Thursday, February 12, 2015

Unlocking Your Cell Phone

             In the U.S., most cell phones are "locked" to a cellular carrier because the phones are sold with a subsidy in exchange for a service plan, and the carriers wanted to ensure that the phones were used long enough on their networks to recoup the subsidy.  The "lock" is software that prevents the phone from being used with another carrier's SIM card.

            Under the Digital Millennium Copyright Act ("DMCA"), circumventing technologies that control access to copyrighted works, such as the software "lock" on cell phones, is prohibited.  See 17 U.S.C.1201(a)(1)(A).  Thus, it is illegal for a person to circumvent the software lock or "unlock" their cell phone without the permission of their cellular carrier.  However, the DMCA gave the Library of Congress the ability to grant three-year exemptions to the circumvention prohibition. See 17 U.S.C. 1201(a)(1)(C).  In 2006 and 2009, the Librarian of Congress granted an exemption for cell phone unlocking.  However, in 2012, the Librarian did not renew the exemption.

            The Librarian's decision led Congress to pass the "Unlocking Consumer Choice and Wireless Competition Act" which was signed into law by President Obama on August 1, 2014.  See Pub. L. 113-144.  This law repealed the Librarian's 2012 decision to not grant an exemption for cell phone unlocking and reinstated the exemption.  See Pub. L. 113-144, section 2(a).  The law, however, did not make the exemption permanent.  Rather, the 2009 exemption was reinstated and will be reviewed  at next rulemaking this year in 2015. See Pub. L. 113-144, section 2(b).  In is possible that as a result of the 2015 rulemaking, the Librarian could determine that the exemption for unlocking cell phones should not be renewed again.  Thus, the exemption could be short lived.  But, given the support of Congress, the President, the FCC, and the thousands of people who petitioned to have reverse the Librarian, it is unlikely that the exemption will not be renewed.

            Additionally, at roughly the same time, the Federal Communications Committee("FCC") wrote to the CTIA-The Wireless Association, which represents the wireless communications industry, about making its unlocking policies consumer friendly.  The CTIA and five major cellular carriers (AT&T, Sprint Corporation, T-Mobile USA, U.S. Cellular, and Verizon Wireless) eventually agreed to six guidelines for unlocking of cell phones and tablets.

(1) Disclosure. Each carrier will post on its website its clear, concise, and readily accessible policy on postpaid and prepaid mobile wireless device unlocking.

(2) Postpaid Unlocking Policy. Carriers upon request, will unlock mobile wireless devices or provide the necessary information to unlock their devices for their customers and former customers in good standing and individual owners of eligible devices after the fulfillment of the applicable postpaid service contract, device financing plan, or payment of applicable early termination fee.

(3) Prepaid Unlocking Policy. Carriers, upon request, will unlock prepaid mobile wireless devices no later than one year after initial activation, consistent with reasonable time, payment or usage requirements.

(4) Notice. Carriers that lock devices will clearly notify customers that their devices are eligible for unlocking at the time when their devices are eligible for unlocking or automatically unlock devices remotely when devices are eligible for unlocking, without additional fee. Carriers reserve the right to charge non-customers/nonformercustomers with a reasonable fee for unlocking requests. Notice to prepaid customers may occur at point of sale, at the time of eligibility, or through a clear and concise statement of policy on the carrier’s website.

(5) Response Time. Within two business days after receiving a request, carriers will unlock eligible mobile wireless devices or initiate a request to the OEM to unlock the eligible device, or provide an explanation of why the device does not qualify for unlocking, or why the carrier reasonably needs additional time to process the request.

(6) Deployed Personnel Unlocking Policy. Carriers will unlock mobile wireless devices for deployed military personnel who are customers in good standing upon provision of deployment papers.

Further, the carriers agreed to enact all six guidelines within 12 months from February 11, 2014 (i.e., by February 11, 2015).  Thus, even if the Librarian should not renew the exemption, it appears the cellular industry will abide by their guidelines and continue to unlock your cell phone.

1.         The exemption currently only applies to cell phones.  The Librarian is to consider whether to extend the exemption to other wireless devices.

2.         Unlocking a cell phone does not mean that it will work on other cellular carriers because different carriers use different technologies (GSM v. CDMA) and wireless spectrum bands.

3.        Verizon 4G LTE devices are not locked and can be used on other carriers.  There is no lock because when Verizon won licenses for the 700 MHz band of spectrum, the licenses had certain open-access rules from the FCC requiring that a consumer must be able to use any device and any lawful application on the networks.  In response, Verizon decided not to lock devices that access that spectrum.

 - Henry Park

updated on 2/13/15 to revise the first and second paragraphs
updated on 4/9/15 to change the font

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