There’s Hope For Cellphone Unlocking Bill

Back in January, unlocking your new cellphone or other wireless device without your current wireless provider’s permission became illegal, even if you own the device outright, thanks to a wildly off-the-mark interpretation of the Digital Millennium Copyright Act by the Librarian of Congress. Since then, the FCC, White House and consumer groups have stated that the LOC overstepped his authority and made a decision balanced far in favor of wireless providers. But the only way this rule will change is if Congress acts.

A legislative resolution to the issue got significantly closer to reality this afternoon, as the Unlocking Consumer Choice and Wireless Competition Act (H.R. 1123) successfully made it through the House Judiciary Committee.

The LOC inexplicably has the authority to periodically reinterpret the DMCA and how it applies to evolving technologies. As recently as 2010, the Librarian had reaffirmed an exemption that allowed for cellphone users to unlock their devices — thus allowing them to be used on compatible networks — without seeking the permission of their wireless provider.

But in the fall of 2012, the LOC heeded the call of the wireless industry, which claimed that “the largest nationwide carriers… have liberal, publicly available unlocking policies,” and unlocked phones are “freely available from third party providers—many at low prices.”

The Librarian didn’t listen to consumers, who would tell you that those “liberal, publicly available unlocking policies” are only that in theory, and those phones available at “low prices” are usually several generations old, which is incredibly important when you’re talking about technology that is evolving on a weekly basis.

The LOC also ignored consumer groups who argued that the ability to unlock cellphones allowed for consumers to more easily switch between carriers, thus encouraging competition and market flexibility.

In bolstering his ruling, the LOC cited a 2010 ruling in which it was determined that purchasers of software do not actually own the programs they pay for, but instead are merely licensing the software as per the terms of the End User License Agreement.

The Unlocking Consumer Choice and Wireless Competition Act seeks to reinstate that exemption for cellphones, while also allowing third parties to assist consumers in unlocking their phones.

In a statement, bill sponsor, Virginia Congressman Bob Goodlatte (who also happens to be the Chair of the Judiciary Committee), says that the legislation “protects consumer choice by allowing consumers flexibility when it comes to choosing a wireless carrier. This is something that Americans have been asking for and it is imperative that Congress act to restore the exemption that allowed consumers to unlock their cell phones.”

Consumers Union, which has been pushing lawmakers to overturn the LOC’s decision, responded to today’s news positively but with hope that the legislation could go even further to protect consumers:
“Ultimately, we want consumers to be able to unlock their cellphones. Today’s action gets us closer to that goal. As the bill moves forward, we hope there will be opportunities to improve the bill, such as closing loopholes that could let carriers nullify the right with fine-print exceptions, and by extending the right to tablets, which consumers are increasingly using in the same way as handsets.”