Photo of C. Douglas Jarrett

Derek Khana, the de facto spokesperson for cellphone unlocking, recently published a position piece in Forbes, offering a compelling counter argument to a recent editorial in the Hill in which one of the many D.C. “think tanks” offered up a defense of wireless carriers’ policies that limit unlocking, bubble-wrapped in the importance of intellectual property laws to technological innovation.

In some ways, the most insightful aspect of the Khana’s article is the excerpt of NTIA’s comments filed with the Register of Copyrights, in support of an exemption to the circumvention provision of the Digital Millennium Copyright Act, emphasizing the challenges faced by consumers looking to unlock cellphones which, unfortunately, fell on deaf ears with Register of Copyrights:

“While the record does show that some carriers are unlocking wireless devices on behalf of their customers, it also indicates that carriers generally will only perform this service under certain conditions. Those conditions include, for example, minimum days of continuous service, the expiration of handset exclusivity associated with the carrier, a minimum usage of credit, or prior proof of purchase. While such policies may, in some circumstances, provide an alternative to circumvention, the evidence presented in the record does not obviate the need for an exemption for several reasons.  First, it is unlikely that these policies will serve a large portion of device owners. For example, the common denominator present in the cited terms and conditions is that the owner of the phone must be a current “customer” or “subscriber” of the carrier requested to unlock the phone. This requirement excludes those that obtain a device from a family member, relative, friend, or other lawful source; those users must then resort to the current exemption to unlock such devices, especially if they cannot locate the original proof of purchase. Second, some carriers refuse to unlock certain devices. For example, until recently AT&T’s terms deemed the Apple iPhone as “not eligible to be unlocked.” An exemption is thus warranted to allow iPhone users, as well as users of other devices excluded by such policies, to unlock their devices. Third, an exemption continues to be needed because some of the policies cited dictate that, in order to unlock a device, the carrier must have the necessary code or the ability to reasonably obtain it, therefore it is possible for a consumer to meet the unlocking policy and still be unable to have his device unlocked if the carrier does not possess or is unable to obtain the required information.”

We still believe, as noted in our earlier entry, the FCC should address “what decisions have been issued (or not issued) since 1992 when the FCC allowed the bundling of handsets with wireless service, as an exception to the rule against the [mandatory] bundling of CPE and services, that enables wireless carriers not only dictate which handsets can be used on their networks, but how these handsets can be used after the minimum commitment periods have expired.”

Potentially, the FCC could assess the wireless carriers’ handset locking practices under the just and reasonable standard of Section 203(a) of the Act.  Perhaps, the agency will address device unlocking restrictions in its next Wireless Competition Report.