The major U.S. wireless carriers have committed to the Federal Communications Commission that they will begin allowing customers to have their phones unlocked on request, provided they meet certain criteria that mainly involve meeting financial obligations to the carrier.
For postpaid customers, this would mean either paying for the phone or meeting any contract requirements. For prepaid customers, it would probably mean having prepaid service for a year, unless they bought their phones outright.
As you might imagine, there’s a lot more to it than that. The CTIA filed a six-point Consumer Code for Wireless Service on behalf of five of its members: Verizon Wireless, AT&T, Sprint, T-Mobile and US Cellular.
Those five companies have committed to abiding by the standards that the CTIA gave to the FCC. According to a CTIA spokesperson, other carriers may join that group. “We welcome additional carriers to sign on to the principles and are pleased several have indicated interest in participating,” the spokesperson told eWEEK in an email.
FCC Chairman Thomas Wheeler welcomed the CTIA letter. “Today, we see the manifestation of what I call the ‘see-saw rule’–the more the industry acts to meaningfully regulate itself, the less that has to be done by government,” Wheeler said in a prepared statement. “I salute and commend the wireless industry for their leadership to reach a solution on cellphone unlocking. The voluntary industry agreement announced today [Dec. 12] caps nine months of hard work by mobile wireless providers and FCC Staff.”
The commitment by the wireless industry is based on disclosure. In fact, the first of the six points in the voluntary agreement presented to the FCC by the CTIA is specifically about disclosure. The carriers agree to post their policy on unlocking on their Websites. The agreement also includes specific details for postpaid customers (they can’t be under contract or on an installment plan) and prepaid customers (no more than a year after signing up).
Carriers also agreed that they would notify postpaid customers when they’re eligible to have their phones unlocked and either automatically unlock them or provide unlocking information. Prepaid customers would get the details when they sign up. The carriers also agreed to a two-day response time for unlock requests.
Finally, the carriers agreed to unlock the devices of military personnel with deployment orders on request as long as they’re in good standing and provide a copy of their orders.
The commitment delivered by the CTIA did not address the decision by the Librarian of Congress that unlocking a phone violates the law.
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.
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.
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.