FCC Might Investigate Whether Or Not Ban On Cell Phone Unlocking Should Have Been Allowed

from the obama-administration-vs.-obama-administration dept

Fri, Mar 1st 2013 12:56pm — Mike Masnick

This one is so odd I almost wonder if there were some key points lost in translation (not in language, but from "policy wonk speak" to "journalist speak"). We've talked plenty about the recent move by the Librarian of Congress not to renew the DMCA exemption for unlocking your mobile phone. That story kicked up a lot of anger and protests from people. And while there has been some talk of trying to convince the administration to change the ruling, the general sense seemed to be that the issue would just wait for the review period, which happens ever three years.

However, Greg Ferenstein at TechCrunch is reporting that FCC boss Julius Genachowski claimed that not only were there "concerns" about the ruling, but also that the FCC was going to investigate the matter:

The "ban raises competition concerns; it raises innovation concerns."

Of course, he also admitted that he might not have any actual authority over this particular issue (he doesn't). As great as it would be for some other agency within the same administration to come out and counter another agency concerning this issue, that still seems unlikely. The FCC's mandate almost certainly doesn't stretch so far as to permit unlocked phones, but it sounds like Genachowski is interested in seeing if he can find some way to find that authority somewhere, somehow.

Genachowski isn't sure what authority he has, but if he finds any, given the tone of the conversation, it's likely he will exert his influence to reverse the decision. "It's something that we will look at at the FCC to see if we can and should enable consumers to use unlocked phones."

In the end, I can't see how the FCC has a legitimate say in the matter, even if I agree with their stance that consumers should be able to unlock their phones.

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Filed Under: anti-circumvention, dmca, exemptions, fcc, julius genachowski, mobile phone unlocking, unlocking

27 Comments

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Anonymous Coward, 1 Mar 2013 @ 1:10pm

Banned or unbanned I could give two shits because once I buy something I will do with it as I please whether anyone likes it or not.
I mean really if you're paying 200, 300, or even 400 dollars for a phone what right do they have to tell you what you can and can't do with it?
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out_of_the_blue, 1 Mar 2013 @ 1:13pm

If you don't want a locked phone, don't buy one!
I don't understand your problem with the ruling. No one is forcing you to buy and use one of those phones. -- Again, this is the same logic as the dolt saying "don't use Facebook". -- It's actually just craven obedience to corporate tyranny, and marginalized so they can profit from their invasion of your privacy.
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tomxp411 (profile), 1 Mar 2013 @ 1:32pm

Re: If you don't want a locked phone, don't buy one!
And how many unlocked phones are there out there? How many come unlocked from the factory? How many don't cost $600-$700?

Paying $700 for an unlocked phone is also "craven obedience to corporate tyranny".

The real issue here is that subsidy locking has nothing to do with Copyright protection. Copyright was intended to prevent copying of covered material. Nobody is copying the ROM's of these locked phones so that they can use them on unlicensed devices. In fact, the opposite is true: users are unlocking phones so that they can use open-source code on their purchased hardware.

And this doesn't even start to cover the practice of locking the bootloader on tablets and PC's. There is absolutely NO logical reason to prevent a user from installing a third party OS on a tablet or PC. When I walk out of the store with a computer, my transaction with the manufacturer is DONE. I don't pay maintenance or service fees, so what purpose is served under Copyright by locking these devices?

I think Congress needs to take a look at this practice in general. If I had my way, ALL computing devices would have a simple software switch that allows the user to load any firmware or OS he desires. Loading my OS of choice on a tablet should be no different than loading a new OS on my 5 year old desktop PC.
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Anonymous Coward, 1 Mar 2013 @ 1:35pm

Re:
They own you. You are a slave.
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Anonymous Coward, 1 Mar 2013 @ 1:35pm

once a person has bought something, it is his/hers. that is how it always was and how it should always be. if companies want to try to implement different conditions, they should only be allowed after consulting with the various governments that write the laws for selling. if customers then want to do something different again, they should be able to do so with only the warranty that came with the item being revoked. there should be no way that any manufacturer can prosecute a customer for not agreeing to the terms the companies want to force on to customers. even things like Sony's PSN should still be available as a lot of games wont work without that connection. either that or ALL game content must be on disk when the games are bought
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lol, 1 Mar 2013 @ 1:36pm

Re: If you don't want a locked phone, don't buy one!
who cares people are going to do it anyway. you got enough resources to sue a million people and growing ootb? if they dont do it: whatever if they do: whatever its a non issue except to you and your industry freinds.
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kog999, 1 Mar 2013 @ 1:41pm

"I don't understand your problem with the ruling. No one is forcing you to buy and use one of those phones"

