06
Mar
2013-03-06_10h02_51

Two days ago, the White House announced its support for carrier unlocking handsets. The administration promised an FCC/NTIA investigation as well as a willingness to "work with Congress" on legislation to fix the problem. So, we can probably count on the President's support of the new Wireless Device Independence Act, introduced last night by Sen. Ron Wyden (D-OR). The bill, which is only three pages long, has a simple goal: amend the DMCA such that it explicitly allows the unlocking of cell phones, obviating the need for a tri-yearly exemption.

The following language would be added to the DMCA's section on anti-circumvention policies:

 

SEC. 2. ALLOWING CONSUMERS TO UNLOCK CELL PHONES.
(a) IN GENERAL.—Section 1201(a)(1)(B) of title 17,
United States Code, is amended by striking ‘‘not apply to persons’’ and inserting the following: ‘‘not apply to—
(i) a user of a computer program, in the form of firmware or software, that enables a wireless telephone handset, or other wireless device that can connect to the Internet, originally acquired from the operator of a wireless telecommunications network or retailer to connect to a different wireless telecommunications network if—
  (I) the user legally owns a copy of the computer program;
  (II) the use of the computer program by the user is solely for the purpose of connecting to such wireless telecommunications network; and
  (III) the access to such wireless telecommunications network is authorized by the operator of the network; or
(ii) persons.

Emphasis added.

The language is mostly clear and, given that it would be injected directly into the DMCA, could provide some sturdy defenses for unlockers. As a bonus, the bill would be retroactive, taking effect on January 26th, 2013. That happens to be the day that the DMCA exemptions expired so, if this bill passes, it would be as though there were never a time that unlocking phones had been illegal (well, since 2006).

The interesting part of the bill, though, is that it doesn't appear to mention the fulfillment of contractual obligations as being part of the criteria. Of course, that could be easily rectified with an adjustment to those contracts ("You agree not to unlock your phone for use on other networks until your contract is fulfilled" or something like that), but it's worth keeping in mind because when this bill goes to the floor, there could be some pushback on that front.

The main worry for carriers when it comes to users unlocking new phones is that a customer will buy a phone on-contract, pay an ETF, and get a phone cheaper than they would have if they bought it outright. In that scenario, the carrier loses money. It's a little early to say whether this new bill would encourage that kind of behavior, but this will likely be a major point of argument as this progresses.

The important thing to take away, though, is that this is where the attention should be placed if you want unlocking phones whenever and however you wish to be legal. It's unclear what, if any, ability the FCC has to effect any change in this arena, but Congress does have authority. This bill is coming out of the Senate. It's possible, with the amount of media attention this has gotten, that we may see a similar bill introduced in the House of Representatives. No matter what, though, this is the place that supporters should be focusing their attention.

Source: Scribd via CNET

Eric Ravenscraft
Eric is a snarky technophile with a taste for the unusual. When he's not obsessing about Android, you can usually find him obsessing about movies, psychology, or the perfect energy drink. Eric weaves his own special blend of snark, satire, and comedy into all his articles.

  • blast0id

    Is this all? Snore! Should be introducing legislation forcing ALL networks to be backwards compatible, so that not only can you go to another carrier, but you can also not have to worry what bands they work off of... shit is so stupid, can port some devices to some carriers but not others... three different majors working on five different band technologies... instead of all focusing on improving and tweaking one universal band technology... fuck them all, they are all anti-consumer whore houses!!!

    • Adam Staggenborg

      I agree completely!

    • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

      Some people will just never be happy.

      • ProductFRED

        This is what I meant when I commented on your other article. This is what I was hoping for (not what the guy above you said); I meant that until someone introduced a bill or request for change, nothing would happen. But now the ball is finally rolling and I'm happy.

