The ban on unlocking cell phones to enable their use on different wireless networks announced late last year may be reconsidered following recent criticism of the rule by the White House and FCC Chairman Julius Genachowski. As we discussed here previously, the Copyright Office of the Library of Congress announced the ban as part of its triennial review of the copyright exemptions under the Digital Millennium Copyright Act, which eliminated an exemption for unlocking devices in place since 2006. Under the new rule, devices purchased before January 26, 2013 can still be unlocked by users, but devices bought after that date can be unlocked only with the carrier’s permission, even after the service contract expired.
The unlocking ban drew criticism, and a public petition was soon started on the White House website asking the President to support legislation making unlocking legal and to request that the Copyright Office reconsider its decision. After receiving over 100,000 signatures, the White House responded in support of the petition, stating that it was “common sense” that consumers who purchased cell phones and are no longer bound by service agreements should be able to use their devices on another network. The White House argued that unlocking ensured a “vibrant” wireless market and was strongly supported in the recommendations of the National Telecommunications and Information Administration to the Copyright Office. The response also noted that permitting unlocking is particularly important for secondhand devices that consumers may buy or receive as gifts.
FCC Chairman Genachowski echoed the White House’s response, stating that the ban “raises serious competition and innovation concerns.” As the Copyright Office is within the Library of Congress, an agency of the legislative branch, the White House and the FCC Chairman agreed to work together with Congress to develop “legislative fixes,” clarifying that copyright law does not prevent consumers from switching carriers when they are no longer bound by a service agreement. The Copyright Office subsequently responded to the criticism, stating that the unlocking ban “would benefit from review” by Congress and was not meant to foreclose broader public policy discussions on the issue.
Consumer groups praised the White House and FCC’s actions and argued that the unlocking ban should be reconsidered as part of a comprehensive review of current copyright laws. In contrast, wireless industry groups argued that reconsideration of the ban would be unfair to carriers because they often offer consumers significantly discounted prices for devices in exchange for long-term service agreements.
While the support of the President and FCC places pressure on Congress to act on the unlocking ban, industry observers note that a legislative solution regarding unlocking may be hard to reach in the currently divided Congress. The current political climate has not stopped members of Congress from announcing efforts to craft such legislation, but it remains to be seen whether efforts to overturn the unlocking ban will be successful.