No one is forcing me to buy a hammer, but i would be quite upset if after i bought the hammer i could only use brand X nails even though it would just as well with brand Y nails. Its not any business of the hardware stores what brand nails I buy, and before you say but your phone is subsidized!!! That why I have to sign a multiyear contact with early termination fees, if anything I�m doing them a favor by paying them yet not using up there service. If they change to little in termination fees to re-coup there cost if I choose to leave that�s their problem. No one is forcing them to sell me a phone.
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Wally (profile), 1 Mar 2013 @ 1:44pm

Re: Re: If you don't want a locked phone, don't buy one!
If there is any copyright issue involved with the subsidy phone...it is on the carrier's side of things...they mess with the original OS shells and programming to block features such as FaceTime or prevent the user from actually getting out of a contract.
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kog999, 1 Mar 2013 @ 1:45pm

"Who cares people are going to do it anyway. you got enough resources to sue a million people and growing ootb? if they dont do it: whatever if they do: whatever its a non issue except to you and your industry freinds"

Its an issue when they press criminal changes against 1,000 out of those million people and one of those 1,000 happens to be you.
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Richard (profile), 1 Mar 2013 @ 1:46pm

Authority
In the end, I can't see how the FCC has a legitimate say in the matter, even if I agree with their stance that consumers should be able to unlock their phones.

FCC can't stop devices being locked - but they could create an excuse to ban them from the airwaves. Arguably all s/w on a device capable of transmitting should be open source and verifiable on every device for health/safety/interference suppression reasons - seems to fall under the FCC mandate to me...
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HavaCuppaJoe (profile), 1 Mar 2013 @ 1:58pm

Pull the Pin, FCC!
Jeeze. The FCC has all the power they need. They just won't pull the pin. I don't know why.

Just reclassify broadband/ISPs as common carriers under Title II. Certainly there's a lot of work to go with that to make it happen, but it's certainly within their domain. No congressional action needed.

Put on your Big Boy Pants, Genachowski!
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BentFranklin (profile), 1 Mar 2013 @ 1:58pm

Maybe the FTC instead of the FCC? I seem to recall it became illegal for Ma Bell to force you to buy their phones. Isn't this analogous?
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John Fenderson (profile), 1 Mar 2013 @ 2:08pm

Re: If you don't want a locked phone, don't buy one!
I don't understand your problem with the ruling.

The problem is that it's hard to think up a more blatant and obvious abuse of copyright law than this.
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John Fenderson (profile), 1 Mar 2013 @ 2:54pm

Re: Pull the Pin, FCC!
How would that have any effect on whether or not it's legal to unlock phones? I don't see how the FCC has anything like jurisdiction over the issue. It has nothing to do with the use of the airwaves.
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Vidiot (profile), 1 Mar 2013 @ 3:03pm

Something's not right
If the "no unlock" thing was coming from the carriers, I could imagine the logic: This ain't "your" $700 phone until the 24-month subsidy (contract) runs out. But that's not the case.

But the idea of the FCC intervening in the name of competition and innovation? Are we talking about the same ol' FCC we know and love? Acts of largesse aren't exactly commonplace around that joint... wonder what the angle is...
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Anonymous Coward, 1 Mar 2013 @ 4:07pm

Wall of separation
What would solve off of this would be a wall of separation between hardware suppliers and data suppliers. Or maybe it wouldn't even have to go that far, just mandate that any consumer can cancel a telecom service contract on 30 days notice. That would be the FCC's business.

Most of the problems in the "smartphone" market are due to it being run by data suppliers who use teaser prices to tempt you to buy hardware, then try to make for it on the back end. This leads to all sorts of craziness in the data market. And I define "crazy" as "some types of bits cost 1000 times more than other types of bits." If the bandwidth suppliers are solely in the business of supplying bandwith they would have to knock that crap off.

Maybe it's time we started calling them "pocket computers (with voice telecom functionality)" instead of "phones" so we can start thinking of the hardware purchase as one transaction and purchasing bandwidth as another. I'm not forced into a long term contract with an ISP when I buy a desktop computer, why do I get one with a pocket computer?
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Anonymous Coward, 1 Mar 2013 @ 5:48pm

"move by the Librarian of Congress not to renew the DMCA exemption for unlocking your mobile phone"

I do not understand why it needs to be renewed.
Similarly, I do not understand why the violence against women act needs to be renewed.

It is quite plain and simple, what could possibly change and thus make the concept untenable?
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Anonymous Coward, 1 Mar 2013 @ 6:32pm

Re: If you don't want a locked phone, don't buy one!
Wrong necessity makes it imperative to have a smartphone today.

Those are not toys anymore they are actually full blown computing platforms full of sensors.

Having a cellphone today means the difference between having a market to sell produce or not in Africa, it means the difference between having a job interview/client or not.

