Cell Phone Unlocking Picks Up Steam With Administration Urging Permanent Action by FCC

WASHINGTON, September 17, 2013 – The U.S. Commerce Department on Tuesday urged the Federal Communications Commission take action to permit consumers to “unlock” their cellular phones.

The Obama administration is urging the agency to allow consumers to purchase and make use of any wireless provider’s service with any cellular device, provided that the consumer is no longer under a contractual service obligation for the use of the phone.

“Americans should be able to use their mobile devices on whatever networks they choose and have their devices unlocked without hassle,” said Assistant Secretary of Commerce for Communications and Information Lawrence Strickling, who is also the administrator of the National Telecommunications and Information Administration.

According to Tuesday’s statement of the action by the NTIA, “the proposed rule would shift the burden associated with device unlocking onto the carriers that imposed the locks, and ensure they consistently do so in a way that is both expeditious and transparent.”

NTIA’s petition to the FCC is a substantial step forward in a consumer-focused campaign that seemed to be going nowhere until March 2013. That’s when the White House effectively reversed another agency’s view when it said that consumers should have the right to unlock cell phones.

In March, White House Senior Advisor for Internet, Innovation and Privacy David Edelman said the position was “common sense [and] crucial for protecting consumer choice.”

Consumers often purchase smart phones and discounted prices, with carriers subsidizing a portion of the cost with an industry-standard two-year service agreement. Recently, the wireless industry has said that they had no objection to unlocking, providing that consumers contracts are satisfied.

The controversy issue arises, however, because of a provision in copyright law that gives the Copyright Office (under the jurisdiction of the Librarian of Congress) the ability to have the final say on the legality of certain technologies.

Under the 1998 Digital Millennium Copyright Act, it is a crime to circumvent technologies that protect access to copyrighted works. Because cell phones use encryption technologies, unlocking cell phones are not permitted unless the Librarian of Congress grants and exception.

The Copyright Office conducts a rule-making process approximately every three years. Although it granted an exception from the DMCA for unlocking mobile phones in 2006 and 2010, this year the Copyright Office narrowed the exemption. In granting an exception for unlocking only those mobile phones purchased before January 2013, the NTIA wrote that the Librarian “effectively [made] unlocking of new wireless devices a violation of copyright law.”

Following this denial, entrepreneur Sina Khanifar and technology policy expert Derek Khanna teamed up to make a “We the People Petition” asking for a citizen’s change in the law. In garnering more than 114,000 signatures on their petition, Kanifar and Khanna effectively pushed the White House to overturn the Librarian.

Following the White House statement, five bills have been introduced into Congress to allow consumer unlocking of cell phones. Additionally, the FCC announced its support for such legislation.

“Congress has delegated the ability to ban technologies to a regulatory agency that few Americans understood exist,” said Khanna, referring to the Librarian of Congress.

Khanna, currently a Visiting Fellow with the Information Society Project at Yale Law School, is hopeful, however, that the new pressure will push Congress to pass one of the cell phone-unlocking bills.

House Judiciary Committee Chairman Bob Goodlatte, R-Va., welcomed the NTIA action, and said, “We are appreciative of the support of groups like NTIA and we will all continue working to see that this issue of significant importance to most Americans is addressed.” An aide to Goodlatte said that Goodlatte expected the House will take up his bill, “Unlocking Consumer Choice and Wireless Competition Act,” H.R. 1123, this fall.

Drew Clark is a nationally-respected broadband expert who founded BroadbandCensus.com and the Broadband Breakfast Club. Follow the news feed for Broadband Census News at http://twitter.com/broadbandcensus. Previously, he served as Executive Director of Broadband Illinois. BroadbandBreakfast.com tracks the development of Gigabit Networks, programs to advance broadband adoption and use, developments in the universal service fund, and wireless spectrum policy. Drew is also available on Google+ and Twitter.