The President still hasn't weighed in on what he plans to do about the cell phone unlocking ban (he's been a little busy with that sequester business that's gonna cost some people their jobs), but FCC Chairman Julius Genachowski is a little closer to the situation. Speaking to TechCrunch, the communications head said the organization plans to "look into" the issue and decide whether action should be taken and, if so, what action there is to take.

While Genachowski doesn't sound ready to start pummeling carriers just yet (though it wouldn't be the first time), he admits that the ban is worrisome (and it is!), saying the "ban raises competition concerns; it raises innovation concerns."

On the subject of pursuing any course of action: "It’s something that we will look at at the FCC to see if we can and should enable consumers to use unlocked phones." Those words "can" and "should" are the two major hurdles that the FCC has to get past, though. And one is much harder than the other.

"Should" will probably be very straightforward. Genachowski has a long-standing record of being pro-consumer in regards to FCC regulation, pushing for Net Neutrality as far as his authority will allow him to. This isn't a blanket "Do you hear the people sing?!" but it's a fairly safe bet that the results of this investigation will be that the organization should do what it can to push the cause forward.

That's where the "can" comes in, though. Not only is the FCC's authority not clear on the subject of cell phone unlocking, it's really not clear in general. Over the last decade, roughly everyone has been upset that the Commission has overstepped its bounds. And I mean everyone. Comcast, the EFF, the EFF and Verizon at the same time, and even Congress. Part of the issue is that the organization was founded in 1934 to divvy up spectrum for radio transmissions and manage interstate telephone lines. No one could've foreseen how much wireless communications would've taken over.

The one thing we can count on is that if there's any legal ground to even attempt to stand on, Genachowski will try it. Whether it will be effective is a whole different story. Carriers and ISPs are rarely pleased when the FCC says what they do and don't have to allow on or over their networks. Attempting to override the DMCA without Congressional approval, especially in light of the recent ruling from the Library of Congress, will likely cause a severe backlash.

Still, the more important thing is that the FCC is taking notice. Technically the Commission is under the Executive branch of government (though somewhat independent), so its powers are limited in many of the same ways the President's are. The advantage, though, is that while the President has other things to do—like deal with a broken budget, a divided Congress, chaos in the Middle East, the ethics of drone strikes and that rapidly gray-ing hair—the FCC's main job is dealing with tech issues. It has all the time in the world to lobby for this change.

Source: TechCrunch