We could possibly start building our own, but then we get shutdown by 50 K patents that in a de facto manner locked up the entire sector.

This is exactly why granting monopolies should abhour everyone, it makes life difficult to everybody.

Seriously though I am not surprised with your statements since I know you are a fool, you preach against the rich which I couldn't care less about it but for some reason ignores how they become rich in the first place, most of them use exclusive tools to do it and you are in favor of that crap, how idiotic is that?
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lol, 1 Mar 2013 @ 6:49pm

Re: kog999
hey if the industry wants to keep burying itself i wont offer any complaints. i just hope that when they lose thos people countersue
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lol, 1 Mar 2013 @ 7:51pm

kog999
also when was the last time you saw someone get arrested for unlocking there phone?
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Tom W, 1 Mar 2013 @ 8:12pm

Re: kog999
You must not remember the stuff surrounding console mods. The individual owner didn't get in trouble, but the people selling and performing the mods did.

The same thing will happen here. The people creating the unlocks will either get jailed or sued Jammie Thomas style.
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RyanNerd (profile), 3 Mar 2013 @ 12:13pm

Re: Something's not right
Obviously, more power for yet another overreaching federal agency.
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AndyD273 (profile), 4 Mar 2013 @ 8:48am

Re: If you don't want a locked phone, don't buy one!
What phones can you get that come unlocked? I know the Nexus phones do, which work on TMobile, and maybe AT&T... but if you live in an area where those networks aren't that great, or if you have to go with one of the other carriers for other reasons (company will only pay for your plan if you are on Verizon, etc) then no pre-unlocked phone for you!

Where I really have a problem with this law is the fact that it is really unnecessary. They say that locking the phone is is important so that you stay with them long enough to earn back the money they use to subsidize the phone, but that's silly because before they will subsidize the phone I have to sign a contract saying that I will stay with them for 2 years, with heavy penalties if I jump carriers early. After the contract is up I can request that the phone be unlocked, and most of the time they will unlock it.

Also, there is more than 1 type of lock.
I got a Droid DNA, which has a locked boot loader, but is carrier unlocked out of the box. Meaning, if I want to travel internationally or put another carriers sim in I can no problem, but if I want to mod it I have to unlock it. And to be honest, I don't know if this law covers locked boot loaders or just locked carriers.
Thankfully, I got it and unlocked the boot loader just before the deadline, so either way I'm legal, but it's still kind of confusing.
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Tom W (profile), 4 Mar 2013 @ 9:05am

Re: Re: If you don't want a locked phone, don't buy one!
This would cover both locked booloaders, which prevent you from installing your own operating system on the device, and subsidy locks, which is what prevents you from using the phone on other carriers.

Both locks are a form of protection and may be covered by the DMCA. (I'm actually not sure if the DMCA actually prohibits this, since subsidy and bootloader locks are not for the purposes of copy protection. Copyright has no interest in enforcing contracts or preserving subscription fees.)
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AndyD273 (profile), 4 Mar 2013 @ 9:07am

Contracts already protect carriers without unlocking
Why do they need to lock the phones in the first place? If I buy it unsubsidized I don't need a contract and can request to have it unlocked from the start.

If I buy it subsidized I have to sign a contract saying that I'll stick with them for a couple years, with penalties if I jump carriers early.

Locking the phones is a waste of resources at best and anti competitive at worst.

The only good thing I can say about it is that if I go through the hassle of getting it unlocked after the contract is up, I can resell it for more than the guy that didn't get it unlocked, and probably sell it faster too due to more demand for phones that let you do what you want.
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txpatriot, 6 Mar 2013 @ 9:35am

Re:
http://www.telecomlawmonitor.com/2013/03/articles/enforcement/no-more-selfhelp-mobile-phone-unlockin g/
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I Z Opnyde, 11 Mar 2013 @ 11:13am

Response to: Anonymous Coward on Mar 1st, 2013 @ 1:35pm
WHEN YOU ARE BUYING OTHER PEOPLES TECHNOLOGY, YOU ARE ONLY BUYING THE ABILITY TO USE STUFF & NOT THE TECHNOLOGY ITSELF, LOCKED OR NOT. Check out the law suit from IBM that even prevents you from selling off the parts. Their claim is that the technology belongs to them in perpetuity and they won in Federal Court a few years back. The same argument might be provided for keeping a "lock" on other computing machines, even if the stuff to make it work exists in the aether. As an aside, you should be able to copywrite your children's DNA/RNA but not your own. WHY? Technically they are a product of yours. You are not your own product. Why copywrite? Yeah dude "THE RULE OF LAW" is a strange and terrible thing. You can get lost in it only to find they've "redefined" the language & you've just lost the greater part of your hind quarters. If you don't believe it google "disabled"! We cripples love it.
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