      • blast0id

        so what, everyone's cool with the status quo? I'm sorry but unlockable phones being a victory? effing poppycock!!! it should be the absolute LEAST we can do with our phones, not some kind of "Oh gee thanks Mr. Legislator for being so kind to me!" eff that... and eff all these non-standard networks that have done nothing but stifle us, the consumer, for the past 20+yrs... it's complete absurdity that people are OK with this in any way shape or form... thanks FCC, thanks FTC for NOT doing what you're supposed to and look out for the consumer... pure crap, down vote me all you want, you people (who are OK with this) are idiots!!!

        • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

          You know, I agree. When I'm starving to death and someone offers me a bowl of Ramen, I also throw the burning soup in their face, yelling "I'M STARVING. Are you really okay with this?! Poppycock! Gee thanks for this one crappy meal! I'm still going to be starving tomorrow!"

          Just because you're right that the system's broken doesn't mean that berating people who are trying to help is always the answer.

    • http://twitter.com/havens1515 Randroid

      This is literally copied and pasted from my response to someone else:

      So, once we get this victory, we fight for a more standardized system. In Europe you buy a phone, THEN choose a carrier, not the other way around.

      If we can standardize the network technologies a bit, this will make a HUGE difference. And since we seem to be on a roll here, keep the momentum moving forward. Keep fighting for reform. Give power back to the people, instead of the corporations.

  • http://www.facebook.com/vanhouse David VanHouse

    They should just increase the ETF if that's the main issue....

    • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

      The problem with that is the ETF would be raised to accommodate people who game the system while regular people who want to be able to switch carriers are stuck with insanely high fees. Remember when the ETF for most carriers went from around $150-200 to the $350+ we have now? That makes it even more difficult for regular consumers to change carriers when they need or want better service. That discourages competition and is just bad for consumers all around.

      Is it really worth it to make things even worse for all Americans just so a *few* people can maybe have the ability to unlock their brand new phone and slightly game the system?

      • moelsen8

        maybe i'm not reading your response right.. it sounds like you're for keeping things the way they are now.. but i don't think we should just rollover and accept not having the choice of using different carriers with our phones just to protect the average person from ETF's. the average person isn't leaving their carrier and paying an ETF. people should have a responsibility to be more informed on this stuff. and the carriers have way too much power as-is.

        • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

          With respect, what you're saying is "My reason for wanting to use a different carrier is better than someone else's reason for wanting to use a different carrier." That's just entitled crap. Most Americans that pay ETFs do so because they no longer want to use their carrier. Given that few of them do that because they want to have no phone at all, most of those people are switching providers.

          So, now you the consumer are pitted against you the consumer. If being able to unlock cell phones whenever you want raises the price of ETFs, guess what happens? Your ability to choose has now reduced someone else's ability to choose. You can't honestly argue that this technical limitation is violating your fundamental rights to use whatever carrier you want (even though, you have options if you're willing to spend the money), but those other people who want to break their contracts and switch carriers can go fuck themselves because they have options if they're willing to spend the money. You're in exactly the same boat.

          I especially don't understand how you can sit here and say the carriers have too much power while simultaneously saying that higher ETFs isn't a big deal. ETFs are why carriers have so much power. You're locked in for two years to one company, whether you like their service or not. Unlocking phones doesn't do a bit of good if you have to pay a fortune to leave a carrier.

          I'm sorry, but this line of thinking just doesn't make any sense to me. There is a problem in the system right now, absolutely. But arguing that carriers should be legally required to unlock your phone whenever you want them to, even if that might result in an increase to the charges that give carriers all their power, all in the name of reducing the carriers' power is just backwards to me.

          • moelsen8

            Good retort. There would definitely have to be a balance to it. Unlock them no questions asked at the end of the contract or when the etf is paid. But everybody should know what they're signing up for when they sign a 2-year contract and be willing to make good on it either way. I think a contract is enough.. Why do we need a law giving the carriers the power to say no if you've satisfied your obligations?

          • John O’Connor

            nail 0 : hammer 1

      • Robert Goddard

        A way to counter that would be to have a diminishing ETF, proportional to the time left on the contract. Start out high, decrease it monthly over time until the contract runs out. Simple.

        • Wes Jordan

          I'm pretty sure Verizon and a few other carriers do this already.

