Carriers Send FCC Six-Point Policy for Unlocking Mobile Phones
While the FCC can't directly overrule the Librarian, it can find other ways to solve the problem, and the previous FCC chairman, Julius Genachowski, indicated as much when the issue came to light. Ultimately, the unlocking ban was a flawed decision based on a flawed law that had a vast number of unintended consequences. The Commissioners have been looking for a way to get past the Librarian's decision. In a statement released after seeing the CTIA proposal, Commissioner Jessica Rosenworcel explained the Commission's thinking. "So earlier this year many of us were taken aback when a longstanding interpretation of the Digital Millennium Copyright Act was changed," she said. "The Librarian of Congress determined that going forward, it would be unlawful for consumers to unlock their mobile phones and take them with them when they want to switch wireless providers. That means that simply taking your wireless phone to another network could subject you to criminal penalties—or even jail. There is a lot that can be said about this decision. But for starters, I think that is one powerful librarian. I also think this new approach does not make sense. Because if you have a mobile device, want to unlock it and you are not bound by a service contract—you should be able to use it on another network." The way around it was apparently to have the carrier, which is the company selling the wireless device, do the unlocking or to give permission for the unlocking and provide the necessary instructions. Phone manufacturers can already provide unlocked phones, which is why you can buy an unlocked iPhone from Apple or an unlocked BlackBerry from BlackBerry or the carrier. The Librarian of Congress has only said that the owner of the phone can't unlock it, but didn't say that the carrier or manufacturer is prohibited from doing so. Thus the workaround.But if everyone involved has permission to do the unlocking, who is going to complain? I suppose it's possible for the Librarian to file that complaint, but it's hard to see how it could move through the courts when you'd have different parts of the federal government opposing each other. And the FCC does have the legal authority to regulate wireless phones. I think it's a safe bet that the FCC lawyers have already researched this and believe the Commission is on solid ground.
Unfortunately, this doesn't reverse the Librarian's decision, but it's hard to see how it's going to be possible to enforce it. For a criminal case to go forward in the federal courts, someone has to file a complaint.