FCC Has Authority to Undo Library of Congress Cell Phone Unlocking Ban
But that doesn’t mean that Genachowski and the FCC are powerless. The Librarian of Congress did say that cell phone unlocking is allowed with the permission of the carrier. And of course, it’s also allowed if the cell phone is sold as an unlocked device. So if you bought an unlocked iPhone, you’re in the clear. But FCC can do a couple of things. The first is to follow the lead of the Canadians, where all cell phones must be unlocked. In Canada, the cell company can’t sell you a phone that’s locked to their network. Yet Canadians still have cell phones, and in many cases are able to buy them before U.S. customers get to buy the exact same phone. This is why the BlackBerry Z10 is readily available in Canada. The second method is to simply require the carriers to allow unlocking on request. This wouldn’t be the same as overturning the LOC rule, but it would make it irrelevant. The next question is how to compel the wireless carriers to do this. The answer there is licenses and spectrum. The detail here is that the FCC can put conditions on the issuance of licenses that allow carriers to operate. The agency’s legal ability to do this has been unquestioned for decades. If the FCC chooses, one of those conditions can be that the carrier must immediately allow its phones to be unlocked if it’s to get the licenses it needs to operate. This isn’t significantly different from requiring broadcasting stations to protect the public interest through news programming or running public service announcements.In other words, the FCC has a charter that’s different from that of the Library of Congress. And when it comes to things that use the radio spectrum, it’s a lot more direct. If the FCC wants to require cell phone unlocking as a condition, it can. More important, as a part of the Executive Branch, the Librarian of Congress can’t overrule it.
In addition to licenses, the carriers want spectrum. No matter how much spectrum AT&T acquires it is always crying for more so that it can expand its LTE service across the U.S. The FCC is completely within its authority to tie a requirement to allow cell phone unlocking to any agreement to buy or sell spectrum or to approve the transfer of spectrum.