          • moelsen8

            Verizon's nowhere near proportional. If you cancel with one month left to go, for instance, you still owe them over $100.

          • Robert Goddard

            You're absolutely correct

          • John O’Connor

            In Verizon's case, you are correct. I bought out an early upgrade on sprint (with 5 1.2 months left on contract for that device) for only $50.

            yes it is sad that ETF's have blown through the roof pricewise. I don't recall it being that high in the late 90's/early 2000's. The same can be said of the "insurance" most people pay on their smartphone investments. deductibles have gone up 200% and even the monthly cost of insurance/per device has been raised by 40-200% over the last 5 years.

            I can honestly see this from both sides, as a carrier trying to recuperate losses from those re-nigging on their contracts (and then not paying when it reaches collections) because the carrier is assed out on the subsidized amount they contracted you for. Although the short term and longterm cost of mobile insurance plus that of the potential deductible can be highway robbery for the average consumer... especially when you add up the yearly costs. (most devices could be purchased outright for the prices that you spend on insurance through the life of your carrier contract.)

            We in the U.S. have been spoiled with the concept of subsidized pricing.. This doesn't happen in much of the world and people understand the TCO (true cost of ownership) on any device that they may buy. Unfortuantely, there is presently no discounted plan pricing(ok maybe a couple) for those who purchase a device outright. Those individuals still pay the same monthly rate as others who have opted for a subsidized device and its (apparent) cheaper pricing. The only silver lining is that you are not beholden to a contract and ETF if you decide to jump ship.

        • http://www.facebook.com/vanhouse David VanHouse

          rarebert, they do that already =)

      • http://www.facebook.com/vanhouse David VanHouse

        I understand your point, however, im not suggesting increasing the price by $50 dollars or anything. A increase of less than 5 dollars increase would probably be enough to cover to cover those few people gaming the system

  • Davy Jones

    No offense intended, but doesn't this go against your thesis that the only way that any legislative action would happen here is if people shifted their focus to the DRM and file-sharing portions of the DMCA?

    • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

      Well, in the event that this actually passes, I suppose it might. Which, I'll be happy (read: grumbly) to admit to. However, two things: one, this still has a long way to go before actually being passed. We're likely to hear carriers weigh in on this at some point and they could express some serious objections. At that point it could become a matter of their pressure versus the pressure of the people. Meanwhile, at least from my perspective, people seem to be less and less interested as time goes on now that the petition reached its goal. I could be wrong, though. After all, I didn't expect a new bill so soon. We'll see, though. I'd like to be wrong, if nothing else, because I've already written close to 10k words on the subject over the last few months and I'd like it to be over with a win for consumers.

      Secondly, though, even if this passes, it's still a patchwork solution. Jailbreaking and rooting phones are still only legal due to a DMCA exemption and that could go away just as quickly in two years (what if they decide there are enough Nexus phones out there that "people have options"?). Reform to the DMCA is still the better solution. This patch is good (and to be fair, it is being applied directly to the DMCA, so this is *sort of* what we want), but I still believe the better solution is more broad reform and not to raise a ruckus every few years over the one thing we don't like right now until we get a two-paragraph amendment to a broken bill.

      • Davy Jones

        Oh hey, don't get me wrong, I am completely with you on the necessity of a full DMCA reform and even your argument that cell phone unlocking is the least of its sins. I actually thought your mini essay here was pretty good. It's just that as it happens, like in most other areas, reality often surprises. I guess we will just have to wait and see where this bill goes.

        • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

          Believe me, I like nothing better than when my cynicism is proven wrong.

  • http://twitter.com/TwinShadow_SH Ryan

    This definitely is a step in the right direction, but as mentioned, it won't solve our problem completely.

