free standard regulator overhaul parts every other year for the life of the regulator.
In order to maintain the Free Parts for Life Agreement the following terms must be met:
· The Aqua Lung or Apeks regulator must have been purchased from an Authorized Aqua Lung America Dealer
· The Free Parts for Life Agreement is only available to the original owner
· The regulator must be inspected by a participating Authorized Aqua Lung Service facility every year.
· The regulator must be overhauled by a participating Authorized Aqua Lung Service facility every other year *
· You must make sure the Dealer records both inspections and overhaul service in the Annual Service and Inspection Record located in the back of your regulator owners manual.
If the regulator is subjected to less than 50 dives per year* it is permissible to overhaul it every other year with an inspection procedure being performed on the off years. For example:
Year #1 Inspection
Year #2 Overhaul
Year #3 Inspection
Year #4 Overhaul
and so on.
· if the regulator is subjected to more than 50 dives per year it will require overhaul service every year. In this case you will only have to pay for parts every other year as documented by the Annual Service and Inspection record in the back of your Aqua Lung regulator owners manual.
Conditions:
· In order to get free standard overhaul parts on the Free Parts for Life program you will be required to provide proof of purchase from an Authorized U.S. Aqua Lung Dealer and the Annual Service and Inspection Record located in the back of your regulator owners manual documenting all inspections and overhauls have been completed as per the agreement.
· This program is limited to participating Authorized Aqua Lung America Retailers. Aqua Lung retailers are not required to participate in this program. Please inquire with the Aqua Lung retailer if they participate in the Aqua Lung Free Parts for Life program prior to bringing your regulator in for overhaul servicing.
· The Free Parts for Life agreement does not cover any labor fees incurred during either inspection or overhaul service.
· The Free Parts for Life agreement is limited to standard overhaul replacement parts as defined by Aqua Lung. During the course of a normal overhaul service additional part replacement may be necessary that are not covered under the Free parts for Life agreement.
· The Free parts for Life Agreement does not cover any parts that need replacement due to lack of basic or annual maintenance, damage caused by misuse, accident, or neglect.
REGULATOR INSPECTION
An inspection from an Authorized Aqua Lung Service facility involves detailed testing of several performance parameters, and visual inspection for any excessive wear, or conditions that may affect the performance of the regulator. An inspection requires substantially less labor than a complete overhaul and is generally quite a bit less expensive than a complete overhaul. A complete inspection is also generally performed prior to performing a complete overhaul. Under the Free Parts for Life agreement, an inspection is required every year while regulator overhaul is only required every other year.
REGULATOR OVERHAUL
A Regulator overhaul from an Authorized Aqua Lung Service facility involves the same detailed inspection as is performed annually to identify any potential areas that may need special attention. In addition, a complete overhaul includes complete disassembly of the first and second stage, thorough cleaning, and replacement of all standard overhaul parts.
The next part came from the FTC's web site:
[Code of Federal Regulations]
[Title 16, Volume 1, Parts 0 to 999]
[Revised as of January 1, 1998]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR700.10]
[Page 536-537]
TITLE 16--COMMERCIAL PRACTICES
CHAPTER I--FEDERAL TRADE COMMISSION
PART 700--INTERPRETATIONS OF MAGNUSON-MOSS WARRANTY ACT--Table of Contents
Sec. 700.10 Section 102(c).
(a) Section 102(c) prohibits tying arrangements that condition
coverage under a written warranty on the consumer's use of an article or
service identified by brand, trade, or corporate name unless that
article or service is provided without charge to the consumer.
(b) Under a limited warranty that provides only for replacement of
defective parts and no portion of labor charges, section 102(c)
prohibits a condition that the consumer use only service (labor)
identified by the warrantor to install the replacement parts. A
warrantor or his designated representative may not provide parts under
the warranty in a manner which impedes or precludes the choice by the
consumer of the person or business to perform necessary labor to install
such parts.
(c) No warrantor may condition the continued validity of a warranty
on the use of only authorized repair service and/or authorized
replacement parts for non-warranty service and maintenance. For example,
provisions such as, ``This warranty is void if service is performed by
anyone other than an authorized `ABC' dealer and all replacement parts
must be genuine `ABC' parts,'' and the like, are prohibited where the
service or parts are not covered by the warranty. These provisions
violate the Act in two ways. First, they
[[Page 537]]
violate the section 102 (c) ban against tying arrangements. Second, such
provisions are deceptive under section 110 of the Act, because a
warrantor cannot, as a matter of law, avoid liability under a written
warranty where a defect is unrelated to the use by a consumer of
``unauthorized'' articles or service. This does not preclude a warrantor
from expressly excluding liability for defects or damage caused by such
``unauthorized'' articles or service; nor does it preclude the warrantor
from denying liability where the warrantor can demonstrate that the
defect or damage was so caused.
Now, my interpretation is that: You can't require parts and service together for warranty validity unless the service is free. Aqualung specifically requies this and further notes that service (labor charges) is not included. Also, it seems deceptive (in the least) to restrict access to parts entirely as this action could technically violate the mechantability concepts of product use or value. If my reg quites working because I can't get parts then it is no longer a regulator, per merchantability standards. The trend for
per se rulings would seem to be in favor of consumers and business practices which favor competiton.
