FCC Has Authority to Undo Library of Congress Cell Phone Unlocking Ban

NEWS ANALYSIS: As part of the executive branch of government, the FCC can’t directly overrule the Librarian of Congress and his ill-considered ban on the unlocking of cell phones. But the agency has the power to make it moot.

Earlier this year the Librarian of Congress, which is the office that administers exceptions to the Digital Millennium Copyright Act, decided not to renew the exception allowing the unlocking of cell phones, reasoning that allowing the owner of a cell phone to use it with their carrier of their choice somehow violated copyrights.

Over the course of less than a month, 118,000 people signed a petition asking President Obama to rescind the rule that banned unlocking. With that many signatures, the White House is bound by its own rules to take action of some kind.

Speaking at an event in San Francisco on Feb. 27, FCC Chairman Julius Genachowski announced that the FCC would investigate the ban, noting that the rule was anti-competitive. However, he also said that he wasn’t sure exactly what his authority was on this issue.

While the law puts the regulation of cell phones squarely in the FCC’s authority, The Digital Millennium Copyright Act is such a hugely flawed piece of legislation that it effectively scrambled the lines of authority in this area, among many others. Because of the way the law is written, the Librarian of Congress can issue exemptions only every three years, even if it’s immediately clear that the LOC made a really stupid move.

It is possible for Congress to pass legislation that would order the exemption, but the chances of that happening are essentially zero. First, both houses of Congress are so deadlocked over the issue of budget cuts that they will take no action on anything else. In addition, members of Congress are loath to do anything that might dry up the donations that get them re-elected, and the big winners in this case are AT&T and Verizon Wireless, the same companies that lobbied for the ban on cell phone unlocking in the first place.

Since the first and perhaps only motivation for members of Congress is to get re-elected at any cost, you can be certain that they won’t touch the cell phone issue. That could change if the opponents to the LOC decision are able to raise a couple of billion dollars, and get enough people involved to make Congress fear for its election chances. But realistically, that won’t happen. No matter what they’ll tell you, those representatives don’t care about you at all, and they don’t care what’s right or what makes sense, unless a big donation helps them see the light.