Government Takes New Approach to Phone Unlocking Rules

The government has formally asked the Federal Communications Commission to force cellphone carriers to make it physically possible to unlock phones. It follows an appeal for Congress to make the practice legally OK.

Back in January, a change in the law meant that phone unlocking technically became a breach of the law. That’s because the Librarian of Congress has the power to decide which devices or systems are exempted from the Digital Millennium Copyright Act, which broadly outlaws the practice of bypassing any technology used to protect copyright.

In the case of phones, some carriers had put forward the convoluted argument that the software used to lock a phone is itself copyrighted and thus covered by the DCMA. Until this year the law had nothing to say on the matter, but consumer groups asked the Librarian of Congress to add phone unlocking to the exempt list. Although that happened, the exemption only applied to phones sold up to and including January 26 this year. That at the very least implied that phones sold since then are indeed subject to the DCMA when it comes to unlocking.

The news prompted a petition to the White House that triggered a mandatory response on behalf of the President. In that response, the administration called on Congress to introduce a law specifically permitting phone unlocking. Although there has been talk and some proposed bills, there’s been no specific legislation yet.

While that process goes on, another government agency has delivered its own petition to the FCC calling for a change in rules that attacks the issue from a different perspective. The call comes from the National Telecommunications and Information Administration (NTIA), an agency of the US Commerce Department, which is described as a follow-up to the White House response.

In the petition, the NTIA asks the FCC to set down explicit rules that say carriers must unlock phones upon request. As this would simply involve the carrier removing their own lock, there’d be no question of either the phone user or a third party breaching any laws.

According to the NTIA, such a move would increase the ability of customers to shop around for cellphone service and thus increase competition in the industry. Of course, such changes wouldn’t mean customers escaped any minimum term or early redemption penalties set down in phone contracts.