    Our economy is total shit right now and its only going to get worse, so even then, most people are still losing money over things anyway. It is nice to see something might be done about unlocking our phones to use on another carrier, but the DMCA laws are so broke right now that they're not worth enforcing without putting innocent people in jail. Take DRM with restricting our uses of legal programs. I'm against DRM in its current form and will advocate DRM-free software (Humble Bundle anyone? I dropped $25 for it, would of dropped more, but my wage and taxes I have to pay don't leave me much room)

    I'm just waiting for the day that somehow our phones will have DRM in them just on how we use our phones. Of course there will always be a circumvention, there always will be. (take root for example, OEM's and carriers try to patch the exploits and what do devs do? Find another exploit to root our phones and all is well.)

    It was nice to see a petition actually hit 100k signatures regarding this, but its not over yet until until the DMCA laws are fully reformed (which will never happen) and I highly doubt this bill will get anywhere. However, I'll eat my own words if this actually does pass and Obama does sign this into law. Then... I'll be surprised.

    • John O’Connor

      I love the humble bundles. granted I only put $15 down on the latest, this is the direction in which we should be going. I always buy them even if I do not use them(the apps) for several years.

  • spydie

    moot point. Can't use unlocked ATT on TMO or vice-versa anyway (at least can't use 4G). So much trouble over something that makes very little difference to US customers. I doubt CDMA phones (Verizon/Sprint) are any more friendly towards each other... today's phones don't have enough radios to support more than one carrier.

    • Andy_in_Indy
    • ProductFRED

      Doesn't matter. Some phones are penta-band, other than Nexus devices. So HSPA+ would work on both AT&T and T-Mobile. Most recent T-Mobile phones like the Galaxy S3 and Note 2 are pentaband. And with recent advancements in LTE radios, interoperability is becoming a reality. Either way, you should be for more freedom, not against it.

      Also, T-Mobile is shifting to 1900 MHz for 3G/"4G" HSPA+, which is as fast as LTE (on their network). So yeah, your point is moot.

    • http://twitter.com/havens1515 Randroid

      So, once we get this victory, we fight for a more standardized system. In Europe you buy a phone, THEN choose a carrier, not the other way around.

      If we can standardize the network technologies a bit, this will make a HUGE difference. And since we seem to be on a roll here, keep the momentum moving forward. Keep fighting for reform. Give power back to the people, instead of the corporations.

      • ssj4Gogeta

        This.

        If electric companies don't force you to buy electric equipment from them, why should carriers force you to buy their phones? Running on different frequencies and different technologies is just a way to keep you tied to their system.

      • http://www.androidpolice.com/author/eric-ravenscraft/ Eric Ravenscraft

        That system may come naturally. Hopefully. The major carriers are all building LTE networks, while chip manufacturers are working on multi-band radios that can support insane numbers of bands: http://www.androidpolice.com/2013/02/21/qualcomm-announces-the-rf360-a-40-band-lte-radio-that-plays-nice-with-all-the-networks/

        Frankly, as shocked as I am to say it, we may not even need to "fight" for a standardized system. At least in America, they're building it themselves.

      • Aki I.

        This would work but then the major providers won't see profits in the margins they do and of course they would get more competition.. Big no no

    • Freak4Dell

      T-Mobile is refarming their spectrum to open all their services to AT&T phones, and the CDMA problem will go away once everything is on LTE.

  • Ameshican

    I can't imagine many people buying a phone on contract, paying an ETF and getting out of their contract. Would you really save that much what with carrier's fee's for breathing air in their store?

    • ProductFRED

      I believe with a Nexus 4 on T-Mobile, you can.

    • Aki I.

      This. I wish I saw this before I typed my rant

  • Cuvis

    Good start, and I hope it passes. Next we need legislation to protect enabling the installation of third-party applications on all computing devices, including phones, tablets, game consoles, etc. It's my device; the manufacturer should have no say whatsoever in how I use it.

  • Aki I.

    Don't you have to return a handset if you return withing the return period? or pay the ETF plus the service charge which is probably $75+ when you cancel after the return period. Most phones worth going through the trouble for that kind of hassel sell for $150 +tax in most cases.

    Long story short, even if you score a cheap deal online, when you add up the numbers the savings are zero to negligible. Especially if your time is worth something to you.